UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION 2 AIR PROGRAMS BRANCH

Technical Support Document 

for 

EPA’s Proposed Rulemaking

for the

New York State Implementation Plan Revision:

State Implementation Plan Revision 

For Meeting the Infrastructure Requirements

In the Clean Air Act

Dated December 2007, October 2008 and March 2010

2013
2

Table of Contents

I. What is the Background for this Action?

II. What is a Section 110(a)(1) and (2) SIP?

III. Scope of Infrastructure SIPs

IV. What did New York Submit?

V. What are the required elements under Section 110(a)(1) and (2)?

VI. How do the New York Infrastructure Submittals Meet the Requirements under Section 

110(a)(1) and (2) for the 1997 8-hour ozone NAAQs, the 1997 and 2006 PM2.5 

NAAQS?

A. Emission limits and other control measures –Section 110(a)(2)(A)

B. Ambient air quality monitoring, compilation, data analysis, and reporting – Section 

110(a)(2)(B)

C. Enforcement and stationary source permitting – Section 110(a)(2)(C)

D. Interstate transport – Section 110(a)(2)(D)

E. Adequate resources - Section 110(a)(2)(E): 

F. Stationary source emissions monitoring and reporting –Section 110(a)(2)(F)

G. Emergency powers and contingency plans –Section 110(a)(2)(G)

H. Future SIP revisions - Section 110(a)(2)(H): 

I. State Implementation Plan revisions for new nonattainment areas – Section 110(a)(2)(I)

J. Consultation and public notification – Section 110(a)(2)(J)

K. Air quality modeling and reporting – Section 110(a)(2)(K)

L. Major stationary source permitting fees –Section 110(a)(2)(L)

M. Consultation with local entities – Section 110(a)(2)(M)
3

CAA

Section 

110(a)(2)

1997 8-hour Ozone 

Standard

1997 PM2.5 annual 

Standard

2006 PM2.5 24-hr 

Standard

A approve approve approve

B approve approve approve

C –Regs approve approve approve

PSD approve approve approve

NSR approve approve approve

D i(I) P1 NA NA NA

P2 NA NA NA

D i (II) P3 approve approve approve

P4 RH approve RH approve RH approve

D ii approve approve approve

E i approve approve approve

E ii Cond approve/approve Cond approve/approve Cond approve/approve

E iii Cond approve/ approve Cond approve/approve Cond approve/ approve

F approve approve approve

G approve approve Approve 

H approve approve approve

I NA NA NA

J - 1 approve approve approve

J - 2 approve approve approve

J - 3 approve approve approve

K approve approve approve

L approve approve approve

M approve approve approve
4

I. What is the Background for this Action?

On July 18, 1997, EPA promulgated a revised national ambient air quality standard (NAAQS or 

standards) for ozone (62 FR 38856) and new NAAQS for fine particle matter (PM2.5)(62 FR 

38652). The revised ozone NAAQS was based on 8-hour average concentrations. The 8-hour 

averaging period replaced the previous 1-hour averaging period, and the level of the NAAQS 

was changed from 0.12 parts per million (ppm) to 0.08 ppm. The new PM2.5 NAAQS was 

established on health-based annual standards for PM2.5 of 15.0 micrograms per cubic meter 

(μg/m3) based on a 3-year average of annual mean PM2.5 concentrations and a 24-hour standard 

of 65 μg/m3based on a 3-year average of the 98th percentile of 24-hour concentrations. 

The Clean Air Act (CAA) requires State Implementation Plans (SIPs) meeting the requirements 

of sections 110(a)(1) and (2) be submitted by states within 3 years after promulgation of a new or 

revised standard. Sections 110(a)(1) and (2) require states to address basic SIP requirements, 

including emissions inventories, monitoring, and modeling to assure attainment and maintenance 

of the standards. States were required to submit such SIPs for the 1997 standards to EPA no 

later than June 2000. However, intervening litigation over the 1997 8-hour ozone standards 

created uncertainty about how to proceed and certain states did not provide the required 

"infrastructure" SIP submission for this newly promulgated standard.

Section 110(a) imposes the obligation upon states to make a SIP submission to EPA for a new or 

revised NAAQS, but the contents of that submission may vary depending upon the facts and 

circumstances. In particular, the data and analytical tools available at the time the state develops 

and submits the SIP for a new or revised NAAQS affects the content of the submission. The 

contents of such SIP submissions may also vary depending upon what provisions the state's 

existing SIP already contains. In the case of the 1997 8-hour ozone NAAQS, states typically 

have met the basic program elements required in section 110(a)(2) through earlier SIP 

submissions in connection with previous ozone standards. 

On October 17, 2006 (71 FR 61144), effective December 18, 2006, EPA revised the 24-hour 

average PM2.5 primary and secondary NAAQS from 65 μg/m3to 35 μg/m3. As required by 

section 110(a)(1) of the CAA, the 110(a)(2) submittals were due within three years after 

promulgation of the revised standard.

II. What is a Section 110(a)(1) and (2) SIP?

Sections 110(a)(1) and (2) of the CAA require, in part, that states submit to EPA plans to

implement, maintain and enforce each of the NAAQS promulgated by EPA. Sections 110(a)(1) 

and (2) require states to address basic SIP requirements including emission inventories,

monitoring, and modeling to assure attainment and maintenance of the standards. By statute,

SIPs meeting the requirements of sections 110(a)(1) and (2) are to be submitted by states within

three years after promulgation of a new or revised standard. These SIPs are commonly called

infrastructure SIPs. 
5

EPA issued a guidance document regarding infrastructure SIPs on October 2, 2007, entitled,

"Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-hour

Ozone and PM2.5 National Ambient Air Quality Standards." EPA also issued a September 25, 

2009 guidance memo entitled "Guidance on SIP Elements Required Under Sections 110(a)(1) 

and (2) for the 2006 24 Hour Fine Particle NAAQS", which clarified in further detail, certain 

elements to meet the requirements of sections 110(a)(1) and (2) of the CAA for both the 1997 

and 2006 PM2.5 NAAQS. Specifically, EPA provided additional guidance for satisfying the 

section 110(a)(2)(D) requirements for the 2006 PM2.5 NAAQS, as well as guidance for 

satisfying the section 110(a)(2)(G) requirements for both the 1997 and 2006 PM2.5 NAAQS 

Both guidance documents noted that to the extent an existing SIP already meets the section 

110(a)(1) and (2) requirements, states need only to certify that fact to EPA. 

On March 4, 2004, Earth Justice submitted a notice of intent to sue related to EPA's failure to

take action, i.e., issue finding of failure to submit, against states that had failed to make SIP 

submissions related to CAA sections 110(a)(1) and (2), the "infrastructure" requirements.

On March 10, 2005, the EPA entered into a Consent Decree with Earth Justice that obligated the 

EPA to make official findings whether states had made required implementation plan 

submissions by dates certain. The Consent Decree obligated the EPA to determine whether states 

have made SIP submissions required to meet section 110(a)(1) and (2) related to interstate 

transport by no later than March 15, 2005. The Consent Decree also obligates the EPA to make a 

determination whether states have made submissions necessary to meet the remaining 

requirements under section 110(a)(1) and (2) by December 15, 2007, for the 8-Hour Ozone 

NAAQS, and by October 5, 2008, for the Fine Particulate Matter NAAQS. It should be noted 

that the latter determinations pertain only to whether the submissions are complete, pursuant to 

section 110(k)(1)(A), and do not constitute EPA approval or disapproval of such submissions. In 

addition, the determinations required by the Consent Decree explicitly exclude any

determinations regarding: (i) submissions required by section 110(a)(2)(C) to the extent that 

subsection pertains to a nonattainment area new source review permit program in Part D Title I

of the CAA; and (ii) submissions required by section 110(a)(2)(I) for Part D Title I

nonattainment plans. 

EPA entered into a Consent Decree with Earth Justice which required EPA, among other things, 

to make a determination whether states have made the SIP submissions necessary for EPA to 

determine whether each state has made complete submissions, pursuant to 110(k)(1)(A) to meet

the requirements of section 110(a)(2) for the 1997 8-hour ozone NAAQS by December 15, 2007.

Subsequently, EPA received an extension of the date to complete this Federal Register notice

until March 17, 2008, based upon an agreement to make the findings with respect to submissions 

made by January 7, 2008. In accordance with the consent decree, EPA made completeness

findings for each state based upon what the Agency received from each state as of January 7, 

2008. 

On March 27, 2008, EPA published a final rulemaking entitled, "Completeness Findings for

Section 110(a) State Implementation Plans; 8-hour Ozone NAAQS," making a finding that each
6

state had submitted, or failed to submit, a complete SIP that provided the basic program elements 

of section 110(a)(2) necessary to implement the 1997 8-hour ozone NAAQS. (See 73 FR 16205.)

On October 22, 2008, EPA published a final rulemaking entitled, "Completeness Findings for 

Section 110(a) State Implementation Plans Pertaining to the Fine Particulate Matter (PM2.5) 

NAAQS," making a finding that each state had submitted, or failed to submit, a complete SIP 

that provided the basic program elements of section 110(a)(2) necessary to implement the 1997 

PM2.5 NAAQS. (See 73 FR 62902.) For those states that did receive findings, the findings of 

failure to submit for all or a portion of a state's SIP established a 24-month deadline for EPA to 

promulgate a Federal Implementation Plan (FIP) to address the outstanding SIP elements unless, 

prior to that time, the affected states submit, and EPA approves, the required SIPs. However, the 

findings of failure to submit did not impose sanctions or set deadlines for imposing sanctions as 

described in section 179 of the CAA, because these findings do not pertain to the elements

contained in the Title I part D plan for nonattainment areas as required under section 

110(a)(2)(I). Additionally, the findings of failure to submit for the infrastructure submittals is 

not a SIP call pursuant to section 110(k)(5). The findings that all or portions of a state's 

submission are complete establish a 12-month deadline for EPA to take action upon the complete 

SIP elements in accordance with section 110(k). 

This action does not address the requirements of 110(a) (2)(D)(i)(I)requirements for the 1997 

ozone, 1997 PM2.5 NAAQS and 2006 PM2.5 NAAQS. Those requirements have been 

addressed by separate actions issued by EPA: See April 25, 2005 Federal Register (70 FR 21147) 

for EPA’s Finding of Failure to Submit Section 110 State Implementation Plans for Interstate 

Transport for the National Ambient Air Quality Standards for 8-Hour ozone and PM2.5. See 

January 24, 2008 Federal Register(73 FR 4109)for EPA’s approval of New York’s Clean Air 

Interstate Rule. See July 20, 2011 Federal Register (76 FR 43153) for EPA’s disapproval of the 

New York Interstate Transport Plan Revision for the 2006 24-Hour PM2.5 NAAQS. On July 6, 

2011, the EPA Administrator signed the Cross-State Air Pollution Rule (CSAPR) to address 

110(a)(2)(D)(i)(I) for these NAAQS. See CSAPR website at

http://www.epa.gov/airquality/transport/index.html. 

The U.S. Circuit Court of Appeals for the District of Columbia stayed CSAPR on December 30, 

2011, temporarily suspending implementation of the rule, and will leave the Clean Air Interstate 

Rule in place while the Court considers the merits of the challenges to the Cross-State Rule. 

III. Scope of Infrastructure SIPs

EPA is currently acting upon SIPs that address the infrastructure requirements of CAA section 

110(a)(1) and (2) for ozone and PM2.5 NAAQS for various states across the country. 

Commenters on EPA’s recent proposals for some states raised concerns about EPA statements 

that it was not addressing certain substantive issues in the context of acting on those 

infrastructure SIP submissions.1 Those Commenters specifically raised concerns involving 

 

1

See Comments of Midwest Environmental Defense Center, dated May 31, 2011. Docket # EPA-R05-OAR-2007-1179 

(adverse comments on proposals for three states in Region 5). EPA notes that these public comments on another proposal are not 
7

provisions in existing SIPs and with EPA’s statements in other proposals that it would address 

two issues separately and not as part of actions on the infrastructure SIP submissions: (i) 

existing provisions related to excess emissions during periods of start-up, shutdown, or 

malfunction at sources, that may be contrary to the CAA and EPA’s policies addressing such 

excess emissions (“SSM”); and (ii) existing provisions related to “director’s variance” or 

“director’s discretion” that purport to permit revisions to SIP approved emissions limits with 

limited public process or without requiring further approval by EPA, that may be contrary to the 

CAA (“director’s discretion”). EPA notes that there are two other substantive issues for which 

EPA likewise stated in other proposals that it would address the issues separately: (i) existing 

provisions for minor source new source review programs that may be inconsistent with the 

requirements of the CAA and EPA’s regulations that pertain to such programs (“minor source 

NSR[New Source Review]”); and (ii) existing provisions for PSD programs that may be 

inconsistent with current requirements of EPA’s “Final NSR Improvement Rule,” 67 FR 80186 

(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (“NSR Reform”). In light of 

the comments, EPA believes that its statements in various proposed actions on infrastructure 

SIPs with respect to these four individual issues should be explained in greater depth. It is 

important to emphasize that EPA is taking the same position with respect to these four 

substantive issues in this action on the infrastructure SIPs for the 1997 8-hour ozone NAAQS 

from New Jersey.

EPA intended the statements in the other proposals concerning these four issues merely to be 

informational, and to provide general notice of the potential existence of provisions within the 

existing SIPs of some states that might require future corrective action. EPA did not want states, 

regulated entities, or members of the public to be under the misconception that the Agency’s 

approval of the infrastructure SIP submission of a given state should be interpreted as a reapproval of certain types of provisions that might exist buried in the larger existing SIP for such 

state. Thus, for example, EPA explicitly noted that the Agency believes that some states may

have existing SIP approved SSM provisions that are contrary to the CAA and EPA policy, but 

that “in this rulemaking, EPA is not proposing to approve or disapprove any existing state 

provisions with regard to excess emissions during SSM of operations at facilities.” EPA further 

explained, for informational purposes, that “EPA plans to address such State regulations in the 

future.” EPA made similar statements, for similar reasons, with respect to the director’s 

discretion, minor source NSR, and NSR Reform issues. EPA’s objective was to make clear that 

approval of an infrastructure SIP for these ozone and PM2.5 NAAQS should not be construed as 

explicit or implicit re-approval of any existing provisions that relate to these four substantive 

issues. EPA is reiterating that position in this action on the infrastructure SIP for New Jersey.

Unfortunately, the Commenters and others evidently interpreted these statements to mean that 

EPA considered action upon the SSM provisions and the other three substantive issues to be 

integral parts of acting on an infrastructure SIP submission, and therefore that EPA was merely

postponing taking final action on the issues in the context of the infrastructure SIPs. This was 

not EPA’s intention. To the contrary, EPA only meant to convey its awareness of the potential 

 

relevant to this rulemaking and do not have to be directly addressed in this rulemaking. EPA will respond to these comments in 

the appropriate rulemaking action to which they apply. 
8

for certain types of deficiencies in existing SIPs, and to prevent any misunderstanding that it was 

reapproving any such existing provisions. EPA’s intention was to convey its position that the 

statute does not require that infrastructure SIPs address these specific substantive issues in 

existing SIPs and that these issues may be dealt with separately, outside the context of acting on 

the infrastructure SIP submission of a state. To be clear, EPA did not mean to imply that it was 

not taking a full final agency action on the infrastructure SIP submission with respect to any

substantive issue that EPA considers to be a required part of acting on such submissions under 

section 110(k) or under section 110(c). Given the confusion evidently resulting from EPA’s 

statements in those other proposals, however, we want to explain more fully the Agency’s 

reasons for concluding that these four potential substantive issues in existing SIPs may be 

addressed separately from actions on infrastructure SIP submissions.

The requirement for the SIP submissions at issue arises out of CAA section 110(a)(1). That 

provision requires that states must make a SIP submission “within 3 years (or such shorter period 

as the Administrator may prescribe) after the promulgation of a national primary ambient air 

quality standard (or any revision thereof)” and that these SIPs are to provide for the 

“implementation, maintenance, and enforcement” of such NAAQS. Section 110(a)(2) includes a 

list of specific elements that “[e]ach such plan” submission must meet. EPA has historically

referred to these particular submissions that states must make after the promulgation of a new or 

revised NAAQS as “infrastructure SIPs.” This specific term does not appear in the statute, but 

EPA uses the term to distinguish this particular type of SIP submission designed to address basic 

structural requirements of a SIP from other types of SIP submissions designed to address other 

different requirements, such as “nonattainment SIP” submissions required to address the 

nonattainment planning requirements of part D, “regional haze SIP” submissions required to 

address the visibility protection requirements of CAA section 169A, new source review 

permitting program submissions required to address the requirements of part D, and a host of 

other specific types of SIP submissions that address other specific matters.

Although section 110(a)(1) addresses the timing and general requirements for these 

infrastructure SIPs, and section 110(a)(2) provides more details concerning the required contents 

of these infrastructure SIPs, EPA believes that many of the specific statutory provisions are 

facially ambiguous. In particular, the list of required elements provided in section 110(a)(2) 

contains a wide variety of disparate provisions, some of which pertain to required legal authority, 

some of which pertain to required substantive provisions, and some of which pertain to 

requirements for both authority and substantive provisions.2Some of the elements of section 

110(a)(2) are relatively straightforward, but others clearly require interpretation by EPA through 

rulemaking, or recommendations through guidance, in order to give specific meaning for a 

particular NAAQS.3

 

2

 For example, section 110(a)(2)(E) provides that states must provide assurances that they have adequate legal authority under 

state and local law to carry out the SIP; section 110(a)(2)(C) provides that states must have a substantive program to address 

certain sources as required by part C of the CAA; section 110(a)(2)(G) provides that states must have both legal authority to 

address emergencies and substantive contingency plans in the event of such an emergency.

3 For example, section 110(a)(2)(D)(i) requires EPA to be sure that each state’s SIP contains adequate provisions to prevent 

significant contribution to nonattainment of the NAAQS in other states. This provision contains numerous terms that require 

substantial rulemaking by EPA in order to determine such basic points as what constitutes significant contribution. See “Rule To 
9

Notwithstanding that section 110(a)(2) provides that “each” SIP submission must meet the list 

of requirements therein, EPA has long noted that this literal reading of the statute is internally

inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment SIP requirements that 

could not be met on the schedule provided for these SIP submissions in section 110(a)(1).4 This 

illustrates that EPA must determine which provisions of section 110(a)(2) may be applicable for 

a given infrastructure SIP submission. Similarly, EPA has previously decided that it could take 

action on different parts of the larger, general “infrastructure SIP” for a given NAAQS without 

concurrent action on all subsections, such as section 110(a)(2)(D)(i), because the Agency

bifurcated the action on these latter “interstate transport” provisions within section 110(a)(2) and 

worked with states to address each of the four prongs of section 110(a)(2)(D)(i) with substantive 

administrative actions proceeding on different tracks with different schedules.5 This illustrates 

that EPA may conclude that subdividing the applicable requirements of section 110(a)(2) into 

separate SIP actions may sometimes be appropriate for a given NAAQS where a specific 

substantive action is necessitated, beyond a mere submission addressing basic structural aspects 

of the state’s implementation plans. Finally, EPA notes that not every element of section 

110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised 

NAAQS and the attendant infrastructure SIP submission for that NAAQS. For example, the 

monitoring requirements that might be necessary for purposes of section 110(a)(2)(B) for one 

NAAQS could be very different than what might be necessary for a different pollutant. Thus, the 

content of an infrastructure SIP submission to meet this element from a state might be very

different for an entirely new NAAQS, versus a minor revision to an existing NAAQS.6

Similarly, EPA notes that other types of SIP submissions required under the statute also must 

meet the requirements of section 110(a)(2), and this also demonstrates the need to identify the 

applicable elements for other SIP submissions. For example, nonattainment SIPs required by

part D likewise have to meet the relevant subsections of section 110(a)(2) such as section 

110(a)(2)(A) or (E). By contrast, it is clear that nonattainment SIPs would not need to meet the 

portion of section 110(a)(2)(C) that pertains to part C, i.e., the PSD requirements applicable in 

attainment areas. Nonattainment SIPs required by part D also would not need to address the 

requirements of section 110(a)(2)(G) with respect to emergency episodes, as such requirements 

would not be limited to nonattainment areas. As this example illustrates, each type of SIP 

submission may implicate some subsections of section 110(a)(2) and not others. 

 

Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program;

Revisions to the NOx SIP Call; Final Rule,” 70 FR 25162 (May 12, 2005) ( defining, among other things, the phrase “contribute 

significantly to nonattainment”).

 

4

 See Id., 70 FR 25162, at 63 – 65 (May 12, 2005) (explaining relationship between timing requirement of section 110(a)(2)(D) 

versus section 110(a)(2)(I)).

5

 EPA issued separate guidance to states with respect to SIP submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and 

1997 PM2.5 NAAQS. See “Guidance for State Implementation Plan (SIP) Submissions to Meet Current Outstanding Obligations 

Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5 National Ambient Air Quality Standards,” from William T. 

Harnett, Director Air Quality Policy Division OAQPS, to Regional Air Division Director, Regions I-X, dated August 15, 2006.

6 For example, implementation of the 1997 PM2.5 NAAQS required the deployment of a system of new monitors to measure 

ambient levels of that new indicator species for the new NAAQS.
10

Given the potential for ambiguity of the statutory language of section 110(a)(1) and (2), EPA 

believes that it is appropriate for EPA to interpret that language in the context of acting on the 

infrastructure SIPs for a given NAAQS. Because of the inherent ambiguity of the list of 

requirements in section 110(a)(2), EPA has adopted an approach in which it reviews 

infrastructure SIPs against this list of elements “as applicable.” In other words, EPA assumes 

that Congress could not have intended that each and every SIP submission, regardless of the 

purpose of the submission or the NAAQS in question, would meet each of the requirements, or 

meet each of them in the same way. EPA elected to use guidance to make recommendations for 

infrastructure SIPs for these ozone and PM2.5 NAAQS.

On October 2, 2007, EPA issued guidance making recommendations for the infrastructure SIP 

submissions for both the 1997 8-hour ozone NAAQS and the 1997 PM2.5 NAAQS.7 Within this 

guidance document, EPA described the duty of states to make these submissions to meet what 

the Agency characterized as the “infrastructure” elements for SIPs, which it further described as 

the “basic SIP requirements, including emissions inventories, monitoring, and modeling to assure 

attainment and maintenance of the standards.”8 As further identification of these basic structural 

SIP requirements, “attachment A” to the guidance document included a short description of the 

various elements of section 110(a)(2) and additional information about the types of issues that 

EPA considered germane in the context of such infrastructure SIPs. EPA emphasized that the 

description of the basic requirements listed on attachment A was not intended “to constitute an 

interpretation of” the requirements, and was merely a “brief description of the required 

elements.”9 EPA also stated its belief that with one exception, these requirements were 

“relatively self explanatory, and past experience with SIPs for other NAAQS should enable 

States to meet these requirements with assistance from EPA Regions.”10 However, for the one

exception to that general assumption (i.e., how states should proceed with respect to the 

requirements of section 110(a)(2)(G) for the 1997 PM2.5 NAAQS), EPA gave much more 

specific recommendations. But for other infrastructure SIP submittals, and for certain elements 

of the submittals for the 1997 PM2.5 NAAQS, EPA assumed that each State would work with its 

corresponding EPA regional office to refine the scope of a State’s submittal based on an 

assessment of how the requirements of section 110(a)(2) should reasonably apply to the basic 

structure of the State’s implementation plans for the NAAQS in question.

On September 25, 2009, EPA issued guidance to make recommendations to states with respect to 

the infrastructure SIPs for the 2006 PM2.5 NAAQS.11 In the 2009 Guidance, EPA addressed a 

 

7 See “Guidance on SIP Elements Required Under Section 110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 National 

Ambient Air Quality Standards,” from William T. Harnett, Director Air Quality Policy Division, to Air Division Directors, 

Regions I – X, dated October 2, 2007 (the “2007 Guidance”). 

8

Id., at page 2.

9

 Id., at attachment A, page 1.

10 Id., at page 4. In retrospect, the concerns raised by commenters with respect to EPA’s approach to some substantive issues 

indicates that the statute is not so “self explanatory,” and indeed is sufficiently ambiguous that EPA needs to interpret it in order 

to explain why these substantive issues do not need to be addressed in the context of infrastructure SIPs and may be addressed at 

other times and by other means. 

11

 See “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM2.5) 

National Ambient Air Quality Standards (NAAQS),” from William T, Harnett, Director Air Quality Policy Division, to Regional 

Air Division Directors, Regions I - X, dated September 25, 2009 (the “2009 Guidance”).
11

number of additional issues that were not germane to the infrastructure SIPs for the 1997 8-hour 

ozone and 1997 PM2.5 NAAQS, but were germane to these SIP submissions for the 2006 PM2.5

NAAQS (e.g., the requirements of section 110(a)(2)(D)(i) that EPA had bifurcated from the 

other infrastructure elements for those specific 1997 ozone and PM2.5 NAAQS). Significantly, 

neither the 2007 Guidance nor the 2009 Guidance explicitly referred to the SSM, director’s 

discretion, minor source NSR, or NSR Reform issues as among specific substantive issues EPA 

expected states to address in the context of the infrastructure SIPs, nor did EPA give any more 

specific recommendations with respect to how states might address such issues even if they

elected to do so. The SSM and director’s discretion issues implicate section 110(a)(2)(A), and 

the minor source NSR and NSR Reform issues implicate section 110(a)(2)(C). In the 2007 

Guidance and the 2009 Guidance, however, EPA did not indicate to states that it intended to 

interpret these provisions as requiring a substantive submission to address these specific issues in 

existing SIP provisions in the context of the infrastructure SIPs for these NAAQS. Instead, 

EPA’s 2007 Guidance merely indicated its belief that the states should make submissions in 

which they established that they have the basic SIP structure necessary to implement, maintain, 

and enforce the NAAQS. EPA believes that states can establish that they have the basic SIP 

structure, notwithstanding that there may be potential deficiencies within the existing SIP. Thus, 

EPA’s proposals for other states mentioned these issues not because the Agency considers them 

issues that must be addressed in the context of an infrastructure SIP as required by section 

110(a)(1) and (2), but rather because EPA wanted to be clear that it considers these potential 

existing SIP problems as separate from the pending infrastructure SIP actions. The same holds 

true for this action on the infrastructure SIPs for New Jersey.

EPA believes that this approach to the infrastructure SIP requirement is reasonable because it 

would not be feasible to read section 110(a)(1) and (2) to require a top to bottom, stem to stern, 

review of each and every provision of an existing SIP merely for purposes of assuring that the 

state in question has the basic structural elements for a functioning SIP for a new or revised 

NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory

requirements under the CAA have evolved, they may include some outmoded provisions and 

historical artifacts that, while not fully up to date, nevertheless may not pose a significant 

problem for the purposes of “implementation, maintenance, and enforcement” of a new or 

revised NAAQS when EPA considers the overall effectiveness of the SIP. To the contrary, EPA 

believes that a better approach is for EPA to determine which specific SIP elements from section 

110(a)(2) are applicable to an infrastructure SIP for a given NAAQS, and to focus attention on 

those elements that are most likely to need a specific SIP revision in light of the new or revised 

NAAQS. Thus, for example, EPA’s 2007 Guidance specifically directed states to focus on the 

requirements of section 110(a)(2)(G) for the 1997 PM2.5 NAAQS because of the absence of 

underlying EPA regulations for emergency episodes for this NAAQS and an anticipated absence 

of relevant provisions in existing SIPs.

Finally, EPA believes that its approach is a reasonable reading of section 110(a)(1) and (2) 

because the statute provides other avenues and mechanisms to address specific substantive 

deficiencies in existing SIPs. These other statutory tools allow the Agency to take appropriate 

 
12

tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 

110(k)(5) authorizes EPA to issue a “SIP call” whenever the Agency determines that a state’s 

SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, 

or otherwise to comply with the CAA.12 Section 110(k)(6) authorizes EPA to correct errors in 

past actions, such as past approvals of SIP submissions.13 Significantly, EPA’s determination 

that an action on the infrastructure SIP is not the appropriate time and place to address all 

potential existing SIP problems does not preclude the Agency’s subsequent reliance on 

provisions in section 110(a)(2) as part of the basis for action at a later time. For example, 

although it may not be appropriate to require a state to eliminate all existing inappropriate 

director’s discretion provisions in the course of acting on the infrastructure SIP, EPA believes 

that section 110(a)(2)(A) may be among the statutory bases that the Agency cites in the course of 

addressing the issue in a subsequent action.14 

IV. What did New York Submit?

EPA is acting on three New York SIP submittals, dated December 13, 2007, October 2, 2008 and 

March 15, 2010, which address the section 110 infrastructure requirements for the three 

NAAQS: the 1997 8-hour ozone NAAQS, the 1997 annual and 24-hour PM 2.5 NAAQS, and the 

2006 24-hour PM 2.5 NAAQS.

December 13, 2007 SIP submission

New York’s Section 110 infrastructure submittal was submitted by the New York State 

Department of Environmental Conservation (NYSDEC) on December 13, 2007 and addressed 

the 1997 ozone NAAQS. Effective April 28, 2008, the submittal was determined to be complete 

for all elements except 110(a)(2)(C). 73 FR 16205 (March 27, 2008). New York’s December 

2007 Section 110 submittal demonstrates how the State, where applicable, has a plan in place 

that meets the requirements of Section 110 for the 1997 8-hour ozone NAAQS. This plan 

references the current New York Air Quality SIP, the New York Codes of Rules and Regulations 

(NYCRR), the New York Environmental Conservation Law (ECL) and the New York Public 

Officer’s Law (POL). The NYCRR, ECL and POL referenced in the submittal are publicly

available. New York’s air pollution control regulations that have been previously approved by 

 

12

 EPA has recently issued a SIP call to rectify a specific SIP deficiency related to the SSM issue. See, “Finding of Substantial 

Inadequacy of Implementation Plan; Call for Utah State Implementation Plan Revision,” 74 FR 21639 (April 18, 2011).

13 EPA has recently utilized this authority to correct errors in past actions on SIP submissions related to PSD programs. See

“Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in 

State Implementation Plans; Final Rule,” 75 FR 82536 (December 30, 2010). EPA has previously used its authority under CAA 

110(k)(6) to remove numerous other SIP provisions that the Agency determined it had approved in error. See 61 FR 38664 (July 

25, 1996) and 62 FR 34641 (June 27, 1997) (corrections to American Samoa, Arizona, California, Hawaii, and Nevada SIPs); 69 

FR 67062 (November 16, 2004) (corrections to California SIP); and 74 FR 57051 (November 3, 2009) (corrections to Arizona 

and Nevada SIPs).

14 EPA has recently disapproved a SIP submission from Colorado on the grounds that it would have included a director’s 

discretion provision inconsistent with CAA requirements, including section 110(a)(2)(A). See 75 FR 42342, 42344 (July 21, 

2010) (proposed disapproval of director’s discretion provisions); 76 FR 4540 (January 26, 2011) (final disapproval of such 

provisions). 
13

EPA and incorporated into the New York SIP can be found at 40 CFR 52.1679 and are posted on 

the Internet at: http://www.epa.gov/region02/air/sip/ny_reg.htm.

October 2, 2008 SIP submission

New York’s section 110 infrastructure submittal for the 1997 PM2.5 NAAQS was submitted by

the NYSDEC on October 2, 2008, and the submittal was deemed complete April 2, 2009.

March 15, 2010 SIP submission

New York’s section 110 infrastructure submittal for the 2006 PM2.5 24-hour NAAQS was 

submitted by the NYSDEC on March 15, 2010, and the submittal was deemed complete 

September 15, 2010.

V. What are the required elements under Section 110(a)(1) and (2)?

Section 110(a)(1) provides the procedural and timing requirements for SIPs. Section 110(a)(2)

lists specific elements that states must meet for "infrastructure" SIP requirements related to a

newly established or revised NAAQS. These requirements include SIP infrastructure elements

such as modeling, monitoring, and emissions inventories that are designed to assure attainment

and maintenance of the NAAQS. The requirements that are the subject of this action are listed

below, with their corresponding CAA subsection, and in EPA's October 2, 2007, memorandum

entitled "Guidance on SIP Elements Required Under Section 110(a)(1) and (2) for the 1997 8-

Hour Ozone and PM2.5 National Ambient Air Quality Standards." Some of these requirements 

are not part of the infrastructure SIP, but due as part of the states nonattainment SIP, but are 

listed below for completeness.

110(a)(2)(A) : Emission limits and other control measures.

110(a)(2)(B) : Ambient air quality monitoring/data system.

110(a)(2)(C) : Program for enforcement of control measures.

110(a)(2)(D) : Interstate transport.

110(a)(2)(E) : Adequate resources.

110(a)(2)(F) : Stationary source monitoring and reporting.

110(a)(2)(G) : Emergency power.

110(a)(2)(H) : Future SIP revisions. 

110(a)(2)(I) : Nonattainment area plan and plan revisions under part D

110(a)(2)(J) : Consultation with Government officials, public notification, PSD and visibility 

protection.

110(a)(2)(K) : Air quality modeling/data.

110(a)(2)(l) : Permitting Fees.

110(a)(2)(M) : Consultation/participation by affected local entities.
14

VI. How do the New York Infrastructure Submittals Meet the Requirements under Section 

110(a)(1) and (2) for the 1997 8-hour ozone NAAQS, the 1997 and 2006 PM2.5 NAAQS?

New York’s three section 110 submittals demonstrate how the State, where applicable, has a plan 

in place that meets the requirements of section 110 for the 1997 8-hour ozone NAAQS. This 

plan references the current New York Air Quality SIP, the New York Codes of Rules and 

Regulations (NYCRR), the New York Environmental Conservation Law (ECL) and the New 

York Public Officer’s Law (POL) and shows how the provisions of these laws and regulations 

meet the appropriate section 110 requirements as outlined in EPA's October 2, 2007 guidance. 

The NYSDEC submittals are certification documents which certify compliance with section 

110(a)(1) and (2) through its infrastructure SIP submittals and focuses on the sections that EPA 

made findings for in October 2008.

Unless specifically identified in a particular section, EPA’s evaluation will apply to ozone and

both the annual and 24 hour PM2.5 NAAQSs.

The specific sections of 110 are listed below, followed by a summary of how the NYSDEC

submissions meet these requirements and EPA’s evaluation of the New York submittals. The 

reader is referred to the NYSDEC submissions and the New York Statutes annotated and New 

York’s Administrative Code, for New York’s complete explanation of how New York satisfies 

the section 110 requirements.

The NYCRR, ECL and POL referenced in the submittal are publicly available. New York’s air 

pollution control regulations that have been previously approved by EPA and incorporated into 

the New York SIP can be found at 40 CFR 52.1670 and are posted on the Internet at: 

http://www.epa.gov/region02/air/sip/ny_reg.htm.

A. Emission limits and other control measures – Section 110(a)(2)(A) 

Section 110(a)(2)(A) requires SIPs to include enforceable emission limits and other control 

measures, means or techniques, schedules for compliance and other related matters. EPA notes 

that the specific nonattainment area plan requirements of section 110(a)(2)(I) are subject to the 

timing requirement of section 172, not the timing requirement of section 110(a)(1), and also that 

SIPs to meet this section are not covered by the Consent Decree.

State Submittal:

New York’s ECL section 19-0301, provides the NYSDEC with power to formulate, adopt and 

promulgate, amend and repeal codes and rules and regulations for preventing, controlling and 

prohibiting air pollution in such areas of the State as shall or may be affected by air pollution. 

New York indicates the actual emission limits required as part of the 8-hour ozone SIP are not 

required to be part of the 110(a) Infrastructure SIP, but are to be found in the respective pollutant 

specific SIP revisions.
15

EPA Evaluation:

EPA has reviewed the authority provided by ECL section 19-0301 and is satisfied that this

provision provides NYSDEC with the ability to adopt and enforce regulations, control measures 

including emission limits and compliance schedules. While New York has not provided the 

actual control measures and emission limits as part of the Infrastructure SIP, it has provided the 

control measures and emission limits as part of its pollutant specific SIP revisions.

On July 23, 2010 (75 FR 43066), EPA conditionally approved New York’s statewide RACT and 

RACM SIP revision. EPA proposed to approve the last control measures New York committed 

to adopt as part of its RACT SIP on April 10, 2013 (78 FR 21302). All the control measures 

along with the emission limitations that New York identified as necessary for attaining the 8-

hour ozone standard have been adopted by the State, submitted as SIP revisions and approved as 

SIP revisions by EPA. The complete list of EPA approved New York rules can be found at 40 

CFR 52.1670.

On April 29, 2008, the Department submitted the attainment SIP for the 1997 annual PM2;5 

NAAQS. This SIP contains the strategies and measures that will be implemented in New York so 

that the 1997 annual NAAQS will be met by the 2010 deadline. In the PM2.5 SIP, a number of 

state programs and regulations were identified to be implemented that will provide the necessary

enforceable emission limitations and other control measures for PM2.5 in New York State. Other 

programs and regulations that address PM10 or PM generally are already in effect. Although not 

specific to PM2.5, these programs and regulations will reduce the ambient levels of PM2.5 by

reducing its emissions along with the emissions of PM10, PM and its precursors, resulting in the 

enforceable emission limits and other control measures necessary to address the 2006 PM2.5 

NAAQS

B. Ambient air quality monitoring, compilation, data analysis – Section 110 (a)(2)(B)

Section 110(a)(2)(B) requires SIPs to include provisions to provide for establishment and 

operation of ambient air quality monitors, collecting and analyzing ambient air quality data, and 

making these data available to EPA upon request. 

State Submittal:

New York, under its authority provided in ECL subsection 19-0305(2)(d), operates and maintains 

a network of ambient air quality monitors used to sample the degree of air pollution throughout 

the State and submits the data collected to EPA. New York has submitted annual air monitoring 

network plans which have been approved by EPA.

EPA Evaluation:

EPA has reviewed the authority provided by ECL subsection 19-0305(2)(d) and is satisfied that 

New York has adequate authority to conduct a monitoring program and report the results that 

fulfills the requirements of section 110(a)(2)(B) for both the 8-hr ozone and the PM2.5 NAAQS. 

New York’s latest Monitoring Plan was submitted on July 2, 2012 and EPA approved New York’s

monitoring plan for all pollutants including ozone and PM2.5 on October 18, 2012 and found no 

deficiencies. The State is monitoring ozone and PM2.5 at appropriate locations throughout the 
16

State using EPA approved federal reference methods or equivalent monitors. The Monitoring 

Plan included planned changes to the monitoring sites. New York has been submitting the air 

quality data to EPA’s Air Quality System (AQS) data base on a quarterly basis and makes this 

data, as well as various reports, available on its website http://www.dec.ny.gov/airmon/index.php 

on a real time basis. EPA has determined that New York has satisfied the section 110(a)(2)(B) 

requirements for both ozone and PM2.5 NAAQSs.

C. Enforcement and stationary source permitting - Section 110(a)(2)(C)

Section 110(a)(2)(C) requires states to include a program providing for enforcement of all SIP 

measures and the regulation of construction of new or modified stationary sources to meet 

Prevention of Significant Deterioration (PSD) and nonattainment New Source Review 

requirements.

State Submittal:

The NYSDEC is authorized by ECL section 19-0305, to enforce the codes, rules and regulations

of the NYCRR. The minor source permitting and enforcement programs operate under Title 6 

NYCRR Part 201, “Permits and Registrations”. EPA proposes to find that the State has adequate 

authority and regulations to insure that SIP approved control measures are enforced for the 1997 

8-hour ozone and the 1997 PM2.5 and 2006 PM2.5 NAAQS. 

On March 3, 2009, the State of New York, through the NYSDEC, submitted to EPA Region 2 

revisions to the New York SIP. The submittal consists of revisions to three regulations. The 

affected regulations are: 6 NYCRR Part 231, “New Source Review for New and Modified 

Facilities”; 6 NYCRR Part 200, “General Provisions”; and 6 NYCRR Part 201, “Permits and 

Certificates”. The purpose of these revisions were to revise the New York State PSD program 

regulations and to update the existing New York State nonattainment regulations consistent with 

changes to the Federal NSR regulations published on December 31, 2002 (67 FR 80186). On 

November 17, 2010 (75 FR 70140), EPA approved the New York PSD program. 

EPA Evaluation:

EPA believes that the State has adequate authority and regulations to ensure that, SIP-approved 

control measures are enforced. EPA also finds that based on the approval of New York’s PSD 

program, New York has the authority to regulate the construction of new or modified stationary

sources to meet the PSD program requirements. EPA has determined that New York has met the 

requirements of section 110(a)(2)(C) and (J) of the CAA with respect to the 1997 8-hour ozone 

and the 1997 and 2006 PM 2.5 NAAQS.

D. Interstate transport –Section 110(a)(2)(D)

- Section 110(a)(2)(D)(i)

Section 110(a)(2)(D)(i) requires SIPs to address four separate elements. Section 

110(a)(2)(D)(i)(I) provides that each state’s SIP must include provisions prohibiting any source 

or other type of emissions activity in one state from contributing significantly to (1) 
17

nonattainment, or (2) interfering with maintenance of the NAAQS in another state (referred to as 

prongs 1 and 2). Section 110(a)(2)(D)(i)(II) provides that each state’s SIP must include 

provisions prohibiting any source or other type of emissions activity in one state emitting any

pollutants in amounts which will interfere with measures required to (3) prevent significant 

deterioration of air quality or to (4) protect visibility in another state (referred to as prongs 3 and 

4). 

Prongs 1 and 2

This action does not act on the requirements of 110(a)(2)(D)(i)(I), prongs 1 and 2, for the 1997 

8-hour ozone NAAQS and the 1997 PM2.5 NAAQS, because they were addressed by previous 

EPA actions. See 72 FR 55666, October 1, 2007. For 2006 24-hour PM2.5, EPA disapproved 

New Jersey’s SIP for prongs 1 and 2 on July 20, 2011, 76 FR 43153. 

Prong 3

 

State submittal:

As discussed previously under (C) (Program for enforcement of control measures), on November 

17, 2010 (75 FR 70140), EPA approved the New York PSD program. 

EPA Analysis:

A state's infrastructure SIP submittal can be considered for approvability with respect to prong 3 

if EPA has issued final approval of that state's PSD SIP or, alternatively, has issued final approval 

of a SIP that EPA has otherwise found adequate to prohibit interference with other states' 

measures to prevent significant deterioration of air quality. Therefore, EPA has determined that 

New York's 110(a) submissions for prong 3 of 110(a)(2)(D)(i)(II) is approvable because New 

York has a federally approved PSD program. 

Prong 4

New York has met its obligations pursuant to section 110(a)(2)(D)(i)(II) for visibility protection 

for all three NAAQS through its Regional Haze SIP submittals, which were approved by EPA on 

August 28, 2012 (77 FR 51915). The regional haze rule specifically requires that a state 

participating in a regional planning process include all measures needed to achieve its 

apportionment of emission reduction obligations agreed upon through that process. Thus, New 

York’s approved Regional Haze SIP will ensure that emissions from sources within the State are 

not interfering with measures to protect visibility in other states. Therefore, EPA proposes to 

find for 8-hr ozone and PM2.5 NAAQS that New York satisfies the section 110(a)(2)(D)(i)(II) 

requirement for visibility.

- Section 110(a)(2)(D)(ii) Interstate and International transport provisions: 

Section 110(a)(2)(D)(ii) requires SIPs to include provisions insuring compliance with the 

applicable requirements of sections 126 and 115 (relating to interstate and international pollution 

abatement). Specifically, section 126(a) requires new or modified major sources to notify
18

neighboring states of potential impacts from the source.

State Submittal:

Regarding section 110(a)(2)(D)(ii), which relates to interstate and international pollution 

abatement, as noted above, on November 17, 2010 (75 FR 70140), EPA approved the New York 

PSD program which is consistent with 40 CFR 51.166(q)(2)(iv), and requires a source to notify

air agencies whose lands may be affected by emissions from that source (see 6 NYCRR sections 

231-7.4(f) and 8.5(f)). New York has no pending obligations under section 115 or 126(b) of the 

CAA.

EPA Analysis:

New York has no pending obligations under section 115 or 126(b) of the CAA. EPA has 

determined that New York’s submissions for infrastructure element 110(a)(2)(D)(ii) are 

approvable. 

E. Adequate resources - Section 110(a)(2)(E): 

Section 110(a)(2)(E) requires: (i) states to provide for adequate personnel, funding, and legal 

authority under state law to carry out its SIP. (ii) that the state comply with the requirements 

section 128 respecting state boards and conflict of interest, and (iii) necessary assurances that, 

where the state has relied on a local or regional government, agency, or instrumentality for the 

implementation of any plan provision, the state has responsibility for ensuring adequate 

implementation of such plan provision.”

State Submittal:

New York has adequate authority, under ECL sections 19-0301, 0303 and 0305, to carry out its 

SIP obligations with respect to the 1997 ozone and 1997 and 2006 PM2.5 NAAQS. New York 

receives sections 103 and 105 grant funds along with required State-matching funds to provide 

funding necessary to carry out its SIP requirements. 

EPA Evaluation:

EPA has determined that New York has sufficient resources to meet the requirements of section 

110(a)(2)(E)(i) for the 1997 8-hr ozone and 1997 and 2006 PM2.5 NAAQS.

Section 110(a)(2(e)(ii), requires compliance with section 128 which addresses requirements to 

insure that boards or persons approving permits or enforcement orders do not have any conflicts 

of interest. New York does not have a state board that approves permits or enforcement orders 

under the CAA. Instead, permits and enforcement orders are approved by the State's 

Commissioner of Environmental Conservation. Thus, the requirements of subsection 128(a)(1) 

are not applicable to New York. New York is subject to the requirements of section 128(a)(2). In 

its SIP submission New York cited POL sections 74(2) and 74(3)(e) which address conflict of 

interest. However, after further discussion with NYSDEC, it is more relevant to cite POL section 

73-a, “Financial disclosure” and 19 NYCRR 937, “Access To Publicly Available Records,” as 

satisfying the section 128(a)(2) requirement. 
19

EPA has determined that New York must submit POL section 73-a and 19 NYCRR 937 for 

approval as part of the SIP in order to fully satisfy the requirements of section 110(a)(2)(E)(ii) 

for 1997 8-hour ozone and PM2.5 NAAQS, provided the State submits 

 

Section 110(a)(2(e)(iii) requires states to have the necessary assurances in place with local or 

regional governments that may be delegated tasks associated with implementation of the SIP. 

The NYSDEC has delegation authority for inspection and enforcement efforts of various 

regulations under the general enforcement powers provided in ECL section 19-0305. 

While New York has the authority to delegate responsibilities to county or local governments to 

implement certain SIP responsibilities, the information provided in both infrastructure SIP 

submittals does not identify the specific organizations that will participate in developing, 

implementing, and enforcing the plan and the responsibilities of such organizations. EPA 

proposes to conditionally approve the infrastructure SIP with regard to the requirements of 

section 110(a)(2)(E)(iii). The State must identify the county or local governments or entities that 

participate in the SIP planning efforts, identify the county or local governments or entities that 

have been delegated responsibilities to implement or enforce portions of the SIP, and provide 

copies of the delegation orders or memoranda of understanding (MOUs) between the State and 

the county or local governments or entities. EPA has determined that New York must submit this 

information in order to fully satisfy the requirements of section 110(a)(2)(E)(iii) for the 1997 8-

hour ozone and 1997 and 2006 PM2.5 NAAQS. 

F. Stationary source emissions monitoring and reporting: Section 110(a)(2)(F)

Section 110(a)(2)(F) requires states to establish a system to: i) monitor emissions from stationary

sources, ii) have sources prepare periodic emission reports, and iii) report emissions.

State Submittal:

The NYSDEC has the authority pursuant to ECL subsection 19-0311(3)(c) to require emissions 

monitoring, recordkeeping and reporting of stationary sources before an operating permit is 

issued or renewed. NYSDEC has adopted regulations to implement the federal requirements for 

stationary source emissions monitoring, reporting and recordkeeping in 6 NYCRR Part 201-

6.4(b) and (c).

The NYSDEC adopted 6 NYCRR Part 202, “Emission Verification,” to require emissions reports 

from stationary sources. Further 6 NYCRR Part 616, Access to Records, specifically allows 

emission information to be made available to the public.

EPA Evaluation:

Based on the authority pursuant to ECL subsection 19-0311(3)(c) and the adoption of the Part 

202, specifically subpart 202-2, “Emission Statements,” EPA has determined that New York has 

met the requirements of section 110(a)(2)(F) for the 1997 8-hr ozone and 1997 and 2006 PM2.5 

NAAQS.
20

G. Emergency powers and contingency plans - Section 110 (a)(2)(G)

Section 110(a)(2)(G) requires states to provide for authority to address activities causing 

imminent and substantial endangerment to public health, including contingency plans to 

implement the emergency episode provisions in their SIPs. 

State Submittal:

New York has the authority to address section 110(a)(2))G) pursuant to ECL, Articles 3 and 19, 

which are implemented through 6 NYCRR Part 207, “Control Measures for Air Pollution 

Episodes.” Among other things, 6 NYCRR Part 207 requires persons who own a significant air 

contamination source to submit a proposed episode action plan to the NYSDEC Commissioner, 

and enable the Commissioner to designate air pollution episodes which trigger the action plans. 

Pursuant to Part 207.3(a), the NYSDEC Commissioner shall have on file and make available the 

criteria used in determining the need to designate episodes. The NYSDEC maintains an 

“Episode Action Plan” with guidelines and protocols/criteria to be followed in case of an air 

pollution emergency. The NYSDEC's Episode Action Plan has been updated to reflect the PM2.5 

Significant Harm Levels (SHLs) proposed by EPA on January 15, 2009 along with revised values 

for ozone episodes. 

EPA Evaluation:

For PM2.5, EPA's guidance dated September 25, 2009 provides clarification that states that have 

air quality control regions identified as either Priority I, Priority IA or Priority II by the 

“Prevention of Air Pollution Emergency Episodes” rules at 40 CFR 51.150 must develop 

emergency episode contingency plans. States are required to develop emergency episode plans 

for any area that has monitored and recorded 24-hour PM2.5 levels greater than 140.4 μg/m3 

since 2006. A state that has never exceeded this level since 2006 is considered to be Priority III. 

40 CFR 51.150(f). In accordance with the guidance, a Priority III area may certify that it has 

appropriate general emergency powers to address PM2.5-related episodes, and is not required to 

adopt specific emergency episode plans at this time, given the existing monitored levels.

Since 2006, air-quality monitors in New York show that PM2.5 levels have been below the 140.5 

μg/m3 threshold. Based on air quality data, New York should be classified as a Priority III 

region and, therefore, emergency episode plans for PM2.5 are not required. 

EPA has determined that New York has met the requirements of section 110(a)(2)(G) for the 

1997 8-hour ozone and the 1997 and 2006 PM2.5 standards.

H. Future SIP revisions - Section 110(a)(2)(H) 

Section 110(a)(2)(H) requires states to have the authority to revise their SIPs in response to 

changes in the NAAQS, availability of improved methods for attaining NAAQS, or in response 

to an EPA finding that the SIP is substantially inadequate. 

State Submittal:

Revisions to the New York SIP are authorized by Article 19 and sections 3-0301, 19-0103, 19-
21

0301, 19-0303 and 19-0305 of the ECL. Article 19 of the ECL was adopted to protect New 

York's air resources from pollution and to put into effect the policy of the State to maintain a 

reasonable degree of purity of the air resources, consistent with the public health and welfare and 

the industrial development of the State. NYSDEC is granted specific powers and duties, 

including the power to promulgate regulations for preventing, controlling, or prohibiting air 

pollution. NYSDEC also has the specific authority to regulate motor vehicle exhaust and 

approve air contaminant control systems as well as regulate fuels. Section 71-2103 provides 

general enforcement authority for the New York State air regulations. Section 71-2105 provides 

criminal enforcement authority.

EPA Evaluation:

New York has the authority to revise SIPs and provide for enforcement in response to changes in 

the NAAQS and improve methods for attaining the NAAQS. EPA has determined that the State 

has adequate authority to develop and implement plans and programs that fulfill the requirements 

of section 110(a)(2)(H) for the 1997 8-hr ozone and 1997 and 2006 PM2.5 NAAQS.

I. State Implementation Plan revisions for new nonattainment areas – Section 

110(a)(2)(I)

Section 110(a)(2)(I) requires that each nonattainment area meet the applicable requirements of 

Part D.

State Submittal:

The NYSDEC has in the past submitted SIP revisions for any change in the NAAQS, including 

the recommendations for nonattainment area designation. 

EPA Evaluation:

EPA has not addressed Section 110(a)(2)(I) in its recent infrastructure SIP guidance because Part 

D SIPs are due on a different schedule than the infrastructure SIP submittal schedule. (See, e.g., 

the infrastructure SIP guidance for the revised lead standard, 73 FR 66964, 67034, n. 113, Nov. 

12, 2008, and the infrastructure SIP guidance for the revised NO2 standards, 75 FR 6474, 6523, 

n. 27, Feb. 9, 2010.) Therefore, this proposal does not address Section 110(a)(2)(I). 

New York has submitted for its ozone nonattainment areas RACT Plans, RFP Plans and 

Attainment Demonstrations for the 1997 8-hour ozone standard. New York has also submitted a 

PM2.5 SIP revision which EPA is currently reviewing and will be taking rulemaking action on. 

EPA has already taken action on 8-hr ozone requirements for Part D nonattainment plans through 

separate rulemakings.

J. Consultation with government officials, public notification, PSD, and Visibility - Section 

110(a)(2)(J):

J.1. Consultation with government officials:

Section 110(a)(2)(J) requires states to provide a process for consultation with local governments 

and Federal Land Managers carrying out NAAQS implementation requirements pursuant to 
22

section 121 relating to consultation. 

State Submittal:

Section 121 requires a process for consultation with local governments and Federal Land 

Managers carrying out NAAQS implementation requirements. EPA finds that the 110(a) 

submittals from New York, and the cited authority of section 3-0303 of the ECL, meet the 

requirements of section 110(a)(2)(J) for consultation with government officials.

J2. Public notification: 

Section 110(a)(2)(J) further requires states to notify the public if NAAQS are exceeded in an 

area and to enhance public awareness of measures that can be taken to prevent exceedances.

State Submittal:

The NYSDEC’s website, at http://www.dec.nv.qov/chemical/34985.html contains an Air Quality

Index (AQI) for reporting daily air quality to the public. It describes how clean or polluted the 

air is, and what associated health effects might be a concern. It was created as a way to correlate 

levels of different pollutants to one scale; the higher the AQI value, the greater the health 

concern. When levels of ozone and/or fine particles are expected to exceed an AQI value of 100, 

an Air Quality Health Advisory is issued alerting sensitive groups to take the necessary

precautions. The NYSDEC, in cooperation with the New York State Department of Health, posts 

warnings on the above-referenced website and issues press releases to local media outlets if 

dangerous conditions are expected to occur. The Air Quality Forecast displays the predicted AQI

value for eight regions in New York State. It also displays the observed values for the previous 

day. Air quality measurements from New York's statewide continuous monitoring network are 

updated hourly where available. Parameters monitored include ozone, fine particulate, carbon 

monoxide, sulfur dioxide, nitrogen oxides, methane/nonmethane hydrocarbons, and 

meteorological data.

EPA Evaluation:

The NYSDEC has procedures in place to notify the public when air quality standards deteriorate 

and exceed the NAAQS. It maintains a web site which provides information on current air 

quality status, air quality forecasts, monitoring information, reports and pertinent information 

related to air quality readings. NYSDEC participates with surrounding states in submitting and 

compiling air quality data and making this information available to press, news outlets, state 

websites and through the use of a listserv. EPA has determined that New York has adequate 

procedures for notifying the public of air quality concerns and disseminating information on 

ways to avoid health problems and reduce exposure when necessary.

J3. PSD and visibility protection:

Section 110(a)(2)(J) also requires states to meet applicable requirements of Part C related to 

prevention of significant deterioration (PSD) and visibility protection. 
23

State Submittal:

On March 3, 2009, the State of New York, through the NYSDEC, submitted to EPA Region 2 

revisions to the New York SIP. The submittal consists of revisions to three regulations. The 

affected regulations are: 6 NYCRR Part 231, “New Source Review for New and Modified 

Facilities”; 6 NYCRR Part 200, “General Provisions”; and 6 NYCRR Part 201, “Permits and 

Certificates”. The purpose of these revisions were to revise the New York State PSD program 

regulations and to update the existing New York State nonattainment regulations consistent with 

changes to the Federal NSR regulations published on December 31, 2002 (67 FR 80186).

For visibility improvement, the NYSDEC has addressed the necessary requirements in the 

Regional Haze State Implementation Plan.

EPA Evaluation:

On November 17, 2010 (75 FR 70140), EPA approved the New York PSD program, as discussed 

under (C) (program for enforcement of control measures). The approvability of a state's PSD 

program in its entirety is essential to the approvability of the infrastructure SIP with respect to 

section 110(a)(2)(J).

With respect to the visibility component of section 110(a)(2)(J), we reiterate the statutory

requirement providing, in relevant part, that each plan must meet the “applicable requirements” 

of part C (of Title I of the Act) relating to visibility protection. We note that the other part C 

requirements specified in section 110(a)(2)(J) (applicable requirements relating to prevention of 

significant deterioration of air quality) specifically relate to the 1997 and 2006 NAAQS, as well 

as to other pollutants regulated under the CAA, and a state must be able to implement those 

requirements with respect to a new or revised NAAQS when promulgated. In contrast to the 

PSD program, the visibility protection requirements are not directly related to the promulgation 

of, or revision to, these NAAQS. While the SIP must independently meet the visibility

protection requirements of part C by virtue of the specific SIP requirements in sections 169A and 

169B of the Act, EPA believes that the visibility protection requirements are not “applicable 

requirements” within the meaning of section 110(a)(2)(J) and that the SIP is not required to be 

revised with respect to visibility protection merely due to promulgation of, or revision to, these 

NAAQS.

Regardless, NYSDEC submitted and EPA has approved its Regional Haze SIP (August 28, 2012, 

77 FR 51915) as part of the SIP.

K. Air quality modeling and reporting - Section 110(a)(2)(K)

Section 110(a)(2)(K) requires that SIPs provide for performing air quality modeling for 

predicting effects on air quality of emissions from any NAAQS pollutant and submission of such 

data to EPA upon request.

State Submittal:

Authorized pursuant to sections 3-0301, 19-0103, 19-0301, 19-0303 and 19-0305 of the ECL, 

NYSDEC performs modeling as necessary to assess the degree of pollution in New York State. 
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The NYSDEC certifies that the air quality modeling and analysis used in its SIPs complies with 

EPA's guidance on the use of models in attainment demonstrations, and commits to continue to 

use air quality models in accordance with EPA's approved modeling guidance and to submit data 

to EPA if requested. 

EPA Evaluation:

NYSDEC has submitted the 1997 8-hour ozone attainment demonstration supported by 

photochemical modeling. This regional modeling effort was performed by the Ozone Transport 

Commission (OTC) on behalf of the member states including New York. NYSDEC participated, 

as a member of the OTC, in the various workgroups and the oversight committee responsible for 

the regional modeling effort. NYSDEC also submitted modeling for the PM2.5 annual standard 

which EPA is in the process of preparing a proposed rulemaking. New York is attaining the 

PM2.5 24-hour standard and EPA made a final Clean Data Determination on December 31, 2012 

(77 FR 768867). When this action is finalized, the requirement for an attainment demonstration 

for the 24-hour standard will be suspended for as long as the standard is being attained. EPA has 

determined that the State has adequate authority to develop and implement plans and programs 

that fulfill the requirements of section 110(a)(2)(K) for 8-hr ozone and PM2.5 NAAQSs. 

L. Major stationary source permitting fees – Section 110(a)(2)(L)

Section 110(a)(2)(L) requires SIPs to require each major stationary source to pay permitting fees 

to cover the cost of reviewing, approving, implementing and enforcing a permit.

State Submittal:

EPA's full approval of the Title V program for New York became effective on November 30, 

2001. In New York State, the Title V Permit Fee Program is established in ECL section 19-0311 

(c) requiring the NYSDEC to promulgate regulations that, among other things, require 

applications to identify and describe facility emissions in sufficient detail to establish the basis 

for the fees and applicability of requirements of the CAA. ECL section 72-0303 requires major 

stationary sources to pay operating permit program fees sufficient to support an appropriation 

approved by the legislature for the direct and indirect costs associated with the operating permit 

program established in section 19- 0311.

In addition, paragraph 201-6.5(a)(7) of 6 NYCRR subpart 201-6, the NYSDEC's approved Title 

V program, specifically states that "The owner and/or operator of a stationary source shall pay

fees to the department consistent with the fee schedule authorized by Subpart 482-2 of this 

Title."

EPA Evaluation:

EPA has determined that the State has met the requirements for section 110(a)(2)(L).
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M. Consultation with local entities - Section 110 (a)(2)(M) 

Section 110(a)(2)(M) requires states to provide for consultation and participation in SIP 

development by local political subdivisions affected by the SIP.

State Submittal:

The NYSDEC established an Inter-agency Consultation Group (ICG) pursuant to 6 NYCRR Part 

240, "Conformity to State or Federal Implementation Plans of Transportation Plans, Programs, 

and Projects Developed, Funded or Approved under Title 23 U.S.C. or the Federal Transit Laws." 

Members of this group include the Federal Transit Administration, Federal Highway

Administration, the New York State Department of Transportation, the United States 

Environmental Protection Agency, the New York State Department of Environmental 

Conservation, and several Metropolitan Planning Organizations statewide. The ICG is central to 

the entire transportation conformity process, and serves as the underpinning for conformity

determinations and as the primary mechanism for ensuring early coordination and negotiation 

among all parties affected by transportation conformity, including the general public, the 

business community, and other interested parties. Additional consultation and participation by

local political subdivisions are provided through the SIP Task Force that was established on 

December 22, 2005, which consists of officials from thirty-seven local governments and 

designated organizations of elected officials. Meetings and conference calls are held at 

appropriate times as SIPs are being developed or issues arise.

EPA Evaluation:

EPA has determined to find that the State has adequate authority and procedures pursuant to ECL

section 3-0303(3) that fulfill the requirements of section 110(a)(2)(M).