Federal Register / Vol. 79, No. 177 / Friday, September 12, 2014 / Rules and Regulations 54617 

Authority: 38 U.S.C. 501, and as noted in 

specific sections. 

[FR Doc. 2014–21790 Filed 9–11–14; 8:45 am] 

BILLING CODE 8320–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R02–OAR–2013–0527; FRL–9916–49– 

Region 2] 

Approval and Promulgation of 

Implementation Plans; New York; 

Infrastructure SIP for the 2010 Nitrogen 

Dioxide Primary Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving certain 

elements of New York’s State 

Implementation Plan (SIP) revisions 

submitted to demonstrate that the State 

meets the requirements of section 

110(a)(1) and (2) of the Clean Air Act 

(CAA) for the 2010 National Ambient 

Air Quality Standard (NAAQS) for 

nitrogen dioxide (NO2). Section 110(a) 

of the CAA requires that each state 

adopt and submit a SIP for the 

implementation, maintenance and 

enforcement of each NAAQS 

promulgated by the EPA and is 

commonly referred to as an 

infrastructure SIP. 

DATES: This rule is effective on October 

14, 2014. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R02–OAR–2013–0527. All 

documents in the docket are listed on 

the www.regulations.gov Web site. 

Although listed in the index, some 

information is not publicly available, 

e.g., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

www.regulations.gov or in hard copy at 

the Environmental Protection Agency, 

Region 2 Office, Air Programs Branch, 

290 Broadway, 25th Floor, New York, 

New York 10007–1866. The Air 

Programs Branch dockets are available 

from 8:30 a.m. to 4:30 p.m., Monday 

through Friday, excluding legal 

holidays. The Air Programs Branch 

telephone number is 212–637–4249. 

FOR FURTHER INFORMATION CONTACT: 

Anthony (Ted) Gardella, Air Programs 

Branch, Environmental Protection 

Agency, Region 2, 290 Broadway, 25th 

Floor, New York, New York 10007– 

1866, (212) 637–4249, or by email at 

gardella.anthony@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. What is the background information 

and purpose of this action? 

Under CAA section 110(a)(1), states 

are required to submit plans called state 

implementation plans (SIPs) that 

provide for the implementation, 

maintenance and enforcement of each 

NAAQS and are referred to as 

infrastructure SIPs. 42 U.S.C. 7410(a)(1). 

On February 9, 2010, EPA promulgated 

a new 1-hour primary NAAQS for NO2

(2010 NO2 NAAQS) while retaining the 

annual primary NAAQS for NO2 (75 FR 

6474). Under CAA section 110(a)(2), the 

14 elements required to be addressed in 

infrastructure SIPs are as follows: (1) 

Emission limits and other control 

measures; (2) ambient air quality 

monitoring/data system; (3) program for 

enforcement of control measures; (4) 

interstate transport; (5) adequate 

resources; (6) stationary source 

monitoring system; (7) emergency 

power; (8) future SIP revisions; (9) 

consultation with government officials; 

(10) public notification; (11) prevention 

of significant deterioration (PSD) and 

visibility protection; (12) air quality 

modeling/data; (13) permitting fees; and 

(14) consultation/participation by 

affected local entities. 

EPA is acting on New York’s SIP 

submittal dated May 8, 2013, as 

supplemented on May 23, 2013, which 

addresses the section 110 infrastructure 

requirements for the 2010 NO2 NAAQS. 

Two elements identified in section 

110(a)(2) are not governed by the three 

year submission deadline of section 

110(a)(1) because SIPs incorporating 

necessary local nonattainment area 

controls are not due within three years 

after promulgation of a new or revised 

NAAQS, but rather due at the time that 

the nonattainment area plan 

requirements are due pursuant to CAA 

section 191. (See also CAA section 172 

for general nonattainment plan 

requirements). These requirements are: 

(1) Submissions required by section 

110(a)(2)(C) to the extent that subsection 

refers to a permit program as required in 

part D Title I of the CAA, and (2) 

submissions required by section 

110(a)(2)(I) which pertain to the 

nonattainment planning requirements of 

part D, Title I of the CAA. As a result, 

this action does not address the 

nonattainment area plan requirements 

related to section 110(a)(2)(C) or 

110(a)(2)(I). 

II. What comments did EPA receive in 

response to its proposal? 

EPA received one anonymous adverse 

comment on the May 2, 2014 (79 FR 

25066) rulemaking proposing to approve 

New York’s SIP submittal. EPA has 

evaluated the comment as discussed 

below and has determined that New 

York’s SIP revision addressing the 2010 

NO2 NAAQS is consistent with the CAA 

and therefore EPA is approving New 

York’s SIP revision into the New York 

SIP. Following is the comment and 

EPA’s response. 

Comment: The commenter states that 

EPA cannot approve New York’s 

interstate transport provision addressed 

in its 2010 NO2 NAAQS infrastructure 

SIP revision because, according to the 

commenter, the Supreme Court decision 

in EME Homer City v. EPA ‘‘requires 

SIPs to ‘contain adequate provisions 

prohibiting any source or emissions 

activity within the State from emitting 

ANY pollutants in amounts which will 

contribute to nonattainment in, or 

interfere with maintenance by, any 

other State with respect to any other 

State with respect to ANY [NAAQS].’ 

(emphasis on ‘any’).’’ The commenter 

also quotes from EPA’s May 2, 2014 

rulemaking which proposes to approve 

New York’s 2010 NO2 infrastructure SIP 

revision and states that NOX is a 

precursor for ozone and PM2.5 and that 

NO2 is a component of NOX. The 

commenter states that because of the 

aforementioned Supreme Court 

decision, EPA must evaluate New 

York’s 2010 NO2 infrastructure SIP 

revision submission, as it relates to 

interstate transport, with respect to all 

NAAQS and not just for the 2010 NO2

NAAQS. 

Response: This comment addresses 

the requirements of CAA section 

110(a)(2)(D)(i)(I). This provision, often 

referred to as the good neighbor 

provision, requires each State 

Implementation Plan to prohibit ‘‘any 

source or other type of emissions 

activity within the State from emitting 

any air pollutants in amounts which 

will . . . contribute significantly to 

nonattainment in or interfere with 

maintenance by, any other state with 

respect to any . . . primary or 

secondary [NAAQS].’’ 42 U.S.C. 

7410(a)(2)(D)(i). The recent Supreme 

Court decision in Environmental 

Protection Agency v. EME Homer City 

Generation, L.P., 134 S. Ct. 1584 (2014), 

addressed the requirements of this 

provision and reversed the prior DC 

Circuit decision vacating EPA’s CrossState Air Pollution Rule. The 

commenter quotes from the section of 

the Supreme Court decision that 

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54618 Federal Register / Vol. 79, No. 177 / Friday, September 12, 2014 / Rules and Regulations 

discusses the historical development 

(from 1963 onward) of EPA’s interstate 

transport policy (also referred to as the 

‘Good Neighbor’ Provision). The quoted 

language essentially tracks the statutory 

text of CAA Section 110(a)(2)(D)(i)(I), 

which describes specific elements that 

must be included in State 

Implementation Plans to address 

pollution that is transported across state 

lines. As the Supreme Court decision in 

EME Homer City confirmed, pursuant to 

CAA section 110(a)(1), state plans to 

address these requirements must be 

submitted to the Administrator within 

three years of the promulgation or 

revision of a NAAQS. EME Homer City, 

134 S. Ct. at 1600. 

EPA interprets the comment as stating 

that the 110(a)(2)(D)(i)(I) provisions of 

New York’s 2010 NO2 infrastructure SIP 

should address, in addition to emissions 

that significantly contribute to 

nonattainment or interfere with 

maintenance of the NO2 NAAQS, any 

emissions that significantly contribute 

to nonattainment or interfere with 

maintenance of all other NAAQS, 

particularly the NAAQS for ozone and 

PM2.5 since NO2 is a component of NOX

and NOX is a precursor for ozone and 

PM2.5. EPA disagrees. Because it is the 

promulgation or revision of a NAAQS 

that triggers the requirement to submit 

a SIP addressing the requirements of 

110(a)(2)(D)(i)(I), EPA interprets the 

CAA as requiring each such SIP to 

address the 110(a)(2)(D)(i)(I) 

requirements only with respect to the 

specific NAAQS at issue. In other 

words, each 110(a)(2)(D)(i)(I) SIP 

submission need only address the 

specific NAAQS which had been 

promulgated or revised by EPA thereby 

triggering the SIP submission 

requirement. Because New York 

submitted this SIP to address the 

applicable requirements of 110(a)(2) 

with respect to the 2010 NO2 NAAQS, 

it need only demonstrate that the SIP is 

adequate to prohibit emissions that 

significantly contribute to 

nonattainment or interfere with 

maintenance of the 2010 NO2 NAAQS 

in other states. Any emissions that have 

such impacts with respect to other 

NAAQS must be addressed as 

appropriate in the 110(a)(2)(D)(i)(I) SIP 

submissions for those other NAAQS. In 

its May 8, 2013 action, EPA proposed to 

conclude that New York’s May 8, 2013 

infrastructure SIP revision, as 

supplemented on May 23, 2013, 

addressed all applicable CAA 

infrastructure SIP requirements, 

including the requirements of 

110(a)(2)(D)(i)(I), with respect to the 

NO2 NAAQS. 79 FR 25066, 25071– 

25073. The commenter has offered no 

data or evidence to suggest that the 

submission does not do so. 

III. What is the impact of the June 2014 

Supreme Court Green House Gas 

decision on New York’s infrastructure 

SIP for the 2010 NO2 NAAQS? 

With respect to Elements C and J, EPA 

interprets the Clean Air Act to require 

each state to make an infrastructure SIP 

submission for a new or revised NAAQS 

that demonstrates that the air agency 

has a complete PSD permitting program 

meeting the current requirements for all 

regulated NSR pollutants. The 

requirements of Element D(i)(II) may 

also be satisfied by demonstrating the 

air agency has a complete PSD 

permitting program correctly addressing 

all regulated NSR pollutants. New York 

has shown that it currently has a PSD 

program in place that covers all 

regulated NSR pollutants, including 

greenhouse gases (GHGs). 

On June 23, 2014, the United States 

Supreme Court issued a decision 

addressing the application of PSD 

permitting requirements to GHG 

emissions. Utility Air Regulatory Group 

v. Environmental Protection Agency, 

134 S.Ct. 2427. The Supreme Court said 

that the EPA may not treat GHGs as an 

air pollutant for purposes of 

determining whether a source is a major 

source required to obtain a PSD permit. 

The Court also said that the EPA could 

continue to require that PSD permits, 

otherwise required based on emissions 

of pollutants other than GHGs, contain 

limitations on GHG emissions based on 

the application of Best Available 

Control Technology (BACT). In order to 

act consistently with its understanding 

of the Court’s decision pending further 

judicial action to effectuate the decision, 

the EPA is not continuing to apply EPA 

regulations that would require that SIPs 

include permitting requirements that 

the Supreme Court found 

impermissible. Specifically, EPA is not 

applying the requirement that a state’s 

SIP-approved PSD program require that 

sources obtain PSD permits when GHGs 

are the only pollutant (i) that the source 

emits or has the potential to emit above 

the major source thresholds, or (ii) for 

which there is a significant emissions 

increase and a significant net emissions 

increase from a modification (e.g. 40 

CFR 51.166(b)(48)(v)). EPA anticipates a 

need to revise federal PSD rules in light 

of the Supreme Court opinion. In 

addition, EPA anticipates that many 

states will revise their existing SIPapproved PSD programs in light of the 

Supreme Court’s decision. The timing 

and content of subsequent EPA actions 

with respect to the EPA regulations and 

state PSD program approvals are 

expected to be informed by additional 

legal process before the United States 

District Court for the District of 

Columbia Circuit. At this juncture, EPA 

is not expecting states to have revised 

their PSD programs for purposes of 

infrastructure SIP submissions and is 

only evaluating such submissions to 

assure that the state’s program correctly 

addresses GHGs consistent with the 

Supreme Court’s decision. 

At present, EPA has determined the 

New York SIP is sufficient to satisfy 

Elements C, D(i)(II), and J with respect 

to GHGs because the PSD permitting 

program previously-approved by EPA 

into the SIP continues to require that 

PSD permits (otherwise required based 

on emissions of pollutants other than 

GHGs) contain limitations on GHG 

emissions based on the application of 

BACT. Although the approved New 

York PSD permitting program may 

currently contain provisions that are no 

longer necessary in light of the Supreme 

Court decision, this does not render the 

infrastructure SIP submission 

inadequate to satisfy Elements C, 

D(i)(II), and J. The SIP contains the 

necessary PSD requirements at this 

time, and the application of those 

requirements is not impeded by the 

presence of other previously-approved 

provisions regarding the permitting of 

sources of GHGs that EPA does not 

consider necessary at this time in light 

of the Supreme Court decision. 

Accordingly, the Supreme Court 

decision does not affect EPA’s proposed 

approval of New York’s infrastructure 

SIP as to the requirements of Elements 

C, D(i)(II), and J. 

IV. What action is EPA taking? 

EPA is approving New York’s 

submittal as fully meeting the 

applicable infrastructure requirements 

for the 2010 primary NO2 NAAQS for 

the following section 110(a)(2) elements: 

(A), (B), (C), (D), (E), (F), (G), (H), (J), (K), 

(L), and (M). 

As stated above, this action does not 

address the nonattainment area plan 

requirements related to sections 

110(a)(2)(C) or 110(a)(2)(I). EPA will act 

on them when they become due and are 

submitted. 

V. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, the 

Administrator is required to approve a 

SIP submission that complies with the 

provisions of the Act and applicable 

Federal regulations. 42 U.S.C. 7410(k); 

40 CFR 52.02(a). Thus, in reviewing SIP 

submissions, EPA’s role is to approve 

state choices, provided that they meet 

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Federal Register / Vol. 79, No. 177 / Friday, September 12, 2014 / Rules and Regulations 54619 

the criteria of the Clean Air Act. 

Accordingly, this action merely 

approves state law as meeting Federal 

requirements and does not impose 

additional requirements beyond those 

imposed by state law. For that reason, 

this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by November 12, 

2014. Filing a petition for 

reconsideration by the Administrator of 

this final rule does not affect the finality 

of this action for the purposes of judicial 

review nor does it extend the time 

within which a petition for judicial 

review may be filed, and shall not 

postpone the effectiveness of such rule 

or action. This action may not be 

challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

Dated: September 2, 2014. 

Judith A. Enck, 

Regional Administrator, Region 2. 

Part 52, chapter I, title 40 of the Code 

of Federal Regulations is amended as 

follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart HH—New York 

■ 2. Section 52.1670 is amended by 

adding a new entry to the end of the 

table in paragraph (e) to read as follows: 

§ 52.1670 Identification of plan. 

* * * * * 

(e) * * * 

EPA-APPROVED NEW YORK NONREGULATORY AND QUASI-REGULATORY PROVISIONS

Action/SIP element 

Applicable 

geographic 

or nonattainment 

area 

New York submittal date EPA approval date Explanation 

*******

Section 110(a)(2) Infrastructure Requirements 

for the 2010 Primary 

Nitrogen Dioxide 

NAAQS.

Statewide .. 5/08/13, and supplemented on 5/23/13.9/12/14 [Insert Federal 

Register citation].

This action addresses the following CAA elements: 110(a)(2)(A), (B), (C), (D), (E), (F), (G), 

(H), (J), (K), (L), and (M). 

[FR Doc. 2014–21682 Filed 9–11–14; 8:45 am] 

BILLING CODE 6560–50–P 

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