Federal Register / Vol. 81, No. 166 / Friday, August 26, 2016 / Rules and Regulations 58849 

instructions of the COTP or his 

designated representative and proceed 

at the minimum speed necessary to 

maintain a safe course while in the 

zone. 

(4) The U.S. Coast Guard may be 

assisted in the patrol and enforcement 

of the security zone by Federal, State, 

and local agencies. 

(d) Notice of enforcement. The COTP 

will cause notice of the enforcement of 

the security zone described in this 

section to be made by verbal broadcasts 

and written notice to mariners and the 

general public. 

(e) Definitions. As used in this 

section, designated representative 

means any Coast Guard commissioned, 

warrant, or petty officer who has been 

authorized by the COTP to assist in 

enforcing the security zone described in 

paragraph (a) of this section. 

Dated: August 16, 2016. 

M.C. Long, 

Captain, U.S. Coast Guard, Captain of the 

Port, Honolulu. 

[FR Doc. 2016–20530 Filed 8–25–16; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R01–OAR–2015–0402; FRL–9945–13– 

Region 1] 

Air Plan Approval; Rhode Island; 

Infrastructure State Implementation 

Plan Requirements for Particle Matter, 

Ozone, Lead, Nitrogen Dioxide and 

Sulfur Dioxide 

Correction 

In rule document 2016–08913, 

appearing on pages 23175–23180 in the 

issue of Wednesday, April 20, 2016, 

make the following correction: 

On page 23177, in the first column, in 

the first paragraph following the table, 

lines 1–23, should read as follows: 

In the above table, the key is as follows: 

A Approve 

A* Approve, but conditionally approve 

aspect of PSD program relating to the 

identification of NOX as a precursor for 

ozone and addressing the changes made to 

40 CFR part 51.116 in EPA’s October 20, 

2010 rulemaking (75 FR 64864) concerning 

emissions of fine particulate. 

D Disapprove, but no further action 

required because federal regulations 

already in place. 

+ Not germane to infrastructure SIPs. 

NI Not included in the September 10, 2008 

(PM2.5), January 2, 2013 (ozone and NO2), 

and May 30, 2013 (SO2) submittals which 

are the subject of today’s action. 

NT Not taking action in today’s action. 

NS No Submittal. 

NA Not applicable. 

[FR Doc. C1–2016–08913 Filed 8–25–16; 8:45 am] 

BILLING CODE 1505–01–D 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R02–OAR–2016–0320; FRL–9951–49– 

Region 2] 

Partial Approval and Partial 

Disapproval of Air Quality 

Implementation Plans; New York; 

Interstate Transport Infrastructure SIP 

Requirements for the 2008 Ozone 

NAAQS 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is partially approving and 

partially disapproving elements of a 

New York State Implementation Plan 

(SIP) submittal pertaining to the 

infrastructure requirements of section 

110 of the Clean Air Act (CAA) for the 

2008 ozone National Ambient Air 

Quality Standard (NAAQS). The 

infrastructure requirements are designed 

to ensure that the structural components 

of each state’s air quality management 

program are adequate to meet the state’s 

responsibilities under the CAA. This 

action pertains specifically to 

infrastructure requirements concerning 

interstate transport provisions. 

DATES: This rule is effective on 

September 26, 2016. 

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

No. EPA–R02–OAR–2016–0320. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

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. 

Publicly available docket materials are 

available either electronically through 

http://www.regulations.gov or please 

contact the person identified in the FOR

FURTHER INFORMATION CONTACT section 

for additional information. 

FOR FURTHER INFORMATION CONTACT: 

Kenneth Fradkin, 212–637–3702, 

fradkin.kenneth@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we’’, ‘‘us’’, 

and ‘‘our’’ means EPA. 

I. Background 

II. What action did EPA propose on the SIP 

submission? 

III. What comments did EPA receive in 

response to its proposal? 

IV. What action is EPA taking? 

V. What are the consequences of a 

disapproved SIP? 

VI. Statutory and Executive Order Reviews 

I. Background 

This rulemaking addresses CAA 

section 110(a)(2)(D)(i) requirements in 

New York’s infrastructure SIP submitted 

on April 4, 2013 to address applicable 

infrastructure requirements with respect 

to the 2008 ozone NAAQS. 

The requirement for states to make a 

SIP submission of this type arises out of 

CAA section 110(a)(1). Pursuant to 

section 110(a)(1), states must make SIP 

submissions ‘‘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 

these SIP submissions are to provide for 

the ‘‘implementation, maintenance, and 

enforcement’’ of such NAAQS. The 

statute directly imposes on states the 

duty to make these SIP submissions, 

and the requirement to make the 

submissions is not conditioned upon 

EPA’s taking any action other than 

promulgating a new or revised NAAQS. 

Section 110(a)(2) includes a list of 

specific elements that ‘‘[e]ach such 

plan’’ submission must address. EPA 

commonly refers to such state plans as 

‘‘infrastructure SIPs.’’ In particular, 

section 110(a)(2)(D)(i)(I) requires SIPs to 

include provisions prohibiting any 

source or other type of emissions 

activity in one state from contributing 

significantly to nonattainment of the 

NAAQS (commonly referred to as prong 

1), or interfering with maintenance of 

the NAAQS (prong 2), in any another 

state. Section 110(a)(2)(D)(i)(II) requires 

SIPs to include provisions prohibiting 

any source or other type of emissions 

activity in one state from interfering 

with measures required to prevent 

significant deterioration (PSD) of air 

quality (prong 3) and to protect 

visibility (prong 4) in another state. This 

rulemaking addresses prongs 1, 2, and 4 

of CAA section 110(a)(2)(D)(i). EPA will 

address the other portions of the April 

4, 2013 infrastructure SIP submittal, 

including prong 3 pertaining to CAA 

section 110(a)(2)(D)(i)(II), in another 

action. 

II. What action did EPA propose on the 

SIP submission? 

The proposed rulemaking associated 

with this final action was published on 

June 21, 2016 (81 FR 40229). In that 

action, EPA proposed to disapprove the 

portions of New York’s April 4, 2013 


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SIP submission addressing prongs 1 and 

2, and proposed to approve prong 4 

regarding CAA section 110(a)(2)(D)(i) 

requirements. 

In proposing to disapprove the SIP 

submission as to prongs 1 and 2, EPA 

noted several deficiencies in New 

York’s submission: (1) New York’s own 

modeling showed ‘‘predicted’’ 

nonattainment in the bordering states of 

Connecticut, New Jersey, and 

Pennsylvania, but did not adequately 

explain its conclusion that New York 

emissions will not significantly 

contribute to those predicted 

exceedances; (2) the emissions 

reductions cited in New York’s 

submission were based on preliminary 

emissions estimates, and were below the 

assumed emissions reductions that were 

used in New York’s cited preliminary 

screening modeling performed for the 

Ozone Transport Commission; (3) the 

submission used a projection year 

(2020) to model downwind air quality 

that is two years beyond the July 11, 

2018 moderate area attainment date for 

the 2008 ozone NAAQS; (4) the 

submission failed to address prong 2, 

the State’s potential interference with 

maintenance of the 2008 ozone NAAQS 

in other states; (5) the submission did 

not demonstrate that the emission rates 

at which Electric Generating Units 

(EGUs) in the state operated were the 

result of enforceable emission limits or 

other mandatory programs such that the 

emission rate would not increase; (6) 

New York’s submission relied on the 

state’s implementation of the Clean Air 

Interstate Rule (CAIR), which was not 

designed to address interstate transport 

with respect to the 2008 ozone standard 

and is no longer being implemented by 

the states and EPA; and (7) EPA recently 

released technical data that contradicts 

the State’s conclusion that its SIP 

already contains adequate provisions to 

meet interstate transport requirements 

with respect to the 2008 ozone NAAQS. 

In proposing to approve the New York 

SIP submission with respect to the 

prong 4 visibility transport requirements 

under CAA section 110(a)(2)(i)(II), EPA 

explained that New York’s SIP 

submission relied on the State’s 

approved Regional Haze SIP to ensure 

that emissions from sources within the 

State were not interfering with measures 

to protect visibility in other states. 

III. What comments did EPA receive in 

response to its proposal? 

We received comments during the 

public comment period on our proposed 

action from the New York State 

Department of Environmental 

Conservation (NYSDEC), the State of 

Connecticut Department of Energy and 

Environmental Protection (DEEP), and 

the Environmental Energy Alliance of 

New York, LLC (the Alliance). A 

synopsis of the comments and our 

responses are below. 

Comment 1: The NYSDEC stated that 

EPA is proposing to replace New York’s 

‘‘supposedly deficient’’ plan with a 

partial remedy that controls fewer units 

at less stringency. NYSDEC further 

states that EPA is proposing to 

disapprove a plan based in part on a 

NOX regulation that covers EGUs as well 

as non-EGU source categories at a 

$5,000 per ton control cost threshold, 

and replace it with a program that 

covers only EGUs at a $1,300 per ton 

control cost threshold. NYSDEC also 

states that EPA should explain how its 

proposed transport rule addresses 

transport more effectively than New 

York’s plan. 

Response 1: As noted above, we 

identified a number of deficiencies with 

New York’s SIP submission to support 

the proposed disapproval of the plan as 

to prongs 1 and 2 with respect to the 

2008 ozone NAAQS. While EPA cited 

the modeling conducted for EPA’s 

proposed Cross State Air Pollution Rule 

Update for the 2008 ozone standard 

(CSAPR Update), 80 FR 75706 

(December 3, 2015), as additional 

evidence that emissions from New York 

may significantly contribute to 

nonattainment or interfere with 

maintenance of the 2008 ozone NAAQS 

in other states, this action did not 

propose and does not finalize any 

remedy to address the deficiency 

identified in New York’s SIP 

submission. This action does not itself 

replace New York’s plan with the 

proposed remedy that was included in 

the CSAPR Update proposal or any 

other remedy. Rather, with respect to 

prongs 1 and 2, this action disapproves 

New York’s submission for its failure to 

provide sufficient analysis to support its 

conclusion that the state’s SIP contains 

adequate provisions prohibiting 

emissions which interfere with air 

quality in other states. 

NYSDEC misstates the burden 

imposed upon the EPA in reviewing this 

action. In submitting an infrastructure 

SIP, the state’s burden is to demonstrate 

to EPA’s satisfaction that it has 

complied with the statutory 

requirements of CAA section 110(a)(2). 

EPA’s role in reviewing infrastructure 

SIP submissions is to ensure that the 

state’s plan complies with the statute. 

With respect to prongs 1 and 2, the EPA 

has reviewed New York’s demonstration 

and determined, for the reasons 

summarized above, that it does not 

adequately demonstrate that the state’s 

plan is sufficient to ensure that 

emissions from the state will not 

significantly contribute to 

nonattainment or interfere with 

maintenance. As noted below, this 

disapproval will trigger a federal 

implementation plan (FIP) clock which 

will require the EPA to promulgate a 

plan to prohibit those levels of 

emissions that impact downwind air 

quality in violation of the statute. 

However, the EPA is not required to 

provide that metric at the time it 

reviews the state’s demonstration. 

Moreover, EPA’s 2011 modeling 

baseline used for evaluating interstate 

transport with respect to the 2008 ozone 

NAAQS accounted for the emission 

reductions from controls listed in the 

SIP—including New York’s Reasonably 

Available Control Technology (RACT) 

rules—and nonetheless continued to 

show that New York would contribute 

to downwind air quality problems. 

Despite the considerable emission 

reductions achieved by New York, 

EPA’s technical analysis for the CSAPR 

Update proposal demonstrates that New 

York’s emissions still have an impact on 

other states. 

Comment 2: The NYSDEC agreed that 

emissions in New York contribute 

significantly to nonattainment or 

interfere with maintenance in 

downwind areas. However, NYSDEC 

states that EPA should review New 

York’s control program relative to what 

EPA might determine to be an 

approvable remedy rather than basing 

its disapproval on NYSDEC’s emission 

reduction estimates and the fact that 

New York did not quantify its 

significant contribution. 

Response 2: In this action, EPA is 

rightly focused on the discrete question 

of whether New York has demonstrated 

that its SIP contains adequate provisions 

to prohibit significant contribution to 

nonattainment and interference with 

maintenance of the 2008 ozone NAAQS 

in downwind states. New York 

acknowledges in its comment, and EPA 

agrees, that New York’s SIP submission 

does not currently satisfy those 

requirements. As such, EPA must 

disapprove New York’s SIP submission 

for failing to satisfy the statutory 

requirements of CAA section 

110(a)(2)(D)(i)(I). As explained in our 

June 21, 2016 proposal, and 

summarized above, New York has not 

demonstrated that its SIP contains 

adequate provisions to address 

interstate transport as to the 2008 ozone 

standard. Furthermore, despite recent 

emission reductions achieved by New 

York, in EPA’s technical analysis for the 

proposed CSAPR Update, our modeling 

shows that New York contributes well 

above the air quality threshold of 1 


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1 ‘‘Nothing in the Act differentiates the Good 

Neighbor Provision from the several other matters 

a State must address in its SIP. Rather, the statute 

speaks without reservation: Once a NAAQS has 

been issued, a State ‘shall’ propose a SIP within 

three years, § 7410(a)(1), and that SIP ‘shall’ 

include, among other components, provisions 

adequate to satisfy the Good Neighbor Provision, 

§ 7410(a)(2).’’ EPA v. EME Homer City Generation, 

L.P., 134 S. Ct. at 1601. 

2Available at https://www.epa.gov/sites/ 

production/files/2015-11/documents/ 

goodneighborprovision2008naaqs.pdf. 

3See Sierra Club v. Gina McCarthy, No. 3:15–cv– 

04328–JD (N.D. Cal.). 

percent of the 2008 ozone NAAQS (0.75 

parts per billion) to several projected 

downwind nonattainment or 

maintenance receptors. As indicated in 

our proposal, EPA’s modeling shows 

that New York contributes 16.96 ppb to 

downwind receptors in Connecticut, 

and 17.21 ppb to downwind 

maintenance receptors in Connecticut 

and New Jersey, both of which greatly 

exceed the threshold contribution 

levels. 

Comment 3: The NYSDEC stated that 

EPA did not provide states with a clear 

indication of what was required for their 

respective transport SIPs at the time 

they were due. Without this information 

about cross-state contributions, 

NYSDEC relied on control measures 

already in place within the state. 

Response 3: States have an 

independent responsibility to 

demonstrate that their plans contain 

adequate provisions to address the 

statutory interstate transport provisions, 

specifically to demonstrate that the plan 

properly prohibits emissions that will 

significantly contribute to 

nonattainment or interfere with 

maintenance of the NAAQS in 

downwind states. As the Supreme Court 

clearly held in EPA v. EME Homer City 

Generation, L.P., ‘‘nothing in the statute 

places the EPA under an obligation to 

provide specific metrics to States before 

they undertake to fulfill their good 

neighbor obligations.’’ 134 S. Ct. 1584, 

1601 (2014).1 Simply put, the CAA does 

not require EPA to quantify states’ good 

neighbor obligations before acting on 

their SIP submissions. Nevertheless, 

EPA did provide information to assist 

states with developing or 

supplementing their SIP submittal for 

the 2008 ozone NAAQS. On January 22, 

2015, we issued a memorandum 

providing preliminary modeling 

information regarding potential 

downwind air quality problems and 

levels of upwind state contributions. 

See Memorandum from Stephen D. Page 

to Regional Air Division Directors, 

Regions 1–10, ‘‘Information on the 

Interstate Transport ‘Good Neighbor’ 

Provision for the 2008 Ozone [NAAQS] 

under [CAA] Section 110(a)(2)(D)(i)(I)’’, 

January 22, 2015.’’ 2 As we noted in our 

CSAPR Update proposal, the EPA also 

provided updated modeling and 

contribution information in its August 

4, 2015 NODA. (80 FR 46271). All of 

these documents consistently indicated 

that the EPA’s technical analysis 

showed that New York emissions 

contribute to downwind air quality 

problems with respect to the 2008 ozone 

NAAQS, yet New York did not revise or 

supplement its SIP submittal with 

additional data demonstrating that the 

state had satisfied its statutory 

obligation. 

Comment 4: NYSDEC states that 

EPA’s failure to implement a full 

remedy leaves states unsure how to 

satisfy their transport obligations in 

regard to the 2008 ozone NAAQS. 

NYSDEC asserts that EPA should 

propose a subsequent update to CSAPR 

by June 2017 that encompasses a full 

remedy. NYSDEC states that the update 

should include requirements for large 

non-EGU sources and utilize a control 

cost threshold that is more equitable to 

states. 

Response 4: For the reasons stated 

above, this comment is outside of the 

scope of this action. EPA will address 

comments regarding the adequacy of the 

proposed FIP in the final CSAPR Update 

rule. 

Comment 5: Connecticut DEEP is 

supportive of the proposed disapproval 

of New York’s SIP submission regarding 

prongs 1 and 2. DEEP notes that New 

York and Connecticut have partnered 

for over 40 years to provide clean air, 

especially in the southwest portion of 

Connecticut and the New York City 

metropolitan region, and will continue 

this collaboration. DEEP encourages 

EPA to describe, with as much 

specificity as possible, the steps states 

should take to meet their good neighbor 

responsibilities under the Clean Air Act. 

DEEP also urges EPA to immediately 

propose and finalize a full transport 

remedy for the 2008 ozone NAAQS 

rather than allowing compliance efforts 

for the 2015 NAAQS to drive 

compliance with the 2008 NAAQS. 

Response 5: EPA is supportive of the 

states’ collaborative efforts to improve 

air quality. This action is focused on 

EPA’s review of New York’s 

infrastructure SIP submission 

addressing prongs 1 and 2 of CAA 

section 110(a)(2)(D)(i) submitted for the 

2008 ozone NAAQS. As noted earlier, 

while the EPA is not obligated to 

quantify state’s emission reduction 

obligations prior to or as part of 

reviewing a state’s SIP submission, we 

have provided data informative to the 

state’s development and EPA’s review of 

SIPs addressing these requirements with 

respect to the 2008 ozone NAAQS. EPA 

will further address state’s emission 

reduction obligations in the rulemaking 

to finalize the CSAPR Update rule. 

Comment 6: The Alliance requested 

extension of the public comment period 

for the proposal to coincide with the 

comment period for a proposed consent 

decree ‘‘requiring the EPA to reject the 

SIP’’ to address a lawsuit filed by the 

Sierra Club in the United States District 

Court for the Northern District of 

California.3

Response 6: We disagree that an 

extension of the public comment period 

is warranted for this action. The 

commenter does not provide an 

adequate justification why an extension 

is necessary. The proposed consent 

decree only concerns a proposed 

deadline by which EPA would have to 

act on the state’s SIP submissions under 

CAA section 110(k)—not the substance 

of that action. See 81 FR 42351 (June 29, 

2016). In contrast, the June 21, 2016 

proposed disapproval sought comment 

on a substantive action—i.e., whether to 

approve or disapprove New York’s 

submission, and on what basis. 

Comment 7: The Alliance asserts that 

the proposed disapproval of New York’s 

transport SIP, the proposed consent 

decree mentioned in comment 6, and 

the CSAPR Update rule are all related 

and should be resolved at the same 

time. The Alliance states that they are 

concerned that one of the actions may 

be settled without consideration of 

comments associated with the other 

actions, and that the resulting plans for 

attainment may not be as cost effective, 

‘‘reduction efficient’’ or may not 

significantly impact attainment. By way 

of example, the Alliance notes that it 

provided comments on the proposed 

CSAPR Update rule regarding errors in 

EPA’s supporting modeling. The 

Alliance contends that without 

finalizing the CSAPR Update rule, 

neither the EPA nor the commenting 

public is able to fully evaluate the 

legitimacy of the SIP disapproval. The 

Alliance further states that in as much 

as the proposed consent decree is 

intended to effectuate SIP disapproval, 

finalization of the consent decree is 

unwarranted until the full assessment of 

public input to the CSAPR Update rule 

is completed and finalized. 

Response 7: EPA disagrees that the 

proposed disapproval of New York’s 

transport SIP, the proposed consent 

decree mentioned in comment 6, or the 

CSAPR Update rule should be resolved 

at the same time. CAA section 110(k)(2) 

requires EPA to act on a state’s SIP 

submission within one year after the 


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58852 Federal Register / Vol. 81, No. 166 / Friday, August 26, 2016 / Rules and Regulations 

submission is determined to be 

complete. As indicated in the response 

to comment 6, the proposed consent 

decree with the Sierra Club governs 

only the timetable on which EPA would 

be required to act on the state’s SIP 

submissions under CAA section 

110(k)(2)—not the substance of EPA’s 

action. 

As described in the proposal and 

earlier in this document, EPA has 

identified several ways in which New 

York’s SIP submission was deficient for 

purposes of addressing the state’s 

obligation pursuant to CAA section 

110(a)(2)(D)(i)(I). In particular, EPA 

proposed to disapprove New York’s SIP 

submission because the State’s 

modeling showed ‘‘predicted’’ 

nonattainment in other nearby states 

with existing measures; the submission 

did not demonstrate that the emission 

rates at which EGUs operated were the 

result of enforceable emission limits; the 

submission failed to address the State’s 

potential interference with maintenance 

(or prong 2 of section 110(a)(2)(D)(i)); 

and the submission relied on the state’s 

implementation of CAIR, a rule that is 

no longer being implemented by the 

states and EPA and that was declared 

invalid by the D.C. Circuit. 

While EPA cited the modeling 

conducted for the proposed CSAPR 

Update rule as additional evidence that 

New York may significantly contribute 

to nonattainment or interfere with 

maintenance of the 2008 ozone NAAQS 

in downwind states, we did not propose 

to make a specific finding of 

contribution or to quantify any specific 

emissions reduction obligations. Rather, 

the evaluation of whether emissions 

from the State significantly contribute to 

nonattainment or interfere with 

maintenance of the 2008 ozone NAAQS 

downwind, and if so what reductions 

are necessary to address that 

contribution, is being conducted in the 

context of the CSAPR Update 

rulemaking. Accordingly, EPA is 

considering submitted comments 

regarding EPA’s air quality modeling 

and various associated legal and policy 

decisions in finalizing that rulemaking. 

EPA notes that the technical data 

discussed at proposal with respect to 

New York’s potential contribution to 

downwind air quality problems is 

consistent with modeling previously 

conducted for trading programs 

addressing interstate ozone transport 

such as CSAPR (76 FR 48208), CAIR (70 

FR 25162), and the NOX SIP Call (63 FR 

57356), indicating that New York is 

frequently linked to downwind 

receptors. The modeling conducted to 

support the proposed CSAPR Update is 

the most recent technical information 

available to the Agency which still 

shows such linkages to downwind 

receptors. Even absent this modeling 

data, New York’s SIP submission is 

inadequate to demonstrate compliance 

with prongs 1 and 2 of CAA section 

110(a)(2)(D)(i) with respect to the 2008 

ozone NAAQS. 

Comment 8: The Alliance commented 

that, under 110(a)(2)(D)(i)(I), SIP control 

requirements should apply to a source 

category or a reasonable aggregation of 

emissions. The Alliance further stated 

that under the CSAPR Update rule, EPA 

unreasonably concluded that the New 

York electric generating unit sector 

budget—and only that budget—had to 

be revised to address significant 

nonattainment. The Alliance contends 

that the New York EGU sector emissions 

are not a significant contributor to 

neighboring state nonattainment or 

maintenance issues, and if EPA finalizes 

the SIP disapproval and finalizes the 

CSAPR Update rule as proposed, 

another round of emission reductions 

from the New York EGU sector will not 

provide any significant improvement in 

air quality. The Alliance concludes that 

it is not appropriate to consider 

additional reductions from EGUs until 

reductions are found in other sectors. 

Response 8: As described in the 

proposal and earlier in this document, 

EPA has identified several ways in 

which New York’s SIP fails to address 

the prongs 1 and 2 requirements of CAA 

section 110(a)(2)(D)(i)(I). This action did 

not propose and does not finalize any 

remedy to address the deficiency 

identified in New York’s SIP 

submission. Rather, with respect to 

prongs 1 and 2, this action disapproves 

New York’s submission for its failure to 

provide sufficient analysis to support its 

conclusion that the state’s SIP contains 

adequate provisions to meet interstate 

transport requirements with respect to 

the 2008 ozone NAAQS. The evaluation 

of the emission reductions necessary to 

address the State’s significant 

contribution, including from which 

sectors such reductions might be 

achieved, is outside the scope of this 

rulemaking, and is being conducted in 

the context of the CSAPR Update 

rulemaking. 

Comment 9: The Alliance cited 

comments submitted to the docket of 

the CSAPR Update rulemaking that 

identified alleged technical deficiencies 

in EPA’s modeling. The Alliance states 

that EPA should run its modeling using 

the Integrated Planning Model (IPM) 

5.15 base case, and correct for other 

technical errors in CSAPR modeling. 

The Alliance questioned the CSAPR 

Update rule’s conclusion of state 

linkages to downwind nonattainment 

(and therefore the validity of EPA’s 

proposed disapproval), and the 

expenditure of significant state and EGU 

resources on developing revised SIPs 

and modifying controls based on an 

outdated modeling platform. The 

Alliance also states that regulated 

entities are not being given appropriate 

notice and opportunity to comment on 

the SIP disapproval when EPA has not 

yet completed modeling for the final 

CSAPR Update rule. The Alliance 

concludes that the correction of errors 

will demonstrate that the CSAPR 

Update rule, which EPA is relying on to 

disapprove New York’s SIP, results in 

over-control. 

Response 9: As noted earlier in this 

document, EPA will consider timely 

submitted comments regarding EPA’s 

air quality modeling, the modeling 

platform, and state linkages to 

downwind nonattainment for the 

CSAPR Update in the context of that 

rulemaking, not this one. 

With respect to this rulemaking, EPA 

disagrees with the commenter that we 

are only relying on CSAPR modeling to 

disapprove the State’s SIP. As we have 

previously noted, EPA has identified 

several ways in which New York’s SIP 

submission is deficient for purposes of 

addressing the State’s obligations under 

CAA section 110(a)(2)(D)(i)(I). While 

EPA cited the modeling conducted for 

the CSAPR Update as additional 

evidence that New York may 

significantly contribute to 

nonattainment or interfere with 

maintenance of the 2008 ozone NAAQS 

in downwind states, we did not propose 

to make a specific finding of 

contribution or to quantify any specific 

emissions reduction obligations. Rather, 

EPA is conducting its evaluation of 

whether emissions from the State 

significantly contribute to 

nonattainment or interfere with 

maintenance of the 2008 ozone NAAQS 

downwind and, if so, what reductions 

are necessary to address that 

contribution, in the context of the 

CSAPR Update rulemaking. 

EPA therefore disagrees with the 

commenter that appropriate notice and 

comment to regulated entities on the 

proposed SIP disapproval has not been 

provided since the CSAPR Update 

modeling has not been finalized. EPA 

provided a 30 day comment period on 

the proposed disapproval (see 81 FR 

40229). EPA has also provided 

appropriate public notice and comment 

for the CSAPR Update rule (see 80 FR 

75706). Moreover, there are no regulated 

entities under this action as this action 

merely disapproves the portion of New 

York’s SIP addressing CAA section 


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Federal Register / Vol. 81, No. 166 / Friday, August 26, 2016 / Rules and Regulations 58853 

110(a)(2)(D)(i)(I), and does not itself 

create any new requirements. 

Comment 10: The Alliance 

commented that EPA should have 

performed refined screening modeling 

to determine all the factors driving 

ozone exceedances in New York and 

Connecticut. The Alliance further states 

that failure to do so could unnecessarily 

require further reductions in New York, 

not resolve the ozone nonattainment 

problem, and unnecessarily lead to the 

disapproval of New York’s SIP. 

Response 10: As discussed above, this 

action did not propose and does not 

finalize any remedy to address the 

deficiency identified in New York’s SIP 

submission. Rather, with respect to 

prongs 1 and 2, this action disapproves 

New York’s submission for its failure to 

provide sufficient analysis to support its 

conclusion that the state’s SIP contains 

adequate provisions to meet interstate 

transport requirements with respect to 

the 2008 ozone NAAQS. The degree to 

which additional emission reductions 

may be necessary to address the 

requirements of section 110(a)(2)(D)(i)(I) 

with respect to the 2008 ozone NAAQS 

will be evaluated in a separate 

rulemaking. 

Comment 11: The Alliance submitted 

analyses regarding NOX emission trends 

in New York showing declining NOX

emissions and emission rates, and 

operational data from 2007 to 2015 for 

annual NOX emissions, NOX ozone 

season emissions, NOX peak day 

emissions, and NOX emissions on ozone 

exceedance days. The Alliance 

commented that New York’s ‘‘higher 

level of assumed reductions’’ is more 

conservative than the actual data reveal 

and that New York’s modeling 

assumptions should be honored by EPA. 

The Alliance indicates that EPA’s SIP 

disapproval is based on New York’s 

modeling using higher levels of 

assumed emission reductions, assuming 

48% NOX reductions and 30% VOC 

reductions without demonstrating how 

it will achieve those higher levels of 

emission reductions. The Alliance 

further indicated that the data they 

submitted shows that between 2007 and 

2015, two years before the New York 

modeling year, annual NOX emissions 

decreased 64%, ozone season NOX

emissions decreased 56%, peak ozone 

season emission day NOX emissions 

decreased 40%, and the average NOX

emission reduction on those days when 

ozone exceedances were observed at 

eight New York ozone monitoring sites 

ranged from 47% to 63% and the NOX

emission reduction at the Fairfield, 

Connecticut ozone monitoring site was 

38%. The Alliance further stated that 

both the EPA and NYSDEC modeling 

used annual or ozone season emissions 

for their projections and in both 

instances the observed reductions from 

2007 to 2015 are greater than the 

reductions used by NYSDEC. The 

Alliance concludes that the EPA basis 

for the SIP disapproval is incorrect. 

The Alliance also notes that EPA 

claimed that New York did not 

demonstrate that the emission rates at 

which EGUs operated in the state are 

the result of enforceable emission limits 

or other mandatory programs such that 

the emission rate will not increase. The 

Alliance notes that the NOX emission 

trends show a marked decrease in 2014 

when New York’s revised RACT limits 

become effective, resulting in an annual 

NOX rate decrease of 52% and an ozone 

season rate decrease of 42%. The 

Alliance states that the comparison of 

daily NOX emissions from 2007 to 2015 

shows that New York’s revised NOX

RACT limits did have an enforceable 

impact. The Alliance also notes that 

coupled with the number of recent 

retirements at other New York facilities, 

it is extremely unlikely that NOX

emission rates could increase 

substantially. 

Response 11: EPA agrees with the 

commenter that NOX emissions and 

emission rates in New York have been 

trending downward since 2007. EPA 

also agrees that due to New York’s 

stringent 2014 RACT emission limits— 

which EPA approved into the SIP and, 

as such, are federally enforceable—there 

are enforceable limits on NOX emissions 

from EGUs and other large boilers 

regulated under New York’s RACT 

rules. New York’s RACT rules also make 

it unlikely that emission rates from 

those sources will increase above the 

levels permitted by the emissions limits. 

As an initial matter, EPA notes that 

the Alliance based its analysis only on 

a subset of New York’s emissions data 

(from EPA’s Clean Air Markets 

database), whereas New York’s 

modeling was based on a much larger 

emission inventory (projected 328,457 

tons of NOX emissions, and 368,784 

tons of VOC emissions from overall state 

emissions in 2020). 

Most importantly, EPA notes that 

New York’s RACT rules were factored 

into New York’s modeling as well as 

EPA’s base case modeling. Despite 

emission reductions from New York’s 

RACT regulations, as noted previously 

in this document, EPA modeling still 

shows a very large contribution to 

downwind nonattainment and 

maintenance receptors from New York 

(i.e., over twenty times the threshold 

contribution). New York’s modeling also 

showed nonattainment problems in 

nearby states. Thus, New York has not 

demonstrated that its RACT rules are 

sufficient to address the state’s 

significant contribution to 

nonattainment and interference with 

maintenance of the 2008 ozone NAAQS 

in other states. 

Comment 12: The Alliance submitted 

analyses showing the correlation 

between New York NOX emissions and 

observed daily maximum ozone 

concentrations on ozone exceedance 

days. The Alliance commented, ‘‘While 

these analyses confirm that there is a 

relationship [between ozone 

concentrations in Fairfield, Connecticut 

and New York EGU NOX emissions] 

they also indicate that EPA and 

NYSDEC should address the trend 

toward a weaker relationship noted in 

the difference between 2007 and 2015.’’ 

The Alliance further stated, ‘‘[I]t is 

obvious that the relationship between 

[New York] emissions and downwind 

ozone is complicated, not solely related 

to [New York] EGU emissions and must 

be evaluated in better detail before the 

EPA unilaterally rejects the New York’s 

[sic] SIP.’’ 

Response 12: EPA agrees that there is 

a relationship between New York EGU 

NOX emissions and ozone 

concentrations in Fairfield, Connecticut. 

This relationship supports EPA’s 

finding that reductions in New York 

EGU NOX emissions are needed to help 

lower ozone concentrations in Fairfield, 

Connecticut and at other downwind 

nonattainment and maintenance sites in 

Connecticut to which New York is 

linked. Ozone concentrations in 

Fairfield, Connecticut are dependent 

upon a number of factors including NOX

emissions from EGUs and other upwind 

sources of NOX and VOC emissions, as 

well as local emissions in Connecticut. 

Inter-annual variability in meteorology 

is a principal factor in determining yearto-year differences in the magnitude of 

ozone concentrations. In this respect, 

the fact that the relationship between 

New York EGU NOX emissions and 

ozone in Fairfield, Connecticut is 

different in 2007 compared to 2015 does 

not disprove the contributions of New 

York EGU NOX emissions to high ozone 

concentrations in Fairfield, Connecticut. 

IV. What action is EPA taking? 

EPA is disapproving a portion of the 

April 4, 2013 SIP submittal from New 

York pertaining to the requirements of 

CAA section 110(a)(2)(D)(i)(I) regarding 

interstate transport of air pollution that 

will significantly contribute to 

nonattainment or interference with 

maintenance of the 2008 ozone NAAQS 

in other states, known as prongs 1 and 

2 of the good neighbor provision. 


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58854 Federal Register / Vol. 81, No. 166 / Friday, August 26, 2016 / Rules and Regulations 

EPA is approving the portion of the 

April 4, 2013 SIP submittal from New 

York pertaining to the requirements of 

CAA section 110(a)(2)(D)(i)(II) 

requirement for visibility (or prong 4). 

We expect to take action on the other 

portions of New York’s infrastructure 

SIP at a later date. 

V. What are the consequences of a 

disapproved SIP? 

Pursuant to CAA section 110(c)(1), 

this disapproval establishes a 2-year 

deadline for the EPA to promulgate a 

FIP for New York addressing the 

requirements of CAA section 

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

2008 ozone NAAQS unless New York 

submits and we approve a SIP that 

meets these requirements. Disapproval 

does not start a mandatory sanctions 

clock for New York pursuant to CAA 

section 179 because this action does not 

pertain to a part D plan for 

nonattainment areas required under 

CAA section 110(a)(2)(I) or a SIP call 

pursuant to CAA section 110(k)(5). 

VI. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

This final action is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order (E.O.) 12866 (58 FR 

51735, October 4, 1993) and was 

therefore not submitted to the Office of 

Management and Budget for review. 

B. Paperwork Reduction Act (PRA) 

This final action does not impose an 

information collection burden under the 

PRA because it does not contain any 

information collection activities. 

C. Regulatory Flexibility Act (RFA) 

I certify that this action will not have 

a significant economic impact on a 

substantial number of small entities 

under the RFA. This rule does not 

impose any requirements or create 

impacts on small entities. This partial 

SIP approval and partial SIP 

disapproval under CAA section 110 will 

not in-and-of itself create any new 

requirements but simply approves and 

disapproves certain state requirements 

for inclusion into the SIP. 

D. Unfunded Mandates Reform Act 

(UMRA) 

This action does not contain any 

unfunded mandate as described in 

UMRA, 2 U.S.C. 1531–1538, and does 

not significantly or uniquely affect small 

governments. The action imposes no 

enforceable duty on any state, local or 

tribal governments or the private sector. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications as specified in Executive 

Order 13175. This action does not apply 

on any Indian reservation land, any 

other area where the EPA or an Indian 

tribe has demonstrated that a tribe has 

jurisdiction, or non-reservation areas of 

Indian country. Thus, Executive Order 

13175 does not apply to this action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

The EPA interprets Executive Order 

13045 as applying only to those 

regulatory actions that concern 

environmental health or safety risks that 

the EPA has reason to believe may 

disproportionately affect children, per 

the definition of ‘‘covered regulatory 

action’’ in section 2–202 of the 

Executive Order. This action is not 

subject to Executive Order 13045 

because it merely partially approves and 

partially disapproves a SIP submittal 

from the State of New York. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution or Use 

This action is not subject to Executive 

Order 13211, because it is not a 

significant regulatory action under 

Executive Order 12866. 

I. National Technology Transfer and 

Advancement Act 

This rulemaking does not involve 

technical standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

EPA believes the human health or 

environmental risk addressed by this 

action will not have potential 

disproportionately high and adverse 

human health or environmental effects 

on minority, low-income or indigenous 

populations because it does not affect 

the level of protection provided to 

human health or the environment. This 

action merely partially approves and 

partially disapproves a SIP submittal 

from the State of New York. 

K. Congressional Review Act (CRA) 

This action is subject to the CRA, and 

EPA will submit a rule report to each 

House of the Congress and to 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). 

L. Judicial Review 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by October 25, 2016. 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 CAA 

section 307(b)(2)). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Incorporation by reference, 

Nitrogen dioxide, Ozone, Volatile 

organic compounds. 

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

Dated: August 12, 2016. 

Judith A. Enck, 

Regional Administrator, Region 2. 

40 CFR part 52 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(e), is amended by 

adding an entry for ‘‘Section 110(a)(2) 

Infrastructure Requirements for the 2008 

ozone NAAQS’’ at the end of the table 

to read as follows: 

§ 52.1670 Identification of plan. 

* * * * * 

(e) * * * 


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Federal Register / Vol. 81, No. 166 / Friday, August 26, 2016 / Rules and Regulations 58855 

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 2008 ozone NAAQS.Statewide ........ 04/04/13 08/26/16, [Insert 

Federal Register 

citation].

This action addresses the following CAA 

element: 110(a)(2)(D(i)(II) prong 4. 

■ 3. Section 52.1683 is amended by 

adding paragraph (o) to read as follows: 

§ 52.1683 Control strategy: Ozone. 

* * * * * 

(o) The portion of the SIP submitted 

on April 4, 2013 addressing Clean Air 

Act section 110(a)(2)(D)(i)(I) for the 2008 

ozone NAAQS is disapproved. 

[FR Doc. 2016–20411 Filed 8–25–16; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2016–0233; FRL–9951–41– 

Region 3] 

Approval and Promulgation of Air 

Quality Implementation Plans; Virginia; 

Control of Emissions of Volatile 

Organic Compounds From the 

Reynolds Consumer Products LLC— 

Bellwood Printing Plant 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is taking direct final 

action to approve a revision to the 

Commonwealth of Virginia (Virginia) 

state implementation plan (SIP). The 

revision would remove a consent 

agreement and order (consent order) 

previously included in the Virginia SIP 

to address reasonably available control 

technology (RACT) requirements for 

volatile organic compounds (VOCs) 

control at the Reynolds Consumer 

Product LLC (Reynolds) plant and 

include a state operating permit in the 

SIP to continue to address RACT 

requirements for the Reynolds plant. 

EPA is approving these revisions in 

accordance with the requirements of the 

Clean Air Act (CAA). 

DATES: This rule is effective on October 

25, 2016 without further notice, unless 

EPA receives adverse written comment 

by September 26, 2016. If EPA receives 

such comments, it will publish a timely 

withdrawal of the direct final rule in the 

Federal Register and inform the public 

that the rule will not take effect. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R03– 

OAR–2016–0233 at http://

www.regulations.gov, or via email to 

fernandez.cristina@epa.gov. For 

comments submitted at Regulations.gov, 

follow the online instructions for 

submitting comments. Once submitted, 

comments cannot be edited or removed 

from Regulations.gov. For either manner 

of submission, the EPA may publish any 

comment received to its public docket. 

Do not submit electronically any 

information you consider to be 

confidential business information (CBI) 

or other information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. The EPA will generally not 

consider comments or comment 

contents located outside of the primary 

submission (i.e. on the Web, cloud, or 

other file sharing system). For 

additional submission methods, please 

contact the person identified in the ‘‘For 

Further Information Contact’’ section. 

For the full EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

http://www2.epa.gov/dockets/ 

commenting-epa-dockets. 

FOR FURTHER INFORMATION CONTACT: 

Gregory Becoat, (215) 814–2036, or by 

email at becoat.gregory@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On October 26, 2015, the 

Commonwealth of Virginia through the 

Virginia Department of Environmental 

Quality (VADEQ) submitted a revision 

to its SIP. The SIP revision submittal 

seeks to include state operating permit 

conditions and terms for the control of 

emissions of VOCs from Reynolds’ plant 

located in Chesterfield, Virginia, in the 

Richmond Area, in order to address 

VOC RACT requirements for Reynolds. 

Previously, VOC RACT requirements for 

Reynolds were addressed via inclusion 

in the Virginia SIP of a Consent Order 

between VADEQ and Reynolds. This 

SIP revision submittal seeks to remove 

the prior Reynolds’ consent order 

included in the SIP and replace it with 

nearly identical VOC RACT 

requirements now contained for the 

Reynolds’ plant in a state operating 

permit. The SIP revision submittal also 

contains minor administrative and 

technical changes related to VOCs 

compared to the Reynolds’ consent 

order; however, the substantive 

provision of VOC RACT remains the 

same for the Reynolds’ plant, thus the 

minor administrative and technical 

changes have no effect on facility 

operation, VOC emissions, or air 

quality. 

The Virginia SIP provides that the 

Commonwealth of Virginia’s State Air 

Pollution Control Board must, on caseby-case basis, determine RACT for VOCs 

from major sources for which EPA has 

not issued a control technology 

guideline (CTG). EPA defines RACT as 

‘‘the lowest emission limitation that a 

particular source is capable of meeting 

by the application of control technology 

that is reasonably available considering 

technological and economic feasibility.’’ 

44 FR 53761 (September 17, 1979). The 

Richmond Area was originally 

designated as a ‘‘moderate’’ ozone 

nonattainment area under the 1-hour 

ozone national ambient air quality 

standard (NAAQS), and thereby had to 

meet the non-CTGs RACT requirements 

under section 182 of the CAA (56 FR 

56694, November 6, 1991). Reynolds’ 

printing plant was identified as being 

subject to non-CTG RACT. The facility 

underwent a RACT analysis, and a 

federally-enforceable consent order was 

issued to the facility on October 30, 

1986. The order was then submitted to 

EPA as a SIP revision, and approved 

into the Commonwealth’s SIP on June 6, 

1996 (61 FR 29963). 

II. Summary of SIP Revision 

The SIP revision removes the prior 

Reynolds’ consent order included in the 


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