25066 Federal Register / Vol. 79, No. 85 / Friday, May 2, 2014 / Proposed Rules 

1The 2010 NO2 NAAQS is expressed as the three 

year average of the 98th percentile of the annual 

distribution of daily maximum 1-hour average 

concentrations. 

2The official level of the annual NO2 NAAQS is 

0.053 parts per million (ppm), equal to 53 ppb 

which is shown here for the purpose of clearer 

comparison to the 1-hour NO2 NAAQS. 

Dated: April 22, 2014. 

Susan Hedman, 

Regional Administrator, Region 5. 

[FR Doc. 2014–10115 Filed 5–1–14; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R02–OAR–2013–0527, FRL–9910–16– 

Region 2] 

Approval and Promulgation of 

Implementation Plans; New York; 

Infrastructure SIP for the 2010 Nitrogen 

Dioxide Primary Standard 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

certain elements of New York’s State 

Implementation Plan (SIP) revision 

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: Comments must be received on 

or before June 2, 2014. 

ADDRESSES: Submit your comments, 

identified by Docket ID number EPA– 

R02–OAR–2013–0527, by one of the 

following methods: 

• www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

• Email: Ruvo.Richard@epa.gov. 

• Fax: 212–637–3901. 

• Mail: Richard Ruvo, Chief, Air 

Programs Branch, Environmental 

Protection Agency, Region 2 Office, 290 

Broadway, 25th Floor, New York, New 

York 10007–1866. 

• Hand Delivery: Richard Ruvo, 

Chief, Air Programs Branch, 

Environmental Protection Agency, 

Region 2 Office, 290 Broadway, 25th 

Floor, New York, New York 10007– 

1866. Such deliveries are only accepted 

during the Regional Office’s normal 

hours of operation. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 to 4:30 

excluding Federal holidays. 

Instructions: Direct your comments to 

Docket ID No. EPA–R02–OAR–2013– 

0527. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through www.regulations.gov 

or email. The www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means EPA will not know your 

identity or contact information unless 

you provide it in the body of your 

comment. If you send an email 

comment directly to EPA without going 

through www.regulations.gov your email 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional information 

about EPA’s public docket visit the EPA 

Docket Center homepage at http://

www.epa.gov/epahome/dockets.htm. 

Docket: All documents in the docket 

are listed in the http://

www.regulations.gov index. 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, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http://

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. EPA requests, if 

at all possible, that you contact the 

individual listed in the FOR FURTHER

INFORMATION CONTACT section to view 

the hard copy of the docket. You may 

view the hard copy of the docket 

Monday through Friday, 8:30 a.m. to 

4:30 p.m., excluding Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Anthony (Ted) Gardella, Air Programs 

Branch, Environmental Protection 

Agency, 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 action is EPA proposing? 

II. What is the background information? 

III. What elements are required under section 

110(a)(1) and (2)? 

IV. What is EPA’s approach to the review of 

infrastructure SIP submissions? 

V. What did New York submit? 

VI. How has the State addressed the elements 

of the section 110(a)(1) and (2) 

‘‘infrastructure’’ provisions? 

VII. What action is EPA taking? 

VIII. Statutory and Executive Order Reviews 

I. What action is EPA proposing? 

EPA is proposing to approve certain 

elements of the State of New York 

Infrastructure SIP as meeting the section 

110(a) infrastructure requirements of the 

Clean Air Act (CAA) for the 2010 NO2

National Ambient Air Quality Standard 

(NAAQS or standard). As explained 

below, the State has the necessary 

infrastructure, resources, and general 

authority to implement the 2010 NO2

standard. 

II. What is the background 

information? 

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). The 2010 

NO2 NAAQS is based on 1-hour three 

year average concentrations.1 The 2010 

NO2 NAAQS is 100 parts per billion 

(ppb) and the new standard 

supplements the existing primary 

annual standard of 53 ppb. The 

secondary NO2 NAAQS remains 

unchanged and is the same as the 

primary annual average NO2 NAAQS, 

i.e., 53 ppb.2

Section 110(a)(1) provides the 

procedural and timing requirements for 

State Implementation Plans (SIPs). 

Section 110(a)(2) lists specific elements 

that states must meet for SIP 

requirements related to a newly 

established or revised NAAQS. 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. By 

statute, SIPs meeting the requirements 

of section 110(a)(1) and (2) are to be 

submitted by states within three years 


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Federal Register / Vol. 79, No. 85 / Friday, May 2, 2014 / Proposed Rules 25067 

3 ‘‘Guidance on Infrastructure State 

Implementation Plan (SIP) Elements under Clean 

Air Act Sections 110(a)(1) and 110(a)(2)’’ can be 

found at: http://www.epa.gov/airquality/urbanair/

sipstatus/infrastructure.html. 

4For example: Section 110(a)(2)(E)(i) 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 SIP-approved program to 

address certain sources as required by part C of title 

I of the CAA; and section 110(a)(2)(G) provides that 

states must have legal authority to address 

emergencies as well as contingency plans that are 

triggered in the event of such emergencies. 

5See, e.g., ‘‘Rule To 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, at 25163–65 (May 12, 2005) (explaining 

relationship between timing requirement of section 

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

6EPA notes that this ambiguity within section 

110(a)(2) is heightened by the fact that various 

subparts of part D set specific dates for submission 

of certain types of SIP submissions in designated 

nonattainment areas for various pollutants. Note, 

Continued 

after promulgation of a new or revised 

standard. These SIPs are commonly 

called infrastructure SIPs. Based on the 

February 9, 2010 promulgation date, 

infrastructure SIPs for the 2010 NO2

NAAQS were due on February 9, 2013. 

III. What elements are required under 

section 110(a)(1) and (2)? 

The infrastructure requirements are 

listed 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’’ and September 25, 

2009, memorandum entitled ‘‘Guidance 

on SIP Elements Required Under 

Section 110(a)(1) and (2) for the 2006 

24-Hour Fine Particle (PM2.5) National 

Ambient Air Quality Standards. In 

addition, in a memorandum dated 

September 13, 2013, EPA released new 

guidance entitled ‘‘Guidance on 

Infrastructure State Implementation 

Plan (SIP) Elements under Clean Air Act 

Sections 110(a)(1) and 110(a)(2),’’ 3 This 

new guidance (2013 Guidance) 

addresses the 2008 ozone, 2010 NO2, 

2010 SO2, and 2012 PM2.5 NAAQS, as 

well as infrastructure SIPs for new or 

revised NAAQS promulgated in the 

future. The 14 elements required to be 

addressed 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. 

Two elements identified in section 

110(a)(2) are not governed by the 3 year 

submission deadline of section 110(a)(1) 

because SIPs incorporating necessary 

local nonattainment area controls are 

not due within 3 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 

section 172. See 77 FR 46354 (August 3, 

2012); 77 FR 60308 (October 3, 2012, 

footnote 1). 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 planning requirements 

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

110(a)(2)(I). 

IV. What is EPA’s approach to the 

review of infrastructure SIP 

submissions? 

EPA is acting upon the SIP 

submission from New York State that 

addresses the infrastructure 

requirements of CAA sections 110(a)(1) 

and 110(a)(2) for the 2010 NO2 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 has historically referred to these 

SIP submissions made for the purpose 

of satisfying the requirements of CAA 

sections 110(a)(1) and 110(a)(2) as 

‘‘infrastructure SIP’’ submissions. 

Although the term ‘‘infrastructure SIP’’ 

does not appear in the CAA, EPA uses 

the term to distinguish this particular 

type of SIP submission from 

submissions that are intended to satisfy 

other SIP requirements under the CAA, 

such as ‘‘nonattainment SIP’’ or 

‘‘attainment plan SIP’’ submissions to 

address the nonattainment planning 

requirements of part D of title I of the 

CAA, ‘‘regional haze SIP’’ submissions 

required by EPA rule to address the 

visibility protection requirements of 

CAA section 169A, and nonattainment 

new source review permit program 

submissions to address the permit 

requirements of CAA, title I, part D. 

Section 110(a)(1) addresses the timing 

and general requirements for 

infrastructure SIP submissions, and 

section 110(a)(2) provides more details 

concerning the required contents of 

these submissions. 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 program 

provisions, and some of which pertain 

to requirements for both authority and 

substantive program provisions.4 EPA 

therefore believes that while the timing 

requirement in section 110(a)(1) is 

unambiguous, some of the other 

statutory provisions are ambiguous. In 

particular, EPA believes that the list of 

required elements for infrastructure SIP 

submissions provided in section 

110(a)(2) contains ambiguities 

concerning what is required for 

inclusion in an infrastructure SIP 

submission. 

The following examples of 

ambiguities illustrate the need for EPA 

to interpret some section 110(a)(1) and 

section 110(a)(2) requirements with 

respect to infrastructure SIP 

submissions for a given new or revised 

NAAQS. One example of ambiguity is 

that section 110(a)(2) requires that 

‘‘each’’ SIP submission must meet the 

list of requirements therein, while EPA 

has long noted that this literal reading 

of the statute is internally inconsistent 

and would create a conflict with the 

nonattainment provisions in part D of 

title I of the Act, which specifically 

address nonattainment SIP 

requirements.5 Section 110(a)(2)(I) 

pertains to nonattainment SIP 

requirements and part D addresses 

when attainment plan SIP submissions 

to address nonattainment area 

requirements are due. For example, 

section 172(b) requires EPA to establish 

a schedule for submission of such plans 

for certain pollutants when the 

Administrator promulgates the 

designation of an area as nonattainment, 

and section 107(d)(1)(B) allows up to 

two years, or in some cases three years, 

for such designations to be 

promulgated.6 This ambiguity illustrates 


TKELLEY on DSK3SPTVN1PROD with PROPOSALS
25068 Federal Register / Vol. 79, No. 85 / Friday, May 2, 2014 / Proposed Rules 

e.g., that section 182(a)(1) provides specific dates 

for submission of emissions inventories for the 

ozone NAAQS. Some of these specific dates are 

necessarily later than three years after promulgation 

of the new or revised NAAQS. 

7See, e.g., ‘‘Approval and Promulgation of 

Implementation Plans; New Mexico; Revisions to 

the New Source Review (NSR) State 

Implementation Plan (SIP); Prevention of 

Significant Deterioration (PSD) and Nonattainment 

New Source Review (NNSR) Permitting,’’ 78 FR 

4339 (January 22, 2013) (EPA’s final action 

approving the structural PSD elements of the New 

Mexico SIP submitted by the State separately to 

meet the requirements of EPA’s 2008 PM2.5 NSR 

rule), and ‘‘Approval and Promulgation of Air 

Quality Implementation Plans; New Mexico; 

Infrastructure and Interstate Transport 

Requirements for the 2006 PM2.5 NAAQS,’’ (78 FR 

4337) (January 22, 2013) (EPA’s final action on the 

infrastructure SIP for the 2006 PM2.5 NAAQS). 

8On December 14, 2007, the State of Tennessee, 

through the Tennessee Department of Environment 

and Conservation, made a SIP revision to EPA 

demonstrating that the State meets the requirements 

of sections 110(a)(1) and (2). EPA proposed action 

for infrastructure SIP elements (C) and (J) on 

January 23, 2012 (77 FR 3213) and took final action 

on March 14, 2012 (77 FR 14976). On April 16, 

2012 (77 FR 22533) and July 23, 2012 (77 FR 

42997), EPA took separate proposed and final 

actions on all other section 110(a)(2) infrastructure 

SIP elements of Tennessee’s December 14, 2007 

submittal. 

9For 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. 

10EPA notes, however, that nothing in the CAA 

requires EPA to provide guidance or to promulgate 

regulations for infrastructure SIP submissions. The 

CAA directly applies to states and requires the 

submission of infrastructure SIP submissions, 

regardless of whether or not EPA provides guidance 

or regulations pertaining to such submissions. EPA 

elects to issue such guidance in order to assist 

states, as appropriate. 

11 ‘‘Guidance on Infrastructure State 

Implementation Plan (SIP) Elements under Clean 

Air Act Sections 110(a)(1) and 110(a)(2),’’ 

Memorandum from Stephen D. Page, September 13, 

2013. 

12EPA’s September 13, 2013, guidance did not 

make recommendations with respect to 

infrastructure SIP submissions to address section 

110(a)(2)(D)(i)(I). EPA issued the guidance shortly 

after the U.S. Supreme Court agreed to review the 

D.C. Circuit decision in EME Homer City, 696 F.3d7 

(D.C. Cir. 2012) which had interpreted the 

requirements of section 110(a)(2)(D)(i)(I). In light of 

the uncertainty created by ongoing litigation, EPA 

elected not to provide additional guidance on the 

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

time. As the guidance is neither binding nor 

required by statute, whether EPA elects to provide 

guidance on a particular section has no impact on 

a state’s CAA obligations. 

that rather than apply all the stated 

requirements of section 110(a)(2) in a 

strict literal sense, EPA must determine 

which provisions of section 110(a)(2) 

are applicable for a particular 

infrastructure SIP submission. 

Another example of ambiguity within 

sections 110(a)(1) and 110(a)(2) with 

respect to infrastructure SIPs pertains to 

whether states must meet all of the 

infrastructure SIP requirements in a 

single SIP submission, and whether EPA 

must act upon such SIP submission in 

a single action. Although section 

110(a)(1) directs states to submit ‘‘a 

plan’’ to meet these requirements, EPA 

interprets the CAA to allow states to 

make multiple SIP submissions 

separately addressing infrastructure SIP 

elements for the same NAAQS. If states 

elect to make such multiple SIP 

submissions to meet the infrastructure 

SIP requirements, EPA can elect to act 

on such submissions either individually 

or in a larger combined action.7

Similarly, EPA interprets the CAA to 

allow it to take action on the individual 

parts of one larger, comprehensive 

infrastructure SIP submission for a 

given NAAQS without concurrent 

action on the entire submission. For 

example, EPA has sometimes elected to 

act at different times on various 

elements and sub-elements of the same 

infrastructure SIP submission.8

Ambiguities within sections 110(a)(1) 

and 110(a)(2) may also arise with 

respect to infrastructure SIP submission 

requirements for different NAAQS. 

Thus, 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. 

The states’ attendant infrastructure SIP 

submissions for each NAAQS therefore 

could be different. For example, the 

monitoring requirements that a state 

might need to meet in its infrastructure 

SIP submission for purposes of section 

110(a)(2)(B) could be very different for 

different pollutants, for example 

because the content and scope of a 

state’s infrastructure SIP submission to 

meet this element might be very 

different for an entirely new NAAQS 

than for a minor revision to an existing 

NAAQS.9

EPA notes that interpretation of 

section 110(a)(2) is also necessary when 

EPA reviews other types of SIP 

submissions required under the CAA. 

Therefore, as with infrastructure SIP 

submissions, EPA also has to identify 

and interpret the relevant elements of 

section 110(a)(2) that logically apply to 

these other types of SIP submissions. 

For example, section 172(c)(7) requires 

that attainment plan SIP submissions 

required by part D have to meet the 

‘‘applicable requirements’’ of section 

110(a)(2). Thus, for example, attainment 

plan SIP submissions must meet the 

requirements of section 110(a)(2)(A) 

regarding enforceable emission limits 

and control measures and section 

110(a)(2)(E)(i) regarding air agency 

resources and authority. By contrast, it 

is clear that attainment plan SIP 

submissions required by part D would 

not need to meet the portion of section 

110(a)(2)(C) that pertains to the PSD 

program required in part C of title I of 

the CAA, because PSD does not apply 

to a pollutant for which an area is 

designated nonattainment and thus 

subject to part D planning requirements. 

As this example illustrates, each type of 

SIP submission may implicate some 

elements of section 110(a)(2) but not 

others. 

Given the potential for ambiguity in 

some of the statutory language of section 

110(a)(1) and section 110(a)(2), EPA 

believes that it is appropriate to 

interpret the ambiguous portions of 

section 110(a)(1) and section 110(a)(2) 

in the context of acting on a particular 

SIP submission. In other words, EPA 

assumes that Congress could not have 

intended that each and every SIP 

submission, regardless of the NAAQS in 

question or the history of SIP 

development for the relevant pollutant, 

would meet each of the requirements, or 

meet each of them in the same way. 

Therefore, EPA has adopted an 

approach under which it reviews 

infrastructure SIP submissions against 

the list of elements in section 110(a)(2), 

but only to the extent each element 

applies for that particular NAAQS. 

Historically, EPA has elected to use 

guidance documents to make 

recommendations to states for 

infrastructure SIPs, in some cases 

conveying needed interpretations on 

newly arising issues and in some cases 

conveying interpretations that have 

already been developed and applied to 

individual SIP submissions for 

particular elements.10 EPA most 

recently issued guidance for 

infrastructure SIPs on September 13, 

2013 (2013 Guidance).11 EPA developed 

this document to provide states with upto-date guidance for infrastructure SIPs 

for any new or revised NAAQS. Within 

this guidance, EPA describes the duty of 

states to make infrastructure SIP 

submissions to meet basic structural SIP 

requirements within three years of 

promulgation of a new or revised 

NAAQS. EPA also made 

recommendations about many specific 

subsections of section 110(a)(2) that are 

relevant in the context of infrastructure 

SIP submissions.12 The guidance also 

discusses the substantively important 

issues that are germane to certain 

subsections of section 110(a)(2). 

Significantly, EPA interprets sections 

110(a)(1) and 110(a)(2) such that 

infrastructure SIP submissions need to 

address certain issues and need not 

address others. Accordingly, EPA 

reviews each infrastructure SIP 

submission for compliance with the 


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13By contrast, EPA notes that if a state were to 

include a new provision in an infrastructure SIP 

submission that contained a legal deficiency, such 

as a new exemption for excess emissions during 

SSM events, then EPA would need to evaluate that 

provision for compliance against the rubric of 

applicable CAA requirements in the context of the 

action on the infrastructure SIP. 

14For example, EPA issued a SIP call to Utah to 

address specific existing SIP deficiencies related to 

the treatment of excess emissions during SSM 

events. See ‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revisions,’’ 74 FR 21639 

(April 18, 2011). 

15EPA has used this authority to correct errors in 

past actions on SIP submissions related to PSD 

Continued 

applicable statutory provisions of 

section 110(a)(2), as appropriate. 

As an example, section 110(a)(2)(E)(ii) 

is a required element of section 

110(a)(2) for infrastructure SIP 

submissions. Under this element, a state 

must meet the substantive requirements 

of section 128, which pertain to state 

boards that approve permits or 

enforcement orders and heads of 

executive agencies with similar powers. 

Thus, EPA reviews infrastructure SIP 

submissions to ensure that the state’s 

SIP appropriately addresses the 

requirements of section 110(a)(2)(E)(ii) 

and section 128. The 2013 Guidance 

explains EPA’s interpretation that there 

may be a variety of ways by which states 

can appropriately address these 

substantive statutory requirements, 

depending on the structure of an 

individual state’s permitting or 

enforcement program (e.g., whether 

permits and enforcement orders are 

approved by a multi-member board or 

by a head of an executive agency). 

However they are addressed by the 

state, the substantive requirements of 

section 128 are necessarily included in 

EPA’s evaluation of infrastructure SIP 

submissions because section 

110(a)(2)(E)(ii) explicitly requires that 

the state satisfy the provisions of section 

128. 

As another example, EPA’s review of 

infrastructure SIP submissions with 

respect to the PSD program 

requirements in sections 110(a)(2)(C), 

(D)(i)(II), and (J) focuses upon the 

structural PSD program requirements 

contained in part C and EPA’s PSD 

regulations. Structural PSD program 

requirements include provisions 

necessary for the PSD program to 

address all regulated sources and NSR 

pollutants, including GHGs. By contrast, 

structural PSD program requirements do 

not include provisions that are not 

required under EPA’s regulations at 40 

CFR 51.166 but are merely available as 

an option for the state, such as the 

option to provide grandfathering of 

complete permit applications with 

respect to the 2012 PM2.5 NAAQS. 

Accordingly, the latter optional 

provisions are types of provisions EPA 

considers irrelevant in the context of an 

infrastructure SIP action. 

For other section 110(a)(2) elements, 

however, EPA’s review of a state’s 

infrastructure SIP submission focuses 

on assuring that the state’s SIP meets 

basic structural requirements. For 

example, section 110(a)(2)(C) includes, 

inter alia, the requirement that states 

have a program to regulate minor new 

sources. Thus, EPA evaluates whether 

the state has an EPA-approved minor 

new source review program and 

whether the program addresses the 

pollutants relevant to that NAAQS. In 

the context of acting on an 

infrastructure SIP submission, however, 

EPA does not think it is necessary to 

conduct a review of each and every 

provision of a state’s existing minor 

source program (i.e., already in the 

existing SIP) for compliance with the 

requirements of the CAA and EPA’s 

regulations that pertain to such 

programs. 

With respect to certain other issues, 

EPA does not believe that an action on 

a state’s infrastructure SIP submission is 

necessarily the appropriate type of 

action in which to address possible 

deficiencies in a state’s existing SIP. 

These issues include: (i) Existing 

provisions related to excess emissions 

from sources during periods of startup, 

shutdown, or malfunction that may be 

contrary to the CAA and EPA’s policies 

addressing such excess emissions 

(‘‘SSM’’); (ii) existing provisions related 

to ‘‘director’s variance’’ or ‘‘director’s 

discretion’’ that may be contrary to the 

CAA because they purport to allow 

revisions to SIP-approved emissions 

limits while limiting public process or 

not requiring further approval by EPA; 

and (iii) 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’’). Thus, EPA believes it may 

approve an infrastructure SIP 

submission without scrutinizing the 

totality of the existing SIP for such 

potentially deficient provisions and may 

approve the submission even if it is 

aware of such existing provisions.13 It is 

important to note that EPA’s approval of 

a state’s infrastructure SIP submission 

should not be construed as explicit or 

implicit re-approval of any existing 

potentially deficient provisions that 

relate to the three specific issues just 

described. 

EPA’s approach to review of 

infrastructure SIP submissions is to 

identify the CAA requirements that are 

logically applicable to that submission. 

EPA believes that this approach to the 

review of a particular infrastructure SIP 

submission is appropriate, because it 

would not be reasonable to read the 

general requirements of section 

110(a)(1) and the list of elements in 

110(a)(2) as requiring review of each 

and every provision of a state’s existing 

SIP against all requirements in the CAA 

and EPA regulations 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. These provisions, 

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 

evaluates adequacy of the infrastructure 

SIP submission. EPA believes that a 

better approach is for states and EPA to 

focus attention on those elements of 

section 110(a)(2) of the CAA most likely 

to warrant a specific SIP revision due to 

the promulgation of a new or revised 

NAAQS or other factors. 

For example, EPA’s 2013 Guidance 

gives simpler recommendations with 

respect to carbon monoxide than other 

NAAQS pollutants to meet the visibility 

requirements of section 

110(a)(2)(D)(i)(II), because carbon 

monoxide does not affect visibility. As 

a result, an infrastructure SIP 

submission for any future new or 

revised NAAQS for carbon monoxide 

need only state this fact in order to 

address the visibility prong of section 

110(a)(2)(D)(i)(II). Finally, EPA believes 

that its approach with respect to 

infrastructure SIP requirements is based 

on a reasonable reading of sections 

110(a)(1) and 110(a)(2) because the CAA 

provides other avenues and mechanisms 

to address specific substantive 

deficiencies in existing SIPs. These 

other statutory tools allow EPA to take 

appropriately 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 to 

otherwise comply with the CAA.14

Section 110(k)(6) authorizes EPA to 

correct errors in past actions, such as 

past approvals of SIP submissions.15


TKELLEY on DSK3SPTVN1PROD with PROPOSALS
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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 section 110(k)(6) to 

remove numerous other SIP provisions that the 

Agency determined it had approved in error. See, 

e.g., 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). 

16See, e.g., EPA’s disapproval of 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, e.g., 75 FR 42342 at 42344 

(July 21, 2010) (proposed disapproval of director’s 

discretion provisions); 76 FR 4540 (Jan. 26, 2011) 

(final disapproval of such provisions). 

Significantly, EPA’s determination that 

an action on a state’s infrastructure SIP 

submission is not the appropriate time 

and place to address all potential 

existing SIP deficiencies does not 

preclude EPA’s subsequent reliance on 

provisions in section 110(a)(2) as part of 

the basis for action to correct those 

deficiencies 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 an 

infrastructure SIP submission, EPA 

believes that section 110(a)(2)(A) may be 

among the statutory bases that EPA 

relies upon in the course of addressing 

such deficiency in a subsequent 

action.16

V. What did New York submit? 

New York’s section 110 infrastructure 

submittal was submitted by the New 

York State Department of 

Environmental Conservation (NYSDEC) 

on May 8, 2013, as supplemented on 

May 23, 2013, and addressed the 2010 

NO2 NAAQS. New York’s May 2013 

section 110 submittals demonstrate how 

the State, where applicable, has a plan 

in place that meets the requirements of 

section 110 for the 2010 NO2 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 SIP and 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. 

VI. How has the State addressed the 

elements of the section 110(a)(1) and (2) 

‘‘infrastructure’’ provisions? 

EPA compared New York’s 

Infrastructure SIP submittals for the 

2010 NO2 NAAQS to New York’s 

Infrastructure SIP submittals for the 

1997 8-hour ozone and the 1997 and 

2006 fine particulate matter (PM2.5) 

NAAQS. On June 20, 2013, EPA took 

final action [see 78 FR 37122] approving 

certain elements and sub-elements of 

New York’s 1997 8-hour ozone and the 

1997 and 2006 PM2.5 Infrastructure SIPs. 

Based upon EPA’s comparison, EPA has 

determined that the information 

provided in New York’s 2010 NO2

Infrastructure SIP is nearly identical to 

the information provided in New York’s 

Infrastructure SIP submittals for the 

1997 8-hour ozone and 1997 and 2006 

PM2.5 NAAQS. Infrastructure SIPs for 

different criteria pollutants can have 

common aspects which are identical for 

each NAAQS (e.g., authority to 

promulgate emission limitations, 

enforcement, air quality modeling 

capabilities, adequate personnel, 

resources and legal authority). The 

rationale for approving certain elements 

of New York’s Infrastructure SIP for NO2

is the same as the rationale for 

approving those elements of New York’s 

1997 8-hour ozone and 1997 and 2006 

PM2.5 Infrastructure SIPs. Since the 

rationale for approving certain elements 

of New York’s NO2 Infrastructure SIP is 

the same as the rationale for approving 

certain elements of New York’s 1997 8- 

hour ozone and 1997 and 2006 PM2.5

Infrastructure SIPs, EPA is not repeating 

this evaluation in today’s proposal. 

Instead, the reader is referred to EPA’s 

evaluation of the three SIP submittals 

(the 1997 8-hour ozone and 1997 and 

2006 PM2.5 Infrastructure SIPs) detailed 

in the following three documents: (1) 

‘‘Technical Support Document for EPA’s 

Proposed Rulemaking for the New 

York’s State Implementation Plan 

Revision: State Implementation Plan 

Revision For Meeting the Infrastructure 

Requirements In the Clean Air Act 

Dated December 13, 2007, October 2, 

2008 and March 15, 2010’’ (TSD); (2) 

EPA’s proposed approval dated April 

30, 2013 (78 FR 25236); and, (3) EPA’s 

June 20, 2013 final rule approving 

certain elements of New York’s 

Infrastructure SIPs for the 1997 8-hour 

ozone and the 1997 and 2006 PM2.5

NAAQS (78 FR 37122). These three 

documents are available in the 

electronic docket for today’s proposed 

action at www.regulations.gov. We are, 

of course, accepting comments on that 

rationale as it applies to our proposed 

approval of New York’s Infrastructure 

SIP for the NO2 NAAQS. 

EPA is proposing approval of the 

following elements and sub-elements of 

New York’s Infrastructure SIP for NO2: 

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]; 110(a)(2)(G) [Emergency 

power]; 110(a)(2)(H) [Future SIP 

Revisions]; 110(a)(2)(J) [Consultation 

with government official, public 

notification, PSD, and visibility 

protection]; 110(a)(2)(K) [Air quality and 

modeling/data]; 110(a)(2)(L) [Permitting 

fees]; 110(a)(2)(M) [Consultation/

participation by affected local entities]. 

As stated above, there are certain 

aspects of the elements of New York’s 

Infrastructure SIP for the 2010 NO2

NAAQS that are common to New York’s 

1997 8-hour ozone and 1997 and 2006 

PM2.5 Infrastructure SIPs that EPA 

approved on June 20, 2013 and therefore 

EPA is not repeating the rationale for 

approving the following elements of 

New York’s Infrastructure SIP for the 

2010 NO2 NAAQS in today’s proposal: 

Elements A, D(i)(II), D(ii), E, F, H, I, J, 

K, L, and M. 

As discussed in the following 

sections, for those elements of New 

York’s NO2 Infrastructure SIP that differ 

from New York’s 1997 8-hour ozone and 

1997 and 2006 PM2.5 Infrastructure SIPs, 

EPA has reviewed and evaluated the 

aspects of those elements, namely 

elements B, C, D(i)(I) and G. 

Element B: Ambient air quality 

monitoring/data system: Section 

110(a)(2)(B) requires SIPs to include 

provisions to provide for establishment 

and operation of ambient air quality 

monitors, to monitor, compile and 

analyze ambient air quality data, and to 

make these data available to EPA upon 

request. EPA requires that states 

establish a new ambient air quality 

monitoring and reporting requirements 

for NO2 as follows: (1) In urban areas 

near major roads and other locations 

where maximum concentration is 

expected; (2) community wide 

monitoring in large urban areas; and (3) 

in locations where EPA identifies 

monitoring will help protect 

communities that are susceptible and 

vulnerable to NO2-related health effects. 

New York addressed EPA’s new 

monitoring requirements when it 

submitted its Annual Monitoring 

Network Review Plan (Plan) of 2013 on 

July 18, 2013. EPA approved this Plan 

on September 5, 2013. EPA is therefore 


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17EPA has set NAAQS for six principal 

pollutants, as follows: Carbon monoxide (CO), lead 

(Pb), nitrogen dioxide (NO2), ozone (O3), particle 

pollution (PM), and sulfur dioxide (SO2). 

18 In accordance with the decision of the U.S. 

Court of Appeals for the District of Columbia, EPA 

at this time is not treating the 110(a)(2)(D)(i)(I) 

portion of the SIP submission from New York 

(which is part of the larger May 8, 2013 SIP 

submission for the 2010 NO2 NAAQS) as a required 

SIP submission. See EME Homer City Generation, 

L.P. v. EPA, 696 F .3d 7 (D.C. Cir. 2012), cert. 

granted 133 S.Ct. 2857 (2013). On June 24, 2013, 

the Supreme Court granted the petitions of the 

United States and others and agreed to review the 

merits of the D.C. Circuit decision in EME Homer 

City during the Court’s 2013 term. Regardless of 

whether a particular SIP submission is considered 

‘‘required,’’ however, section 110(k)(2) of the CAA 

requires EPA to act on the submission. 

proposing to determine that New York 

has met the requirements of section 

110(a)(2)(B) of the CAA with respect to 

the 2010 NO2 NAAQS. A copy of New 

York’s 2013 Monitoring Plan and EPA’s 

September 5, 2013 approval letter are in 

the docket for today’s proposal at 

www.regulations.gov. 

Element C: Program for enforcement 

of control measures: Section 

110(a)(2)(C) requires states to have a 

plan that includes a program providing 

for enforcement of all SIP measures and 

the regulation of the modification and 

construction of any stationary source, 

including a program to meet Prevention 

of Significant Deterioration (PSD) of Air 

Quality and minor source new source 

review. 

New York’s Infrastructure SIP for NO2

references the State’s PSD and 

Nonattainment New Source Review 

(NNSR) permitting requirements 

contained in 6 NYCRR Part 231, Part 

200 and Part 201. EPA approved these 

rules into the SIP on November 17, 2010 

(75 FR 70140). New York’s minor source 

new source review program is regulated 

under Part 201. 

EPA has reviewed and evaluated New 

York’s Infrastructure SIP for the 2010 

NO2 NAAQS for meeting the 

requirements of element C. While the 

Infrastructure SIP does not specifically 

reference NO2, it refers to the State’s 

PSD permitting requirements in Part 231 

which regulates oxides of nitrogen 

(NOX) which includes NO2. In addition, 

element C of New York’s Infrastructure 

SIP for the 2010 NO2 NAAQS refers to 

8-hour ozone. NOX is a precursor of 

ozone and PM2.5, and NO2 is one of the 

components of NOX. Moreover, the PSD 

portion of Part 231 regulates the 

construction of proposed new or 

modified facilities that are required to 

demonstrate in their permit application 

that allowable emission increases from 

the facilities, in conjunction with all 

other applicable emission increases or 

reductions (including secondary 

emissions), would not, among other 

things, cause or significantly contribute 

to air pollution in violation of any 

national ambient air quality standard 17

in any air quality control region. Since 

NO2 is a NAAQS, the PSD provisions of 

Part 231 are applicable to NO2. For these 

reasons, EPA concludes that by 

referencing Part 231, which is part of 

New York’s approved SIP, New York’s 

Infrastructure SIP addresses the PSD 

requirements of section 110(a)(2)(C) for 

NO2. 

Therefore, EPA proposes to find 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 is proposing to determine that New 

York has met the requirements of 

section 110(a)(2)(C) and (J) of the CAA 

with respect to the 2010 NO2 NAAQS. 

It should be noted that the PSD 

provisions of Part 231 address the 

requirements of section 110(a)(2)(J) as 

well as section 110(a)(2)(C). 

Element D: Interstate transport: 

Section 110(a)(2)(D) of the Clean Air Act 

is divided into two subsections, 

110(a)(2)(D)(i) and 110(a)(2)(D)(ii). The 

first of these, 110(a)(2)(D)(i), in turn, 

contains four ‘‘prongs’’ the first two of 

which appear in 110(a)(2)(D)(i)(I) and 

the second two of which appear in 

110(a)(2)(D)(i)(II). The two prongs in 

110(a)(2)(D)(i)(I) 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 any other state with 

respect to any primary or secondary 

NAAQS (prong 1), or interfere with 

maintenance by any other state with 

respect to any primary or secondary 

NAAQS (prong 2). The two prongs in 

110(a)(2)(D)(i)(II) prohibit any source or 

other type of emissions activity within 

the State from emitting any air 

pollutants in amounts which will 

interfere with measures required to be 

included in the applicable 

implementation plan for any other state 

under part C to prevent significant 

deterioration of air quality (prong 3) or 

to protect visibility (prong 4). 

Subsection 110(a)(2)(D)(ii) addresses 

interstate and international pollution 

abatement, and requires SIPs to include 

provisions insuring compliance with 

sections 115 and 126 of the CAA, 

relating to interstate and international 

pollution abatement. 

In this action, EPA is proposing to 

approve the 110(a)(2)(D) portion of the 

New York SIP submission and 

determine that the existing New York 

SIP contains provisions sufficient to 

satisfy all of the requirements of 

110(a)(2)(D) for the 2010 NO2 NAAQS. 

With respect to the requirements of 

110(a)(2)(D)(i)(II), i.e., prongs 3 and 4, 

and 110(a)(2)(D)(ii), EPA is proposing to 

approve the SIP submission based on 

the rationale presented in a June 20, 

2013 Federal Register notice approving 

New York’s Infrastructure SIP for the 

1997 8-hour ozone and 1997 and 2006 

PM2.5 NAAQS (78 FR 37122; June 20, 

2013). As that rationale was presented 

in some detail in the June 20, 2013 

notice, it is not repeated in today’s 

proposal. We are, of course, accepting 

comments on that rationale as it applies 

to our proposed approval of New York’s 

Infrastructure SIP for the NO2 NAAQS. 

The New York SIP contains 

provisions to address the requirements 

of 110(a)(2)(D)(i)(I), i.e. prongs 1 and 2 

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

NO2 NAAQS.18 EPA reviewed New 

York’s May 8, 2013 infrastructure SIP 

submittal for the 2010 NO2 NAAQS and, 

based on that review and EPA’s review 

of relevant air quality data, EPA is 

proposing to determine that New York’s 

SIP includes adequate provisions to 

prohibit sources or other emission 

activities within the State from emitting 

NOX in amounts that will contribute 

significantly to nonattainment or 

interfere with maintenance by any other 

state with respect specifically to the 

NO2 NAAQS. NO2 is a component of 

NOX. 

The EPA approved New York SIP 

presently includes requirements for 

emissions limits on NOX including, but 

not limited to, Title 6 of the New York 

Codes, Rules and Regulations (6 

NYCRR) Parts 212, 217, 218, 219, 220, 

224, 227–2, and 249. See 40 CFR 40 CFR 

52.1670(c). 

—Part 212—Imposes reasonably 

available control technology (RACT) 

on major stationary sources not 

otherwise covered by other 

regulations. 

—Part 217—Requires enhanced 

inspection and maintenance of lightduty motor vehicles. 

—Part 218—Establishes emission 

standards for motor vehicles and 

motor vehicle engines. 

—Part 219—Imposes controls on various 

type of incinerators. 

—Part 220—Imposes RACT on 

emissions from cement kilns. 

—Part 224—Imposes controls on NO2

emissions from nitric acid plants. 


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25072 Federal Register / Vol. 79, No. 85 / Friday, May 2, 2014 / Proposed Rules 

19For the most recent design values, see http:// 

www.epa.gov/airtrends/values.html. 

20 DVs for the Saint Regis Mohawk Tribe of New 

York are not shown in Table 1 since EPA 

determined there is no valid data. Wherever there 

is no data shown in Table 1, EPA has no data for 

those time periods. 

—Part 227–2—Imposes RACT on utility 

and industrial boilers, combustion 

turbines, stationary internal 

combustion engines and other 

combustion installations (major 

facility of NOX that contains an 

emission source type not regulated 

under the other Parts). Major facilities 

existing prior to June 1, 2010 must 

comply with new NOX RACT 

emission limits by July 1, 2014. 

—Part 249—Applies best available 

retrofit technology (BART) to any 

stationary source that has been 

determined to be BART-eligible and 

whose emissions require control for 

the purpose of reducing regional haze. 

Part 249 requires facilities to submit 

source- specific BART proposals to 

New York. This rule applies to 

applicable BART eligible sources 

including utility boilers and 

industrial sources such as boilers, 

cement plants etc. 

In addition, all major stationary 

sources of NO2 are subject to the SIPapproved requirements for prevention of 

significant deterioration (PSD) and 

nonattainment new source review with 

Emission Offset Provisions in 6 NYCRR 

Part 231 which provide preconstruction 

review and permitting requirements in 

attainment and nonattainment areas. 

The requirements of Part 231 help 

ensure that no new or modified NO2

emitting source will cause or contribute 

to any potential exceedances of the NO2

NAAQS. 

On February 17, 2012 (77 FR 9532), 

EPA promulgated a rule that established 

air quality designations for all areas of 

the country for the 2010 NO2 NAAQS 

based on air quality monitoring data for 

the period 2008–2010. Based upon this 

2008–2010 air quality monitoring data, 

EPA determined that no area of the 

country is violating the 2010 NO2

NAAQS. EPA reviewed 2008–2012 NO2

air quality monitoring data for New 

York, including the Saint Regis Mohawk 

Tribe, as well as the states surrounding 

or bordering New York within 50 

kilometers of New York’s boarders, 

including Vermont, Massachusetts, 

Connecticut, New Jersey, and 

Pennsylvania. EPA selected fifty 

kilometers from New York for reviewing 

design values at monitors because 50 

kilometers is the standard distance for 

modeling analysis in EPA’s Guideline 

on Air Quality Models (Appendix W to 

40 CFR Part 51) and EPA is acting 

consistent with that Guideline. The 

most recent design values 19 (DVs) that 

are computed using quality-assured and 

certified ambient air monitoring data 

using the Federal Reference method or 

equivalent data is reported by states, 

tribes and local agencies to EPA’s Air 

Quality System (AQS). Data for 2008– 

2010, 2009–2011 and 2010–2012 for 

monitors in states surrounding or 

bordering New York within 50 

kilometers of New York are in Table 1 

below and show that the DVs are well 

below the NAAQS for NO2. The level of 

the 1-hour NAAQS for NO2 is 100 parts 

per billion (ppb) and the form is the 3- 

year average of the annual 98th 

percentile of the daily 1-hour maximum. 

In the states surrounding and bordering 

New York within the 50 kilometers 

reviewed by EPA, there are no areas 

with design values for 2008–2010, 

2009–2011 and 2010–2012 that exceed 

the 2010 NO2 NAAQS. For example, the 

highest DV for 2008–2010 is 73 (Union, 

NJ), well below the 100 ppb NAAQS. 

See Table 1 below for DVs surrounding 

and bordering New York within 50 

kilometers of New York. 

TABLE 1—DESIGN VALUES SURROUNDING AND BORDERING NEW YORK STATE 20

State County Site 

2008–2010 

Final DV 

(ppb) 

2009–2011 

Final DV 

(ppb) 

2010–2012 

Final DV 

(ppb) 

NY ..................... Bronx ................................................................................ 36–005–0133 67 66 63 

NY ..................... Erie ................................................................................... 36–029–0005 71 ........................ ........................

NY ..................... Nassau .............................................................................. 36–059–0005 57 ........................ ........................

NY ..................... Queens ............................................................................. 36–081–0124 68 ........................ ........................

NY ..................... Steuben ............................................................................ 36–101–0003 ........................ 14 ........................

MA .................... Hampden .......................................................................... 25–013–0016 49 50 47 

MA .................... Hampshire ........................................................................ 25–015–4002 28 31 27 

Conn ................. Fairfield ............................................................................. 09–001–9003 50 ........................ ........................

Conn ................. Hartford ............................................................................. 09–003–1003 45 49 46 

Conn ................. New Haven ....................................................................... 09–009–0027 ........................ 59 57 

NJ ..................... Bergen .............................................................................. 34–003–0006 67 ........................ ........................

NJ ..................... Essex ................................................................................ 34–013–1003 62 64 60 

NJ ..................... Hudson ............................................................................. 34–017–0006 ........................ 65 ........................

NJ ..................... Mercer ............................................................................... 34–021–0005 41 ........................ ........................

NJ ..................... Middlesex .......................................................................... 34–023–0011 49 48 45 

NJ ..................... Morris ................................................................................ 34–027–3001 38 38 37 

NJ ..................... Union ................................................................................ 34–039–0004 73 71 70 

PA ..................... Erie ................................................................................... 42–049–0003 45 ........................ ........................

PA ..................... Lackawanna ...................................................................... 42–069–2006 44 45 41 

VT ..................... Chittenden ........................................................................ 50–007–0014 41 ........................ ........................

VT ..................... Rutland ............................................................................. 50–021–0002 41 ........................ ........................

Based on this air quality monitoring 

data analysis and EPA’s review of NOX

emission trends within New York, EPA 

does not expect NOX emissions in New 

York to increase significantly 

particularly in light of the New York SIP 

approved emission limits and New 

Source Review provisions. 

EPA’s analysis of the air quality 

monitoring data and emission trends 

also supports EPA’s conclusion that 

NO2 emissions are not increasing 

significantly in the states surrounding 

New York and do not appear likely to 

significantly increase as a result of 

emissions from New York especially 

with the New York SIP approved 

provisions for NOX. EPA therefore does 


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21Section 51.150, Classification of regions for 

episode plans, was last amended on July 20, 1993 

(58 FR 38822) and therefore does not include 

ambient concentration levels for establishing 

Priority I Regions for the 1-hour NO2 NAAQS that 

was promulgated on February 9, 2010 (75 FR 6474). 

not expect monitors identified in the 

table above which all have DVs well 

below the NO2 NAAQS to have 

difficulty maintaining the NAAQS for 

NO2. EPA proposes to conclude that 

New York emission sources are not 

significantly contributing to 

nonattainment in another state for the 

NO2 NAAQS and are not likely to 

interfere with maintenance of the NO2

NAAQS in another state. 

Because the 2008–2010, the 2009– 

2011 and also the 2010–2012 qualityassured and certified air quality 

monitoring data identified above for 

areas surrounding or bordering New 

York State within 50 kilometers of New 

York are well below the NO2 NAAQS 

and because NOX emission trends from 

New York sources do not appear to be 

increasing, EPA proposes to find that 

New York’s federally enforceable SIP 

provisions with NOX emission limits for 

NOX emission sources contain adequate 

provisions to ensure New York emission 

sources will not interfere with 

maintenance or contribute significantly 

to nonattainment in another state with 

respect to the NO2 NAAQS. 

Based upon EPA’s review of the air 

quality data and the State’s submittal, 

EPA is proposing to determine that the 

State has met its obligations pursuant to 

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

2010 NO2 NAAQS. 

Element G: Emergency power: 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. 

EPA requires that Infrastructure SIP 

submittals should meet the applicable 

contingency plan requirements of 40 

CFR part 51, subpart H (40 CFR 51.150 

through 51.153) (‘‘Prevention of Air 

Pollution Emergency Episodes’’). 

Subpart H requires states that have air 

quality control regions identified as 

either Priority I, Priority IA or Priority 

II to develop emergency episode 

contingency plans. States are required to 

develop emergency episode plans for 

any area that has monitored and 

recorded annual arithmetic mean NO2

levels greater than 100 mg/m3 (0.06 ppm 

(60 ppb)).21 Areas which do not meet 

this level are considered to be Priority 

III. 40 CFR 51.150(f). In accordance with 

the guidance, Priority III regions are not 

required to develop emergency episode 

plans which EPA interprets to mean the 

contingency plans otherwise required 

under section 51.152. 40 CFR 51.152(c). 

Since 2010, air-quality monitors in 

New York State show that annual 

arithmetic mean NO2 levels have been 

below the 100 mg/m3 (0.06 ppm (60 

ppb)) threshold. In addition, since 2010, 

ambient air quality levels in New York 

State have been below the 1-hour NO2

NAAQS of 100 ppb. Based on certified 

and quality assured air quality data, 

New York should be classified as a 

Priority III region and, therefore, 

emergency episode plans for NO2 are 

not required. 

However, in general and for the NO2

standard, the section 110(a)(2)(G) 

requirements are addressed by New 

York’s 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 Significant 

Harm Levels (SHLs) that address the 1- 

hour NO2 NAAQS proposed by EPA on 

July 15, 2009. Therefore, EPA proposes 

that New York has met the requirements 

of section 110(a)(2)(G) for the 2010 1- 

hour NO2 NAAQS. 

VII. What action is EPA taking? 

EPA is proposing to approve New 

York’s submittal as fully meeting the 

infrastructure requirements for the 2010 

primary NO2 NAAQS for all section 

110(a)(2) elements and sub-elements, as 

follows: (A), (B), (C), (D), (E), (F), (G), 

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

EPA is not acting on New York’s 

submittal as it relates to nonattainment 

provisions, the NSR program required 

by part D in section 110(a)(2)(C) and the 

measures for attainment required by 

section 110(a)(2)(I), as part of the 

infrastructure SIPs because the State’s 

infrastructure SIP submittal does not 

include nonattainment requirements 

and EPA will act on them when, if 

necessary, they are submitted. 

EPA is soliciting public comments on 

the issues discussed in this proposal. 

These comments will be considered 

before EPA takes final action. Interested 

parties may participate in the Federal 

rulemaking procedure by submitting 

written comments to the EPA Regional 

Office listed in the ADDRESSES section of 

this Federal Register, or by submitting 

comments electronically, by mail, or 

through hand delivery or courier 

following the directions in the 

ADDRESSES section of this Federal 

Register. 

VIII. 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 CAA 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 

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 (Public Law 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 


TKELLEY on DSK3SPTVN1PROD with PROPOSALS
25074 Federal Register / Vol. 79, No. 85 / Friday, May 2, 2014 / Proposed Rules 

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. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Nitrogen dioxide, Ozone, 

Particulate matter, Reporting and 

recordkeeping requirements, Volatile 

organic compounds. 

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

Dated: April 21, 2014. 

Judith A. Enck, 

Regional Administrator, Region 2. 

[FR Doc. 2014–09982 Filed 5–1–14; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R10–OAR–2008–0122; FRL–9910–03- 

Region 10] 

Approval and Promulgation of State 

Implementation Plans: Washington; 

Puget Sound Ozone Maintenance Plan 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The EPA is proposing to 

approve a maintenance plan for the 

Central Puget Sound area to maintain 

the 8-hour ozone National Ambient Air 

Quality Standard (NAAQS) through 

2015. This plan was submitted by the 

Washington Department of Ecology as a 

revision to its State Implementation 

Plan on January 10, 2008. The 

maintenance plan for this area meets all 

Clean Air Act requirements, and 

demonstrates that the Central Puget 

Sound area will remain in attainment 

with the 1997 and 2008 ozone NAAQS 

through 2015. 

DATES: Comments must be received on 

or before June 2, 2014. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R10– 

OAR–2008–0122, by any of the 

following methods: 

• www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

• Email: R10-Public_Comments@

epa.gov. 

• Mail: Mr. Keith Rose, U.S. EPA 

Region 10, Office of Air, Waste and 

Toxics, AWT–107, 1200 Sixth Avenue, 

Suite 900, Seattle, WA 98101. 

• Hand Delivery/Courier: U.S. EPA 

Region 10, 1200 Sixth Avenue, Suite 

900, Seattle WA 98101. Attention: Keith 

Rose, Office of Air, Waste and Toxics, 

AWT–107. Such deliveries are only 

accepted during normal hours of 

operation, and special arrangements 

should be made for deliveries of boxed 

information. 

Please see the direct final rule which is 

located in the Rules section of this 

Federal Register for detailed 

instructions on how to submit 

comments. 

FOR FURTHER INFORMATION CONTACT: 

Keith Rose at telephone number: (206) 

553–1949, email address: rose.keith@

epa.gov, or the above EPA, Region 10 

address. 

SUPPLEMENTARY INFORMATION: For 

further information, please see the 

direct final action, of the same title, 

which is located in the Rules section of 

this Federal Register. The EPA is 

simultaneously approving the State’s 

SIP revision as a direct final rule 

without prior proposal because the EPA 

views this as a noncontroversial SIP 

revision and anticipates no adverse 

comments. A detailed rationale for the 

approval is set forth in the preamble to 

the direct final rule. If the EPA receives 

no adverse comments, the EPA will not 

take further action on this proposed 

rule. 

If the EPA receives adverse 

comments, the EPA will withdraw the 

direct final rule and it will not take 

effect. The EPA will address all public 

comments in a subsequent final rule 

based on this proposed rule. The EPA 

will not institute a second comment 

period on this action. Any parties 

interested in commenting on this action 

should do so at this time. Please note 

that if we receive adverse comment on 

an amendment, paragraph, or section of 

this rule and if that provision may be 

severed from the remainder of the rule, 

the EPA may adopt as final those 

provisions of the rule that are not the 

subject of an adverse comment. 

Dated: April 10, 2014. 

Michelle L. Pirzadeh, 

Acting Regional Administrator, Region 10. 

[FR Doc. 2014–09880 Filed 5–1–14; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 80 

[EPA–HQ–OAR–2012–0546; FRL–9910–24– 

OAR] 

RIN 2060–AS21 

Regulation of Fuels and Fuel 

Additives: 2013 Cellulosic Biofuel 

Standard 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to revise the 

2013 cellulosic biofuel standard 

published on August 15, 2013. This 

action follows from EPA having granted 

two petitioners’ requests for 

reconsideration of the 2013 cellulosic 

biofuel standard. EPA granted 

reconsideration because one of the two 

companies that EPA expected to 

produce cellulosic biofuel in 2013 

announced soon after EPA signed its 

final rule that it intended to produce 

substantially lower volumes of 

cellulosic biofuel in 2013 than it had 

earlier reported to EPA. Since the 

cellulosic biofuel standard was based on 

EPA’s projection of cellulosic biofuel 

production in 2013, EPA deemed this 

new information to be of central 

relevance to the rule, warranting 

reconsideration. On reconsideration, 

EPA is directed to base the standard on 

the lower of ‘‘projected’’ production of 

cellulosic fuel in 2013 or the cellulosic 

biofuel applicable volume set forth in 

the statute. Since data are available to 

show actual production volumes for 

2013, EPA’s ‘‘projection’’ and proposal 

are based on actual cellulosic biofuel 

production in 2013. This action only 

affects the 2013 cellulosic biofuel 

standard; all other RFS standards 

remain unchanged. EPA is proposing a 

revised cellulosic biofuel standard of 

0.0005% for 2013. In the ‘‘Rules and 

Regulations’’ section of this Federal 

Register, we are making this same 

amendment as a direct final rule. If we 

receive no adverse comment, the direct 

final rule will go into effect and we will 

not take further action on this proposed 

rule. 

DATES: A request for a public hearing 

must be received by May 19, 2014. If a 

public hearing request is received, EPA 

will publish a document in the Federal 

Register indicating the time and place 

for the hearing. If a public hearing is 

held, written comments must be 

received within 30 days after the date of 

the hearing. If no public hearing is held 


TKELLEY on DSK3SPTVN1PROD with PROPOSALS