New York State Department of Environmental Conservation

Assistant Commissioner

Office of Air Resources, Climate Change & Energy, 14th Floor

625 Broadway, Albany," New York 12233-1010

Phone:(518)402-8543 • FAX: (518) 402-9016

, , . . Website: www.dec.ny.qov

DEC 1 3 2007

Alexanders. Grannis

Commissioner

Mr. Alan I. Steinberg

Regional Administrator

United States Environmental Protection Agency, Region 2

290 Broadway, 26" Floor

New York, New York 10007-1866 P

Dear Regional Administrator Steinberg:

Pursuant to Clean Air Act (CAA) sections 1 1 0(a)(l) and (2), states are required to address basic

State Implementation Plan (SIP) requirements related to the attainment of new or revised National

Ambient Air Quality Standards (NAAQS), including emission inventories, monitoring and modeling to

assure attainment, maintenance and enforcement of the standards. SEPs meeting the requirements of

CAA sections 110(a)(l) and (2) must be submitted within three years after promulgation of a new or

revised -standard.

As a result of a Consent Decree resulting from an EarthJustice lawsuit against EPA for failure to

take action against States that had not made SIP submissions that met the requirements of CAA sections

1 1 0(a)(l) and (2), EPA was obligated to make official findings whether States have made SEP

submissions required to meet CAA section 1 10(a)(2)(D)(I) relating to interstate transport by no later than

March 15, 2005. Additionally, the Consent Decree obligates EPA to make a determination whether

States have made submissions necessary to meet the remaining 1 1 0(a)(l) and (2) requirements for the 8-

hour ozone NAAQS by December 15, 2007.

Section 1 10(a)(l) contains the general requirements for submitting a SIP to address new or

revised primary NAAQS within three years of their promulgation. Section 110(a)(2) contains specific

elements to be included in these plans. Pursuant to EPA guidance dated October 2, 2007, this submission

addresses each of the required elements of CAA section 110(a)(2), and affirms that New York State's

SBPs meet the requirements of CAA sections 110(a)(l) and (2) .

Should you have any questions regarding this submission, please do not hesitate to contact me at

(518) 402-8537. Should your staff have questions, please have them contact David J. Shaw, Director of

the Department's Division of Air Resources at (5 1 8) 402-8452.

Sincerely,

Jared'/Snydfer

'Assistant Commissioner

Office of Air Resources, Climate Cbange and Energy

Enclosure

cc: Richard Ruvo, EPA Region 2
CAA Section 110 Requirements

On March 10,2005, EPA entered into a Consent Decree with EarthJustice that obligates EPA to

make official findings whether States have made required SIP submissions by dates certain. The

Consent Decree obligates EPA to determine whether States have made SIP submissions required

to meet CAA section 110(a)(2)(D)(I) relating to interstate transport by no later than March 15,

2005. The Consent Decree also obligates EPA to make a determination whether States have

made submissions necessary to meet the remaining 110(a)(l) and (2) requirements by December

15, 2007 for the 8-hour ozone NAAQS.

Pursuant to EPA guidance issued on October 2, 2007, SIPs must include the following elements

of CAA section 110(a)(2):

• Enforceable Emission Limitations and Other Control Measures (110(a)(2)(A))

Ambient Air Quality Monitoring, Compilation, Analysis and Reporting (110(a)(2)(B)

, Enforcement and Stationary Source Permitting (110(a)(2)(C)

Interstate Transport (110(a)(2)(D))

Assurance of Adequate Resources (110(a)(2)(E))

• Stationary Source Monitoring System and Reporting (110(a)(2)(F))

Emergency Powers and Contingency Plans (110(a)(2)(G))

Authority for SIP Revisions for Revised NAAQS (110(a)(2)(H))

Authority for SIP Revisions for New Nonattainment Areas (110(a)(2)(I))

Consultation, Public Notification and Prevention of Significant Deterioration

(PSD)/Visibility (110(a)(2)(J))

Air Quality Monitoring and Reporting (110(a)(2)(K))

Permitting Fees (110(a)(2)(L))

Consultation/Participation with Affected Local Entities (110(a)(2)(M))

Enforceable Emission Limitations and Other Control Measures (110(a)(2)(A))

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

measures, means or techniques, schedules for compliance and other related matter.

Enforceable emission limitations and other control measures for ozone in New York are included

in the New York Ozone SIP: 1-Hour Ozone Attainment Demonstration State Implementation

Plan and 2007 Transportation Conformity Budgets, which was approved by EPA and effective on

March 2, 2002. Proposed revisions to the ozone SIP to address the 8-hour NAAQS for the New

York State portion of the New York - N. New Jersey - Long Island, NY-NJ-CT, and

Poughkeepsie, NY, nonattainment areas were submitted to EPA on August 9, 2007. Proposed

revisions to the New York ozone SIP to address the remaining ozone nonattainment areas

classified under CAA subpart 2 in the State (Buffalo-Niagara Falls, NY; Rochester, NY; AlbanySchenectady-Troy, NY; Jamestown, NY; Jefferson County, NY; and Essex Co. (Whiteface

Mtn.), NY) are being developed.

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Ambient Air Quality Monitoring. Compilation, Analysis and Reporting (\ Of;

CAA section 110(a)(2)(B) requires SIPs to include provisions to provide for the establishment

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

and making these data available to EPA upon request. This information is included in the

various SIPs that have been submitted to EPA.

The New York State Department of Environmental Conservation (Department) measures air

pollutants at more than 80 sites across the state, using continuous and/or manual instrumentation.

These sites are part of the federally-mandated National Air Monitoring Stations Network

(NAMS) and the State and Local Air Monitoring Stations (SLAMS) Network. Real time direct

reading measurements include gaseous criteria pollutants (ozone, sulfur dioxide, oxides of

nitrogen, carbon monoxide), PM2_5 (fine particulate with a diameter less than 2.5 microns), and

meteorological data. Filter based PM2-5, lead, and acid deposition samples are collected manually

and shipped to the laboratory for analysis. The information obtained is compared to the NAAQS

and is used to determine the attainment status of areas where these pollutants are monitored.

The near real-time data for gaseous pollutants and PM2>5 are used for Air Quality Index (AQI)

projection, and can be accessed by interested public on the DEC web site. The Department also

provides real-time data to EPA for AlRNmv live national ozone mapping. All ambient

measurements undergo data validation and are subsequently submitted to EPA's Air Quality

System (AQS) for public access.

The Department commits to continue to operate an air quality monitoring network that complies

with EPA requirements and to submit this data to EPA's Air Quality System.

Enforcement and Stationary Source Permitting (HQ(a](2}(C]

CAA section 110(a)(2)(C) requires States to include a program providing for enforcement of all

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

PSD and nonattainment new source review (NNSR) requirements. New York's SIP currently .

includes 'NNSR requirements. In addition, there is a federal implementation plan in effect for

PSD requirements, which EPA currently implements in New York State.

Environmental Conservation Law (ECL) section 19-0305 and Article 71 sections 71-2103 and

71-2105 authorizes the commissioner of the Department to enforce the codes, rules and

regulations of the Department established in accordance with Article 19. The SIP is a

compilation of ruJes and regulations that have been duly promulgated by the Department in

accordance with its statutory authority and consistent with the State Administrative Procedures

Act. Therefore, the Department has the authority to enforce all SIP measures.

New York is currently in the rule-making process for 6 NYCRR Part 231, ££New Source Review

of New and Modified Facilities," which will be submitted to EPA as expeditiously as practicable

for approval and inclusion in the SIP. Part 231 will include 8-hour ozone and PM2 5 PSD and

NNSR permitting requirements for major stationary sources in the state. In the interim, New

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y .

' York confirms that the current state NNSR permitting program remains in effect and continues to

apply to the State's major stationary sources. EPA has been implementing the PSD program in

New York State since 2004.

New York commits to the continued enforcement of all SIP measures and the regulation of

construction of new or modified stationary sources to meet NNSR requirements. In addition,

New York will ensure that federal PSD requirements which are included in EPA-issued PSD

permits are incorporated into Title V operating permits.

Interstate Transport qiOf

CAA section 110(a)(2)(D) requires SIPs to include provisions prohibiting any source or other

type of emissions activity in one State from contributing significantly to nonattainment, or

interfering with maintenance, of the NAAQS in another State, or from interfering with measures

required to prevent significant deterioration of air quality or to protect visibility in another State.

On September 17, 2007, the Department submitted a SIP revision- that satisfies New York's

1 1 0(a)(2)(D) obligations to submit a SIP revision that contains adequate provisions to prohibit air

emissions from adversely affecting another state's air quality through interstate transport. EPA

proposed approval (72 FR 55723) of this SIP revision on October 1, 2007.

In accordance with EPA guidance issued on August 1 5, 2006, states may continue to rely on their

existing NNSR and PSD permitting programs to prevent significant deterioration of air quality

within their own boundaries and in adjacent states. New York confirms that the current state

NNSR permitting program remains in effect and continues to apply to the State's major

stationary sources.' EPA has been implementing the PSD program in New York State since 2004.

New York commits to the continued enforcement of all SIP measures and the regulation of

construction of new or modified stationary sources to meet NNSR requirements. In addition,

New York will ensure that federal PSD requirements which are included in EPA-issued PSD

permits are incorporated into Title V operating permits.

With respect to visibility protection, and consistent with EPA's August 15, 2006 guidance, it is

impossible at this time for New York to accurately determine whether there is interference, with

measures in another state's SIP designed to protect visibility because the affected Class I states

have not submitted their regional haze SIPs to EPA, nor have they provided the Department with

the pertinent information needed to identify the control measures necessary to reach the haze

program's reasonable progress goals. New York will address the visibility protection

requirements when the regional haze SIP is completed and submitted to EPA.

Assurance of Adequate Resources (1 10(aX2)('E'))

CAA section 1 1 0(a)(2)(E) requires States to provide (i) necessary assurances that the State will

have adequate personnel, funding and authority under State law to carry out its SIP, (ii)

requirements that the state comply with the requirements respecting state boards under CAA

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section 7428, and (iii) necessary assurances that, where the State has relied on a local or regional

government., agency, or instrumentality for the implementation of any plan provision, the State

has responsibility for ensuring adequate implementation of such plan provision.

The Division of Air Resources (DAR), with a staff of 274, receives both operating and capital

funding. Operating funds are allocated to the Division annually and are used for daily

administrative expenses. These expenses include salaries, fringe benefits, indirect and nonpersonnel services such as travel, supply and equipment costs. Indirect costs are, in turn,

allocated to other Departments or divisions that support DAR activities. DAR. is allocated

operating funds from five sources: General Fund, Utility Environmental Regulatory Account, Cooperative Agreements (i.e., EPA section 103 and 105 grants) and the Clean Air Fund, which is

comprised of the Title V and Mobile Source accounts.

Capital funds are allocated to the Division at.the discretion of the State legislature and are used

for the financing or acquisition of capital facilities such as the construction of an air monitoring

site. The Division is allocated Capital funds from three sources: General Fund, Mobile Source

Account and Rehabilitation and Improvement.

Section 110(a)(2)(E)(ii) requires that the state comply with the requirements respecting state

boards under CAA section 7428. New York's Public Officer's Law, POL, satisfies these •

requirements. Specifically, POL section 74(2) states "No officer or employee of a state agency,

member of the legislature or legislative employee should have any interest, financial or

otherwise, direct or indirect, or engage in any business or transaction or professional activity or

incur any obligation of any nature, which is in substantial conflict with the proper discharge of

his duties in the public interest." POL 74(3)(e) states "No officer or employee of a state agency,

member of the legislature or legislative employee should engage in any transaction as

representative or agent of the .state with any business entity in which he has a direct or indirect

financial interest that might reasonably tend" to conflict with the proper discharge of his official

duties." • '

Finally, the Department confirms that where the State has relied on a local or regional

government, agency, or instrumentality for the implementation of any plan provision, the State

has responsibility for ensuring adequate implementation of such plan provision.

Stationary Source Monitoring System and Reporting dlO(a)(2)(P)')L

CAA section 110(a)(2)(F) requires States to establish a system to monitor emissions from

stationary sources and to submit periodic emissions reports.

Authority for this provision is provided under article 19 of the ECL. In particular, ECL section

19-0311 [Operating Permit Programj'states in section 3 that operating permits issued pursuant to

this section shall include, among other things, "provisions for detailed monitoring, recordkeeping and reporting, including requirements that records be kept for five years, and that

monitoring records be submitted to the department at least every six months ..."

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Emergency Powers and Contingency Plans (I 1 Of

CAA section 1 lO(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 episodes in their SIPs. Articles 3 and 19 of the ECL provide this

authority to the Department and are included in the SIP.

Among other provisions, ECL section 3-0301 entitled "General functions, powers and duties of

the department and the commissioner" authorizes the Department to prevent and control air

pollution emergencies, as defined in subdivision 1 of ECL section 3. In exercising such

prevention and control the department and the commissioner may limit the consumption of fuels

and use of vehicles, curtail or require the cessation of industrial processes and limit or require the

cessation of incineration and open burning, and take any other action he may deem necessary to

prevent and/or control air pollution emergencies. The Department adopted 6 NYCRR Part 207,

Control Measures for an Air Pollution Episode, and EPA approved this regulation as part of the

New York SIP (46 FR 55690).

Authority for SIP Revisions for Revised NAAOS (\)

CAA section 1 lO(a)(2)(H) requires States to have the authority to revise their SIPs in response to

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

response to an EPA finding that the SEP is substantially inadequate.

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

' 0303 and 19-0305 of the ECL. Article 19 of the ECL was adopted to protect New York's air

•resources from pollution and to effectuate the policy of the State to maintain a reasonable degree

of purity of the air resources., consistent with the public health and welfare and the industrial

development of the State, To this end, the Legislature gave the Department specific powers and

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

air pollution. The Department also has the specific authority to regulate motor vehicle exhaust

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

general.enforcement authority for the air regulations. Section 71-2105 provides criminal

enforcement authority.

This general statement of authority is included in the SIP.

Authority for SIP Revisions for New Nonattainment Areas (11 OfaV2)(T)')

CAA section 110(a)(2)(I) requires States to have the authority to revise their SIPs in response to

changes in nonattainment areas.

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

0303 and 19-0305 oftheECL. Article 19 oftheECLwas adopted to protect New York's air

resources from pollution and to effectuate the policy of the State to maintain a reasonable degree

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

Page 5 of 8
development of the State. To this end, the Legislature gave the Department specific powers and

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

air pollution. The Department also has the specific authority to regulate motor vehicle exhaust

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

general enforcement authority for the air regulations. Section 71-2105 provides criminal

enforcement authority.

This general statement of authority is included in the SIP.

Consultation, Public Notification and PSD/Visibility (\W(a)(2)(W

CAA section 110(a)(2)(J) requires States to meet the applicable requirements of CAA section

121 relating to consultation, CAA section 127 relating to public information and Part C relating

to PSD and visibility protection.

CAA section 121 requires States to provide a satisfactory process of consultation with general

purpose local governments, designated organizations of elected officials of local governments

and any Federal land manager having authority over Federal land to which the State plan applies.

On December 22, 2005, the Department reestablished a SIP Coordinating Council consisting of

senior policy representatives from 19 state agencies and authorities, and a SIP Task Force

consisting of officials from thirty-seven local governments and designated organizations of

elected officials. Periodic meetings of both groups have been held during the ozone SIP

development period. Though there are no Federal lands within New York State to which the

State plan applies, the Department has participated in the consultation process of the Regional

Haze SIP (40 CFR 51.308) with the Federal Land Managers, States and Tribes of the MidAtlantic Northeast Visibility Union (MANE-VU), and other regional planning organizations

where emissions from New York are reasonably anticipated to contribute to visibility impairment

to Class I areas.

CAA section 127 requires State plans to contain measures which will be effective to notify the

public during any calendar year, on a regular basis, of instances or areas in which any national

primary ambi'ent air quality standard is exceeded or was exceeded during any portion of the

preceding calendar year to advise the public of the health hazards associated with such pollution,

and to enhance public awareness of the measures which can be taken to prevent such standards

from being exceeded and the ways in which the public can participate on regulatory and other

efforts to improve air quality.

The Department's website, at http://www.dec.ny.gov/chemical/34985.html, contains an Air

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

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

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

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

of 100, an Air Quality Health Advisory is issued alerting sensitive groups to take the necessary

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

posts warnings on the above-referenced website if dangerous conditions are expected to occur.

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These warnings are also aired through the media, and are available on the toll-free Ozone Hotline

at 1 -800-535-1345. The Air Quality Forecast displays the predicted AQI value for eight regions

in New York State; It also displays the observed values for the previous day. Air quality

measurements from New York's statewide continuous monitoring network are updated hourly

where'available. Parameters monitored include ozone, fine particulate, carbon monoxide, Sulfur

dioxide, nitrogen oxides, methane/nonmethane hydrocarbons, and meteorological data.

Additional ozone information to enhance public awareness is located at

http://www.dec.ny.gov/chemical/8400.html.

In accordance with EPA guidance Issued on August 15, 2006, states may continue to rely on their

existing NNSR and PSD permitting programs to prevent significant deterioration of air quality

within their own boundaries and in adjacent states. New York confirms that the current state

NNSR permitting program remains in effect and continues to apply for the State's major

• stationary sources. EPA has been implementing the PSD program in New York State since 2004.

New York commits to the continued enforcement of all SIP measures and the regulation of

construction of new or modified stationary sources to meet NNSR requirements. In addition,

New York will ensure that federal PSD requirements which are included in EPA-issued PSD

permits are incorporated into Title V operating permits.

hi addition, New York is currently in the rule-making process for 6 NYCRR Part 23 1, "New

Source Review of New and Modified Facilities," which will be submitted to EPA as

expeditiously as practicable for approval and inclusion in the SIP. Part 23 1 will include 8-hour

ozone and PM2<5 PSD and NNSR permitting requirements for major sources in". the state.

With respect to visibility protection, and consistent with EPA's August 15, 2006, guidance, it is

impossible at this time for New York to accurately determine whether there is interference with

measures in another state's SIP designed to protect visibility because the affected Class I states

have not submitted their regional haze SIPs to EPA, nor have they provided the Department with

the pertinent information needed to identify the control measures necessary to reach the haze

program's reasonable progress goals. New York will- address the visibility protection

requirements when the regional haze SH5 is completed and submitted to EPA. .

Air Quality Modeling / Data (1 1 Of

CAA section 1 1 0(a)(2)(K). requires States to provide for the performance of such air quality

modeling as the Administrator may prescribe for the purpose of predicting the effect on ambient

air quality of any emissions of any air pollutant for which the Administrator has established a

NAAQS. It also requires States to submit, upon request, data related to such air quality modeling

to the Administrator.

The Department certifies that the air quality modeling and'.analysis used in SIPs complies with

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

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

to the Administrator if requested.

Page 7 of 8
* US EPA 200. "Guidance on the use of models and other analyses for demonstrating attainment

of air quality goals for ozone, PM2.5 and regional haze." EPA-454/B-07-002.

Permitting Fees (11 Q(a)(2)(Ui)

CAA section 110(a)(2)(L) requires States to require each major stationary source to pay

permitting fees sufficient to cover the reasonable costs of reviewing, planning, approving,

implementing and enforcing permits.

The ECL satisfies this requirement. ECL section 19-0311 (c) requires the Department to

promulgate regulations that, among other things, require applications to identify and describe

facility emissions in sufficient detail to establish the basis for the fees and applicability of

requirements of the Act. ECL section 72-0303 requires major stationary sources to pay operating

permit program fees in an amount sufficient to cover the costs of the operating permit program.

In addition, paragraph 201-6.5(a)(7) of Subpart 201-6, the Department's approved Title V

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

to the department consistent with the fee schedule authorized by Subpart 482-2 of this Title."

New York commits to continue to implement major stationary source permit fee regulations.

Consultation / Participation by Affected Local Entities (11 OCay2')(M)')

CAA section 110(a)(2)(M) requires States to provide for consultation and participation by local

political subdivisions affected by the plan.

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

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

' Programs, and Projects Developed, Funded or Approved under Title 23 U.S.C. or the Federal

Transit Laws." Members of this group include the Federal Transit Administration, Federal

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

Environmental Protection Agency, the New York State Department of Environmental

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

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

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

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

business community, and other interested parties.

Additional consultation and participation by local political subdivisions are provided through the

SIP Task Force established on December 22, 2005, which consists of officials from thirty-seven

local governments and designated organizations of elected officials.

The Department commits to continue to provide for consultation and participation by local

political subdivisions.

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