74046 Federal Register / Vol. 79, No. 240 / Monday, December 15, 2014 / Proposed Rules 

8. Taking of Private Property 

This proposed rule would not cause a 

taking of private property or otherwise 

have taking implications under 

Executive Order 12630, Governmental 

Actions and Interference with 

Constitutionally Protected Property 

Rights. 

9. Civil Justice Reform 

This proposed rule meets applicable 

standards in sections 3(a) and 3(b)(2) of 

Executive Order 12988, Civil Justice 

Reform, to minimize litigation, 

eliminate ambiguity, and reduce 

burden. 

10. Protection of Children From 

Environmental Health Risks 

We have analyzed this proposed rule 

under Executive Order 13045, 

Protection of Children from 

Environmental Health Risks and Safety 

Risks. This rule is not an economically 

significant rule and would not create an 

environmental risk to health or risk to 

safety that might disproportionately 

affect children. 

11. Indian Tribal Governments 

This proposed rule does not have 

tribal implications under Executive 

Order 13175, Consultation and 

Coordination with Indian Tribal 

Governments, because it would not have 

a substantial direct effect on one or 

more Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes. 

12. Energy Effects 

This proposed rule is not a 

‘‘significant energy action’’ under 

Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use. 

13. Technical Standards 

This proposed rule does not use 

technical standards. Therefore, we did 

not consider the use of voluntary 

consensus standards. 

14. Environment 

We have analyzed this proposed rule 

under Department of Homeland 

Security Management Directive 023–01 

and Commandant Instruction 

M16475.lD, which guide the Coast 

Guard in complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f), and 

have made a preliminary determination 

that this action is one of a category of 

actions that do not individually or 

cumulatively have a significant effect on 

the human environment. This proposed 

rule involves the establishment of a 

permanent safety zone on the navigable 

waters of Port Valdez, in the vicinity of 

the Valdez Spit. This rule is 

categorically excluded from further 

review under paragraph 34(g) of Figure 

2–1 of the Commandant Instruction. A 

preliminary environmental analysis 

checklist supporting this determination 

and a Categorical Exclusion 

Determination are available in the 

docket where indicated under 

ADDRESSES. We seek any comments or 

information that may lead to the 

discovery of a significant environmental 

impact from this proposed rule. 

List of Subjects in 33 CFR Part 165 

Harbors, Marine safety, Navigation 

(water), Reporting and recordkeeping 

requirements, Security measures, 

Waterways. 

For the reasons discussed in the 

preamble, the Coast Guard proposes to 

amend 33 CFR part 165 as follows: 

PART 165—REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS 

■ 1. The authority citation for part 165 

continues to read as follows: 

Authority: 33 U.S.C. 1231; 46 U.S.C. 

Chapter 701; 3306, 3703; 50 U.S.C. 191, 195; 

33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; 

Public Law 107–295, 116 Stat. 2064; 

Department of Homeland Security Delegation 

No. 0170.1. 

■ 2. Add § 165.T17–0668 to read as 

follows: 

§ 165.T17–0668 Safety Zone; City of Valdez 

July 4th Fireworks, Port Valdez; Valdez, AK. 

(a) Regulated area. The following area 

is a permanent safety zone: All 

navigable waters of Port Valdez within 

a 200-yard radius from a position of 

61°07′22′′ N and 146°21′10′′ W. This 

includes the entrance to the Valdez 

small boat harbor. 

(b) Effective date. This rule will be 

effective from 9:30 p.m. until 11:30 p.m. 

on July 4th of each year, or during the 

same timeframe on specified rain dates 

of July 5th through July 8th of each year. 

(c) Definitions. The following 

definitions apply to this section: 

(1) The term ‘‘designated 

representative’’ means any Coast Guard 

commissioned, warrant or petty officer 

of the U.S. Coast Guard who has been 

designated by the Captain of the Port 

(COTP), Prince William Sound, to act on 

his or her behalf. 

(2) The term ‘‘official patrol vessel’’ 

may consist of any Coast Guard, Coast 

Guard Auxiliary, state, or local law 

enforcement vessels assigned or 

approved by the COTP, Prince William 

Sound. 

(d) Regulations. (1) The general 

regulations contained in 33 CFR 165.23, 

as well as the following regulations, 

apply. 

(2) The safety zone is closed to all 

vessel traffic, except as may be 

permitted by the COTP or the 

designated representative during 

periods of enforcement. 

(3) All persons and vessels shall 

comply with the instructions of the 

COTP or the designated representative. 

Upon being hailed by a U.S. Coast 

Guard vessel or other official patrol 

vessel by siren, radio, flashing light or 

other means, the operator of the vessel 

shall proceed as directed. 

(4) Vessel operators desiring to enter 

or operate within the regulated area may 

request permission from the COTP via 

VHF Channel 16 or (907) 835–7205 

(Prince William Sound Vessel Traffic 

Center) to request permission to do so. 

(5) The Coast Guard will issue a 

broadcast notice to mariners to advise 

mariners of the safety zone before and 

during the event. 

(6) The COTP may be aided by other 

Federal, state, borough and local law 

enforcement officials in the enforcement 

of this section. 

Dated: December 9, 2014. 

M.R. Franklin, 

Lieutenant Commander, U.S. Coast Guard, 

Acting, Captain of the Port Prince William 

Sound, Alaska. 

[FR Doc. 2014–29229 Filed 12–12–14; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R02–OAR–2014–0683, FRL–9920–40– 

Region 2] 

Approval and Promulgation of 

Implementation Plans; New York; 

Infrastructure SIP for the 2008 Lead 

NAAQS 

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 2008 National Ambient 

Air Quality Standard (NAAQS) for lead 

(Pb). Section 110(a) of the CAA requires 


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1Final rule signed October 15, 2008. The 1978 

lead standard (1.5 mg/m3 as a quarterly average) 

remains in effect until one year after an area is 

designated for the 2008 standard, except that in 

areas designated nonattainment for the 1978 lead 

standard, the 1978 standard remains in effect until 

implementation plans to attain or maintain the 2008 

standard are approved. 

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 January 14, 2015. 

ADDRESSES: Submit your comments, 

identified by Docket ID number EPA– 

R02–OAR–2014–0683, 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 4:00 

excluding Federal holidays. 

Instructions: Direct your comments to 

Docket ID No. EPA–R02–OAR–2014– 

0683. 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 

4:00 p.m., excluding Federal holidays. 

FOR FURTHER INFORMATION CONTACT: Kirk 

Wieber at telephone number: (212) 637– 

3381, email address: Wieber.Kirk@

epa.gov, fax number: (212) 637–3901, or 

the above EPA, Region 2 address. 

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 is the impact of the June 2014 

Supreme Court Green House Gas 

decision on New York’s infrastructure 

SIP for the 2008 Pb NAAQS? 

VIII. What action is EPA taking? 

IX. 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 2008 lead 

(Pb) National Ambient Air Quality 

Standard (NAAQS or standard). As 

explained below, the State has the 

necessary infrastructure, resources, and 

general authority to implement the 2008 

Pb standard. 

II. What is the background 

information? 

On November 12, 2008, EPA 

promulgated a new, rolling 3 month 

average NAAQS for Pb (2008 Pb 

NAAQS). See 73 FR 66964.1 The 2008 

Pb NAAQS is 0.15 micrograms per cubic 

meter of air (mg/m3) maximum (not-tobe-exceeded). In the same action EPA 

revised the secondary Pb NAAQS to be 

identical in all respects to the revised 

primary standard, i.e., 0.15 mg/m3. 

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 

after promulgation of a new or revised 

standard. These SIPs are commonly 

called infrastructure SIPs. Based on the 

October 15, 2008 date of signature, 

infrastructure SIPs for the 2008 Pb 

NAAQS were due on October 15, 2011. 

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, there were two memorandums 

referenced: One dated October 14, 2011, 

‘‘Guidance on Infrastructure State 

Implementation Plan (SIP) Elements 

Required Under Sections 110(a)(1) and 

110(a)(2) for the 2008 Lead (Pb) National 

Ambient Air Quality Standards 

(NAAQS)’’ and the other dated 

September 13, 2013, in which EPA 

released new guidance entitled 

‘‘Guidance on Infrastructure State 

Implementation Plan (SIP) Elements 

under Clean Air Act Sections 110(a)(1) 


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2 ‘‘Guidance on Infrastructure State 

Implementation Plan (SIP) Elements Required 

Under Sections 110(a)(1) and 110(a)(2) for the 2008 

Lead (Pb) National Ambient Air Quality Standards 

(NAAQS)’’ can be found at: http://www.epa.gov/

airquality/lead/pdfs/20111014infrastructure.pdf. 

‘‘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. 

3For 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. 

4See, 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)). 

5EPA 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, 

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. 

and 110(a)(2).’’ 2 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 are 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 2008 Pb 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 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.3 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 CAA, which specifically 

address nonattainment SIP 

requirements.4 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.5 This ambiguity illustrates 

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 


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6See, 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). 

7On 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. 

8For 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. 

9EPA 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. 

10 ‘‘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. 

11EPA’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. 

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.6

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.7

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. 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.8

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.9 EPA most recently 

issued guidance for infrastructure SIPs 

on September 13, 2013 (2013 

Guidance).10 EPA developed this 

document to provide states with up-todate 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.11 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 

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 


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12By 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. 

13For 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). 

14EPA has used this authority to correct errors in 

past actions on SIP submissions related to PSD 

programs. See ‘‘Limitation of Approval of 

Prevention of Significant Deterioration Provisions 

Concerning Greenhouse Gas Emitting-Sources in 

State Implementation Plans; Final Rule,’’ 75 FR 

82536 (December 30, 2010). EPA has previously 

used its authority under CAA 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). 

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 New 

Source Review (NSR) pollutants. 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 2008 Pb 

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.12 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.13

Section 110(k)(6) authorizes EPA to 

correct errors in past actions, such as 

past approvals of SIP submissions.14

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 


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15See, 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). 

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.15

V. What did New York submit? 

New York’s section 110 infrastructure 

submittal which addressed the 2008 Pb 

NAAQS was submitted by the New York 

State Department of Environmental 

Conservation (NYSDEC) on October 13, 

2011. New York’s October 13, 2011 

section 110 submittal demonstrates how 

the State, where applicable, has a plan 

in place that meets the requirements of 

section 110 for the 2008 Pb 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 submittal for the 2008 

Pb NAAQS to New York’s Infrastructure 

SIP submittals for the 1997 8-hour 

ozone, the 1997 and 2006 fine 

particulate matter (PM2.5) and 2010 

nitrogen dioxide (NO2) 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. EPA 

also approved certain elements of New 

York’s 2010 NO2 Infrastructure SIP on 

September 12, 2014. Based upon EPA’s 

comparison, EPA has determined that 

the information provided in New York’s 

2011 Pb Infrastructure SIP is nearly 

identical to the information provided in 

New York’s Infrastructure SIP 

submittals for the 1997 8-hour ozone, 

1997 and 2006 PM2.5 and NO2 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 Pb is the same as 

the rationale for approving those 

elements of New York’s 1997 8-hour 

ozone, 1997 and 2006 PM2.5 and NO2

Infrastructure SIPs. Since the rationale 

for approving certain elements of New 

York’s Pb Infrastructure SIP is the same 

as the rationale for approving certain 

elements of New York’s 1997 8-hour 

ozone, 1997 and 2006 PM2.5, and NO2

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, 1997 and 2006 

PM2.5 and 2010 NO2 Infrastructure SIPs) 

detailed in the following four 

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) and 

(4) EPA’s proposed rulemaking on the 

2010 NO2 (May 2, 2014, 79 FR 25066). 

These documents are available in the 

electronic docket for this proposed 

action at www.regulations.gov. We are, 

of course, accepting comments on that 

rationale as it applies to all elements of 

our proposed approval of New York’s 

Infrastructure SIP for the Pb NAAQS. 

EPA is proposing approval of the 

following elements and sub-elements of 

New York’s Infrastructure SIP for Pb: 

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, 

prevention of significant deterioration, 

and new source review]; 110(a)(2)(D) 

[Interstate/international transport]; 

110(a)(2)(E) [Adequate personnel, 

funding, and authority]; 110(a)(2)(F) 

[Stationary source monitoring and 

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

episodes]; 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 

modeling and data]; 110(a)(2)(L) 

[Permitting fees]; and 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 2008 Pb 

NAAQS that are common to New York’s 

1997 8-hour ozone, 1997 and 2006 

PM2.5, and 2010 NO2 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 Pb NAAQS in today’s 

proposal: elements A, E, F, H, J, K, L, 

and M. 

As discussed in the following 

sections, for those elements of New 

York’s Pb Infrastructure SIP that differ 

from New York’s 1997 8-hour ozone and 

1997 and 2006 PM2.5 Infrastructure SIPs, 

and 2010 NO2 Infrastructure SIP, EPA 

has reviewed and evaluated the aspects 

of those elements, namely elements B, 

C, D 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. On December 27, 2010 (75 FR 

81126), EPA finalized additional 

revisions pertaining to where state and 

local monitoring agencies would be 

required to conduct Pb monitoring. The 

new regulations (40 CFR 58.10 and 40 

CFR 58.13) replaced the populationoriented monitoring requirement with a 

requirement to add Pb monitors to 

urban National Core Monitoring 

Program (NCore), a multi-pollutant 

network that integrates several 

advanced measurement systems for 

particles, pollutant gases and 

meteorology. Also, EPA lowered the 

emission threshold from 1.0 ton(s) per 

year (tpy) to 0.5 tpy for source-specific 

monitoring of industrial sources of Pb. 

New York addressed EPA’s new 

monitoring requirements when it 

submitted its Annual Monitoring 

Network Review Plan (Plan) of 2014 on 

July 29, 2014. EPA approved this Plan 

on November 3, 2014. EPA is therefore 

proposing to determine that New York 

has met the requirements of section 

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

the 2008 Pb NAAQS. A copy of New 

York’s 2014 Monitoring Plan and EPA’s 

November 3, 2014 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 


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16Analysis by Mark Schmidt, OAQPS, ‘‘Ambient 

Pb’s Contribution to Class I Area Visibility 

Impairment,’’ June 17, 2011. 

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 PSD of Air 

Quality and minor source new source 

review. 

New York’s Infrastructure SIP for Pb 

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 2008 Pb 

NAAQS for meeting the requirements of 

element C. Under Part 231, a major Pb 

facility is defined as one with annual 

actual emissions equal to or greater than 

five tpy. A proposed major Pb facility, 

or an existing major Pb facility that 

proposes a modification in excess of the 

de minimis emission limit (0.6 tpy for 

Pb), is subject to the relevant program 

dependent upon its location. A Lowest 

Achievable Emission Rate (LAER) or 

Best Available Control Technology 

(BACT) analysis would result. 

The Infrastructure SIP ensures that all 

applicable PSD requirements that are 

included in PSD permits are 

incorporated into title V operating 

permits, and that all federallyenforceable requirements are applied 

and enforced. Since Pb is a NAAQS, the 

PSD provisions of Part 231 are 

applicable to Pb. 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 Pb. 

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 2008 Pb 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) and Part 231’s applicability 

on Pb are consistent. 

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 2008 Pb 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 Pb 

NAAQS. In addition, the physical 

properties of Pb prevent Pb emissions 

from being transported long distances or 

from participating in complex 

atmospheric reactions such as PM2.5 or 

ozone. More specifically, there is a 

sharp decrease in Pb concentrations, at 

least in the coarse fraction, as the 

distance from a Pb source increases. 

New York conducted a review of their 

emissions inventory when they made 

their designation recommendations for 

the revised Pb NAAQS and a survey of 

facility data showed no facilities with 

emissions of 0.5 tons per year (tpy) or 

greater existed in close proximity to 

state borders or anywhere within the 

State of New York. New York State is 

designated either unclassifiable/

attainment or unclassifiable and current 

air quality data continues to show 

attainment. Based on New York not 

having any facilities with emissions of 

0.5 tpy or greater existing in close 

proximity to a state border or anywhere 

in the State which might impact a 

neighboring state, transport is not a 

concern with respect to Pb. 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 

Pb in amounts that will contribute 

significantly to nonattainment or 

interfere with maintenance by any other 

state with respect specifically to the Pb 

NAAQS. 

To satisfy section 110(a)(2)(D)(i)(II), 

New York confirms that new major 

sources of Pb and major modifications 

are subject to the State’s PSD program 

(under prong 3). With regard to the 

requirement of prong 4 (the visibility 

protection requirement), New York 

states that sources of Pb are distanced 

far enough from any federal Class 1 area 

as to not impact visibility in any 

significant way. Also, New York states 

that Pb-related visibility impacts in 

general are considered to be 

insignificant. With regard to the 

applicable requirements for visibility 

protection of section 110(a)(2)(D)(i)(II)— 

prong 4, significant impacts from 

stationary source Pb emissions are 

expected to be limited to short distances 

from the source and most, if not all, Pb 

stationary sources are located at 

distances from Class I areas such that 

visibility impacts would be negligible. 

Although Pb can be a component of 

coarse and fine particles, Pb generally 

comprises a small fraction of coarse and 

fine particles. Furthermore, when 

evaluating the extent that Pb could 

impact visibility, Pb-related visibility 

impacts were found to be insignificant 

(e.g., less than 0.10%).16

With respect to 110(a)(2(D)(ii), New 

York is not subject to any 

determinations under sections 126 and 

115 of the CAA and there are no 

violations related to transport of 

emissions from sources in the State. 

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) with respect to the 2008 Pb 

NAAQS. 

Element G: Emergency episodes: 

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. Based on EPA’s 

experience to date with the Pb NAAQS 

and designating Pb nonattainment areas, 

EPA expects that such an event would 


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be unlikely, and if it were to occur, 

would be the result of a malfunction or 

other emergency situation at a relatively 

large source of lead. 

New York’s plan to address air 

pollution emergencies is stated in 

articles 3 and 19 of the ECL. To prevent 

and control these emergency episodes, 

the State adopted 6 NYCRR Part 207, 

‘‘Control Measures for Air Pollution 

Episode,’’ which implements ECLsection 3–0301. Part 207 requires the 

owner of a ‘‘significant air 

contamination source’’ to submit a 

proposed episode action plan to the 

Department of Environmental 

Conservation’s Commissioner, 

containing detailed steps to be taken by 

the source owner to reduce air 

contaminant emissions at each stage of 

an air pollution episode. The regulation 

also enables the Commissioner to 

designate air pollution episodes which 

trigger the action plan. In October 2009, 

New York completed a comprehensive 

revision of its Air Pollution Episode 

Procedures that involved updating the 

contact information for the Bureaus of 

Air Quality Assurance, Stationary 

Sources, and Air Quality Surveillance, 

and the Impact Assessment and 

Meteorology Section, along with locallevel emergency contacts. EPA proposes 

that New York has met the requirements 

of section 110(a)(2)(G) for Pb. 

VII. What is the impact of the June 2014 

Supreme Court Green House Gas 

decision on New York’s infrastructure 

SIP for the 2008 Pb NAAQS? 

With respect to Elements C and J, EPA 

interprets the Clean Air Act to require 

each state to make an infrastructure SIP 

submission for a new or revised NAAQS 

that demonstrates that the air agency 

has a complete PSD permitting program 

meeting the current requirements for all 

regulated NSR pollutants. The 

requirements of Element D(i)(II) may 

also be satisfied by demonstrating the 

air agency has a complete PSD 

permitting program correctly addressing 

all regulated NSR pollutants. New York 

has shown that it currently has a PSD 

program in place that covers all 

regulated NSR pollutants, including 

greenhouse gases (GHGs). 

On June 23, 2014, the United States 

Supreme Court issued a decision 

addressing the application of PSD 

permitting requirements to GHG 

emissions. Utility Air Regulatory Group 

v. Environmental Protection Agency, 

134 S.Ct. 2427. The Supreme Court said 

that the EPA may not treat GHGs as an 

air pollutant for purposes of 

determining whether a source is a major 

source required to obtain a PSD permit. 

The Court also said that the EPA could 

continue to require that PSD permits, 

otherwise required based on emissions 

of pollutants other than GHGs, contain 

limitations on GHG emissions based on 

the application of Best Available 

Control Technology (BACT). In order to 

act consistently with its understanding 

of the Court’s decision pending further 

judicial action to effectuate the decision, 

the EPA is not continuing to apply EPA 

regulations that would require that SIPs 

include permitting requirements that 

the Supreme Court found 

impermissible. Specifically, EPA is not 

applying the requirement that a state’s 

SIP-approved PSD program require that 

sources obtain PSD permits when GHGs 

are the only pollutant (i) that the source 

emits or has the potential to emit above 

the major source thresholds, or (ii) for 

which there is a significant emissions 

increase and a significant net emissions 

increase from a modification (e.g., 40 

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

need to revise federal PSD rules in light 

of the Supreme Court opinion. In 

addition, EPA anticipates that many 

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

Supreme Court’s decision. The timing 

and content of subsequent EPA actions 

with respect to the EPA regulations and 

state PSD program approvals are 

expected to be informed by an 

additional legal process before the 

United States District Court for the 

District of Columbia Circuit. At this 

juncture, EPA is not expecting states to 

have revised their PSD programs for 

purposes of infrastructure SIP 

submissions and is only evaluating such 

submissions to assure that the state’s 

program correctly addresses GHGs 

consistent with the Supreme Court’s 

decision. 

At present, EPA has determined the 

New York SIP is sufficient to satisfy 

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

to GHGs because the PSD permitting 

program previously approved by EPA 

into the SIP continues to require that 

PSD permits (otherwise required based 

on emissions of pollutants other than 

GHGs) contain limitations on GHG 

emissions based on the application of 

BACT. Although the approved New 

York PSD permitting program may 

currently contain provisions that are no 

longer necessary in light of the Supreme 

Court decision, this does not render the 

infrastructure SIP submission 

inadequate to satisfy Elements C, 

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

necessary PSD requirements at this 

time, and the application of those 

requirements is not impeded by the 

presence of other previously-approved 

provisions regarding the permitting of 

sources of GHGs that EPA does not 

consider necessary at this time in light 

of the Supreme Court decision. 

Accordingly, the Supreme Court 

decision does not affect EPA’s proposed 

approval of New York’s infrastructure 

SIP as to the requirements of Elements 

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

VIII. What action is EPA taking? 

EPA is proposing to approve New 

York’s submittal as fully meeting the 

infrastructure requirements for the 2008 

primary Pb 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. 

IX. 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.); 


tkelley on DSK3SPTVN1PROD with PROPOSALS
74054 Federal Register / Vol. 79, No. 240 / Monday, December 15, 2014 / Proposed Rules 

• 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 

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, Incorporation by 

reference, Intergovernmental relations, 

Lead, Ozone, Particulate matter, 

Reporting and recordkeeping 

requirements. 

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

Dated: December 2, 2014. 

Judith A. Enck, 

Regional Administrator, Region 2. 

[FR Doc. 2014–29332 Filed 12–12–14; 8:45 am] 

BILLING CODE 6560–50–P 

OFFICE OF PERSONNEL 

MANAGEMENT 

48 CFR Parts 1609, 1615, 1632, and 

1652 

RIN 3206–AN13 

Federal Employees Health Benefits 

Program: FEHB Plan Performance 

Assessment System 

AGENCY: Office of Personnel 

Management. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The United States Office of 

Personnel Management (OPM) is issuing 

a proposed rule to amend the system for 

assessing the annual performance of 

health plans contracted under the 

Federal Employees Health Benefits 

(FEHB) Program. The purpose of this 

rule is to measure and assess all FEHB 

plan performance (experience-rated and 

community-rated) through the use of a 

common, objective, and quantifiable 

performance assessment for the 2016 

plan year. 

DATES: OPM must receive comments on 

or before January 14, 2015. 

ADDRESSES: Send written comments to 

Wenqiong Fu, Policy Analyst, Planning 

and Policy Analysis, U.S. Office of 

Personnel Management, Room 4312, 

1900 E Street NW., Washington, DC; or 

FAX to (202) 606–6010 Attn: Wenqiong 

Fu. You may also submit comments 

using the Federal eRulemaking Portal: 

http://www.regulations.gov. Follow the 

instructions for submitting comments. 

FOR FURTHER INFORMATION CONTACT: 

Wenqiong Fu, Policy Analyst at (202) 

606–0004. 

SUPPLEMENTARY INFORMATION: 

FEHB Background 

The Federal Employees Health 

Benefits (FEHB) Program was 

established in 1960 and provides health 

insurance to over eight million Federal 

employees, annuitants, and their family 

members. Chapter 89 of Title 5 United 

States Code, which authorizes the FEHB 

Program, allows OPM to contract with 

health insurance carriers to provide 

coverage under certain types of plans. 

FEHB contracts are either communityrated or experience-rated. In 

community-rated contracts, the overall 

premium is based on the carrier’s 

standard rating methodology, taking 

into account factors in the larger 

geographic area or ‘‘community.’’ In 

experience-rated contracts, the FEHB 

carrier considers actual ‘‘experience’’ or 

medical costs of the group of covered 

lives. The two types of contracts are 

regulated under different sections of the 

FEHB Acquisition Regulation 

(FEHBAR). Premiums are determined 

according to distinct processes and plan 

performance is rewarded differently. 

Current Performance Assessment 

System 

Under current regulations, 

performance is assessed for experiencerated plans based on profit analysis 

factors that are weighted to create a 

service charge that OPM pays to 

carriers. For community-rated plans, 

performance is assessed according to 

specific elements that can result in a 

percentage of premium withheld from 

payment to the carrier. Both of these 

performance frameworks are under the 

umbrella of the Federal Acquisition 

Regulation, which governs contracting 

government-wide. 

In determining the level of the service 

charge (profit/risk margin) for 

experience-rated plans, Contracting 

Officers consider six categories of 

factors: Contractor performance, 

contract cost, federal socioeconomic 

programs, cost control, independent 

development, and capital investments. 

OPM Contracting Officers conduct the 

service charge analysis and rely heavily 

on the contractor performance factor. 

Contractor performance is weighted the 

highest, comprises a significant portion 

of the total service charge, and involves 

the largest amount of data. 

Community-rated plans have two 

performance elements that may lead to 

a percentage of premium being 

withheld: Customer service and critical 

contract compliance requirements. 

Proposed FEHB Plan Assessment 

System 

To establish a consistent assessment 

system, create a more objective 

performance standard, and provide 

more transparency for enrollees, OPM is 

developing a framework that will utilize 

a discrete set of quantifiable measures 

examining key aspects of contract 

performance and specific criteria for 

performance factors which will then be 

linked to health plan premium 

disbursements. 

This regulation proposes to replace 

the current methods of plan assessment 

with a new framework, in which both 

experience-rated and community-rated 

plans utilize the same measurement 

criteria. For experience-rated plans, the 

performance-based service charge will 

be administered similarly to the current 

service charge process. For communityrated plans, the performance adjustment 

will be administered similarly to the 

current process using an adjustment to 

net-to-carrier premium payments made 

during the first quarter of the following 


tkelley on DSK3SPTVN1PROD with PROPOSALS