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)402-8537 - FAX: (518) 402-8541 ^ - - „-.

Website: www.dec.ny.gov Wlrl rUK l»« Alexanders. Grannis

INFORMATION Commissioner

Mr. Alan J. Steinberg

Regional Administrator

United States Environmental Protection Agency, Region 2

290 Broadway, 26th Floor

New York, New York 10007-1866

Dear Regional Administrator Steinberg:

Pursuant to sections 110(a)(l) and (2) of the Clean Air Act (CAA), 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.

SIPs 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 the

Environmental Protection Agency (EPA) for failure to take action against states that had not

made SIP submissions that met the requirements of CAA sections 110(a)(l) and (2), EPA was

obligated to make official findings whether states have made SIP submissions required to meet

the requirements of these sections of the CAA for particulate matter less than or equal to 2.5

microns (PM2.5) by October 5, 2008. This submission is intended to satisfy these requirements

as they apply to PM2.5.

Section 110(a)(l) contains the general requirements for submitting a SIP after

promulgation of a new or revised NAAQS. 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 SIPs 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) 402-8543. If your staff have concerns, please have them contact David J.

Shaw, Director of the Department's Division of Air Resources at (518) 402-8452 with any

questions they may have.

Sincerely,

'J. JTared Snyder

Assistant Commissioner

Office of Air Resources, Climate Change and Energy

Enclosure

cc: D. Shaw

J. Higgins

R. Sliwinski

R. Ruvo, EPA Region 2

R. Werner, EPA Region 2
bcc: C. McCarthy

M. Reis

R. Bielawa

D. Rivenburgh
CLEAN AIR ACT SECTION 110(a)

INFRASTRUCTURE ASSESSMENT

Pursuant to sections 1 1 0(a)(1 ) and (2) of the Clean Air Act (CAA), states are

required to meet basic State Implementation Plan (SIP) requirements related to the

attainment of new or revised National Ambient Air Quality Standards (NAAQS),

including those related to emission inventories, monitoring and modeling to assure

attainment, maintenance and enforcement of the standards.

. As a consequence of a consent decree resulting from an Earthjustice lawsuit

against the Environmental Protection Agency (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)(1 ) and (2), EPA was obligated to make official findings whether states have

made SIP submissions that meet these sections of the CAA for particuiate matter less

than or equal to 2.5 microns (PM2.5) by October 5, 2008. This assessment is intended

to determine if New York State's programs and SIP submissions meet section 110(a)(1)

and (2) requirements as they pertain to PM2.5.

Pursuant to EPA guidance dated Octobers, 2007, this submission addresses

each of the required elements of CAA section 1 1 0(a)(2), and affirms that New York

State's SIPs meet the requirements'of CAA sections 110(a)(1) and (2). The required

elements are described in the following sections of the CAA:

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

Ambient Air Quality Monitoring, Compilation, Analysis and Reporting '

Enforcement and Stationary Source Permitting (1 1 0(a)(2)(C))

Interstate Transport (1 1 0(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 (1 1 0(a)(2)(H))

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

Consultation, Public Notification and Prevention of Significant Deterioration

(PSD)A/isibility (110(a)(2)(J)) •

Air Quality Monitoring and Reporting (1 1 0(a)(2)(K))

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

Consultation/Participation with Affected Local Entities (1 1 0(a)(2)(M))

Section HOfa) Requirements

The New York State Department of Environmental Conservation (Department)

has addressed the specific regulation of PM2.5 in several ways. One of these was

through a revision to 6 NYCRR Part 200. In this revision, subdivision (av) was

amended to include the new fine particuiate matter (i.e., PM2.5) NAAQS nonattainment

area designation and geographic boundary as promulgated by the EPA on January's,

2005.
Changes to 6 NYCRR Part 231, "New Source Review of New and Modified

Facilities," are also currently in the rule-making process specifically addressing

nonattainment new source review (NNSR) for PM2.5 sources which will-be submitted to

EPA as expeditiously as practicable for approval and inclusion in the SIP. In the

meantime, the EPA is administering the federal Prevention of Significant Deterioration

(PSD) program in New York State. Thus, all federal requirements related to NNSR and

PSD are being applied in New York.

Additionally, new control measures will be provided for in New York's'PM2.5 SIP

submission. With rules already in place along with the changes described in the next

section, New York State has adequate authority to promulgate and enforce necessary

rules, and programmatic "infrastructure" to implement the PM2.5 NAAQS.

Enforceable Emission Limitations and Other Control Measures f110(fa)l'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. New York State has not yet submitted a SIP that specifically addresses

PM2.5 NAAQS, so the adequacy of past submissions is not at issue. In the PM2.5 SIP

that is under development and for which a public hearing was held, a number of state

programs and regulations are anticipated to be put in place that will provide the

necessary enforceable emission limitations and other control measures for PM2.5 in

New York State. Others are already in effect that, although they address PM generally

rather than PM2.5 emissions specifically, will reduce the ambient levels of PM2.5 by •

reducing its emissions along with the emissions of PM and its precursors.

In addition to state regulations, a number of enforceable federal programs are

also in place that will reduce PM2.5 ambient levels by controlling the emissions of PM

and its precursors.. ' „

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

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 Department measures air pollutants at 80 sites across the state, using

continuous and/or manual instrumentation. These sites are part of the federallymandated National Core Sites (Ncore) multi-pollutant monitoring network 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 PM2.5J-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 AIRNOW live national

ozone and PM10 and PM2.5'mapping. All ambient measurements undergo data

validation and are subsequently submitted to EPA's Air Quaijty 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 (110(aX2)(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 NNSR requirements.

Environmental Conservation Law (ECL) §19-0305 authorizes the commissioner

of the Department to enforce the codes, rules and regulations of the Department

established in accordance with this article. The SIP is a compilation of rules and

regulations that are established to demonstrate attainment of an NAAQS. Therefore,

the Department has the authority to enforce all SIP measures.

New York's'SIP currently includes NNSR requirements. In addition, there is a

federal implementation plan in effect for PSD requirements,-which EPA currently

administers in New York State. However, New York is presently in the rule-making

process for 6 NYCRR Part 231, "New Source Review of New and Modified Facilities,"

which will be submitted to EPA 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 York confirms that the current NNSR permitting program'

remains in effect and continues to apply to the state's major stationary sources. The

PSD program is being implemented in New York State by the EPA and is in effect as

well.

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 and

Title V 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 until such time as a federally-enforceable PSD program based on Part 231 -

comes into effect. When the latter occurs, New York will ensure that all state programbased federally-enforceable requirements are applied and enforced.

Interstate Transport f 11Ofa)(2XD))

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

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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.

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 to the state's major stationary sources. EPA has been

implementing the-PSD program in New York State since 2004.

An integral part of the effort to reduce interstate transport of PM2.5 and other

pollution was embodied in the.Clean Air Interstate Rule (CAIR). CAIR was intended to

reduce particulate emissions through the control of oxides of nitrogen and sulfur oxides

from large electrical generating units (EGUs). However, on July 11, 2008, the D.C.

Circuit Court of Appeals issued a ruling that would vacate CAIR. EPA appealed the

ruling on September 24, 2008 and CAIR will remain in effect until the court's judgement

is final. New York's draft PM2.5 SIP includes the measures required by CAIR. If the

court's decision is affirmed and CAIR is vacated, the Department will supplement the

draft SIP with additional measures to meet the requirements of section 110(a)(2)(D).

New York State has been working with the states of the Ozone Transport Commission

(OTC) and Mid-Atlantic Northeast Visibility Union (MANE-VU) to develop an appropriate

multi-state program to address the interstate transport of air pollution. Additionally, the

implementation of the requirements of New York's NOx Budget Program under the NOx

SIP Call (Part 204) and Acid Rain programs (Parts 237 and 238) would at least partially

address New York's state-level interstate transport obligations under Section

110(3X2X0).,

New York commits to the continued enforcement of all SIP measures, the

application of the requirements of New York's NOx Budget and Acid Rain rules, and the

regulation of construction of new or modified stationary, sources to meet NNSR and

PSD requirements to prevent emissions in New York State from contributing

• significantly to nonattainment, or interfering with maintenance, of the NAAQS in another

state, or interfering with efforts to prevent significant deterioration of air quality or to

protect visibility. As a part of this effort, New York State will ensure that federal PSD

requirements which are included in EPA-issued PSD permits are incorporated into Title

V operating permits.

Assurance of Adequate Resources (110fa)(2yEVl

CAA section 110(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 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.

. - 4
The Division of Air Resources (DAR), with a staff of around 286, 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 non-personnel 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, Co-operative Agreements (i.e., CAA

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 New York 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 New York 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 (110(a)(2)(F))

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 Program] states in section 3 that operating

permits issued pursuant to this section shall include, among other things, "provisions for

detailed monitoring, record-keeping 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 ..."

Emergency Powers and Contingency Plans C110fa)(2)fG))

CAA 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 episodes in their SIPs. Articles 3 and 19

of the ECL provide this authority to the Department.

In New York State at the present time, 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 the commissioner deems 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 NAAQS (110(a)(2)(H))

CAA section 110(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 SIP 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.

Authority for SIP Revisions for New Nonattainment Areas (110fa)f2')fl))

CAA section 110(a)(2)(l) 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 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.

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Consultation. Public Notification and PSD/Visibility (110(aK2yj»

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 were held during the ozone and PM2.5 SIP development period.

40 CFR 51.308(1) requires consultation between states, tribes and the Federal

Land Managers in coordinating efforts to reduce visibility impairment in Class I areas

affected by sources in New York. These parties agreed to participation in Regional

Planning Organizations (RPOs) to facilitate interstate coordination on the development

of Regional Haze SIPs required under Section 169A of the CAA. The State of New

York conducted most coordination activities through the Mid-Atlantic/Northeast Visibility

Union (MANE-VU) which is managed by the Ozone Transport Commission (OTC). Also

participating in consultations were the Mid-Atlantic Regional Air Management

Association (MARAMA) and the Northeast States for Coordinated Air Use Management

(NESCAUM). Additional consultation was carried out by meeting with RPOs for the

areas contiguous to the MANE-VU area.

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 ambient 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 in regulatory and other efforts to improve air

quality.

The Department's website, at http://www.dec.nv.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. 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

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hourly where available. Parameters monitored include ozone, fine particulate, carbon

monoxide, sulfur dioxide, nitrogen oxides, rnethane/nonmethane hydrocarbons, and

meteorological data.

In accordance with EPA guidance issued on August 15, 2006, states may 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. However, 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 sources in the state.

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 and

PSD requirements, incorporating the resulting requirements into New York State's 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 states containing the affected Class I areas have not provided the

Department with updated information needed to identify the-control measures

necessary to reach the haze program's reasonable progress goals in each Class I area.

New York State will address the visibility protection requirements when the regional

haze SIP is completed and submitted to EPA.

Air Quality Modeling / Data Submission (110(a)(2)f K))

CAA section 110(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 an 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.

* US EPA 2007. "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 (110(a)(2)(U)

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 Q(a)(2}(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 that was 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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