35034 Federal Register / Vol. 86, No. 124 / Thursday, July 1, 2021 / Proposed Rules 

approve state choices, provided that 

they meet the criteria of the Clean Air 

Act. Accordingly, this proposed 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 proposed action: 

• Is not a significant regulatory action 

subject to review by the Office of 

Management and Budget under 

Executive Orders 12866 (58 FR 51735 

(October 4, 1993)) and 13563 (76 FR 

3821 (January 21, 2011)); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 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 the 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, the SIP is not approved 

to apply on any Indian reservation land 

or in any other area where the EPA or 

an Indian tribe has demonstrated that a 

tribe has jurisdiction. In those areas of 

Indian country, the rule does not have 

tribal implications and will not impose 

substantial direct costs on tribal 

governments or preempt tribal law as 

specified by Executive Order 13175 (65 

FR 67249 (November 9, 2000)). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, Nitrogen 

dioxide, Ozone, Reporting and 

recordkeeping requirements, Volatile 

organic compounds. 

Dated: June 24, 2021. 

Walter Mugdan, 

Acting Regional Administrator, EPA Region 

2. 

[FR Doc. 2021–14056 Filed 6–30–21; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R02–OAR–2020–0301; FRL 10025–51– 

Region 2] 

Approval of Air Quality Implementation 

Plans; New York; Infrastructure 

Requirements for the 2015 Ozone, 

National Air Quality Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

elements of New York’s State 

Implementation Plan (SIP) revisions, 

submitted to demonstrate that the State 

meets the requirements of section 

110(a)(1) and (2) of the Clean Air Act 

(CAA) for the 2015 Ozone National 

Ambient Air Quality Standards 

(NAAQS). Section 110(a) of the CAA 

requires that each state adopt and 

submit for approval into the SIP a plan 

for the implementation, maintenance 

and enforcement of each NAAQS 

promulgated by the EPA. 

DATES: Comments must be received on 

or before August 2, 2021. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R02–OAR–2020–0301 at http://

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Once submitted, comments cannot be 

edited or removed from Regulations.gov. 

The EPA may publish any comment 

received to its public docket. Do not 

submit electronically any information 

you consider to be Confidential 

Business Information (CBI) or other 

information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. The EPA will generally not 

consider comments or comment 

contents located outside of the primary 

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

other file sharing system). For 

additional submission methods, the full 

EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

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

commenting-epa-dockets. To reduce the 

risk of COVID–19 transmission, for this 

action we will not be accepting 

comments submitted by mail or hand 

delivery. 

All documents in the docket are listed 

on the www.regulations.gov website. 

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, is not placed on 

the internet. Publicly available docket 

materials are available electronically at 

www.regulations.gov. To reduce the 

transmission of COVID–19, we do not 

plan to offer hard-copy review of the 

docket for this action. Please email the 

person listed in the FOR FURTHER

INFORMATION CONTACT if you need to 

make alternative arrangements for 

access to the docket. 

FOR FURTHER INFORMATION CONTACT: 

Edward J. Linky, Air Programs Branch, 

Environmental Protection Agency, 290 

Broadway, 25th Floor, New York, New 

York 10007–1866, (212) 637–3764, or by 

email at Linky.Edward@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. What action is the EPA proposing? 

II. What is the background information? 

III. What is a section 110(a)(1) and (2) SIP? 

IV. What elements are required under section 

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

V. What is the EPA’s approach to the review 

of infrastructure SIP submissions? 

VI. What did New York submit? 

VII. How has the State addressed the 

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

‘‘infrastructure’’ provisions? 

VIII. What action is the EPA taking? 

IX. Statutory and Executive Order Reviews 

I. What action is the EPA proposing? 

The EPA is proposing to approve 

elements of the State of New York 

Infrastructure State Implementation 

Plan (SIP) as meeting the section 

110(a)(1) and (2) infrastructure 

requirements of the Clean Air Act (CAA) 

for the 2015 Ozone National Ambient 

Air Quality Standards (NAAQS or 

standard), except for the CAA section 

110(2)(D)(i)(I) transport provisions 

which will be addressed in a separate 

action. As explained below, the EPA is 

proposing to find that the State has the 

necessary infrastructure, resources, and 

general authority to implement the 

standards noted above. 


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1All referenced memoranda are included in the 

docket for today’s action. 

2The EPA explains and elaborates on these 

ambiguities and its approach to address them in its 

September 13, 2013 Infrastructure SIP Guidance 

(available at https://www3.epa.gov/airquality/ 

urbanair/sipstatus/docs/Guidance_on_

Infrastructure_SIP_Elements_Multipollutant_

FINAL_Sept_2013.pdf), as well as in numerous 

agency actions, including the EPA’s prior action on 

New York’s infrastructure SIP to address the 

Nitrogen Dioxide NAAQS, 79 FR 25066, 25067 

(May 2, 2014). 

3See the United States Court of Appeals for the 

Ninth Circuit’s decision in Montana Environmental 

Information Center v. Thomas, 902 F.3d 971 (Aug. 

30, 2018). 

II. What is the background 

information? 

Section 110(a)(1) of the CAA requires 

states to submit for approval into the 

SIP, within 3 years after the 

promulgation of a new or revised 

NAAQS, a plan that meets the 

applicable requirements of section 

110(a)(2). The EPA commonly refers to 

such state plans as ‘‘infrastructure 

SIPs.’’ The EPA promulgated a revised 

NAAQS for ozone in 2015 (‘‘2015 

Ozone’’). 80 FR 65291 (October 26, 

2015). 

The New York State Department of 

Environmental Conservation (NYSDEC) 

submitted the following revisions to its 

Infrastructure State Implementation 

Plan (ISIP): 

• 2015 Ozone ISIP submitted on 

September 25, 2018. 

• The September 25, 2018 transmittal 

letter indicated that NYSDEC would be 

updating Element G, which includes 

updates to the Air Quality Index and 

Emergency Contract. 

• The updated Element G was 

received, along with a letter to EPA 

Regional Administrator Peter D. Lopez 

on July 10, 2019, and is incorporated 

into this assessment by the EPA (which, 

together with the September 25, 2018 

submittal, is referred to herein as the 

‘‘submittal’’). 

III. What is a section 110(a)(1) and (2) 

SIP? 

Section 110(a)(1) provides the 

procedural and timing requirements for 

SIPs. Section 110(a)(2) lists specific 

elements that states must meet for 

‘‘infrastructure’’ 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 the 

EPA plans to implement, maintain, and 

enforce each of the NAAQS 

promulgated by the EPA. The EPA 

interprets this provision to require states 

to address basic SIP requirements, 

including emission inventories, 

monitoring, and modeling to ensure 

attainment and maintenance of the 

standards. 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. 

IV. What elements are required under 

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

The infrastructure requirements of 

CAA sections 110(a)(1) and (2), relevant 

to this action, are discussed in the 

following EPA guidance documents: (1) 

The 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;’’ (2) the EPA’s 

September 13, 2013 memorandum 

entitled ‘‘Guidance on Infrastructure 

State Implementation Plan (SIP) 

Elements under Clean Air Act Sections 

110(a)(1) and 110(a)(2)’’ (2013 

Guidance), which addresses the 2008 

ozone, 2010 nitrogen dioxide (NO2), 

2010 sulfur dioxide (SO2), and 2012 

particulate matter (PM2.5) NAAQS, as 

well as infrastructure SIPs for new or 

revised NAAQS promulgated in the 

future.1

The EPA reviews each infrastructure 

SIP submission with the applicable 

statutory provisions of CAA section 

110(a)(2). The 14 elements required to 

be addressed by CAA section 110(a)(2) 

are: 

• 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 and for 

construction or modification of 

stationary sources; 

• 110(a)(2)(D)(i)(I) and (II): Interstate 

pollution transport; 

• 110(a)(2)(D)(ii): Interstate and 

international pollution abatement; 

• 110(a)(2)(E): Adequate resources 

and authority, conflict of interest, 

oversight of local governments and local 

authorities; 

• 110(a)(2)(F): Stationary source 

monitoring and reporting; 

• 110(a)(2)(G): Emergency powers; 

• 110(a)(2)(H): Future SIP revisions; 

• 110(a)(2)(I): Plan revisions for 

nonattainment areas (under part D); 

• 110(a)(2)(J): Consultation with 

government officials, public 

notification, and PSD and visibility 

protection; 

• 110(a)(2)(K): Air quality modeling 

and data; 

• 110(a)(2)(L): Permitting fees; 

• 110(a)(2)(M): Consultation/ 

participation by affected local entities. 

This proposed action will not address 

the section 110(a)(2)(D)(i)(I) (prongs 1 

and 2) portions of the New York 2015 

Ozone infrastructure SIP. The EPA will 

act on those portions of New York’s 

infrastructure SIP in a separate 

rulemaking action. 

V. What is the EPA’s approach to the 

review of infrastructure SIP 

submissions? 

Whenever the EPA promulgates a new 

or revised NAAQS, CAA section 

110(a)(1) requires states to make 

Infrastructure SIP submissions to 

provide for the implementation, 

maintenance, and enforcement of the 

NAAQS. These submissions must meet 

the various requirements of CAA section 

110(a)(2), as applicable. Due to 

ambiguity in some of the language of 

CAA section 110(a)(2), the EPA believes 

that it is appropriate to interpret these 

provisions in the specific context of 

acting on infrastructure SIP 

submissions. 

The EPA has previously provided 

comprehensive guidance on the 

application of these provisions through 

a guidance document for infrastructure 

SIP submissions and through regional 

actions on infrastructure submissions.2

Unless otherwise noted below, we are 

following that existing approach in 

acting on these submissions. In 

addition, in the context of acting on 

such infrastructure submissions, the 

EPA evaluates the submitting state’s SIP 

for facial compliance with statutory and 

regulatory requirements, not for the 

state’s implementation of its SIP.3 The 

EPA has other authority to address 

issues concerning a state’s 

implementation of its SIP. 

VI. What did New York submit? 

NYSDEC submitted the following SIP 

submittals, which address the 

infrastructure requirements for the 

identified NAAQS: 

• 2015 Ozone ISIP Revisions, 

submitted on September 25, 2018. 

• 2015 Ozone ISIP Element G, 

submitted in a July 10, 2019 letter to 

Region 2 EPA Regional Administrator, 

Peter D. Lopez, entitled, ‘‘Revisions to 

Air Quality Index and Contacts’’ (which, 

together with the September 25, 2018 

submittal, is referred to herein as the 

‘‘submittal’’). 

New York’s Infrastructure SIP 

submittal demonstrates how the State, 

where applicable, has a plan in place 

that meets the requirements of section 

110 for the 2015 Ozone NAAQS. The 

plan references the current New York 

Air Quality SIP, the New York Codes, 

Rules and Regulations (NYCRR), the 

New York Environmental Conservation 


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4https://www.dec.ny.gov/docs/air_pdf/ 

sip2008o3nymafinal.pdf. 

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 the 

EPA and incorporated into the New 

York SIP can be found at 40 CFR 

52.1670 and are posted on the internet 

at https://www.epa.gov/sips-ny. 

VII. How has the State addressed the 

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

‘‘infrastructure’’ provisions? 

EPA addresses the infrastructure 

elements as follows: 

Element A: Emission Limits and Other 

Control Measures: Section 110(a)(2)(A) 

requires SIPs to include enforceable 

emission limits and other control 

measures, means, or techniques, and 

schedules for compliance. In its 

submittal, the NYSDEC stated that 

regulations have been adopted under 6 

NYCRR to limit emissions of nitrogen 

oxides (NOX) and volatile organic 

compound (VOC) for purposes of 

attaining several ozone NAAQS. 

Regulations approved by EPA into the 

SIP are listed in a table under 40 CFR 

52.1670(c), titled ‘‘EPA-Approved New 

York State Regulations and Laws.’’ The 

NYSDEC submittal indicates that DEC’s 

November 10, 2017 SIP submission for 

the New York-Northern New JerseyLong Island, NY-NJ-CT nonattainment 

area (New York metropolitan area, or 

NYMA) for the 2008 ozone NAAQS 

identified the permanent and 

enforceable regulations that primarily 

yielded reductions of NOX and VOC 

emissions.4 In its submittal, New York 

identifies provisions of its federally 

enforceable SIP that contain enforceable 

emission limits and other control 

measures, such as 6 NYCRR subpart 

201–1.4(a), which states that each 

permitted facility shall take all 

necessary and appropriate actions to 

prevent exceedance of applicable 

emissions limits during periods of startup, shutdown, or malfunction. 

Moreover, the NYSDEC’s submittal 

states that it does not authorize any 

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

discretion’’ to allow revisions to or 

exemptions from SIP submission 

limitations without further public 

participation and approval from the 

EPA. 

The SIP submittal does not account 

for additional NOX and VOC control 

measures needed to attain the 2015 

Ozone NAAQS. NYSDEC stated in its 

submission that these control measures 

will be addressed in the New York 

metropolitan area’s (‘‘NYMA’’) 

attainment SIP that is due by August 3, 

2021. 

The EPA is proposing to determine 

that New York has met the requirements 

of section 110(a)(2)(A) of the CAA with 

respect to the 2015 Ozone NAAQS 

based on the enforceable emission limits 

and other control measures in Title 6 of 

the NYCRR. 

Element B: Ambient air quality 

monitoring/data system: Section 

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

provisions to provide for the 

establishment and operation of ambient 

air quality monitors, to monitor, 

compile, and analyze ambient air 

quality data, and to make these data 

available to the EPA upon request. The 

NYSDEC submittal for the 2015 Ozone 

ISIP details the State’s authority to 

adopt and enforce provisions of the SIP 

and to operate an ambient air quality 

monitoring network. The EPA proposes 

to find that these provisions 

demonstrate that NYSDEC has the 

requisite authority to support Element 

B. NYSDEC states that it will continue 

to operate an air quality monitoring 

network that complies with the EPA 

requirements and will submit this data 

to the EPA’s Air Quality System (AQS). 

NYSDEC’s submittal states that it 

monitors ozone at 28 sites across the 

State using continuous and/or manual 

instrumentation, in accordance with 40 

CFR part 53 and 40 CFR part 58. These 

sites are part of the federally mandated 

network of NCore multipollutant sites 

(NCore), the State and Local Air 

Monitoring Stations (SLAMS) network, 

and Photochemical Assessment 

Monitoring Stations (PAMS), with 

additional VOC monitoring conducted 

through the EPA’s National Ambient Air 

Toxics (NATTS) network. 

Authority: New York’s 2015 Ozone 

ISIP submittal states that while the 

NYSDEC does not have specific 

regulations authorizing monitoring 

activities, the operation of monitoring 

networks falls under the broad statutory 

authority granted to the agency and the 

Commissioner of the NYSDEC through 

New York’s Environmental 

Conservation Law (ECL) section 1–0101 

(declaring New York’s policy to prevent 

air, water and land pollution), section 

3–0301 (granting the NYSDEC 

Commissioner the power to monitor the 

environment and identify changes and 

conditions in ecological systems and to 

warn of emergency conditions), and 

section 19–0103 (declaring New York’s 

policy to maintain a reasonable degree 

of purity of the air resources of the state 

and require the use of all available 

practical and reasonable methods to 

prevent and control air pollution in 

New York). 

Monitoring network: 

The NYSDEC operates API–T400 

ozone monitors at 28 sites across the 

State. In addition to monitoring for 

ozone, the monitoring sites also monitor 

for ozone precursors (NOX and VOCs). 

The EPA’s promulgation of the 2015 

Ozone NAAQS altered PAMS 

requirements. The new rule requires 

that PAMS stations be located at urban 

sites with populations of greater than 

one million people regardless of 

attainment status. To comply with 

PAMS requirements, sites were 

originally established in Queens County 

(NYC) and Monroe County (Rochester). 

These two PAMS sites have been 

relocated with the EPA’s approval. The 

Queens site was relocated to an existing 

PAMS site in the Bronx (NYC), and the 

Rochester site was relocated to a new 

site at the Flax Pond Marine Laboratory 

in Suffolk County on the Long Island 

Sound. The Flax Pond Marine 

Laboratory site will assist in monitoring 

the high ozone gradient across Long 

Island Sound. 

Annual Monitoring Network Plan: 

The NYSDEC prepares an Annual 

Monitoring Network Plan (Plan) that 

describes in detail the specifics of the 

monitoring network as required by 40 

CFR Section 58.10. The Plan is made 

available for public inspection and 

comment for at least 30 days and then 

submitted to the EPA Region 2 Regional 

Administrator for approval or 

disapproval. The 2020 Plan was 

submitted to the EPA on September 23, 

2020, following public review, and the 

EPA approved all Ozone related 

monitoring activities on January 11, 

2021. The NYSDEC ensures that New 

York will meet the monitoring 

requirements promulgated under the 

2015 Ozone NAAQS. 

The EPA is therefore proposing that 

New York has met the requirements of 

section 110(a)(2)(B) of the CAA with 

respect to the 2015 Ozone NAAQS 

based on the authority provided by the 

ECL and the operation of an EPAapproved ambient air monitoring 

network. 

Element C: Program for enforcement 

of control measures and for construction 

or modification of stationary sources: 

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

have a plan that includes a program 

providing for enforcement of all SIP 

measures and the regulation of the 

modification and construction of any 

stationary source, including a program 

to meet Prevention of Significant 

Deterioration (PSD) of Air Quality and 

minor source new source review. The 


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three sub-elements of Element C are 

addressed below. 

Enforcement of SIP Measures: 

Statewide enforcement of new and 

modified sources, minor modifications 

of minor sources, and major 

modifications in areas designated as an 

attainment area or as an unclassifiable 

area for the 2015 Ozone NAAQS, is 

required by Title I of the Clean Air Act 

Part C (Major Sources of Prevention of 

Significant Deterioration). ECL section 

19–0305 authorizes the NYSDEC 

Commissioner to enforce the codes, 

regulations, and rules duly promulgated 

or revised by the NYSDEC in 

accordance with Article 19 of the ECL. 

The New York federally approved SIP is 

a compilation of rules and procedures 

that have been duly promulgated by the 

NYSDEC in accordance with its 

statutory authority and consistent with 

the State APA. The NYSDEC has the 

authority to adopt all SIP measures. 

New York enforces emission limits and 

control measures through Title 21 of 

ECL article 71, ‘‘Enforcement of Article 

19 and Air Pollution Emergency Rules 

and Regulations.’’ 6 NYCRR part 201, 

entitled, ‘‘Permits and Regulations’’ also 

includes enforcement provisions. 

Specifically, subpart 201–1.13, entitled, 

‘‘access to regulated facilities,’’ grants 

representatives of the NYSDEC access in 

order to determine compliance with 

federal and state air pollution 

requirements, regulations or laws. 

Regulation of minor sources and 

minor modifications: 

The NYSDEC issues permits for minor 

sources of air pollution through 6 

NYCRR Subpart 201–4 (‘‘Minor Facility 

Registration’’) and Subpart 201–5 

(‘‘State Facility Permits’’), and further 

regulates these sources through 

applicable state and federal regulations, 

including the SIP-approved 6 NYCRR 

Part 201, in order to control emissions 

of NOX and VOCs. 

Preconstruction PSD Permitting of 

Major Sources and Major Modifications: 

The NYSDEC has permitting authority 

under 6 NYCRR Part 231, ‘‘New Source 

Review for New and Modified 

Facilities’’ to implement the PSD 

program as required by the CAA Title 1 

Part C for all sources subject to PSD in 

areas designated as in attainment or 

unclassifiable for the 2015 Ozone 

NAAQS. Part 231 of 6 NYCRR was 

revised in 2009 to comply with federal 

guidelines. This revision allowed the 

NYSDEC to resume administering the 

PSD program, which includes criteria 

pollutants (i.e., all pollutants subject to 

a NAAQS, regulated under a New 

Source Performance Standard, or 

regulated under the CAA, with the 

exception of Section 112 Hazardous Air 

Pollutants), which had been 

administered by the EPA since 2004. 

See 75 FR 70140 (Nov. 17, 2010). 

6 NYCRR Part 231 also encompasses 

the regulation of greenhouse gases. The 

EPA approved the majority of this 

revised regulation into the New York 

SIP. (see 81 FR 95047 (Dec. 27, 2016)). 

New York’s 2015 Ozone ISIP 

submittal states that all applicable 

federal PSD requirements that are 

included in PSD permits are 

incorporated into Title V operating 

permits, and that all federally 

enforceable requirements are applied 

and enforced. In its submittal, New York 

affirms that the current NSR and PSD 

programs remain in effect and apply to 

the State’s major stationary sources, and 

that the requirements of these programs 

are federally enforceable. 

The EPA is proposing to determine 

that New York has met the requirements 

of section 110(a)(2)(C) of the CAA with 

respect to the 2015 Ozone NAAQS. The 

EPA proposes to find that the State has 

adequate authority and regulations to 

ensure that SIP-approved control 

measures are enforced. The EPA is 

proposing to find that New York has a 

SIP-approved minor new source review 

program. The EPA also proposes to find, 

based on the approval of New York’s 

PSD program, that New York has the 

authority to regulate the construction of 

new or modified stationary sources to 

meet the PSD program requirements. 

Element D: Interstate transport: CAA 

section 110(a)(2)(D)(i) consists of four 

separate elements, or ‘‘prongs.’’ CAA 

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

contain adequate provisions prohibiting 

emissions in amounts that will 

contribute significantly to 

nonattainment of the NAAQS in any 

other state (prong 1), and adequate 

provisions prohibiting emissions that 

will interfere with maintenance of the 

NAAQS by any other state (prong 2). 

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

SIPs to contain adequate provisions 

prohibiting emissions in amounts that 

will interfere with any other state’s 

required measures to prevent significant 

deterioration of its air quality (prong 3), 

and adequate provisions prohibiting 

emissions in amounts that will interfere 

with any other state’s required measures 

to protect visibility (prong 4). 

Prongs 1 and 2: Significant Contribution 

To Attainment and Interference With 

Maintenance 

This proposed action will not address 

the portions of the New York 2015 

Ozone infrastructure SIP concerning 

prongs 1 and 2. The EPA will act on 

these portions of New York’s 

infrastructure SIP in a separate 

rulemaking action. 

Prong 3: Interference With PSD 

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

(prong 3), SIPs must contain provisions 

prohibiting emissions in amounts that 

would interfere with measures required 

to be in any other State’s SIP under CAA 

Part C to prevent the significant 

deterioration of air quality. To satisfy 

section 110(a)(2)(D)(i)(II), New York 

relies on its SIP-approved 

nonattainment NSR and PSD permitting 

programs, which are implemented 

through 6 NYCRR Part 231 to prevent 

significant deterioration of air quality 

within the state and other nearby states. 

New York has affirmed that new major 

sources and major modifications in New 

York are subject to the State’s federally 

approved PSD program, which applies 

to all NSR-regulated pollutants, and 

satisfies the EPA’s PSD requirements. 

The EPA recognizes that sources in 

New York not subject to PSD because 

they are in a nonattainment area may 

also have the potential to interfere with 

PSD in an attainment or unclassifiable 

area of another state. The EPA will 

consider and may approve 

nonattainment NSR provisions in 

determining whether a SIP satisfies 

prong 3 with respect to sources located 

in areas subject to nonattainment NSR, 

and thus not subject to PSD permitting. 

However, SIP revisions to address 

nonattainment NSR requirements for 

any new or revised NAAQS are due on 

a separate timeframe under section 

172(b) of the CAA and are not subject 

to the timeframe for submission of 

infrastructure SIPs under section 

110(a)(1). Therefore, a fully approved 

nonattainment NSR program for any 

previous NAAQS may be considered by 

the EPA as adequate for purposes of 

meeting the requirement of prong 3. 

New York has a SIP-approved 

nonattainment NSR program that 

applies to all NSR-regulated pollutants, 

ensuring regulation of major sources 

and major modifications in 

nonattainment areas. 

Accordingly, the EPA is proposing to 

approve the infrastructure SIP 

submission as meeting the applicable 

prong 3 requirements of section 

110(a)(2)(D)(i)(II) for the 2015 Ozone 

NAAQS. 

Prong 4: Visibility 

In its 2015 Ozone ISIP submittal, New 

York has affirmed that the State has met 

its visibility obligations through its 

coordination with regional Class I area 

states within the framework of the MidAtlantic/Northeast Visibility Union 

(MANE–VU), and its applicable SIP 


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5 In the August 28, 2012 rulemaking approving 

New York’s Regional Haze SIP submittal, the EPA 

promulgated a partial FIP to address our 

disapproval of New York’s Best Available Retrofit 

(BART) determinations for the Roseton Generating 

Station’s Unit’s 1 and 2 and Danskammer 

Generating Station’s Unit 4. See 77 FR 51915 

(August 28, 2012). The emission reductions under 

the FIP were not necessary to demonstrate that New 

York met its share of the emissions reductions 

needed to meet reasonable progress goals (found at 

40 CFR 51.308(d)(1)) at Class I areas affected by 

New York’s emissions. The EPA fully approved that 

aspect of New York’s Regional Haze SIP in the 

August 2012 rulemaking. See 77 FR 51915. The 

FIPs for Danskammer and Roseton have 

subsequently been replaced by SIP provisions 

approved by the EPA for Danskammer (82 FR 57126 

(December 14, 2017)) and Roseton (83 FR 6970 

(February 16, 2018)). 

submissions, including its EPAapproved Regional Haze SIP, as well as 

SIP provisions that replaced a Federal 

Implementation Plan (FIP) for the 

Danskammer and Roseton Generating 

Stations. On August 28, 2012, the EPA 

approved New York’s Regional Haze SIP 

submittal as part of New York’s SIP (see 

77 FR 51915).5

In New York’s 2015 Ozone ISIP 

submittal, it noted that the five-year 

progress report SIP that it submitted on 

June 16, 2015 (and subsequently 

approved by EPA on September 29, 

2017 (see 82 FR 45499)) demonstrates 

that New York continues to meet its 

obligations to reduce visibilityimpairing pollutants. 

The EPA is proposing that New York 

satisfies the section 110(a)(2)(D)(i)(II) 

requirement for visibility (or prong 4). 

New York addresses the visibility 

protection requirements for the 2015 

Ozone NAAQS through its Regional 

Haze SIP, which ensures that emissions 

from sources within the State are not 

interfering with measures to protect 

visibility in other states. 

110(a)(2)(D)(ii): Interstate Pollution 

Abatement and International Transport 

Provisions 

CAA section 110(a)(2)(D)(ii) requires 

SIPs to include provisions ensuring 

compliance with the applicable 

requirements of CAA sections 126 and 

115 (relating to interstate and 

international pollution abatement). In 

assessing CAA section 110(a)(2)(D)(ii), 

we reviewed the information presented 

by New York in its 2015 Ozone 

infrastructure SIP submission, as well as 

relevant portions of the EPA-approved 

New York SIP. 

Section 126(a) requires that SIPs 

mandate that new (or modified) major 

sources subject to PSD notify 

neighboring States of potential air 

pollution impacts. New York indicates 

that it has addressed this requirement 

through 6 NYCRR Paragraph 201– 

6.3(b)(1), which states: ‘‘The department 

shall give notice of each draft permit to 

any affected state on or before the time 

that the department provides this notice 

to the public under the requirements of 

this Part or Part 621 of this Title.’’ 

Section 126(b) allows states to 

petition the EPA Administrator for a 

finding that a source or group of sources 

interferes with its ability to attain or 

maintain the NAAQS in violation of 

section 110(a)(2)(D)(i), and section 

126(c) discusses violations as a result of 

such a finding. The NYSDEC affirms 

that no source within New York State is 

the subject of an active finding under 

CAA section 126 with respect to the 

2015 Ozone NAAQS. 

Section 115, entitled, ‘‘International 

Air Pollution,’’ requires states to revise 

SIPs under certain conditions to 

alleviate international transport into 

another country. The NYSDEC has 

affirmed that there are no final findings 

under CAA section 115 against New 

York State with respect to the 2015 

Ozone NAAQS. 

New York’s SIP currently meets the 

requirements of CAA sections 126 and 

115 (relating to interstate and 

international pollution abatement). 

Therefore, the EPA is proposing to 

approve the New York SIP as fully 

meeting the requirements of CAA 

section 110(a)(2)(D)(ii) for the 2015 

Ozone NAAQS. 

Element E: Adequate Resources: 

Section 110(a)(2)(E) requires each state 

to provide necessary assurances that the 

state will: (i) Have adequate personnel, 

funding, and authority under state law 

to carry out the SIP (and is not 

prohibited by any provision of federal or 

state law from carrying out the SIP or 

portion thereof), (ii) will comply with 

the requirements respecting state boards 

under CAA section 128, and (iii) where 

the state has relied on a local or regional 

government, agency, or instrumentality 

for the implementation of any SIP 

provision, the state has responsibility 

for ensuring adequate implementation 

of such SIP provision. This element of 

the submittal is consistent with New 

York infrastructure submittals that the 

EPA has previously approved. See, e.g., 

78 FR 25236 (April 30, 2013) (proposal) 

and 78 FR 37122 (June 20, 2013) (final 

approval). The EPA proposes to approve 

the New York submittal for meeting the 

requirements of Section 110(a)(2)(E) for 

the 2015 Ozone NAAQS. 

In the 2015 Ozone ISIP submittal, 

NYSDEC indicates that it receives both 

operating and capital funding through 

the federal and state government budget 

processes. Operating funds are allocated 

to DAR annually and are used for daily 

administrative expenses, including 

salaries, fringe benefits, and indirect as 

well as non-personnel services such as 

travel, supplies, contracts, and 

equipment costs. DAR is allocated 

operating funds from the following 

funding sources: General Fund, 

Cooperative Agreements (i.e., EPA 

sections 103 and 105 federal air 

pollution control grants), and the Clean 

Air Fund, which is comprised of the 

Title V and Mobile Source accounts. 

Capital funds may also be allocated to 

DAR through the state government 

budget process. They may be used for 

the financing or acquisition of capital 

facilities such as the construction of an 

air monitoring site. DAR may be 

allocated capital funds from three 

sources: General Fund, Mobile Source 

Account, and Rehabilitation and 

Improvement. 

In accordance with 40 CFR part 51 

subpart O, ‘‘Miscellaneous Plan Content 

Requirements,’’ NYSDEC receives state 

and federal funding on a yearly basis. 

State funding is part of the state 

government budget process. Federal 

funding comes in the form of grants 

from EPA. Resources will be acquired at 

the one-, three- and five-year intervals 

from the same operating and capital 

funding sources detailed above. 

NYSDEC stated that, at the time of 

proposal of this infrastructure SIP, 

DAR’s operating budget is $33.3 million 

dollars annually. The resources 

considered necessary for the next five 

years depend on negotiated labor union 

contracts, inflation, indirect costs, and 

fringe benefit rates determined by the 

New York State Office of the State 

Comptroller but will be no less than 

33.4 million dollars annually. The 

projections regarding acquiring 

necessary resources depend on New 

York State and federal budget processes, 

especially for allocation of available 

grant funds. 

The NYSDEC addressed sub-element 

(ii), concerning conflict of interest, 

specifically the requirement to comply 

with the requirements of CAA Section 

128(a), in is 2015 Ozone ISIP 

submission. With respect to the 

requirement of CAA Section 128(a)(1), 

the NYSDEC explains that New York 

State has no board or body authorized 

to approve permits or enforcement 

orders under the CAA. With respect to 

the requirements of CAA Section 

128(a)(2), the NYSDEC explains that on 

May 23, 2013 it submitted a copy of 

Public Officers Law (POL) Section 73– 

a, ‘‘Financial disclosure,’’ and 19 

NYCRR Subpart 937.1(a), ‘‘Access to 

Publicly Available Records,’’ and that 

these provisions were incorporated into 

the New York SIP for the limited 

purpose of satisfying CAA section 

128(a)(2). See, 78 FR 37122, 37122– 


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37124 (June 20, 2013). EPA proposes to 

find that the requirements of section 

110(a)(2)(E)(ii) are therefore satisfied. 

The NYSDEC has addressed CAA 

section 110(a)(2)(E) sub-element (iii) by 

referencing its ECL sections 19–0305, 

71–2103, and 71–2105 and explaining 

that these provisions authorize the 

NYSDEC Commissioner to enforce the 

codes, rules and regulations established 

in accordance with Article 19 (Air 

Pollution Control) and Article 71 

(Enforcement). NYSDEC states that it 

therefore has the authority to enforce all 

approved SIP measures. NYSDEC 

clarifies that it has the sole 

responsibility for implementing the SIP, 

and that even if it were to rely on a local 

or regional government(s), it would 

retain responsibility for ensuring 

adequate implementation of the plan. 

Finally, NYSDEC cites POL section 73– 

a, ‘‘Financial disclosure,’’ and 19 

NYCRR Part 937, ‘‘Access to Publicly 

Available Records.’’ NYSDEC states that 

EPA approved New York’s submissions 

for the 1997 8-hour ozone and 1997 and 

2006 PM2.5 NAAQS for sub-elements 

110(a)(2)(E)(ii) and (iii) and that EPA 

approved POL sections 73–a(2)(a)(i) and 

(ii) and 19 NYCRR Subpart 937.1(a) into 

the New York SIP for the limited 

purpose of satisfying CAA section 

128(a)(2). See 78 FR 37122–37124. EPA 

proposes to find that the requirements 

of 110(a)(2)(E)(iii) are satisfied. 

The EPA proposes to approve the 

New York submittal pursuant to section 

110(a)(2)(E) with respect to the 2015 

Ozone NAAQS based on the 

demonstration of adequate resources 

and authority. 

Element F: Stationary Source 

Monitoring and Reporting: Section 

110(a)(2)(F) requires states to establish a 

system to monitor emissions from 

stationary sources and to submit 

periodic emission reports. This element 

of the submittal for the 2015 Ozone 

NAAQS is similar to New York 

infrastructure submittals that the EPA 

has previously approved. To emphasize 

the comprehensiveness of New York’s 

reporting system, the three sub-elements 

are described below. 

Sub-Element (i)—Testing, Inspection, 

Enforcement, and Compliance 

Pursuant to ECL section 19–0305(2), 

New York meets the requirement that 

each SIP provide a program for periodic 

testing and inspection of stationary 

sources, to identify allowable test 

methods, and to exclude any provision 

that would prevent the use of credible 

evidence of non-compliance. See 40 

CFR 51.212. Moreover, 6 NYCRR 

Subpart 201–1.13 gives the NYSDEC 

access to regulated facilities, and 6 

NYCRR Subpart 202–1 requires facility 

owners to conduct emissions tests 

according to specific procedures, 

provide notice to the NYSDEC in 

advance of the testing, and allows the 

NYSDEC to conduct separate emissions 

tests. The NYSDEC uses the enforceable 

test methods that are contained in 40 

CFR part 51 Appendix M, 

‘‘Recommended Test Methods for State 

Implementation Plans.’’ Pursuant to 40 

CFR 51.212(c), the NYSDEC has 

certified that it does not preclude the 

use, including the exclusive use, of 

credible evidence or information 

relevant to whether a source would have 

been in compliance with applicable 

requirements if the appropriate 

performance or compliance test or 

procedure had been performed. 

Sub-Element (ii)—Requirements for 

Periodic Reporting 

The NYSDEC has authority to enforce 

federal emissions reporting and recordkeeping regulations through ECL 

Section 19–0311, ‘‘Operating permit 

program for sources subject to the 

federal Clean Air Act.’’ In particular, 

ECL Section 19–0311 Subsection 3 

provides requirements for detailed 

monitoring, record-keeping, and 

reporting, including that records be kept 

for five years, and that monitoring 

records be submitted to the NYSDEC at 

least every six months. These 

requirements are also contained in 6 

NYCRR Subpart 201–6.2(d), which 

requires that all Title V facility permit 

applications provide for emissions 

monitoring, record-keeping, and 

reporting. In addition, major facility 

owners must report annual emissions to 

the NYSDEC pursuant to 6 NYCRR 

Subpart 202–2, ‘‘Emission Statements.’’ 

Sub-Element (iii)—Stationary Source 

Emission Inventories 

This sub-element requires the 

correlation of all state reports on 

emissions from stationary sources. This 

includes emission inventories based on 

actual emissions submitted and 

calculated through annual emission 

statements from minor stationary 

sources based on area sources. 

Procedures Established by the EPA 

The EPA’s Air Emissions Reporting 

Requirements (AERR) were promulgated 

in 2008, consolidating and streamlining 

the requirements of several older rules 

for states and local air pollution control 

agencies to submit emissions 

inventories for criteria pollutants to the 

EPA’s Emissions Inventory System 

(EIS). See 73 FR 76539 (December 17, 

2008). The EPA uses these submissions, 

along with other data sources (primarily 

for air toxics), to build the National 

Emissions Inventory (NEI). 

The NYSDEC ensures compliance 

with the AERR through several 

regulations, including 6 NYCRR Section 

201–5.3 (concerning facility permit 

conditions, including record-keeping 

and recording requirements), 6 NYCRR 

Section 201–6.4 (requiring Title V 

permits to incorporate all federal 

reporting requirements), and 6 NYCRR 

Subpart 202–2, ‘‘Emission Statements’’ 

(outlining emission reporting 

requirements for major sources and 

sources in ozone nonattainment areas 

emitting at least 25 tons-per-year of NOX

or VOCs). The NYSDEC ensures that 

records are available for public review 

pursuant to 6 NYCRR Part 616, ‘‘Access 

to Records.’’ 

The EPA proposes to approve the 

New York submittal pursuant to Section 

110(a)(2)(F) with respect to the 2015 

Ozone NAAQS based on the 

demonstration of adequate stationary 

source monitoring and reporting. 

Element G: Emergency power: Section 

110(a)(2)(G) (Element G) requires states 

to provide for emergency authority to 

address activities causing imminent and 

substantial endangerment to public 

health and requires states to submit 

adequate contingency plans to 

implement the emergency episode 

provisions in their SIPs. 

The EPA requires that Infrastructure 

SIP submittals meet the applicable 

contingency plan requirements of 40 

CFR part 51, subpart H (40 CFR 51.150 

through 51.153) (‘‘Prevention of Air 

Pollution Emergency Episodes’’). 

Subpart H requires states that have air 

quality control regions identified as 

either Priority I, Priority IA, or Priority 

II to develop emergency episode 

contingency plans. 

Articles 3 and 19 of the ECL provide 

New York State with the authority to 

address air pollution emergencies. ECL 

section 3–0301, entitled, ‘‘General 

functions power and duties of the DEC 

and the commissioner,’’ authorizes the 

NYSDEC to prevent and control air 

pollution emergencies as defined in ECL 

section 1–0303. ECL articles 3 and 19 

are implemented through 6 NYCRR part 

207, ‘‘Control Measures for Air 

Pollution Episodes,’’ which the EPA 

approved as part of the New York SIP. 

See 46 FR 55690 (November 12, 1981). 

The EPA also notes that the NYSDEC 

has implemented 6 NYCRR Part 207 

through Air Pollution Episode 

Procedures (APEPs), also called Alert 

Criteria (updated December 2018 and 

May 2019 at http://www.dec.ny.gov/ 

chemical/60440.html). 

As stated in its supplemental 

submittal dated July 10, 2019, the 


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NYSDEC has revised the Air Quality 

Index (AQI) reporting thresholds and 

related priority levels pursuant to the 

2015 Ozone NAAQS and other NAAQS 

revisions to reflect 40 CFR part 58, 

Appendix G, Table 2, ‘‘Breakpoints for 

the AQI.’’ The NYSDEC also updated its 

list of contacts and other relevant 

information. The July 2019 

supplemental submittal indicates that 

the public was notified of the revisions 

through publication in the 

Environmental Notice Bulletin on May 

22, 2019, and that no comments were 

received on the proposed submittal. 

The EPA proposes that New York has 

met the requirements of section 

110(a)(2)(G) for the 2015 Ozone 

NAAQS. 

Element H: Future SIP Revisions: 

Section 110(a)(2)(H) requires states to 

have authority to revise their SIPs in 

response to changes in the NAAQS or 

availability of improved methods for 

attaining the NAAQS and whenever the 

EPA finds that the SIP is substantially 

inadequate. The EPA recognizes that the 

following provisions of the ECL provide 

the necessary authority for the NYSDEC 

to revise a SIP and provide for 

enforcement in response to revisions of 

the NAAQS, the availability of 

improved methods of attaining the 

NAAQS, or in response to a finding by 

the EPA that the SIP is substantially 

inadequate: 

• 3–0301, ‘‘General functions, powers 

and duties of the department and the 

commissioner;’’ 

• 19–0103, ‘‘Declaration of policy;’’ 

• 19–0301, ‘‘Powers and duties;’’ 

• 19–0303, ‘‘Codes, rules and 

regulations;’’ 

• 19–0305, ‘‘Commissioner; 

enforcement power;’’ 

• 71–2103, ‘‘Violations; civil 

liability;’’ and 

• 71–2105, ‘‘Criminal liability for 

violations.’’ 

As the NYSDEC submittal explains, 

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 public health and welfare and the 

industrial development of the state. To 

this end, the state legislature gave 

NYSDEC specific powers and duties, 

including the power to promulgate and 

revise regulations for preventing, 

controlling, or prohibiting air pollution. 

NYSDEC also has the specific authority 

to regulate motor vehicle exhaust, 

approve air contaminant control 

systems, and regulate fuels. 

The EPA proposes to find that the SIP 

complies with the requirements of 

section 110(a)(2)(H) for the 2015 Ozone 

NAAQS. 

Element I: Plan Revisions for 

Nonattainment Areas (under part D): 

Section 110(a)(2)(I) provides that each 

plan or plan revision for an area 

designated as a nonattainment area shall 

meet the applicable requirements of part 

D of the CAA. EPA interprets section 

110(a)(2)(I) to be inapplicable to the 

infrastructure SIP process because 

specific SIP submissions for designated 

nonattainment areas, as required under 

part D, are subject to a different 

submission schedule under subparts 2 

through 5 of part D, extending as far as 

10 years following area designations for 

some elements, whereas infrastructure 

SIP submissions are due within three 

years after adoption or revision of a 

NAAQS. Accordingly, EPA takes action 

on part D attainment plans through 

separate processes. 

Element J: Section 110(a)(2)(J): 

Consultation with Government Officials, 

Public Notification, and PSD and 

Visibility Protection: Section 110(a)(2)(J) 

mandates that plans meet the 

requirements in CAA sections 121 

(concerning consultation with 

government officials), 127 (concerning 

public notification), and Part C (relating 

to PSD and visibility protection). 

Consultation With Government Officials 

CAA Section 110(a)(2)(J) requires 

states to meet the applicable 

requirements of CAA section 121 

relating to consultation. 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, Tribal 

Nations, Federal Land Managers (FLMs), 

and Regional Organizations. 

Although there are no federal lands 

within New York State to which the 

state plan applies, the NYSDEC 

participates in the consultation process 

of the Regional Haze SIP with the FLMs, 

states, and Tribes within the MidAtlantic/Northeast Visibility Union 

(MANE/VU) and other regional 

planning organizations, and has 

committed to comply with 40 CFR 

51.308 to provide FLMs an opportunity 

to meaningfully inform the long-term 

strategy. 

On December 22, 2005, the NYSDEC 

established a SIP Coordinating Council, 

consisting of senior policy 

representatives from 19 state agencies 

and authorities, and a SIP Task Force, 

consisting of officials from 37 local 

governments and designated 

organizations of elected officials. The 

SIP Coordinating Council provides a 

means to keep state agencies and local 

governments informed of planned SIP 

activities and deadlines, and also 

provides a forum for discussion of SIP 

requirements and implications, such as 

effects on transportation planning. The 

SIP Task Force provides a means of 

facilitating local involvement at the 

Metropolitan Planning Organization 

(MPO) and county levels. Periodic 

meetings of both groups are convened as 

necessary to address ozone SIP 

development and nonattainment of the 

ozone NAAQS and other revised 

standards. 

The EPA proposes to find that New 

York has met the requirements of CAA 

section 110(a)(2)(J) for consultation with 

government officials. 

Public Notification 

CAA section 110(a)(2)(J) also requires 

state plans to meet the public 

notification requirements of CAA 

section 127: to notify the public if 

NAAQS are exceeded in an area, advise 

the public of health hazards associated 

with exceedances, and enhance public 

awareness of measures that can be taken 

to prevent exceedances and of ways in 

which the public can participate in 

regulatory and other efforts to improve 

air quality. 

Ozone concentrations that have 

exceeded the 2015 Ozone NAAQS at 

any monitor state-wide are reported on 

the NYSDEC website, at https://

www.dec.ny.gov/chemical/38377.html. 

Municipalities have emergencyresponse plans recommended by the 

New York State Office of Emergency 

Management and the Federal Emergency 

Management Agency that provide for 

public information and notification in 

the case of large-scale emergencies. 

The NYSDEC’s website at https://

www.dec.ny.gov/chemical/34985.html 

contains an Air Quality Index (AQI) for 

reporting daily air quality to the public. 

It describes how clean or polluted the 

air is and what associated health effects 

might be a concern. The NYSDEC, in 

cooperation with the New York State 

Department of Health, posts warnings 

on the above-referenced website and 

issues press releases to local media 

outlets if dangerous conditions are 

expected to occur. These warnings are 

also available on the NYSDEC’s toll-free 

Air Quality Hotline at (800) 535–1345. 

The Air Quality Index displays the 

predicted AQI value for the eight 

regions in New York State. It also 

displays the observed values for the 

previous day. Real-time monitoring data 

are also available on an individual 

monitor basis on the NYSDEC’s air 

monitoring website. ‘‘Department of 

Environmental Conservation Air 

Monitoring website,’’ http:// 


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6 Due to State revisions to 6 NYCRR 201–6, 

section 201–6.5(a)(7) in the EPA-approved New 

York Title V program is now numbered in the 

State’s regulation as 6 NYCRR 201–6.4(a)(7). 

www.nyaqinow.net/. Air quality 

measurements from New York’s 

continuous monitoring network are 

updated hourly where available. 

Parameters monitored include ozone, 

fine particulate, carbon monoxide, 

sulfur dioxide, nitrogen oxides, 

methane/hydrocarbons, and 

meteorological data. The NYSDEC also 

provides ozone-specific information on 

its website, including the health-related 

effects of ozone pollution, at https://

www.dec.ny.gov/chemical/8400.html. It 

also includes general measures the 

public can take to help reduce the 

formation of ozone, at https://

www.dec.ny.gov/chemical/8554.html. 

As described in the New York State 

Administrative Procedure Act (APA), 

and as required by 40 CFR 51.102, the 

NYSDEC must provide appropriate 

notice of each major SIP revision, and 

the public is afforded the opportunity to 

participate in the regulatory process by 

submitting written comments and 

petitioning for a public hearing on such 

revisions. 

The EPA proposes to find that New 

York has met the requirements of CAA 

section 110(a)(2)(J) for public 

notification. 

Prevention of Significant Deterioration 

As detailed in the discussion of 

Element C, above, New York has a SIPapproved PSD/NSR program that covers 

all criteria pollutants and greenhouse 

gases, including ozone, which is 

contained in 6 NYCRR Part 231, ‘‘New 

Source Review for New and Modified 

Facilities,’’ and which was approved by 

the EPA on November 17, 2010 (75 FR 

70142). 6 NYCRR Part 231 regulates 

major sources under NSR (when the 

source is located in a nonattainment 

area) and PSD (when the source is 

located in an attainment area). 

The EPA proposes to approve New 

York’s infrastructure SIP with respect to 

the requirements of the PSD subelement of CAA section 110(a)(2)(J). 

Visibility Protection 

Visibility Protection and regional haze 

program requirements under section 

169A and B of Part C are being met by 

the NYSDEC through separate efforts. In 

the event of the establishment of a new 

NAAQS, the visibility and regional haze 

program requirements under Part C do 

not change. As noted in the EPA’s 2013 

guidance, we find that there is no new 

visibility obligation triggered under 

section 110(a)(2)(J) when a new NAAQS 

becomes effective. There are thus no 

new applicable visibility protection 

obligations under section 110(a)(2)(J) 

resulting from the 2015 Ozone NAAQS 

revision, and the EPA is therefore not 

acting on the visibility aspect of 

Element J. 

Element K: Air Quality Modeling/ 

Data: Section 110(a)(2)(K) requires that 

SIPs provide for air quality modeling for 

predicting effects on air quality of 

emissions from any NAAQS pollutant 

and submission of such data to the EPA 

upon request. The infrastructure SIP 

submittal affirms that the modeling 

procedures are in accordance with 40 

CFR part 51, Appendix W, also known 

as the Guideline on Air Quality Models. 

The NYSDEC submittal cites 6 NYCRR 

Part 200.6, which defines ‘‘Acceptable 

ambient air quality,’’ in support of its 

position that ‘‘when a new major source 

of emissions is coming online or an 

existing source is undertaking a 

modification that would lead to a 

significant increase in its potential to 

emit, NYSDEC will use modeling as 

necessary to affirm that compliance 

with the ozone NAAQS will be 

maintained.’’ The submittal also cites 6 

NYCRR 231–12, ‘‘Ambient Air Quality 

Impact Analysis,’’ which sets forth the 

procedures and requirements for an air 

quality impact analysis. The NYSDEC 

submittal certifies that air quality 

modeling and analysis complies with 

the latest EPA 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. 

Element L: Permitting Fees: Section 

110(a)(2)(L) requires SIPs to mandate 

that each major stationary source pay 

permitting fees to cover the cost of 

reviewing, approving, implementing, 

and enforcing a permit, until such time 

as the SIP fee requirement is superseded 

by the EPA’s approval of the state’s 

operating permit program. New York 

has an approved Title V operating 

permit program. 67 FR 5216 (February 

5, 2002); see also 66 FR 63180 (Dec. 5. 

2001); 61 FR 57589 (Nov. 7, 1996). The 

NYSDEC submittal identifies the 

following statutory and regulatory 

provisions that provide for the 

collection of permitting fees: ECL 

section 72–0302, ‘‘State air quality 

control fees’’ states that those who are 

required to obtain a permit, certificate or 

approval must submit to NYSDEC a per 

emission point fee; ECL section 72– 

0303, ‘‘Operating permit program fees,’’ 

establishes a base fee; 6 NYCRR subpart 

482–2, as revised effective June 17, 

2018, and promulgated pursuant to the 

statutory authority granted to NYSDEC 

under ECL 72–0303, establishes an 

annual fee; and 6 NYCRR subpart 201– 

6.4(a)(7) which provides that the owner 

and/or operator of a stationary source 

will pay the fees to NYSDEC consistent 

with the fee schedule established in 6 

NYCRR subpart 482–2. The EPA is 

proposing to approve this Element.6

Element M: Consultation/ 

Participation by Affected Local Entities: 

Section 110(a)(2)(M) requires states to 

provide for consultation and 

participation in SIP development by 

local political subdivisions affected by 

the SIP. 

The submittal provides information 

regarding the NYSDEC’s authority to 

provide for consultation and 

participation in SIP development, in 

support of the EPA’s proposed approval 

of this element. The submittal identifies 

the SIP Task Force, consisting of 

officials from 37 local governments and 

designated organizations of elected 

officials, which the NYSDEC utilizes as 

necessary for consultation on plans. 

Participation by local entities, as well as 

the public, is provided through 6 

NYCRR Part 617, ‘‘State Environmental 

Quality Review.’’ 

VIII. What action is the EPA taking?

In summary, the EPA is proposing

approval of the following elements and 

sub-elements of New York’s 

Infrastructure SIP submittal for 2015 

Ozone NAAQS: Section 110(a)(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 and for construction or 

modification of stationary sources]; 

110(a)(2)(D) [interstate pollution 

transport (sub-elements addressing PSD, 

visibility, and interstate and 

international pollution abatement 

only)]; 110(a)(2)(E) [adequate resources, 

state boards/conflict of interest, 

oversight of local governments and local 

authorities]; 110(a)(2)(F) [stationary 

source monitoring]; 110(a)(2)(G) 

[emergency power]; 110(a)(2)(H) [future 

SIP revisions]; 110(a)(2)(J) [consultation 

with government officials, public 

notification, and PSD]; 110(a)(2)(K) [air 

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

[permitting fees]; and 110(a)(2)(M) 

[consultation/participation by affected 

local entities]. 

As previously stated, this proposed 

action does not address the section 

110(a)(2)(D)(i)(I) (prongs 1 and 2) 

portions of the New York 2015 Ozone 

infrastructure SIP. The EPA will act on 

these portions of New York’s 

infrastructure SIP in a separate 

rulemaking action. For the reasons 


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35042 Federal Register / Vol. 86, No. 124 / Thursday, July 1, 2021 / Proposed Rules 

provided in the discussion above, 

Element I and the visibility aspect of 

Element J are not being addressed. 

The EPA is soliciting public 

comments on the issues discussed in 

this proposal. These comments will be 

considered before the EPA takes final 

action. Interested parties may 

participate in the federal rulemaking 

procedure by submitting comments 

electronically 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, the 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 Orders 12866 (58 FR 51735 

(October 4, 1993)) and 13563 (76 FR 

3821 (January 21, 2011)); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 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 

this action does not involve technical 

standards; and 

• Does not provide the 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)). 

This proposed rulemaking pertaining 

to New York’s section 110(a)(2) 

infrastructure requirements for the 2015 

Ozone NAAQS is not approved to apply 

on any Indian reservation land or in any 

other area where the EPA or an Indian 

tribe has demonstrated that a tribe has 

jurisdiction. In those areas of Indian 

country, the proposed rule does not 

have tribal implications and will not 

impose substantial direct costs on tribal 

governments or preempt tribal law as 

specified by Executive Order 13175 (see 

65 FR 67249 (November 9, 2000)). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Ozone, Reporting and recordkeeping 

requirements, Volatile organic 

compounds, Nitrogen oxides. 

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

Dated: June 23, 2021. 

Walter Mugdan, 

Acting Regional Administrator, EPA Region 

2. 

[FR Doc. 2021–14057 Filed 6–30–21; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R02–OAR–2020–0466, FRL 10025–61– 

Region 2] 

Approval of Air Quality Implementation 

Plans; New York; Part 212, Process 

Operations 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve a 

revision to the New York State 

Implementation Plan concerning 

process operations. The intended effect 

of this revision is to streamline and 

update provisions, align those 

provisions with permitting regulations, 

and provide regulatory certainly for the 

regulated community. New York’s 

comprehensive submittal also included 

Operating Permit Program requirements; 

however, the EPA will be acting on 

these revisions under a separate action. 

DATES: Comments must be received on 

or before August 2, 2021. 

ADDRESSES: Submit your comments, 

identified by Docket ID number EPA– 

R02–OAR–2020–0466, at http://

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Once submitted, comments cannot be 

edited or withdrawn. The EPA may 

publish any comment received to its 

public docket. Do not submit 

electronically any information you 

consider to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Multimedia submissions (audio, video, 

etc.) must be accompanied by a written 

comment. The written comment is 

considered the official comment and 

should include discussion of all points 

you wish to make. The EPA will 

generally not consider comments or 

comment contents located outside of the 

primary submission (i.e., on the web, 

cloud, or other file sharing system). For 

additional submission methods, the full 

EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

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

commenting-epa-dockets. 

FOR FURTHER INFORMATION CONTACT: 

Marina Cubias-Castro, Air Programs 

Branch, Environmental Protection 

Agency, Region 2, 290 Broadway, 25th 

Floor, New York, New York 10007– 

1866, (212) 637–3713, or by email at 

castro.marina@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Background 

II. EPA’s Evaluation of New York’s Submittal 

III. Proposed Action 

IV. Incorporation by Reference 

V. Statutory and Executive Order Reviews 

I. Background 

The Environmental Protection Agency 

(EPA) proposes to approve New York’s 

State Implementation Plan (SIP) 

submittal consisting of revisions to Title 

6 of the New York Codes, Rules and 

Regulations (6 NYCRR) Part 212, now 

entitled, ‘‘Process Operations,’’ which 

applies to process emission sources 

and/or emission points associated with 

a process operation, and which will 

streamline and update provisions, align 

those provisions with permitting 

regulations, and provide regulatory 

certainly for the regulated community. 

In addition, attendant revisions were 

made to 6 NYCRR Part 200, ‘‘General 

Provisions,’’ in order to add a new 

Subdivision (cy) to define 

‘‘Polychlorinated Dibenzo-para-dioxins 

and Polychlorinated Dibenzofurans’’ to 

Section 200.1. The EPA is proposing to 

approve these revisions, requested by 


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