[Federal Register Volume 86, Number 124 (Thursday, July 1, 2021)]
[Proposed Rules]
[Pages 35034-35042]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-14057]


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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.

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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 
<a href="/cdn-cgi/l/email-protection#8cc0e5e2e7f5a2c9e8fbedfee8cce9fceda2ebe3fa"><span class="__cf_email__" data-cfemail="ffb396919486d1ba9b889e8d9bbf9a8f9ed1989089">[email protected]</span></a>.

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.

[[Page 35035]]

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):
    <bullet> 2015 Ozone ISIP submitted on September 25, 2018.
    <bullet> 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.
    <bullet> 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 PM<INF>2.5</INF> 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 (NO<INF>2</INF>), 
2010 sulfur dioxide (SO<INF>2</INF>), and 2012 particulate matter 
(PM<INF>2.5</INF>) NAAQS, as well as infrastructure SIPs for new or 
revised NAAQS promulgated in the future.\1\
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    \1\ All referenced memoranda are included in the docket for 
today's action.
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    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:
    <bullet> 110(a)(2)(A): Emission limits and other control measures;
    <bullet> 110(a)(2)(B): Ambient air quality monitoring/data system;
    <bullet> 110(a)(2)(C): Program for enforcement of control measures 
and for construction or modification of stationary sources;
    <bullet> 110(a)(2)(D)(i)(I) and (II): Interstate pollution 
transport;
    <bullet> 110(a)(2)(D)(ii): Interstate and international pollution 
abatement;
    <bullet> 110(a)(2)(E): Adequate resources and authority, conflict 
of interest, oversight of local governments and local authorities;
    <bullet> 110(a)(2)(F): Stationary source monitoring and reporting;
    <bullet> 110(a)(2)(G): Emergency powers;
    <bullet> 110(a)(2)(H): Future SIP revisions;
    <bullet> 110(a)(2)(I): Plan revisions for nonattainment areas 
(under part D);
    <bullet> 110(a)(2)(J): Consultation with government officials, 
public notification, and PSD and visibility protection;
    <bullet> 110(a)(2)(K): Air quality modeling and data;
    <bullet> 110(a)(2)(L): Permitting fees;
    <bullet> 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.
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    \2\ The 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).
    \3\ See 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).
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VI. What did New York submit?

    NYSDEC submitted the following SIP submittals, which address the 
infrastructure requirements for the identified NAAQS:
    <bullet> 2015 Ozone ISIP Revisions, submitted on September 25, 
2018.
    <bullet> 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

[[Page 35036]]

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 
(NO<INF>X</INF>) 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 Jersey-Long 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 NO<INF>X</INF> 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 start-up, 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.
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    \4\ https://www.dec.ny.gov/docs/air_pdf/sip2008o3nymafinal.pdf.
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    The SIP submittal does not account for additional NO<INF>X</INF> 
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 (NO<INF>X</INF> 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 EPA-approved 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

[[Page 35037]]

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 
NO<INF>X</INF> 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 Mid-Atlantic/
Northeast Visibility Union (MANE-VU), and its applicable SIP

[[Page 35038]]

submissions, including its EPA-approved 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\
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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)).
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    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 
visibility-impairing 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-

[[Page 35039]]

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 
PM<INF>2.5</INF> 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 
record-keeping 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 NO<INF>X</INF> 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

[[Page 35040]]

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:
    <bullet> 3-0301, ``General functions, powers and duties of the 
department and the commissioner;''
    <bullet> 19-0103, ``Declaration of policy;''
    <bullet> 19-0301, ``Powers and duties;''
    <bullet> 19-0303, ``Codes, rules and regulations;''
    <bullet> 19-0305, ``Commissioner; enforcement power;''
    <bullet> 71-2103, ``Violations; civil liability;'' and
    <bullet> 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 Mid-Atlantic/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 emergency-
response 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://

[[Page 35041]]

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 
SIP-approved 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 sub-element 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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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

[[Page 35042]]

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:
    <bullet> 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));
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> 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.);
    <bullet> 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);
    <bullet> Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, (August 10, 1999));
    <bullet> Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 19885 
(April 23, 1997));
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355 (May 22, 2001));
    <bullet> 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
    <bullet> 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


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