UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION 2 AIR PROGRAMS BRANCH

Technical Support Document 

for 

EPA’s Proposed Rulemaking

for the

New York State Implementation Plan Revision:

State Implementation Plan Revision 

For Meeting the Infrastructure Requirements

In the Clean Air Act

Dated December 2007, October 2008 and March 2010

	2013

Table of Contents

I.  What is the Background for this Action?

II. What is a Section 110(a)(1) and (2) SIP?

III. Scope of Infrastructure SIPs

IV. What did New York Submit?

V. What are the required elements under Section 110(a)(1) and   (2)?

VI. How do the New York Infrastructure Submittals Meet the Requirements
under Section 110(a)(1) and (2) for the 1997 8-hour ozone NAAQs, the
1997 and 2006 PM2.5 NAAQS?

Emission limits and other control measures –Section 110(a)(2)(A)

Ambient air quality monitoring, compilation, data analysis, and
reporting – Section 110(a)(2)(B)

Enforcement and stationary source permitting – Section 110(a)(2)(C)

Interstate transport – Section 110(a)(2)(D)

Adequate resources - Section 110(a)(2)(E):  

Stationary source emissions monitoring and reporting –Section
110(a)(2)(F)

Emergency powers and contingency plans –Section 110(a)(2)(G)

Future SIP revisions - Section 110(a)(2)(H):  

State Implementation Plan revisions for new nonattainment areas –
Section 110(a)(2)(I)

Consultation and public notification – Section 110(a)(2)(J)

K. Air quality modeling and reporting – Section 110(a)(2)(K)

L. Major stationary source permitting fees –Section 110(a)(2)(L)

M. Consultation with local entities – Section 110(a)(2)(M)



CAA

Section 110(a)(2)	1997 8-hour Ozone Standard	1997 PM2.5 annual Standard
2006 PM2.5 24-hr Standard

A	approve	approve	approve

B	approve	approve	approve

C –Regs	approve	approve	approve

PSD	approve	approve	approve

NSR	approve	approve	approve

D i(I) P1	NA	NA	NA

P2	NA	NA	NA

D i (II) P3	approve	approve	approve

P4	RH approve	RH approve	RH approve

D ii	approve	approve	approve

E i	approve	approve	approve

E ii	Cond approve/approve	Cond approve/approve	Cond approve/approve

E iii	Cond approve/ approve	Cond approve/approve	Cond approve/ approve

F	approve	approve	approve

G	approve	approve 	Approve 

H	approve	approve	approve

I	NA	NA	NA

J - 1	approve	approve	approve

J - 2	approve	approve	approve

J - 3	approve	approve	approve

K	approve	approve	approve

L	approve	approve	approve

M	approve	approve	approve



What is the Background for this Action?

On July 18, 1997, EPA promulgated a revised national ambient air quality
standard (NAAQS or standards) for ozone (62 FR 38856) and new NAAQS for
fine particle matter (PM2.5)(62 FR 38652).  The revised ozone NAAQS was
based on 8-hour average concentrations.  The 8-hour averaging period
replaced the previous 1-hour averaging period, and the level of the
NAAQS was changed from 0.12 parts per million (ppm) to 0.08 ppm.  The
new PM2.5 NAAQS was established on health-based annual standards for
PM2.5 of 15.0 micrograms per cubic meter (µg/m3) based on a 3-year
average of annual mean PM2.5 concentrations and a 24-hour standard of 65
µg/m3 based on a 3-year average of the 98th percentile of 24-hour
concentrations.  

The Clean Air Act (CAA) requires State Implementation Plans (SIPs)
meeting the requirements of sections 110(a)(1) and (2) be submitted by
states within 3 years after promulgation of a new or revised standard. 
Sections 110(a)(1) and (2) require states to address basic SIP
requirements, including emissions inventories, monitoring, and modeling
to assure attainment and maintenance of the standards.  States were
required to submit such SIPs for the 1997 standards to EPA no later than
June 2000.  However, intervening litigation over the 1997 8-hour ozone
standards created uncertainty about how to proceed and certain states
did not provide the required "infrastructure" SIP submission for this
newly promulgated standard.

Section 110(a) imposes the obligation upon states to make a SIP
submission to EPA for a new or revised NAAQS, but the contents of that
submission may vary depending upon the facts and circumstances. In
particular, the data and analytical tools available at the time the
state develops and submits the SIP for a new or revised NAAQS affects
the content of the submission.  The contents of such SIP submissions may
also vary depending upon what provisions the state's existing SIP
already contains.  In the case of the 1997 8-hour ozone NAAQS, states
typically have met the basic program elements required in section
110(a)(2) through earlier SIP submissions in connection with previous
ozone standards.  

On October 17, 2006 (71 FR 61144), effective December 18, 2006,   EPA
revised the 24-hour average PM2.5 primary and secondary NAAQS from 65
µg/m3 to 35 µg/m3.  As required by section 110(a)(1) of the CAA, the
110(a)(2) submittals were due within three years after promulgation of
the revised standard.

II. What is a Section 110(a)(1) and (2) SIP?

Sections 110(a)(1) and (2) of the CAA require, in part, that states
submit to EPA plans to implement, maintain and enforce each of the NAAQS
promulgated by EPA.  Sections 110(a)(1) and (2) require states to
address basic SIP requirements including emission inventories,
monitoring, and modeling to assure attainment and maintenance of the
standards.  By statute, SIPs meeting the requirements of sections
110(a)(1) and (2) are to be submitted by states within three years after
promulgation of a new or revised standard.  These SIPs are commonly
called infrastructure SIPs.  

EPA issued a guidance document regarding infrastructure SIPs on October
2, 2007, entitled, "Guidance on SIP Elements Required Under Sections
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 National Ambient
Air Quality Standards."  EPA also issued a September 25, 2009 guidance
memo entitled "Guidance on SIP Elements Required Under Sections
110(a)(1) and (2) for the 2006 24 Hour Fine Particle NAAQS", which
clarified in further detail, certain elements to meet the requirements
of sections 110(a)(1) and (2) of the CAA for both the 1997 and 2006
PM2.5 NAAQS.  Specifically, EPA provided additional guidance for
satisfying the section 110(a)(2)(D) requirements for the 2006 PM2.5
NAAQS, as well as guidance for satisfying the section 110(a)(2)(G)
requirements for both the 1997 and 2006 PM2.5 NAAQS 

Both guidance documents noted that to the extent an existing SIP already
meets the section 110(a)(1) and (2) requirements, states need only to
certify that fact to EPA.  

On March 4, 2004, Earth Justice submitted a notice of intent to sue
related to EPA's failure to take action, i.e., issue finding of failure
to submit, against states that had failed to make SIP submissions
related to CAA sections 110(a)(1) and (2), the "infrastructure"
requirements.  

On March 10, 2005, the EPA entered into a Consent Decree with Earth
Justice that obligated the EPA to make official findings whether states
had made required implementation plan submissions by dates certain. The
Consent Decree obligated the EPA to determine whether states have made
SIP submissions required to meet section 110(a)(1) and (2) related to
interstate transport by no later than March 15, 2005. The Consent Decree
also obligates the EPA to make a determination whether states have made
submissions necessary to meet the remaining requirements under section
110(a)(1) and (2) by December 15, 2007, for the 8-Hour Ozone NAAQS, and
by October 5, 2008, for the Fine Particulate Matter NAAQS.  It should be
noted that the latter determinations pertain only to whether the
submissions are complete, pursuant to section 110(k)(1)(A), and do not
constitute EPA approval or disapproval of such submissions. In addition,
the determinations required by the Consent Decree explicitly exclude any
determinations regarding: (i) submissions required by section
110(a)(2)(C) to the extent that subsection pertains to a nonattainment
area new source review permit program in Part D Title I of the CAA; and
(ii) submissions required by section 110(a)(2)(I) for Part D Title I
nonattainment plans. 

EPA entered into a Consent Decree with Earth Justice which required EPA,
among other things, to make a determination whether states have made the
SIP submissions necessary for EPA to determine whether each state has
made complete submissions, pursuant to 110(k)(1)(A) to meet the
requirements of section 110(a)(2) for the 1997 8-hour ozone NAAQS by
December 15, 2007.  Subsequently, EPA received an extension of the date
to complete this Federal Register notice until March 17, 2008, based
upon an agreement to make the findings with respect to submissions made
by January 7, 2008.  In accordance with the consent decree, EPA made
completeness findings for each state based upon what the Agency received
from each state as of January 7, 2008.  

On March 27, 2008, EPA published a final rulemaking entitled,
"Completeness Findings for Section 110(a) State Implementation Plans;
8-hour Ozone NAAQS," making a finding that each state had submitted, or
failed to submit, a complete SIP that provided the basic program
elements of section 110(a)(2) necessary to implement the 1997 8-hour
ozone NAAQS. (See 73 FR 16205.)  On October 22, 2008, EPA published a
final rulemaking entitled, "Completeness Findings for Section 110(a)
State Implementation Plans Pertaining to the Fine Particulate Matter
(PM2.5) NAAQS," making a finding that each state had submitted, or
failed to submit, a complete SIP that provided the basic program
elements of section 110(a)(2) necessary to implement the 1997 PM2.5
NAAQS. (See 73 FR 62902.) For those states that did receive findings,
the findings of failure to submit for all or a portion of a state's SIP
established a 24-month deadline for EPA to promulgate a Federal
Implementation Plan (FIP) to address the outstanding SIP elements
unless, prior to that time, the affected states submit, and EPA
approves, the required SIPs.  However, the findings of failure to submit
did not impose sanctions or set deadlines for imposing sanctions as
described in section 179 of the CAA, because these findings do not
pertain to the elements contained in the Title I part D plan for
nonattainment areas as required under section 110(a)(2)(I). 
Additionally, the findings of failure to submit for the infrastructure
submittals is not a SIP call pursuant to section 110(k)(5).  The
findings that all or portions of a state's submission are complete
establish a 12-month deadline for EPA to take action upon the complete
SIP elements in accordance with section 110(k).  

This action does not address the requirements of 110(a)
(2)(D)(i)(I)requirements for the 1997 ozone, 1997 PM2.5 NAAQS and 2006
PM2.5 NAAQS.  Those requirements have been addressed by separate actions
issued by EPA: See April 25, 2005 Federal Register (70 FR 21147) for
EPA’s Finding of Failure to Submit Section 110 State Implementation
Plans for Interstate Transport for the National Ambient Air Quality
Standards for 8-Hour ozone and PM2.5. See January 24, 2008 Federal
Register(73 FR 4109)for EPA’s approval of New York’s Clean Air
Interstate Rule. See July 20, 2011 Federal Register (76 FR 43153) for
EPA’s disapproval of the New York Interstate Transport Plan Revision
for the 2006 24-Hour PM2.5 NAAQS.  On July 6, 2011, the EPA
Administrator signed the Cross-State Air Pollution Rule (CSAPR) to
address 110(a)(2)(D)(i)(I) for these NAAQS. See CSAPR website at  
HYPERLINK "http://www.epa.gov/airquality/transport/index.html" 
http://www.epa.gov/airquality/transport/index.html .  

The U.S. Circuit Court of Appeals for the District of Columbia stayed
CSAPR on December 30, 2011, temporarily suspending implementation of the
rule, and will leave the Clean Air Interstate Rule in place while the
Court considers the merits of the challenges to the Cross-State Rule. 

III.	Scope of Infrastructure SIPs

EPA is currently acting upon SIPs that address the infrastructure
requirements of CAA section 110(a)(1) and (2) for ozone and PM2.5 NAAQS
for various states across the country.  Commenters on EPA’s recent
proposals for some states raised concerns about EPA statements that it
was not addressing certain substantive issues in the context of acting
on those infrastructure SIP submissions.  Those Commenters specifically
raised concerns involving provisions in existing SIPs and with EPA’s
statements in other proposals that it would address two issues
separately and not as part of actions on the infrastructure SIP
submissions:  (i) existing provisions related to excess emissions during
periods of start-up, shutdown, or malfunction at sources, that may be
contrary to the CAA and EPA’s policies addressing such excess
emissions (“SSM”); and (ii) existing provisions related to
“director’s variance” or “director’s discretion”  that
purport to permit revisions to SIP approved emissions limits with
limited public process or without requiring further approval by EPA,
that may be contrary to the CAA (“director’s discretion”).  EPA
notes that there are two other substantive issues for which EPA likewise
stated in other proposals that it would address the issues separately: 
(i) existing provisions for minor source new source review programs that
may be inconsistent with the requirements of the CAA and EPA’s
regulations that pertain to such programs (“minor source NSR[New
Source Review]”); and (ii) existing  provisions for PSD programs that
may be inconsistent with current requirements of EPA’s “Final NSR
Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72
FR 32526 (June 13, 2007) (“NSR Reform”).  In light of the comments,
EPA believes that its statements in various proposed actions on
infrastructure SIPs with respect to these four individual issues should
be explained in greater depth.  It is important to emphasize that EPA is
taking the same position with respect to these four substantive issues
in this action on the infrastructure SIPs for the 1997 8-hour ozone
NAAQS from New Jersey.

EPA intended the statements in the other proposals concerning these four
issues merely to be informational, and to provide general notice of the
potential existence of provisions within the existing SIPs of some
states that might require future corrective action.  EPA did not want
states, regulated entities, or members of the public to be under the
misconception that the Agency’s approval of the infrastructure SIP
submission of a given state should be interpreted as a re-approval of
certain types of provisions that might exist buried in the larger
existing SIP for such state.  Thus, for example, EPA explicitly noted
that the Agency believes that some states may have existing SIP approved
SSM provisions that are contrary to the CAA and EPA policy, but that
“in this rulemaking, EPA is not proposing to approve or disapprove any
existing state provisions with regard to excess emissions during SSM of
operations at facilities.”  EPA further explained, for informational
purposes, that “EPA plans to address such State regulations in the
future.”  EPA made similar statements, for similar reasons, with
respect to the director’s discretion, minor source NSR, and NSR Reform
issues.  EPA’s objective was to make clear that approval of an
infrastructure SIP for these ozone and PM2.5 NAAQS should not be
construed as explicit or implicit re-approval of any existing provisions
that relate to these four substantive issues.  EPA is reiterating that
position in this action on the infrastructure SIP for New Jersey.

Unfortunately, the Commenters and others evidently interpreted these
statements to mean that EPA considered action upon the SSM provisions
and the other three substantive issues to be integral parts of acting on
an infrastructure SIP submission, and therefore that EPA was merely
postponing taking final action on the issues in the context of the
infrastructure SIPs.  This was not EPA’s intention.  To the contrary,
EPA only meant to convey its awareness of the potential for certain
types of deficiencies in existing SIPs, and to prevent any
misunderstanding that it was reapproving any such existing provisions. 
EPA’s intention was to convey its position that the statute does not
require that infrastructure SIPs address these specific substantive
issues in existing SIPs and that these issues may be dealt with
separately, outside the context of acting on the infrastructure SIP
submission of a state.  To be clear, EPA did not mean to imply that it
was not taking a full final agency action on the infrastructure SIP
submission with respect to any substantive issue that EPA considers to
be a required part of acting on such submissions under section 110(k) or
under section 110(c).  Given the confusion evidently resulting from
EPA’s statements in those other proposals, however, we want to explain
more fully the Agency’s reasons for concluding that these four
potential substantive issues in existing SIPs may be addressed
separately from actions on infrastructure SIP submissions.

The requirement for the SIP submissions at issue arises out of CAA
section 110(a)(1).  That provision requires that states must make a SIP
submission “within 3 years (or such shorter period as the
Administrator may prescribe) after the promulgation of a national
primary ambient air quality standard (or any revision thereof)” and
that these SIPs are to provide for the “implementation, maintenance,
and enforcement” of such NAAQS.  Section 110(a)(2) includes a list of
specific elements that “[e]ach such plan” submission must meet.  EPA
has historically referred to these particular submissions that states
must make after the promulgation of a new or revised NAAQS as
“infrastructure SIPs.”  This specific term does not appear in the
statute, but EPA uses the term to distinguish this particular type of
SIP submission designed to address basic structural requirements of a
SIP from other types of SIP submissions designed to address other
different requirements, such as “nonattainment SIP” submissions
required to address the nonattainment planning requirements of  part D,
“regional haze SIP” submissions required to address the visibility
protection requirements of CAA section 169A, new source review
permitting program submissions  required to address the requirements of
part D, and a host of other specific types of SIP submissions that
address other specific matters.

Although section 110(a)(1) addresses the timing and general requirements
for these infrastructure SIPs, and section 110(a)(2) provides more
details concerning the  required contents of these infrastructure SIPs,
EPA believes that many of the specific statutory provisions are facially
ambiguous.  In particular, the list of required elements provided in
section 110(a)(2) contains a wide variety of disparate provisions, some
of which pertain to required legal authority, some of which pertain to
required substantive provisions, and some of which pertain to
requirements for both authority and substantive provisions.  Some of the
elements of section 110(a)(2) are relatively straightforward, but others
clearly require interpretation by EPA through rulemaking, or
recommendations through guidance, in order to give specific meaning for
a particular NAAQS. 

 

Notwithstanding that section 110(a)(2) provides  that “each” SIP
submission must meet the list of requirements therein, EPA has long
noted that this literal reading of the statute is internally
inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment
SIP requirements that could not be met on the schedule provided for
these SIP submissions in section 110(a)(1).   This illustrates that EPA
must determine which provisions of section 110(a)(2) may be applicable
for a given infrastructure SIP submission.  Similarly, EPA has
previously decided that it could take action on different parts of the
larger, general “infrastructure SIP” for a given NAAQS without
concurrent action on all subsections, such as  section 110(a)(2)(D)(i),
because the Agency bifurcated the action on these latter “interstate
transport” provisions within section 110(a)(2) and worked with states
to address each of the four prongs of section 110(a)(2)(D)(i) with
substantive administrative actions proceeding on different tracks with
different schedules.  This illustrates that EPA may conclude that
subdividing the applicable requirements of section 110(a)(2) into
separate SIP actions may sometimes be appropriate for a given NAAQS
where a specific substantive action is necessitated, beyond a mere
submission addressing basic structural aspects of the state’s
implementation plans.  Finally, EPA notes that not every element of
section 110(a)(2) would be relevant, or as relevant, or relevant in the
same way, for each new or revised NAAQS and the attendant infrastructure
SIP submission for that NAAQS.  For example, the monitoring requirements
that might be necessary for purposes of section 110(a)(2)(B) for one
NAAQS could be very different than what might be necessary for a
different pollutant.  Thus, the content of an infrastructure SIP
submission to meet this element from a state might be very different for
an entirely new NAAQS, versus a minor revision to an existing NAAQS.

Similarly, EPA notes that other types of SIP submissions required under
the statute also must meet the requirements of section 110(a)(2), and
this also demonstrates the need to identify the applicable elements for
other SIP submissions.  For example, nonattainment SIPs required by part
D likewise have to meet the relevant subsections of section 110(a)(2)
such as section 110(a)(2)(A) or (E).  By contrast, it is clear that
nonattainment SIPs would not need to meet the portion of section
110(a)(2)(C) that pertains to part C, i.e., the PSD requirements
applicable in attainment areas.  Nonattainment SIPs required by part D
also would not need to address the requirements of section 110(a)(2)(G)
with respect to emergency episodes, as such requirements would not be
limited to nonattainment areas.  As this example illustrates, each type
of SIP submission may implicate some subsections of section 110(a)(2)
and not others.  

Given the potential for ambiguity of the statutory language of section
110(a)(1) and (2), EPA believes that it is appropriate for EPA to
interpret that language in the context of acting on the infrastructure
SIPs for a given NAAQS.  Because of the inherent ambiguity of the list
of requirements in section 110(a)(2), EPA has adopted an approach in
which it reviews infrastructure SIPs against this list of elements “as
applicable.”  In other words, EPA assumes that Congress could not have
intended that each and every SIP submission, regardless of the purpose
of the submission or the NAAQS in question, would meet each of the
requirements, or meet each of them in the same way.  EPA elected to use
guidance to make recommendations for infrastructure SIPs for these ozone
and PM2.5 NAAQS.

On October 2, 2007, EPA issued guidance making recommendations for the
infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS and
the 1997 PM2.5 NAAQS.  Within this guidance document, EPA described the
duty of states to make these submissions to meet what the Agency
characterized as the “infrastructure” elements for SIPs, which it
further described as the “basic SIP requirements, including emissions
inventories, monitoring, and modeling to assure attainment and
maintenance of the standards.”  As further identification of these
basic structural SIP requirements, “attachment A” to the guidance
document included a short description of the various elements of section
110(a)(2) and additional information about the types of issues that EPA
considered germane in the context of such infrastructure SIPs.  EPA
emphasized that the description of the basic requirements listed on
attachment A was not intended “to constitute an interpretation of”
the requirements, and was merely a “brief description of the required
elements.”  EPA also stated its belief that with one exception, these
requirements were “relatively self explanatory, and past experience
with SIPs for other NAAQS should enable States to meet these
requirements with assistance from EPA Regions.”  However, for the one
exception to that general assumption (i.e., how states should proceed
with respect to the requirements of section 110(a)(2)(G) for the 1997
PM2.5 NAAQS), EPA gave much more specific recommendations.  But for
other infrastructure SIP submittals, and for certain elements of the
submittals for the 1997 PM2.5 NAAQS, EPA assumed that each State would
work with its corresponding EPA regional office to refine the scope of a
State’s submittal based on an assessment of how the requirements of
section 110(a)(2) should reasonably apply to the basic structure of the
State’s implementation plans for the NAAQS in question.

On September 25, 2009, EPA issued guidance to make recommendations to
states with respect to the infrastructure SIPs for the 2006 PM2.5 NAAQS.
 In the 2009 Guidance, EPA addressed a number of additional issues that
were not germane to the infrastructure SIPs for the 1997 8-hour ozone
and 1997 PM2.5 NAAQS, but were germane to these SIP submissions for the
2006 PM2.5 NAAQS (e.g., the requirements of section 110(a)(2)(D)(i) that
EPA had bifurcated from the other infrastructure elements for those
specific 1997 ozone and PM2.5 NAAQS).  Significantly, neither the 2007
Guidance nor the 2009 Guidance explicitly referred to the SSM,
director’s discretion, minor source NSR, or NSR Reform issues as among
specific substantive issues EPA expected states to address in the
context of the infrastructure SIPs, nor did EPA give any more specific
recommendations with respect to how states might address such issues
even if they elected to do so.  The SSM and director’s discretion
issues implicate section 110(a)(2)(A), and the minor source NSR and NSR
Reform issues implicate section 110(a)(2)(C).  In the 2007 Guidance and
the 2009 Guidance, however, EPA did not indicate to states that it
intended to interpret these provisions as requiring a substantive
submission to address these specific issues in existing SIP provisions
in the context of the infrastructure SIPs for these NAAQS.  Instead,
EPA’s 2007 Guidance merely indicated its belief that the states should
make submissions in which they established that they have the basic SIP
structure necessary to implement, maintain, and enforce the NAAQS.  EPA
believes that states can establish that they have the basic SIP
structure, notwithstanding that there may be potential deficiencies
within the existing SIP.  Thus, EPA’s proposals for other states
mentioned these issues not because the Agency considers them issues that
must be addressed in the context of an infrastructure SIP as required by
section 110(a)(1) and (2), but rather because EPA wanted to be clear
that it considers these potential existing SIP problems as separate from
the pending infrastructure SIP actions.  The same holds true for this
action on the infrastructure SIPs for New Jersey.

EPA believes that this approach to the infrastructure SIP requirement is
reasonable because it would not be feasible to read section 110(a)(1)
and (2) to require a top to bottom, stem to stern, review of each and
every provision of an existing SIP merely for purposes of assuring that
the state in question has the basic structural elements for a
functioning SIP for a new or revised NAAQS.  Because SIPs have grown by
accretion over the decades as statutory and regulatory requirements
under the CAA have evolved, they may include some outmoded provisions
and historical artifacts that, while not fully up to date, nevertheless
may not pose a significant problem for the purposes of
“implementation, maintenance, and enforcement” of a new or revised
NAAQS when EPA considers the overall effectiveness of the SIP.  To the
contrary, EPA believes that a better approach is for EPA to determine
which specific SIP elements from section 110(a)(2) are applicable to an
infrastructure SIP for a given NAAQS, and to focus attention on those
elements that are most likely to need a specific SIP revision in light
of the new or revised NAAQS.  Thus, for example, EPA’s 2007 Guidance
specifically directed states to focus on the requirements of section
110(a)(2)(G) for the 1997 PM2.5 NAAQS because of the absence of
underlying EPA regulations for emergency episodes for this NAAQS and an
anticipated absence of relevant provisions in existing SIPs.

Finally, EPA believes that its approach is a reasonable reading of
section 110(a)(1) and (2) because the statute provides other avenues and
mechanisms to address specific substantive deficiencies in existing
SIPs.  These other statutory tools allow the Agency to take appropriate
tailored action, depending upon the nature and severity of the alleged
SIP deficiency.  Section 110(k)(5) authorizes EPA to issue a “SIP
call” whenever the Agency determines that a state’s SIP is
substantially inadequate to attain or maintain the NAAQS, to mitigate
interstate transport, or otherwise to comply with the CAA.  Section
110(k)(6) authorizes EPA to correct errors in past actions, such as past
approvals of SIP submissions.  Significantly, EPA’s determination that
an action on the infrastructure SIP is not the appropriate time and
place to address all potential existing SIP problems does not preclude
the Agency’s subsequent reliance on provisions in section 110(a)(2) as
part of the basis for action at a later time.  For example, although it
may not be appropriate to require a state to eliminate all existing
inappropriate director’s discretion provisions in the course of acting
on the infrastructure SIP, EPA believes that section 110(a)(2)(A) may be
among the statutory bases that the Agency cites in the course of
addressing the issue in a subsequent action.  

 

IV. What did New York Submit?

EPA is acting on three New York SIP submittals, dated December 13, 2007,
October 2, 2008 and March 15, 2010, which address the section 110
infrastructure requirements for the three NAAQS: the 1997 8-hour ozone
NAAQS, the 1997 annual and 24-hour PM 2.5 NAAQS, and the 2006 24-hour PM
2.5 NAAQS.

December 13, 2007 SIP submission

New York’s Section 110 infrastructure submittal was submitted by the
New York State Department of Environmental Conservation (NYSDEC) on
December 13, 2007 and addressed the 1997 ozone NAAQS.  Effective April
28, 2008, the submittal was determined to be complete for all elements
except 110(a)(2)(C).  73 FR 16205 (March 27, 2008).  New York’s
December 2007 Section 110 submittal demonstrates how the State, where
applicable, has a plan in place that meets the requirements of Section
110 for the 1997 8-hour ozone NAAQS.  This plan references the current
New York Air Quality SIP, the New York Codes of Rules and Regulations
(NYCRR), the New York Environmental Conservation Law (ECL) and the New
York Public Officer’s Law (POL).  The NYCRR, ECL and POL referenced in
the submittal are publicly available.  New York’s air pollution
control regulations that have been previously approved by EPA and
incorporated into the New York SIP can be found at 40 CFR 52.1679 and
are posted on the Internet at: 
http://www.epa.gov/region02/air/sip/ny_reg.htm.

October 2, 2008 SIP submission

New York’s section 110 infrastructure submittal for the 1997 PM2.5
NAAQS was submitted by the NYSDEC on October 2, 2008, and the submittal
was deemed complete April 2, 2009.

March 15, 2010 SIP submission

New York’s section 110 infrastructure submittal for the 2006 PM2.5
24-hour NAAQS was submitted by the NYSDEC on March 15, 2010, and the
submittal was deemed complete September 15, 2010.

V. What are the required elements under Section 110(a)(1) and (2)? 

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.  These requirements include SIP infrastructure elements
such as modeling, monitoring, and emissions inventories that are
designed to assure attainment and maintenance of the NAAQS.  The
requirements that are the subject of this action are listed below, with
their corresponding CAA subsection, and in EPA's October 2, 2007,
memorandum entitled "Guidance on SIP Elements Required Under Section
110(a)(1) and (2) for the 1997 8-Hour Ozone and PM2.5 National Ambient
Air Quality Standards."  Some of these requirements are not part of the
infrastructure SIP, but due as part of the states nonattainment SIP, but
are listed below for completeness.

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.

110(a)(2)(D) : Interstate transport.

110(a)(2)(E) : Adequate resources.

110(a)(2)(F) : Stationary source monitoring and reporting.

110(a)(2)(G) : Emergency power.

110(a)(2)(H) : Future SIP revisions. 

110(a)(2)(I) : Nonattainment area plan and plan revisions under part D

110(a)(2)(J) : Consultation with Government officials, public
notification, PSD and visibility protection.

110(a)(2)(K) : Air quality modeling/data.

110(a)(2)(l) : Permitting Fees.

110(a)(2)(M) : Consultation/participation by affected local entities.

VI. How do the New York Infrastructure Submittals Meet the Requirements
under Section 110(a)(1) and (2) for the 1997 8-hour ozone NAAQS, the
1997 and 2006 PM2.5 NAAQS?

New York’s three section 110 submittals demonstrate how the State,
where applicable, has a plan in place that meets the requirements of
section 110 for the 1997 8-hour ozone NAAQS.  This plan references the
current New York Air Quality SIP, the New York Codes of Rules and
Regulations (NYCRR), the New York Environmental Conservation Law (ECL)
and the New York Public Officer’s Law (POL) and shows how the
provisions of these laws and regulations meet the appropriate section
110 requirements as outlined in EPA's October 2, 2007 guidance.  The
NYSDEC submittals are certification documents which certify compliance
with section 110(a)(1) and (2) through its infrastructure SIP submittals
and focuses on the sections that EPA made findings for in October 2008.

Unless specifically identified in a particular section, EPA’s
evaluation will apply to ozone and both the annual and 24 hour PM2.5
NAAQSs.

The specific sections of 110 are listed below, followed by a summary of
how the NYSDEC submissions meet these requirements and EPA’s
evaluation of the New York submittals.  The reader is referred to the
NYSDEC submissions and the New York Statutes annotated and New York’s
Administrative Code, for New York’s complete explanation of how New
York satisfies the section 110 requirements.

The NYCRR, ECL and POL referenced in the submittal are publicly
available.  New York’s air pollution control regulations that have
been previously approved by EPA and incorporated into the New York SIP
can be found at 40 CFR 52.1670 and are posted on the Internet at:   
HYPERLINK "http://www.epa.gov/region02/air/sip/ny_reg.htm" 
http://www.epa.gov/region02/air/sip/ny_reg.htm .

A.	Emission limits and other control measures – Section 110(a)(2)(A)  

Section 110(a)(2)(A) requires SIPs to include enforceable emission
limits and other control measures, means or techniques, schedules for
compliance and other related matters.  EPA notes that the specific
nonattainment area plan requirements of section 110(a)(2)(I) are subject
to the timing requirement of section 172, not the timing requirement of
section 110(a)(1), and also that SIPs to meet this section are not
covered by the Consent Decree.

State Submittal:

New York’s ECL section 19-0301, provides the NYSDEC with power to
formulate, adopt and promulgate, amend and repeal codes and rules and
regulations for preventing, controlling and prohibiting air pollution in
such areas of the State as shall or may be affected by air pollution. 
New York indicates the actual emission limits required as part of the
8-hour ozone SIP are not required to be part of the 110(a)
Infrastructure SIP, but are to be found in the respective pollutant
specific SIP revisions.

EPA Evaluation:

EPA has reviewed the authority provided by ECL section 19-0301 and is
satisfied that this provision provides NYSDEC with the ability to adopt
and enforce regulations, control measures including emission limits and
compliance schedules.  While New York has not provided the actual
control measures and emission limits as part of the Infrastructure SIP,
it has provided the control measures and emission limits as part of its
pollutant specific SIP revisions.

On July 23, 2010 (75 FR 43066), EPA conditionally approved New York’s
statewide RACT and RACM SIP revision.  EPA proposed to approve the last
control measures New York committed to adopt as part of its RACT SIP on
April 10, 2013 (78 FR 21302).  All the control measures along with the
emission limitations that New York identified as necessary for attaining
the 8-hour ozone standard have been adopted by the State, submitted as
SIP revisions and approved as SIP revisions by EPA. The complete list of
EPA approved New York rules can be found at 40 CFR 52.1670.

On April 29, 2008, the Department submitted the attainment SIP for the
1997 annual PM2;5 NAAQS. This SIP contains the strategies and measures
that will be implemented in New York so that the 1997 annual NAAQS will
be met by the 2010 deadline. In the PM2.5 SIP, a number of state
programs and regulations were identified to be implemented that will
provide the necessary enforceable emission limitations and other control
measures for PM2.5 in New York State. Other programs and regulations
that address PM10 or PM generally are already in effect. Although not
specific to PM2.5, these programs and regulations will reduce the
ambient levels of PM2.5 by reducing its emissions along with the
emissions of PM10, PM and its precursors, resulting in the enforceable
emission limits and other control measures necessary to address the 2006
PM2.5 NAAQS

B.	Ambient air quality monitoring, compilation, data analysis –
Section 110 (a)(2)(B)

Section 110(a)(2)(B) requires SIPs to include provisions to provide for
establishment and operation of ambient air quality monitors, collecting
and analyzing ambient air quality data, and making these data available
to EPA upon request.    

State Submittal:

New York, under its authority provided in ECL subsection 19-0305(2)(d),
operates and maintains a network of ambient air quality monitors used to
sample the degree of air pollution throughout the State and submits the
data collected to EPA.  New York has submitted annual air monitoring
network plans which have been approved by EPA.

EPA Evaluation:

EPA has reviewed the authority provided by ECL subsection 19-0305(2)(d)
and is satisfied that New York has adequate authority to conduct a
monitoring program and report the results that fulfills the requirements
of section 110(a)(2)(B) for both the 8-hr ozone and the PM2.5 NAAQS. 
New York’s latest Monitoring Plan was submitted on July 2, 2012 and
EPA approved New York’s monitoring plan for all pollutants including
ozone and PM2.5 on October 18, 2012 and found no deficiencies.  The
State is monitoring ozone and PM2.5 at appropriate locations throughout
the State using EPA approved federal reference methods or equivalent
monitors.  The Monitoring Plan included planned changes to the
monitoring sites.  New York has been submitting the air quality data to
EPA’s Air Quality System (AQS) data base on a quarterly basis and
makes this data, as well as various reports, available on its website
http://www.dec.ny.gov/airmon/index.php on a real time basis.  EPA has
determined that New York has satisfied the section 110(a)(2)(B)
requirements for both ozone and PM2.5 NAAQSs.

C.	Enforcement and stationary source permitting - Section 110(a)(2)(C)

Section 110(a)(2)(C) requires states to include a program providing for
enforcement of all SIP measures and the regulation of construction of
new or modified stationary sources to meet Prevention of Significant
Deterioration (PSD) and nonattainment New Source Review requirements.

State Submittal:

The NYSDEC is authorized by ECL section 19-0305, to enforce the codes,
rules and regulations of the NYCRR.  The minor source permitting and
enforcement programs operate under Title 6 NYCRR Part 201, “Permits
and Registrations”.  EPA proposes to find that the State has adequate
authority and regulations to insure that SIP approved control measures
are enforced for the 1997 8-hour ozone and the 1997 PM2.5 and 2006 PM2.5
NAAQS.   

On March 3, 2009, the State of New York, through the NYSDEC, submitted
to EPA Region 2 revisions to the New York SIP.  The submittal consists
of revisions to three regulations.  The affected regulations are: 6
NYCRR Part 231, “New Source Review for New and Modified Facilities”;
6 NYCRR Part 200, “General Provisions”; and 6 NYCRR Part 201,
“Permits and Certificates”.  The purpose of these revisions were to
revise the New York State PSD program regulations and to update the
existing New York State nonattainment regulations consistent with
changes to the Federal NSR regulations published on December 31, 2002
(67 FR 80186).  On November 17, 2010 (75 FR 70140), EPA approved the New
York PSD program. 

EPA Evaluation:

EPA believes that the State has adequate authority and regulations to
ensure that, SIP-approved control measures are enforced.  EPA also finds
that based on the approval of New York’s PSD program, New York has the
authority to regulate the construction of new or modified stationary
sources to meet the PSD program requirements.  EPA has determined that
New York has met the requirements of section 110(a)(2)(C) and (J) of the
CAA with respect to the 1997 8-hour ozone and the 1997 and 2006 PM 2.5
NAAQS.

D.	Interstate transport –Section 110(a)(2)(D)

- Section 110(a)(2)(D)(i)

Section 110(a)(2)(D)(i) requires SIPs to address four separate elements.
 Section 110(a)(2)(D)(i)(I) provides that each state’s SIP must
include provisions prohibiting any source or other type of emissions
activity in one state from contributing significantly to (1)
nonattainment, or (2) interfering with maintenance of the NAAQS in
another state (referred to as prongs 1 and 2).  Section
110(a)(2)(D)(i)(II) provides that each state’s SIP must include
provisions prohibiting any source or other type of emissions activity in
one state emitting any pollutants in amounts which will interfere with
measures required to (3) prevent significant deterioration of air
quality or to (4) protect visibility in another state (referred to as
prongs 3 and 4).  

Prongs 1 and 2

This action does not act on the requirements of 110(a)(2)(D)(i)(I),
prongs 1 and 2, for the 1997 8-hour ozone NAAQS and the 1997 PM2.5
NAAQS, because they were addressed by previous EPA actions.  See 72 FR
55666, October 1, 2007.  For 2006 24-hour PM2.5, EPA disapproved New
Jersey’s SIP for prongs 1 and 2 on July 20, 2011, 76 FR 43153.  

Prong 3

    

State submittal:

As discussed previously under (C) (Program for enforcement of control
measures), on November 17, 2010 (75 FR 70140), EPA approved the New York
PSD program.  

EPA Analysis:

A state's infrastructure SIP submittal can be considered for
approvability with respect to prong 3 if EPA has issued final approval
of that state's PSD SIP or, alternatively, has issued final approval of
a SIP that EPA has otherwise found adequate to prohibit interference
with other states' measures to prevent significant deterioration of air
quality.  Therefore, EPA has determined that New York's 110(a)
submissions for prong 3 of 110(a)(2)(D)(i)(II) is approvable because New
York has a federally approved PSD program. 

Prong 4

New York has met its obligations pursuant to section 110(a)(2)(D)(i)(II)
for visibility protection for all three NAAQS through its Regional Haze
SIP submittals, which were approved by EPA on August 28, 2012 (77 FR
51915). The regional haze rule specifically requires that a state
participating in a regional planning process include all measures needed
to achieve its apportionment of emission reduction obligations agreed
upon through that process.  Thus, New York’s approved Regional Haze
SIP will ensure that emissions from sources within the State are not
interfering with measures to protect visibility in other states. 
Therefore, EPA proposes to find for 8-hr ozone and PM2.5 NAAQS that New
York satisfies the section 110(a)(2)(D)(i)(II) requirement for
visibility.

Section 110(a)(2)(D)(ii) Interstate and International transport
provisions: 

Section 110(a)(2)(D)(ii) requires SIPs to include provisions insuring
compliance with the applicable requirements of sections 126 and 115
(relating to interstate and international pollution abatement). 
Specifically, section 126(a) requires new or modified major sources to
notify neighboring states of potential impacts from the source.  

State Submittal:

Regarding section 110(a)(2)(D)(ii), which relates to interstate and
international pollution abatement, as noted above, on November 17, 2010
(75 FR 70140), EPA approved the New York PSD program which is consistent
with 40 CFR 51.166(q)(2)(iv), and requires a source to notify air
agencies whose lands may be affected by emissions from that source (see
6 NYCRR sections 231-7.4(f) and 8.5(f)).  New York has no pending
obligations under section 115 or 126(b) of the CAA.

EPA Analysis:

New York has no pending obligations under section 115 or 126(b) of the
CAA. EPA has determined that New York’s submissions for infrastructure
element 110(a)(2)(D)(ii) are approvable.  

E.	Adequate resources - Section 110(a)(2)(E):  

Section 110(a)(2)(E) requires: (i) states to provide for adequate
personnel, funding, and legal authority under state law to carry out its
SIP. (ii) that the state comply with the requirements section 128
respecting state boards and conflict of interest, and (iii) necessary
assurances that, where the state has relied on a local or regional
government, agency, or instrumentality for the implementation of any
plan provision, the state has responsibility for ensuring adequate
implementation of such plan provision.”

State Submittal:

New York has adequate authority, under ECL sections 19-0301, 0303 and
0305, to carry out its SIP obligations with respect to the 1997 ozone
and 1997 and 2006 PM2.5 NAAQS.  New York receives sections 103 and 105
grant funds along with required State-matching funds to provide funding
necessary to carry out its SIP requirements.  

EPA Evaluation:

EPA has determined that New York has sufficient resources to meet the
requirements of section 110(a)(2)(E)(i) for the 1997 8-hr ozone and 1997
and 2006 PM2.5 NAAQS.

Section 110(a)(2(e)(ii), requires compliance with section 128 which
addresses requirements to insure that boards or persons approving
permits or enforcement orders do not have any conflicts of interest. New
York does not have a state board that approves permits or enforcement
orders under the CAA.  Instead, permits and enforcement orders are
approved by the State's Commissioner of Environmental Conservation. 
Thus, the requirements of subsection 128(a)(1) are not applicable to New
York.  New York is subject to the requirements of section 128(a)(2).  In
its SIP submission New York cited POL sections 74(2) and 74(3)(e) which
address  conflict of interest.  However, after further discussion with
NYSDEC, it is more relevant to cite POL section 73-a, “Financial
disclosure” and 19 NYCRR 937, “Access To Publicly Available
Records,” as satisfying the section 128(a)(2) requirement.  

EPA has determined that New York must submit POL section 73-a and 19
NYCRR 937 for approval as part of the SIP in order to fully satisfy the
requirements of section 110(a)(2)(E)(ii) for 1997 8-hour ozone and PM2.5
NAAQS, provided the State submits  

  

Section 110(a)(2(e)(iii) requires states to have the necessary
assurances in place with local or regional governments that may be
delegated tasks associated with implementation of the SIP.  The NYSDEC
has delegation authority for inspection and enforcement efforts of
various regulations under the general enforcement powers provided in ECL
section 19-0305. 

While New York has the authority to delegate responsibilities to county
or local governments to implement certain SIP responsibilities, the
information provided in both infrastructure SIP submittals does not
identify the specific organizations that will participate in developing,
implementing, and enforcing the plan and the responsibilities of such
organizations. EPA proposes to conditionally approve the infrastructure
SIP with regard to the requirements of section 110(a)(2)(E)(iii). The
State must identify the county or local governments or entities that
participate in the SIP planning efforts, identify the county or local
governments or entities that have been delegated responsibilities to
implement or enforce portions of the SIP, and provide copies of the
delegation orders or memoranda of understanding (MOUs) between the State
and the county or local governments or entities. EPA has determined that
New York must submit this information in order to fully satisfy the
requirements of section 110(a)(2)(E)(iii) for the 1997 8-hour ozone and
1997 and 2006 PM2.5 NAAQS.  

F.	Stationary source emissions monitoring and reporting: Section
110(a)(2)(F) 

Section 110(a)(2)(F) requires states to establish a system to: i)
monitor emissions from stationary sources, ii) have sources prepare
periodic emission reports, and iii) report emissions.

State Submittal:

The NYSDEC has the authority pursuant to ECL subsection 19-0311(3)(c) to
require emissions monitoring, recordkeeping and reporting of stationary
sources before an operating permit is issued or renewed.  NYSDEC has
adopted regulations to implement the federal requirements for stationary
source emissions monitoring, reporting and recordkeeping in 6 NYCRR Part
201-6.4(b) and (c).

The NYSDEC adopted 6 NYCRR Part 202, “Emission Verification,” to
require emissions reports from stationary sources.  Further 6 NYCRR Part
616, Access to Records, specifically allows emission information to be
made available to the public.

EPA Evaluation:

Based on the authority pursuant to ECL subsection 19-0311(3)(c) and the
adoption of the Part 202, specifically subpart 202-2, “Emission
Statements,” EPA has determined that New York has met the requirements
of section 110(a)(2)(F) for the 1997 8-hr ozone and 1997 and 2006 PM2.5
NAAQS.

G.	Emergency powers and contingency plans - Section 110 (a)(2)(G)

Section 110(a)(2)(G) requires states to provide for authority to address
activities causing imminent and substantial endangerment to public
health, including contingency plans to implement the emergency episode
provisions in their SIPs.  

State Submittal:

New York has the authority to address section 110(a)(2))G) pursuant to
ECL, Articles 3 and 19, which are implemented through 6 NYCRR Part 207,
“Control Measures for Air Pollution Episodes.”  Among other things,
6 NYCRR Part 207 requires persons who own a significant air
contamination source to submit a proposed episode action plan to the
NYSDEC Commissioner, and enable the Commissioner to designate air
pollution episodes which trigger the action plans.  Pursuant to Part
207.3(a), the NYSDEC Commissioner shall have on file and make available
the criteria used in determining the need to designate episodes.  The
NYSDEC maintains an “Episode Action Plan” with guidelines and
protocols/criteria to be followed in case of an air pollution emergency.
The NYSDEC's Episode Action Plan has been updated to reflect the PM2.5
Significant Harm Levels (SHLs) proposed by EPA on January 15, 2009 along
with revised values for ozone episodes. 

 

EPA Evaluation:

For PM2.5, EPA's guidance dated September 25, 2009  provides
clarification that states that have air quality control regions
identified as either Priority I, Priority IA or Priority II by the
“Prevention of Air Pollution Emergency Episodes” rules at 40 CFR
51.150 must develop emergency episode contingency plans.  States are
required to develop emergency episode plans for any area that has
monitored and recorded 24-hour PM2.5 levels greater than 140.4 µg/m3
since 2006.  A state that has never exceeded this level since 2006 is
considered to be Priority III. 40 CFR 51.150(f).  In accordance with the
guidance, a Priority III area may certify that it has appropriate
general emergency powers to address PM2.5-related episodes, and is not
required to adopt specific emergency episode plans at this time, given
the existing monitored levels.

Since 2006, air-quality monitors in New York show that PM2.5 levels have
been below the 140.5 µg/m3 threshold.  Based on air quality data, New
York should be classified as a Priority III region and, therefore,
emergency episode plans for PM2.5 are not required.  

EPA has determined that New York has met the requirements of section
110(a)(2)(G) for the 1997 8-hour ozone and the 1997 and 2006 PM2.5
standards. 

H.	Future SIP revisions - Section 110(a)(2)(H)  

Section 110(a)(2)(H) requires states to have the authority to revise
their SIPs in response to changes in the NAAQS, availability of improved
methods for attaining NAAQS, or in response to an EPA finding that the
SIP is substantially inadequate.  

State Submittal:

Revisions to the New York SIP are authorized by Article 19 and sections
3-0301, 19-0103, 19-0301, 19-0303 and 19-0305 of the ECL.  Article 19 of
the ECL was adopted to protect New York's air resources from pollution
and to put into effect the policy of the State to maintain a reasonable
degree of purity of the air resources, consistent with the public health
and welfare and the industrial development of the State.  NYSDEC is
granted specific powers and duties, including the power to promulgate
regulations for preventing, controlling, or prohibiting air pollution. 
NYSDEC also has the specific authority to regulate motor vehicle exhaust
and approve air contaminant control systems as well as regulate fuels.
Section 71-2103 provides general enforcement authority for the New York
State air regulations.  Section 71-2105 provides criminal enforcement
authority.

EPA Evaluation:

New York has the authority to revise SIPs and provide for enforcement in
response to changes in the NAAQS and improve methods for attaining the
NAAQS.  EPA has determined that the State has adequate authority to
develop and implement plans and programs that fulfill the requirements
of section 110(a)(2)(H) for the 1997 8-hr ozone and 1997 and 2006 PM2.5
NAAQS.

State Implementation Plan revisions for new nonattainment areas –
Section 110(a)(2)(I)

Section 110(a)(2)(I) requires that each nonattainment area meet the
applicable requirements of Part D.

State Submittal:

The NYSDEC has in the past submitted SIP revisions for any change in the
NAAQS, including the recommendations for nonattainment area designation.
 

EPA Evaluation:

EPA has not addressed Section 110(a)(2)(I) in its recent infrastructure
SIP guidance because Part D SIPs are due on a different schedule than
the infrastructure SIP submittal schedule. (See, e.g., the
infrastructure SIP guidance for the revised lead standard, 73 FR 66964,
67034, n. 113, Nov. 12, 2008, and the infrastructure SIP guidance for
the revised NO2 standards, 75 FR 6474, 6523, n. 27, Feb. 9, 2010.) 
Therefore, this proposal does not address Section 110(a)(2)(I).  

New York has submitted for its ozone nonattainment areas RACT Plans, RFP
Plans and Attainment Demonstrations for the 1997 8-hour ozone standard. 
New York has also submitted a PM2.5 SIP revision which EPA is currently
reviewing and will be taking rulemaking action on.  EPA has already
taken action on 8-hr ozone requirements for Part D nonattainment plans
through separate rulemakings.

J. Consultation with government officials, public notification, PSD, and
Visibility - Section 110(a)(2)(J):

J.1. Consultation with government officials:

Section 110(a)(2)(J) requires states to provide a process for
consultation with local governments and Federal Land Managers carrying
out NAAQS implementation requirements pursuant to section 121 relating
to consultation. 

State Submittal:

Section 121 requires a process for consultation with local governments
and Federal Land Managers carrying out NAAQS implementation
requirements. EPA finds that the 110(a) submittals from New York, and
the cited authority of section 3-0303 of the ECL, meet the requirements
of section 110(a)(2)(J) for consultation with government officials.

J2. Public notification:  

Section 110(a)(2)(J) further requires states to notify the public if
NAAQS are exceeded in an area and to enhance public awareness of
measures that can be taken to prevent exceedances.

State Submittal:

The NYSDEC’s website, at http://www.dec.nv.qov/chemical/34985.html
contains an Air Quality Index (AQI) for reporting daily air quality to
the public.  It describes how clean or polluted the air is, and what
associated health effects might be a concern.  It was created as a way
to correlate levels of different pollutants to one scale; the higher the
AQI value, the greater the health concern.  When levels of ozone and/or
fine particles are expected to exceed an AQI value of 100, an Air
Quality Health Advisory is issued alerting sensitive groups to take the
necessary precautions.  The 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.  The Air Quality Forecast displays the
predicted AQI value for eight regions in New York State.  It also
displays the observed values for the previous day.  Air quality
measurements from New York's statewide continuous monitoring network are
updated hourly where available.  Parameters monitored include ozone,
fine particulate, carbon monoxide, sulfur dioxide, nitrogen oxides,
methane/nonmethane hydrocarbons, and meteorological data.

EPA Evaluation:

The NYSDEC has procedures in place to notify the public when air quality
standards deteriorate and exceed the NAAQS.  It maintains a web site
which provides information on current air quality status, air quality
forecasts, monitoring information, reports and pertinent information
related to air quality readings.  NYSDEC participates with surrounding
states in submitting and compiling air quality data and making this
information available to press, news outlets, state websites and through
the use of a listserv.  EPA has determined that New York has adequate
procedures for notifying the public of air quality concerns and
disseminating information on ways to avoid health problems and reduce
exposure when necessary.

J3. PSD and visibility protection:

Section 110(a)(2)(J) also requires states to meet applicable
requirements of Part C related to prevention of significant
deterioration (PSD) and visibility protection.  

State Submittal:

On March 3, 2009, the State of New York, through the NYSDEC, submitted
to EPA Region 2 revisions to the New York SIP.  The submittal consists
of revisions to three regulations.  The affected regulations are: 6
NYCRR Part 231, “New Source Review for New and Modified Facilities”;
6 NYCRR Part 200, “General Provisions”; and 6 NYCRR Part 201,
“Permits and Certificates”.  The purpose of these revisions were to
revise the New York State PSD program regulations and to update the
existing New York State nonattainment regulations consistent with
changes to the Federal NSR regulations published on December 31, 2002
(67 FR 80186).

For visibility improvement, the NYSDEC has addressed the necessary
requirements in the Regional Haze State Implementation Plan.

EPA Evaluation:

On November 17, 2010 (75 FR 70140), EPA approved the New York PSD
program, as discussed under (C) (program for enforcement of control
measures).  The approvability of a state's PSD program in its entirety
is essential to the approvability of the infrastructure SIP with respect
to section 110(a)(2)(J).

With respect to the visibility component of section 110(a)(2)(J), we
reiterate the statutory requirement providing, in relevant part, that
each plan must meet the “applicable requirements” of part C (of
Title I of the Act) relating to visibility protection.  We note that
the other part C requirements specified in section 110(a)(2)(J)
(applicable requirements relating to prevention of significant
deterioration of air quality) specifically relate to the 1997 and 2006
NAAQS, as well as to other pollutants regulated under the CAA, and a
state must be able to implement those requirements with respect to a new
or revised NAAQS when promulgated.  In contrast to the PSD program, the
visibility protection requirements are not directly related to the
promulgation of, or revision to, these NAAQS.  While the SIP must
independently meet the visibility protection requirements of part C by
virtue of the specific SIP requirements in sections 169A and 169B of
the Act, EPA believes that the visibility protection requirements are
not “applicable requirements” within the meaning of
section 110(a)(2)(J) and that the SIP is not required to be revised
with respect to visibility protection merely due to promulgation of, or
revision to, these NAAQS.

Regardless, NYSDEC submitted and EPA has approved its Regional Haze SIP
(August 28, 2012, 77 FR 51915) as part of the SIP. 

Air quality modeling and reporting - Section 110(a)(2)(K)

Section 110(a)(2)(K) requires that SIPs provide for performing air
quality modeling for predicting effects on air quality of emissions from
any NAAQS pollutant and submission of such data to EPA upon request.

State Submittal:

Authorized pursuant to sections 3-0301, 19-0103, 19-0301, 19-0303 and
19-0305 of the ECL, NYSDEC performs modeling as necessary to assess the
degree of pollution in New York State.   The NYSDEC certifies that the
air quality modeling and analysis used in its SIPs complies with EPA's
guidance on the use of models in attainment demonstrations, and commits
to continue to use air quality models in accordance with EPA's approved
modeling guidance and to submit data to EPA if requested. 

EPA Evaluation:

NYSDEC has submitted the 1997 8-hour ozone attainment demonstration
supported by photochemical modeling.  This regional modeling effort was
performed by the Ozone Transport Commission (OTC) on behalf of the
member states including New York.  NYSDEC participated, as a member of
the OTC, in the various workgroups and the oversight committee
responsible for the regional modeling effort.  NYSDEC also submitted
modeling for the PM2.5 annual standard which EPA is in the process of
preparing a proposed rulemaking.  New York is attaining the PM2.5
24-hour standard and EPA made a final Clean Data Determination on
December 31, 2012 (77 FR 768867).  When this action is finalized, the
requirement for an attainment demonstration for the 24-hour standard
will be suspended for as long as the standard is being attained.  EPA
has determined that the State has adequate authority to develop and
implement plans and programs that fulfill the requirements of section
110(a)(2)(K) for 8-hr ozone and PM2.5 NAAQSs.  

Major stationary source permitting fees – Section 110(a)(2)(L)

Section 110(a)(2)(L) requires SIPs to require each major stationary
source to pay permitting fees to cover the cost of reviewing, approving,
implementing and enforcing a permit.

State Submittal:

EPA's full approval of the Title V program for New York became effective
on November 30, 2001.  In New York State, the Title V Permit Fee Program
is established in ECL section 19-0311 (c) requiring the NYSDEC to
promulgate regulations that, among other things, require applications to
identify and describe facility emissions in sufficient detail to
establish the basis for the fees and applicability of requirements of
the CAA.  ECL section 72-0303 requires major stationary sources to pay
operating permit program fees sufficient to support an appropriation
approved by the legislature for the direct and indirect costs associated
with the operating permit program established in section 19- 0311.

In addition, paragraph 201-6.5(a)(7) of 6 NYCRR subpart 201-6, the
NYSDEC's approved Title V program, specifically states that "The owner
and/or operator of a stationary source shall pay fees to the department
consistent with the fee schedule authorized by Subpart 482-2 of this
Title."

EPA Evaluation:

EPA has determined that the State has met the requirements for section
110(a)(2)(L).

Consultation with local entities -  Section 110 (a)(2)(M)  

Section 110(a)(2)(M) requires states to provide for consultation and
participation in SIP development by local political subdivisions
affected by the SIP.

State Submittal:

The NYSDEC established an Inter-agency Consultation Group (ICG) pursuant
to 6 NYCRR Part 240, "Conformity to State or Federal Implementation
Plans of Transportation Plans, Programs, and Projects Developed, Funded
or Approved under Title 23 U.S.C. or the Federal Transit Laws." Members
of this group include the Federal Transit Administration, Federal
Highway Administration, the New York State Department of Transportation,
the United States Environmental Protection Agency, the New York State
Department of Environmental Conservation, and several Metropolitan
Planning Organizations statewide. The ICG is central to the entire
transportation conformity process, and serves as the underpinning for
conformity determinations and as the primary mechanism for ensuring
early coordination and negotiation among all parties affected by
transportation conformity, including the general public, the business
community, and other interested parties.  Additional consultation and
participation by local political subdivisions are provided through the
SIP Task Force that was established on December 22, 2005, which consists
of officials from thirty-seven local governments and designated
organizations of elected officials. Meetings and conference calls are
held at appropriate times as SIPs are being developed or issues arise.

EPA Evaluation:

EPA has determined to find that the State has adequate authority and
procedures pursuant to ECL section 3-0303(3) that fulfill the
requirements of section 110(a)(2)(M).  

  See Comments of Midwest Environmental Defense Center, dated May 31,
2011. Docket # EPA-R05-OAR-2007-1179 (adverse comments on proposals for
three states in Region 5).  EPA notes that these public comments on
another proposal are not relevant to this rulemaking and do not have to
be directly addressed in this rulemaking.  EPA will respond to these
comments in the appropriate rulemaking action to which they apply.  

  For example, section 110(a)(2)(E) provides that states must provide
assurances that they have adequate legal authority under state and local
law to carry out the SIP; section 110(a)(2)(C) provides that states must
have a substantive program to address certain sources as required by
part C of the CAA; section 110(a)(2)(G) provides that states must have
both legal authority to address emergencies and substantive contingency
plans in the  event of such an emergency.

   For example, section 110(a)(2)(D)(i) requires EPA to be sure that
each state’s SIP contains adequate provisions to prevent significant
contribution to nonattainment of the NAAQS in other states.  This
provision contains numerous terms that require substantial rulemaking by
EPA in order to determine such basic points as what constitutes
significant contribution.  See “Rule To Reduce Interstate Transport of
Fine Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions
to Acid Rain Program; Revisions to the NOx SIP Call; Final Rule,” 70
FR 25162 (May 12, 2005) ( defining, among other things, the phrase
“contribute significantly to nonattainment”).

  

   See Id., 70 FR 25162, at 63 – 65 (May 12, 2005) (explaining
relationship between timing requirement of section 110(a)(2)(D) versus
section 110(a)(2)(I)).

   EPA issued separate guidance to states with respect to SIP
submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and 1997
PM2.5 NAAQS.  See “Guidance for State Implementation Plan (SIP)
Submissions to Meet Current Outstanding Obligations Under Section
110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5 National Ambient Air
Quality Standards,” from William T. Harnett, Director Air Quality
Policy Division OAQPS, to Regional Air Division Director, Regions I-X,
dated August 15, 2006.

  For example, implementation of the 1997 PM2.5 NAAQS required the
deployment of a system of new monitors to measure ambient levels of that
new indicator species for the new NAAQS.

   See “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,” from William T. Harnett, Director Air Quality Policy
Division, to Air Division Directors, Regions I – X, dated October 2,
2007 (the “2007 Guidance”).  

  Id., at page 2.

  Id., at attachment A, page 1.

  Id., at page 4. In retrospect, the concerns raised by commenters with
respect to EPA’s approach to some substantive issues indicates that
the statute is not so “self explanatory,” and indeed is sufficiently
ambiguous that EPA needs to interpret it in order to explain why these
substantive issues do not need to be addressed in the context of
infrastructure SIPs and may be addressed at other times and by other
means. 

  See “Guidance on SIP Elements Required Under Sections 110(a)(1) and
(2) for the 2006 24-Hour Fine Particle (PM2.5) National Ambient Air
Quality Standards (NAAQS),” from William T, Harnett, Director Air
Quality Policy Division, to Regional Air Division Directors, Regions I -
X, dated September 25, 2009 (the “2009 Guidance”).

  EPA has recently issued a SIP call to rectify a specific SIP
deficiency related to the SSM issue.  See, “Finding of Substantial
Inadequacy of Implementation Plan; Call for Utah State Implementation
Plan Revision,” 74 FR 21639 (April 18, 2011).

  EPA has recently utilized this authority to correct errors in past
actions on SIP submissions related to PSD programs.  See “Limitation
of Approval of Prevention of Significant Deterioration Provisions
Concerning Greenhouse Gas Emitting-Sources in State Implementation
Plans; Final Rule,” 75 FR 82536 (December 30, 2010).  EPA has
previously used its authority under CAA 110(k)(6) to remove numerous
other SIP provisions that the Agency determined it had approved in
error.  See 61 FR 38664 (July 25, 1996) and 62 FR 34641 (June 27, 1997)
(corrections to American Samoa, Arizona, California, Hawaii, and Nevada
SIPs); 69 FR 67062 (November 16, 2004) (corrections to California SIP);
and 74 FR 57051 (November 3, 2009) (corrections to Arizona and Nevada
SIPs).

  EPA has recently disapproved a SIP submission from Colorado on the
grounds that it would have included a director’s discretion provision
inconsistent with CAA requirements, including section 110(a)(2)(A).  See
75 FR 42342, 42344 (July 21, 2010) (proposed disapproval of director’s
discretion provisions); 76 FR  4540 (January 26, 2011) (final
disapproval of such provisions).  

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