[Federal Register Volume 85, Number 84 (Thursday, April 30, 2020)]
[Proposed Rules]
[Pages 23938-23940]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-08647]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2018-0647; FRL-10006-15-Region 2]


Approval of Air Quality Implementation Plans; New York; 
Infrastructure SIP Requirements for the 2012 PM2.5 NAAQS; Interstate 
Transport Provisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve elements of the New York State Implementation Plan (SIP) 
submittal regarding infrastructure requirements for interstate 
transport of pollution with respect to the 2012 annual fine particulate 
matter (PM2.5) National Ambient Air Quality Standard (NAAQS) 
or standard.

DATES: Written comments must be received on or before June 1, 2020.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R02-OAR-2018-0647 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.

FOR FURTHER INFORMATION CONTACT: Kenneth Fradkin, Environmental 
Protection Agency, Region 2, 290 Broadway, New York, New York 10007-
1866, at (212) 637-3702, or by email at fradkin.kenneth@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background
II. Summary of the SIP Revision and the EPA's Analysis
III. The EPA's Proposed Action
IV. Statutory and Executive Order Reviews

I. Background

A. General

    The EPA is proposing to approve elements of the 2012 
PM2.5 infrastructure SIP submission from the State of New 
York, received on November 30, 2016. Specifically, this rulemaking 
proposes to approve the portion of the submission addressing the 
interstate transport provisions for the 2012 PM2.5 NAAQS 
under Clean Air Act (CAA) section 110(a)(2)(D)(i)(I), otherwise known 
as the ``good neighbor'' provision.
    On December 14, 2012 (78 FR 3086), the EPA promulgated a revised 
primary NAAQS for PM2.5 for the annual standard. The revised 
standard was set at the level of 12 micrograms per cubic meter 
([micro]g/m\3\) calculated as an annual average, which is averaged over 
a three-year period.

B. EPA's Infrastructure Requirements

    Whenever the EPA promulgates a new or revised NAAQS, CAA section 
110(a)(1) requires states to make SIP submissions to provide for the 
implementation, maintenance, and enforcement of the NAAQS. This 
particular type of SIP submission is commonly referred to as an 
``infrastructure SIP.'' 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.\1\ Unless 
otherwise noted below, we are following that existing approach in 
acting on this submission. In addition, in the context of acting on 
such infrastructure

[[Page 23939]]

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.\2\ The EPA has other authority to 
address any issues concerning a state's implementation of the rules, 
regulations, consent orders, etc. that comprise its SIP.
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    \1\ 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 SIPs submitted on April 4, 
2013 for 2008 Ozone, October 3, 2013 for 2010 SO2, and 
November 30, 2016 for 2012 annual PM2.5 NAAQS that 
addressed the portion of the submissions not germane to transport 
(84 FR 54502, October 10, 2019).
    \2\ See U.S. Court of Appeals for the Ninth Circuit decision in 
Montana Environmental Information Center v. Thomas, 902 F.3d 971 
(Aug. 30, 2018).
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C. Interstate Pollution Transport Requirements

    Section 110(a)(2)(D)(i)(I) of the CAA requires a state's SIP to 
include adequate provisions prohibiting any emissions activity in one 
state that contributes significantly to nonattainment, or interferes 
with maintenance, of the NAAQS in any downwind state. The EPA sometimes 
refers to these requirements as prong 1 (significant contribution to 
nonattainment) and prong 2 (interference with maintenance) or jointly 
as the ``good neighbor'' provision of the CAA. On March 17, 2016, the 
EPA issued a memorandum providing information on the development and 
review of SIPs that address CAA section 110(a)(2)(D)(i)(I) for the 2012 
PM2.5 NAAQS (2016 guidance memorandum).\3\
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    \3\ ``Information on the Interstate Transport ``Good Neighbor'' 
Provision for the 2012 Fine Particulate Matter National Ambient Air 
Quality Standards under Clean Air Act section 110(a)(2)(D)(i)(I)'' 
(March 17, 2016). The document is available at https://www.epa.gov/sites/production/files/2016-08/documents/good-neighbor-memo_implementation.pdf . A copy is included in the docket for this 
rulemaking.
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II. Summary of the SIP Revision and the EPA's Analysis

    On November 30, 2016, New York submitted a revision to its SIP to 
satisfy the infrastructure requirements of section 110(a)(2) of the CAA 
for the 2012 PM2.5 annual standard, including the interstate 
transport requirements of section 110(a)(2)(D)(i)(I).
    This proposed rulemaking action addresses the portion of New York's 
infrastructure submittal for the 2012 PM2.5 annual NAAQS 
that pertains to interstate transport, CAA section 110(a)(2)(D)(i)(I) 
(referred to as prongs 1 and 2). On October 10, 2019 (84 FR 54502) the 
EPA acted on all other applicable elements of section 110(a)(2) for the 
2012 PM2.5 NAAQS, including 110(a)(2)(D)(i)(II) (prong 3), 
which relates to the prevention of significant deterioration (PSD), and 
110(a)(2)(D)(i)(II) (prong 4), which relates to visibility.
    The portion of New York's November 30, 2016 SIP submittal 
addressing the ``good neighbor'' provision indicates that New York 
considers CAA 110(a)(2)(D)(i)(I) to be adequately addressed based on 
the State's contribution analysis to determine whether emissions from 
New York State contribute significantly to nonattainment or 
interference with maintenance in another state.
    In their analysis, New York considered the areas that were 
designated \4\ as nonattainment for the 2012 PM2.5 NAAQS 
(i.e., California, Idaho, Ohio, and Pennsylvania), and the violating 
air monitors (i.e., in Cuyahoga County, Ohio and Allegheny County, 
Pennsylvania) located in states that New York was linked to as 
contributing by the 2012 EPA modeling performed for the Cross-State Air 
Pollution Rule (CSAPR).\5\ New York performed air modeling (i.e., 
Community Multiscale Air Quality (CMAQ) modeling) to determine 
projected annual PM2.5 Design Values (DVs) for year 2018, 
which included the violating monitors in both Cuyahoga County, Ohio and 
Allegheny County, Pennsylvania. Based on New York's modeling, which did 
not show violations of the NAAQS at either location in 2018, New York 
concluded that the ``good neighbor'' provision of the CAA was 
adequately addressed. The EPA notes that New York provided the results 
of its CMAQ modeling but did not include information necessary for the 
EPA to fully evaluate New York's modeling, including emissions and 
meteorological data used, and other relevant information to determine 
the adequacy of New York's modeling analysis.
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    \4\ Air Quality Designations for the 2012 Primary Annual Fine 
Particle (PM2.5) National Ambient Air Quality Standards 
(NAAQS) was published in the Federal Register at 80 FR 2206 (January 
15, 2015). Additional Air Quality Designations and Technical 
Amendment to Correct Errors in Air Quality Designations was 
published at 80 FR 18535 (April 7, 2015).
    \5\ Final June Revisions Rule Significant Contribution 
Assessment TSD, Docket ID No. EPA-HQ-OAR-2009-0491, June 2012. The 
document is available at https://www.epa.gov/sites/production/files/2017-06/documents/epa-hq-oar-2009-0491-4990.pdf
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    Since November 30, 2016, the date of New York's SIP submission, 
actual 2018 annual PM2.5 DVs show that there are no longer 
violating monitors in Cuyahoga County, Ohio, but that monitors in 
Allegheny County, Pennsylvania continue to show violations.
    In the submission, New York noted that in both the State of 
Pennsylvania's recommendation to the EPA for the 2012 PM2.5 
NAAQS, and the EPA's Technical Support Document (TSD) \6\ for the 2012 
PM2.5 NAAQS designations, PM2.5 exceedances in 
Allegheny County were identified as a local issue and were not linked 
to out of state emissions from New York. The EPA specifically limited 
the nonattainment area to Allegheny County only, even though an 
adjacent county (Cambria County) also contained a violating monitor at 
the time of the designation.
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    \6\ New York included EPA's TSD for the 2012 PM2.5 
NAAQS designations in Appendix B of the November 30, 2016 SIP 
submittal.
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    New York's submittal also described existing SIP-approved measures 
that apply to PM2.5 sources located within New York State.
    Based on our analysis, the EPA agrees with New York's general 
conclusion that the existing New York SIP is adequate to prevent 
sources located in New York State from significantly contributing to 
nonattainment or interfering with maintenance in another state with 
respect to the 2012 annual PM2.5 NAAQS. As discussed in more 
detail in the TSD for this rulemaking action, the EPA identified 
potential downwind nonattainment and maintenance receptors, and then 
evaluated them to determine if New York's emissions could potentially 
contribute to nonattainment and maintenance problems in 2021, the 
attainment year for moderate PM2.5 nonattainment areas. 
Specifically, the EPA analysis identified the following areas as 
potential nonattainment and maintenance areas: (i) 17 potential 
receptors in California; (ii) one potential receptor in Shoshone 
County, Idaho, and (iii) one potential receptor in Allegheny County, 
Pennsylvania. For the potential receptors in California and Idaho, 
based on the EPA's evaluation of the distance between New York and the 
potential receptors, as well as wind direction, and other supporting 
information, the EPA proposes to conclude that New York's emissions do 
not significantly impact the potential receptors in California or 
Idaho. For the potential receptor in Allegheny County, Pennsylvania, as 
discussed in greater detail in the TSD for this action, the EPA expects 
the air quality to improve to the point where the monitor will not be a 
nonattainment or maintenance receptor by 2021 and is therefore unlikely 
to be a receptor for purposes of interstate transport.
    Based on our analysis, the EPA agrees with New York's conclusion 
that the existing New York SIP is adequate to prevent sources in New 
York from significantly contributing to nonattainment or interfering 
with

[[Page 23940]]

maintenance in another state with respect to the 2012 annual 
PM2.5 NAAQS. The EPA believes there is sufficient 
information to conclude that New York's SIP contains adequate 
provisions without further consideration of New York's modeling that 
was provided in their November 30, 2016 submittal.
    A detailed summary of the EPA's review and rationale for the 
proposed approval of this SIP revision as meeting CAA section 
110(a)(2)(D)(i)(I) for the 2012 annual PM2.5 NAAQS may be 
found in the TSD.

III. The EPA's Proposed Action

    The EPA is proposing to approve the portions of New York's November 
30, 2016 SIP submittal addressing interstate transport for the 2012 
annual PM2.5 NAAQS as meeting the requirements in section 
110(a)(2)(D)(i)(I) of the CAA. The EPA is soliciting public comments on 
the issues discussed in this document. These comments will be 
considered before taking final action.

IV. Statutory and Executive Order Reviews

    Under the CAA, 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 CAA. 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 proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866.
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because this action does not involve technical standards; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this proposed rule, addressing New York's interstate 
transport requirements for the 2012 annual PM2.5 NAAQS is 
not approved to apply on any Indian reservation land or in any other 
area where EPA or an Indian tribe has demonstrated that a tribe has 
jurisdiction. In those areas of Indian country, the rule does not have 
tribal implications and will not impose substantial direct costs on 
tribal governments or preempt tribal law as specified by Executive 
Order 13175 (65 FR 67249, November 9, 2000).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Particulate matter, Reporting 
and recordkeeping requirements.

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

    Dated: April 19, 2020.
Peter Lopez,
Regional Administrator,Region 2.
[FR Doc. 2020-08647 Filed 4-29-20; 8:45 am]
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