[Federal Register Volume 81, Number 119 (Tuesday, June 21, 2016)]
[Proposed Rules]
[Pages 40229-40235]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-14523]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R02-OAR-2016-0320; FRL-9947-96-Region 2]
Disapproval of Interstate Transport Requirements for the 2008
Ozone National Ambient Air Quality Standards; New York
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to partially approve and partially disapprove
elements of New York's State Implementation Plan (SIP) submission
regarding the infrastructure requirements of section 110(a)(1) and (2)
of the Clean Air Act (CAA) for the 2008 ozone national ambient air
quality standards (NAAQS). The infrastructure requirements are designed
to ensure that the structural components of each state's air quality
management program are adequate to meet the state's responsibilities
under the CAA. This action pertains specifically to infrastructure
requirements concerning interstate transport provisions.
DATES: Comments must be received on or before July 21, 2016.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R02-OAR-2016-0320 at http://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. 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. 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, 290 Broadway, 25th Floor, New York, NY 10007-1866,
(212) 637-3702, or by email at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
II. EPA's Review
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews
I. Background
Section 110(a) of the CAA imposes an obligation upon states to
submit SIPs that provide for the implementation, maintenance and
enforcement of a new or revised NAAQS within 3 years following the
promulgation of that NAAQS. Section 110(a)(2) lists specific
requirements that states must meet in these SIP submissions, as
applicable. The EPA refers to this type of SIP submission as the
``infrastructure'' SIP because the SIP ensures that states can
implement, maintain and enforce the air standards. Within these
requirements, section 110(a)(2)(D)(i) contains requirements to address
interstate transport of NAAQS pollutants. A SIP revision submitted for
this sub-section is referred to as an ``interstate transport SIP.''
This rulemaking proposes action on the CAA section 110(a)(2)(D)(i)
requirements of these submissions. In particular, section
110(a)(2)(D)(i)(I) requires SIPs to contain adequate provisions to
prohibit emissions from the state that will contribute significantly to
nonattainment of the NAAQS in any other state (commonly referred to as
prong 1), or interfere with maintenance of the NAAQS in any other state
(prong 2). Section 110(a)(2)(D)(i)(II) requires that infrastructure
SIPs include provisions prohibiting any source or other type of
emissions activity in one state from interfering with measures required
to prevent significant deterioration (PSD) of air quality (prong 3) and
to protect visibility (prong 4) in another state.
On March 12, 2008, EPA strengthened the NAAQS for ozone. EPA
revised the level of the 8-hour ozone NAAQS from 0.08 parts per million
(ppm) to 0.075 ppm. EPA also revised the secondary 8-hour standard to
the level of 0.075 ppm making it identical to the revised primary
standard. Infrastructure SIPs addressing the revised standard,
[[Page 40230]]
including the interstate transport requirements, were due March 12,
2011. On April 4, 2013 the New York State Department of Environmental
Conservation (NYSDEC) submitted a revision to its SIP to address
requirements under section 110(a)(2) of the CAA (the infrastructure
requirements) related to the 2008 ozone NAAQS, including interstate
transport.
This proposed action pertains only to the portion of the SIP
submittal addressing section 110(a)(2)(D)(i)(I)(prongs 1 and 2), and
section 110(a)(2)(D)(i)(II)(prong 4). EPA will address the other
portions of the April 4, 2013 infrastructure SIP submittal, including
section 110(a)(2)(D)(i)(II)(prong 3), in another action.
II. EPA's Review
Section 110(a)(2)(D) of the Clean Air Act is divided into two
subsections: 110(a)(2)(D)(i) and 110(a)(2)(D)(ii). The first of these,
110(a)(2)(D)(i), in turn, contains four ``prongs'' the first two of
which appear in 110(a)(2)(D)(i)(I) and the second two of which appear
in 110(a)(2)(D)(i)(II). The two prongs in 110(a)(2)(D)(i)(I) require
New York's SIP to contain adequate provisions prohibiting any source or
other type of emissions activity within the State from emitting any air
pollutants in amounts which will contribute significantly to
nonattainment in any other state with respect to any primary or
secondary NAAQS (prong 1), or interfere with maintenance by any other
state with respect to any primary or secondary NAAQS (prong 2). The two
prongs in 110(a)(2)(D)(i)(II) prohibit any source or other type of
emissions activity within the State from emitting any air pollutants in
amounts which will interfere with measures required to be included in
the applicable implementation plan for any other state under part C to
prevent significant deterioration of air quality (prong 3) or to
protect visibility (prong 4).
Section 110(a)(2)(D)(i)(I)--Prongs 1 and 2
In its SIP submission with respect to section 110(a)(2)(D)(i)(I)
(prongs 1 and 2) for the 2008 ozone NAAQS, New York cited various state
rules including its nitrogen oxides (NOX) Reasonably
Available Control Technology (RACT) regulations to reduce emissions of
NOX from its major stationary sources; NOX RACT
Rules for Cement Plants, Glass Plants, Asphalt Production, and other
general emission sources; volatile organic carbon (VOC) regulations
that limit emissions from major and area sources; and the California
low emission vehicle program provisions under CAA Section 177.
In its submittal, New York indicated that, based on preliminary
emissions inventory work, the state would achieve significant
NOX and VOC reductions from existing emission reduction
programs. New York estimated that, between 2007 and 2020, it will
reduce NOX emissions by 46.6% (from 579,471 tons to 328,457
tons). Specifically, New York estimated that NOX RACT
limitations will result in NOX emission reductions of 28,796
tons per year, or 78.9 tons per day from 2007 levels. With regard to
VOCs, New York estimates that, between 2007 and 2020, it will reduce
VOC emissions by 20.8% (from 484,440 tons in 2007 down to 368,784 tons
in 2020).
New York further cited preliminary screening modeling performed for
the Ozone Transport Commission (OTC) Modeling Committee that assumed a
48-68% decrease in NOX emissions and a 30% reduction in VOC
emissions in New York by 2020. The modeling showed that the only
monitors ``predicted'' to be nonattainment (outside the New York
metropolitan nonattainment area) were located in the Philadelphia
metropolitan area. New York asserted that the Philadelphia monitors
would be most significantly affected by emissions from within
Pennsylvania and other upwind states. New York indicated that they used
the Community Multi-scale Air Quality (CMAQ) and the California
Photochemical Grid (CALGRID) models for their analysis.
New York also noted that its participation in the NOX
trading programs promulgated in EPA's Clean Air Interstate Rule (CAIR)
addressed interstate transport requirements with respect to the 1997
ozone NAAQS. Although the State acknowledges that CAIR was remanded by
the U.S. Court of Appeals for the District of Columbia Circuit (D.C.
Circuit) in North Carolina v. EPA, 531 F.3d 896 (2008), the State
indicated that it could rely on CAIR emission reductions to address
interstate transport requirements for the 2008 ozone NAAQS because EPA
had not yet (at the time of the submittal) developed a valid
replacement rule. New York notes that EPA's Cross State Air Pollution
Rule (CSAPR),\1\ which EPA intended to replace CAIR, was vacated by the
D.C. Circuit in August 2012, and that court instructed EPA to continue
implementation of CAIR until the EPA promulgates a valid
replacement.\2\ New York notes that CAIR imposed an effective emissions
rate of 0.094 lbs NOX/mmBTU on New York sources. New York
also compares its 2011 ozone season emission NOX rates with
NOX rates achieved in other states, noting that New York
electric generating units (EGUs) operated at an actual NOX
rate of 0.088 lbs NOX/mmBTU. For these reasons, New York
concluded that it has satisfied its obligations pursuant to section
110(a)(2)(D)(i)(I) with respect to the 2008 ozone NAAQS.
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\1\ 76 FR 48208 (August 8, 2011).
\2\ CSAPR was promulgated by EPA to help states reduce air
pollution and attain and maintain CAA standards, including the 1997
ozone NAAQS and the 1997 and 2006 PM2.5 NAAQS. On August
21, 2012, the D.C. Circuit vacated CASPR. See EME Homer City
Generation, L.P. v. EPA, 696 F.3d 7, 38 (D.C. Circuit 2012). The
Court ordered EPA to continue administering CAIR pending the
promulgation of a valid replacement for CSAPR. Id. at 60.
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Finally, New York's SIP submission acknowledges that the state has
contributed to downwind nonattainment and maintenance problems in New
Jersey, Connecticut, Maryland, Massachusetts, Pennsylvania, Rhode
Island, Virginia, and the District of Columbia, citing contribution
analysis conducted when the EPA promulgated CSAPR. New York contends
that because it shares nonattainment areas with New Jersey and
Connecticut, and because the other states to which it has been linked
are members of the Ozone Transport Commission, the state will address
its obligations with respect to its contribution to nonattainment and
interference with maintenance of the NAAQS in these states through the
other statutory processes.
Although New York's analysis claims that there will be substantial
emission reductions from existing programs from 2007 to 2020, New York
admits that those reductions are based on preliminary estimates that
have not been updated since New York's March 2013 submission. Nor has
the state demonstrated that the emission rates at which EGUs in the
state operated are the result of enforceable emission limits or other
mandatory programs such that the emission rates will not increase.
Moreover, while the State asserts that it will achieve a 46.6%
NOX reduction, and 20.8% VOC reduction during that time
period, New York's modeling used higher levels of assumed reductions,
assuming 48% NOX reductions and 30% VOC reductions without
demonstrating how it will achieve those higher levels of emissions
reductions. Even assuming these projected emissions reductions were
reliable, New York's modeling shows ``predicted'' nonattainment in
[[Page 40231]]
Connecticut, New Jersey, and Pennsylvania. New York does not adequately
explain how it concludes that New York emissions do not significantly
contribute to these predicted exceedances. The fact that the State
might have certain planning obligations with respect to areas in these
states under other statutory provisions does not absolve the State of
its obligation to address the planning requirements of section
110(a)(2)(D)(i)(I).
By only evaluating areas with predicted nonattainment in 2020, New
York has also failed to address the State's potential interference with
maintenance of the 2008 ozone NAAQS in downwind states. In remanding
CAIR to the EPA in the North Carolina decision, the D.C. Circuit
explained that the regulating authority must give the ``interfere with
maintenance'' clause of section 110(a)(2)(D)(i)(I) ``independent
significance'' by evaluating the impact of upwind state emissions on
downwind areas that, while currently in attainment, are at risk of
future nonattainment, considering historic variability. 531 F.3d at
910-911. New York's analysis does not give the ``interfere with
maintenance'' clause of section 110(a)(2)(D)(i)(I) independent
significance because its analysis did not attempt to evaluate the
potential impact of New York emissions on areas that are currently
measuring clean data, but that may have issues maintaining that air
quality.
Furthermore, the 2020 projection year New York chose for its
modeling and by which the State asserts it will achieve substantial
NOX reductions is two years later than the moderate area
attainment date for the 2008 ozone NAAQS, which is July 11, 2018. Among
other things, the court's decision in North Carolina, clarified that,
to the extent possible, upwind emissions reductions necessary to
address the interstate transport of air pollution should be aligned
with the attainment dates for downwind nonattainment areas. 531 F.3d at
912. New York has not demonstrated either that the State's SIP is
adequate to address interstate transport by the downwind attainment
date for the 2008 ozone NAAQS or that emissions reductions necessary to
address interstate transport are not practically feasible until 2020.
Among the emissions reductions cited by New York in its SIP, the
State cites its participation in CAIR as a control measure that results
in control of NOX emissions within the State. New York notes
that under CAIR, New York EGUs were subject to both the ozone season
NOX emissions trading program and the annual NOX
emissions trading program. The CAIR ozone season NOX
emissions trading program was intended to address interstate transport
of air pollution for the 1997 ozone NAAQS. The CAIR annual
NOX emissions trading program, along with the annual sulfur
dioxide (SO2) trading program, was intended to address
interstate transport of air pollution for the 1997 fine particulate
matter (PM2.5) NAAQS.
Although New York correctly notes that the North Carolina decision
kept CAIR in place temporarily while EPA developed a replacement, and
that the D.C. Circuit later issued a decision vacating that
replacement, CSAPR, and requiring continued implementation of CAIR, the
EPA does not agree that it is appropriate to rely on CAIR for purposes
of addressing interstate transport with respect to the 2008 ozone
NAAQS. First, EPA designed CAIR to address the 1997 ozone NAAQS, but
not the more stringent 2008 ozone standard at issue here. It is not
sufficient to merely cite evidence of compliance with older programs
such as CAIR or measures implemented for prior ozone NAAQS as a means
for satisfying interstate transport obligations for the 2008 ozone
NAAQS.
More importantly, in North Carolina, the D.C. Circuit held that
CAIR was ``fundamentally flawed,'' 531 F.3d at 929, in part because
CAIR did not satisfy the statutory requirement to ``achieve something
measurable towards the goal of prohibiting sources `within the State'
from contributing to nonattainment or interfering with maintenance in
`any other State.' '' Id. at 908. Accordingly, the D.C. Circuit held in
EME Homer City Generation, L.P. v. EPA, ``when our decision in North
Carolina deemed CAIR to be an invalid effort to implement the
requirements of the good neighbor provision, that ruling meant that the
initial approval of the CAIR SIPs was in error at the time it was
done.'' 795 F.3d 118, 133 (2015). For these reasons, the EPA cannot now
approve an interstate transport SIP addressing any NAAQS based on the
state's participation in CAIR.
Regardless of CAIR's infirmities, the rule is no longer being
implemented. Subsequent to New York's submission of its SIP, on April
29, 2014, the U.S. Supreme Court reversed that D.C. Circuit decision
vacating CSAPR and remanded the case to the D.C. Circuit for further
proceedings. EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584
(2014). On October 23, 2014, the D.C. Circuit granted our motion to
lift the judicial stay on CSAPR and delay compliance deadlines by three
years. EME Homer City Generation, L.P. v. EPA, No. 11-1302 (D.C. Cir.
Oct. 23, 2014), Order at 3. Consistent with the Court's order we issued
an interim final rule amending CSAPR so that compliance could begin in
an orderly manner on January 1, 2015 (79 FR 71663, December 3, 2014),
replacing CAIR. On July 28, 2015, the D.C. Circuit issued its decision
on the issues raised on remand from the Supreme Court. The court denied
all of petitioners' facial challenges to CSAPR, but remanded several
emissions budgets to the EPA for reconsideration. EME Homer City
Generation, L.P v. EPA, 795 F.3d 118 (D.C. Cir. 2015). A final rule
making the revised CSAPR implementation schedule permanent was issued
on March 14, 2016. 81 FR 13275. Accordingly, CAIR implementation ended
in 2014 and CSAPR implementation began in 2015. States and the EPA are
no longer implementing the CAIR trading programs. Thus, it is no longer
appropriate for states to rely on the emissions reductions achieved by
compliance with CAIR to satisfy emission reduction obligations.
EPA has recently shared technical information with states to
facilitate their efforts to address interstate transport requirements
for the 2008 ozone NAAQS. EPA developed this technical information
following the same approach used to evaluate interstate contribution in
CSAPR in order to support the recently proposed Cross-State Air
Pollution Rule Update for the 2008 Ozone NAAQS, 80 FR 75706 (Dec. 3,
2015) (``CSAPR Update Rule''). In CSAPR, EPA used detailed air quality
analyses to determine whether an eastern state's contribution to
downwind air quality problems was at or above specific thresholds. If a
state's contribution did not exceed the specified air quality screening
threshold, the state was not considered ``linked'' to identified
downwind nonattainment and maintenance receptors and was therefore not
considered to significantly contribute or interfere with maintenance of
the standard in those downwind areas. If a state exceeded that
threshold, the state's emissions were further evaluated, taking into
account both air quality and cost considerations, to determine what, if
any, emissions reductions might be necessary. For the reasons stated
below, we believe it is appropriate to use the same approach we used in
CSAPR to establish an air quality screening threshold for the
evaluation of interstate transport requirements for the 2008 ozone
standard.
In CSAPR, EPA proposed an air quality screening threshold of one
[[Page 40232]]
percent of the applicable NAAQS and requested comment on whether one
percent was appropriate. EPA evaluated the comments received and
ultimately determined that one percent was an appropriately low
threshold because there were important, even if relatively small,
contributions to identified nonattainment and maintenance receptors
from multiple upwind states. In response to commenters who advocated a
higher or lower threshold than one percent, EPA compiled the
contribution modeling results for CSAPR to analyze the impact of
different possible thresholds for the eastern United States. EPA's
analysis showed that the one-percent threshold captures a high
percentage of the total pollution transport affecting downwind states,
while the use of higher thresholds would exclude increasingly larger
percentages of total transport. For example, at a five percent
threshold, the majority of interstate pollution transport affecting
downwind receptors would be excluded. In addition, EPA determined that
it was important to use a relatively lower one-percent threshold
because there are adverse health impacts associated with ambient ozone
even at low levels. EPA also determined that a lower threshold such as
0.5 percent would result in relatively modest increases in the overall
percentages of fine particulate matter and ozone pollution transport
captured relative to the amounts captured at the one-percent level. EPA
determined that a ``0.5 percent threshold could lead to emission
reduction responsibilities in additional states that individually have
a very small impact on those receptors--an indicator that emission
controls in those states are likely to have a smaller air quality
impact at the downwind receptor. We are not convinced that selecting a
threshold below one percent is necessary or desirable.''
In the final CSAPR, EPA determined that one percent was a
reasonable choice considering the combined downwind impact of multiple
upwind states in the eastern United States, the health effects of low
levels of fine particulate matter and ozone pollution, and EPA's
previous use of a one-percent threshold in CAIR. EPA used a single
``bright line'' air quality threshold equal to one percent of the 1997
8-hour ozone standard, or 0.08 ppm. The projected contribution from
each state was averaged over multiple days with projected high modeled
ozone, and then compared to the one-percent threshold. We concluded
that this approach for setting and applying the air quality threshold
for ozone was appropriate because it provided a robust metric, was
consistent with the approach for fine particulate matter used in CSAPR,
and because it took into account, and would be applicable to, any
future ozone standards below 0.08 ppm. EPA has subsequently proposed to
use the same threshold for purposes of evaluating interstate transport
with respect to the 2008 ozone standard in the CSAPR Update Rule.
On August 4, 2015, EPA issued a Notice of Data Availability (NODA)
containing air quality modeling data that applies the CSAPR approach to
contribution projections for the year 2017 for the 2008 8-hour ozone
NAAQS.\3\ The modeling data released in this NODA was also used to
support the proposed CSAPR Update Rule. The moderate area attainment
date for the 2008 ozone standard is July 11, 2018. In order to
demonstrate attainment by this attainment deadline, states will use
2015 through 2017 ambient ozone data. Therefore, EPA proposed that 2017
is an appropriate future year to model for the purpose of examining
interstate transport for the 2008 ozone NAAQS. EPA used photochemical
air quality modeling to project ozone concentrations at air quality
monitoring sites to 2017 and estimated state-by-state ozone
contributions to those 2017 concentrations. This modeling used the
Comprehensive Air Quality Model with Extensions (CAMx version 6.11) to
model the 2011 base year and the 2017 future base case emissions
scenarios to identify projected nonattainment and maintenance sites
with respect to the 2008 ozone NAAQS in 2017. EPA used nationwide
state-level ozone source apportionment modeling (CAMx Ozone Source
Apportionment Technology/Anthropogenic Precursor Culpability Analysis
technique) to quantify the contribution of 2017 base case
NOX and VOC emissions from all sources in each state to the
2017 projected receptors. The air quality model runs were performed for
a modeling domain that covers the 48 contiguous United States and
adjacent portions of Canada and Mexico. The NODA and the supporting
technical support documents have been included in the docket for this
SIP action. The modeling data released in the NODA on August 4, 2015
and the CSAPR Update are the most up-to-date information EPA has
developed to inform our analysis of upwind state linkages to downwind
air quality problems. As discussed in the CSAPR Update proposal for the
2008 ozone NAAQS, the air quality modeling (1) identified locations in
the U.S. where EPA expects nonattainment or maintenance problems in
2017 for the 2008 ozone NAAQS (i.e., nonattainment or maintenance
receptors), and (2) quantified the projected contributions of emissions
from upwind states to downwind ozone concentrations at those receptors
in 2017 (80 FR 75706, 75720-30, December 3, 2015). Consistent with
CSAPR, EPA proposed to use a threshold of 1 percent of the 2008 ozone
NAAQS (0.75 parts per billion) to identify linkages between upwind
states and downwind nonattainment or maintenance receptors. EPA
proposed that eastern states with contributions to a specific receptor
that meet or exceed this screening threshold are considered ``linked''
to that receptor, and were analyzed further to quantify available
emissions reductions necessary to address interstate transport to these
receptors.
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\3\ Notice of Availability of the Environmental Protection
Agency's Updated Ozone Transport Modeling Data for the 2008 Ozone
National Ambient Air Quality Standard (NAAQS), 80 FR 46271 (August
4, 2015).
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The results of EPA's air quality modeling with respect to New York
is summarized in Table 1 below.\4\ That modeling indicates that
emissions from New York are linked to both nonattainment and
maintenance receptors in downwind states.
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\4\ These data also appear in Table V.D-1 of the CSAPR Update
proposal. See 80 FR at 75727.
Table 1--CSAPR Update Proposal Contributions to Downwind Nonattainment and Maintenance Areas
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Downwind
Largest contribution Largest contribution nonattainment Downwind maintenance receptors located in
State to nonattainment to maintenance receptors located in states
states
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New York........................... 16.96 ppb............ 17.21 ppb............ Connecticut.......... Connecticut and New Jersey.
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[[Page 40233]]
As noted above, New York provided information documenting
significant emission reductions that have been made throughout the
state beginning in 1995 and additional emission reductions expected to
occur by 2020. These controls have resulted in significant reductions
in NOX emissions in New York and undoubtedly have reduced
the amount of transported pollution to other states. However, many of
the emission reductions achieved through these measures were accounted
for in the EPA's modeling baseline of 2011 used to evaluate interstate
transport with respect to the 2008 ozone NAAQS, and further accounted
for in EPA's modeling projections to 2017. Accordingly, the most recent
technical analysis available to the EPA contradicts New York's
conclusion that the state's SIP contains adequate provisions to address
interstate transport as to the 2008 ozone standard. Furthermore, New
York did not demonstrate how these rules and data developed for
different purposes provide sufficient controls on emissions to address
interstate transport for the 2008 ozone NAAQS. Despite the substantial
emissions reductions achieved by New York, we have subsequently
published information and proposed an update to CSAPR that addresses
the 2008 ozone NAAQS that demonstrates New York emissions still have an
impact on other states.
EPA is proposing to disapprove the 2008 ozone New York
Infrastructure SIP submission for both the prong 1 and prong 2
requirements of CAA section 110(a)(2)(D)(i)(I). As explained above, the
SIP submission does not provide an adequate technical analysis
demonstrating that the state's SIP contains adequate provisions
prohibiting emissions that will significantly contribute to
nonattainment or interfere with the 2008 ozone NAAQS in any other
state. Moreover, EPA's most recent modeling indicates that emissions
from New York are projected to significantly contribute to downwind
nonattainment and maintenance receptors in other states.\5\
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\5\ New York and others interested parties have provided
comments on both the NODA and proposed CSAPR Update Rule. See Docket
No. EPA-HQ-OAR-2015-0500 at http://www.regulations.gov. We will
consider these comments in final rulemaking on the CSAPR Update
Rule. Even absent this data, New York's SIP failed to adequately
address the requirements of CAA section 110(a)(2)(D)(i)(I) with
respect to the 2008 ozone NAAQS.
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Section 110(a)(2)(D)(i)(II)--Prong 4
In this action, EPA is proposing that New York satisfies the
110(a)(2)(D)(i)(II) requirement for visibility (or prong 4). New York
addresses visibility protection requirements for the 2008 ozone NAAQS
through its Regional Haze SIP. EPA approved New York's Regional Haze
SIP submittal (August 28, 2012, 77 FR 51915) as part of New York's SIP.
The regional haze rule 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 ensures that
emissions from sources within the State are not interfering with
measures to protect visibility in other states.
EPA's notes that New York's Regional Haze SIP was supplemented with
a FIP by EPA for three units at two sources where EPA disapproved the
Best Available Retrofit Technology (BART) determinations for those
units. In our August 2012 rulemaking, EPA promulgated a FIP to address
our disapproval of BART determinations for Roseton Generating Station
Units 1 and 2 and Danskammer Generating Station's Unit 4. 77 FR 51915
(Aug. 28, 2012). The additional emission reductions under the FIP were,
however, not necessary to demonstrate that New York met its share of
the emissions reductions sufficient to meet reasonable progress goals
(found at 40 CFR 51.308 (d)(1)) at Class I areas affected by New York's
emissions. EPA fully approved that aspect of New York's Regional Haze
SIP. EPA's analysis demonstrating that New York had met its share of
its regional emissions reductions can be found in the Regional Haze
Technical Support document, which is available in the docket for the
rule.
Since EPA's action on New York's Regional Haze Plan, the Title V
permits for Danskammer and Roseton have been updated by New York to
incorporate the FIP limits established by EPA. The Title V permit for
Danskammer was submitted to EPA as a SIP revision on August 20, 2015.
III. What action is EPA taking?
EPA is proposing to disapprove the portion of the April 4, 2013 New
York SIP submittal pertaining to the requirements of CAA section
110(a)(2)(D)(i)(I) regarding interstate transport of air pollution that
will significantly contribute to nonattainment or interfere with
maintenance of the 2008 ozone NAAQS (i.e., CAA section 110
(a)(2)(D)(i)(I) (prongs 1 and 2)) in other states. Disapproval will
establish a 2-year deadline for EPA to promulgate a FIP to address New
York's CAA interstate transport requirements pertaining to significant
contribution to nonattainment and interference with maintenance unless
the State submits, and EPA approves a SIP that meets these requirements
(per section 110(c)(1) of the CAA). Disapproval does not start a
mandatory sanctions clock pursuant to CAA section 179 because this
action does not pertain to either a part D plan for nonattainment areas
required under CAA section 110(a)(2)(I) or a SIP call pursuant to CAA
section 110(k)(5).
EPA is proposing approval of the portion of the April 4, 2013 New
York SIP submittal pertaining to the CAA section 110(a)(2)(D)(i)(II)
requirement for visibility (or prong 4).
EPA is soliciting public comments on the issues discussed in this
proposal. These comments will be considered before EPA takes final
action. Interested parties may participate in the Federal rulemaking
procedure by following the directions in the ADDRESSES section of this
Federal Register.
IV. Statutory and Executive Order Reviews
a. Executive Order 12866, Regulatory Planning and Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order (E.O.) 12866 (58 FR 51735, October 4, 1993)
and is therefore not subject to review under the E.O.
b. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.,
because this proposed partial approval and partial disapproval of SIP
revisions under CAA section 110 will not in-and-of itself create any
new information collection burdens but simply proposes to approve
certain State requirements, and to disapprove certain other State
requirements, for inclusion into the SIP. Burden is defined at 5 CFR
1320.3(b).
c. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. For purposes of assessing the impacts of today's rule on
small entities, small entity is defined as: (1) A small business as
defined by the Small Business
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Administration's (SBA) regulations at 13 CFR 121.201; (2) a small
governmental jurisdiction that is a government of a city, county, town,
school district or special district with a population of less than
50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
After considering the economic impacts of today's proposed rule, we
certify that this proposed action will not have a significant impact on
a substantial number of small entities. This proposed rule does not
impose any requirements or create impacts on small entities. This
proposed partial SIP approval and partial SIP disapproval under CAA
section 110 will not in-and-of itself create any new requirements but
simply proposes to approve certain State requirements, and to
disapprove certain other State requirements, for inclusion into the
SIP. Accordingly, it affords no opportunity for EPA to fashion for
small entities less burdensome compliance or reporting requirements or
timetables or exemptions from all or part of the rule. Therefore, this
action will not have a significant economic impact on a substantial
number of small entities.
We continue to be interested in the potential impacts of this
proposed rule on small entities and welcome comments on issues related
to such impacts.
d. Unfunded Mandates Reform Act
This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for state, local, or tribal governments or the private
sector. EPA has determined that the proposed partial approval and
partial disapproval action does not include a Federal mandate that may
result in estimated costs of $100 million or more to either state,
local, or tribal governments in the aggregate, or to the private
sector. This action proposes to approve certain pre-existing
requirements, and to disapprove certain other pre-existing
requirements, under state or local law, and imposes no new
requirements. Accordingly, no additional costs to state, local, or
tribal governments, or to the private sector, result from this proposed
action.
e. Executive Order 13132, Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132, because it merely proposes to
approve certain state requirements, and to disapprove certain other
State requirements, for inclusion into the SIP and does not alter the
relationship or the distribution of power and responsibilities
established in the Clean Air Act. Thus, Executive Order 13132 does not
apply to this action.
f. Executive Order 13175, Coordination With Indian Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP
on which EPA is proposing action would not apply in Indian country
located in the state, and EPA notes that it will not impose substantial
direct costs on tribal governments or preempt tribal law. Thus,
Executive Order 13175 does not apply to this proposed action.
g. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997)
as applying only to those regulatory actions that concern health or
safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
proposed action is not subject to Executive Order 13045 because it is
not an economically significant regulatory action based on health or
safety risks subject to Executive Order 13045 (62 FR 19885, April 23,
1997). This proposed partial approval and partial disapproval under CAA
section 110 will not in-and-of itself create any new regulations but
simply proposes to approve certain state requirements, and to
disapprove certain other state requirements, for inclusion into the
SIP.
h. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution, or Use
This proposed rule is not subject to Executive Order 13211 (66 FR
28355, May 22, 2001) because it is not a significant regulatory action
under Executive Order 12866.
i. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
EPA believes that this proposed action is not subject to
requirements of Section 12(d) of NTTAA because application of those
requirements would be inconsistent with the Clean Air Act.
j. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Population
Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA lacks the discretionary authority to address environmental
justice in this proposed action. In reviewing SIP submissions, EPA's
role is to approve or disapprove state choices, based on the criteria
of the Clean Air Act. Accordingly, this action merely proposes to
partially approve and partially disapprove certain state requirements
for inclusion into the SIP under section 110(a) of the CAA and will not
in-and-of itself create any new requirements. Accordingly, it does not
provide EPA with the discretionary
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authority to address, as appropriate, disproportionate human health or
environmental effects, using practicable and legally permissible
methods, under Executive Order 12898.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Incorporation by reference, Nitrogen dioxide, Ozone, Sulfur
dioxide, Reporting and recordkeeping requirements, Volatile organic
compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: June 13, 2016.
Judith A. Enck,
Regional Administrator, Region 2.
[FR Doc. 2016-14523 Filed 6-20-16; 8:45 am]
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