Section 4.0 Clean Air Act Section 110(a) Measures

4.1 SIP Requirements

In all SIP submissions, pursuant to CAA sections 110(a)(1) and (2), states are required to address basic State Implementation Plan (SIP) requirements related to the attainment of new or revised National Ambient Air Quality Standards (NAAQS), including emission inventories, monitoring and modeling to assure attainment, maintenance and enforcement of the standards. SIPs meeting the requirements of CAA sections 110(a)(1) and (2) must be submitted within three years after promulgation of a new or revised standard.

As a consequence of a consent decree resulting from an Earth Justice lawsuit against EPA for failure to take action against States that had not made SIP submissions that met the requirements of CAA sections 110(a)(1) and (2), EPA was obligated to make official findings whether States have made SIP submissions required to meet CAA section 110(a)(2)(D)(i) relating to interstate transport by no later than March 15, 2005. Additionally, the consent decree obligates EPA to make a determination whether States have made submissions necessary to meet the remaining 110(a)(1) and (2) requirements for the PM_2.5 NAAQS by October 5, 2008.

Section 110(a)(1) contains the general requirements for submitting a SIP to address new or revised primary NAAQS within three years of their promulgation. Section 110(a)(2) contains specific elements to be included in these plans. Pursuant to EPA guidance dated October 2, 2007 (See Appendix A), this submission addresses each of the required elements of CAA section 110(a)(2), and affirms that New York State's SIPs meet the requirements of CAA sections 110(a)(1) and (2).

Pursuant to EPA guidance issued on October 2, 2007, SIPs must include the following elements of CAA section 110(a)(2):

Enforceable Emission Limitations and Other Control Measures (110(a)(2)(A))
Ambient Air Quality Monitoring, Compilation, Analysis and Reporting (110(a)(2)(B))
Enforcement and Stationary Source Permitting (110(a)(2)(C))
Interstate Transport (110(a)(2)(D))
Assurance of Adequate Resources (110(a)(2)(E))
Stationary Source Monitoring System and Reporting (110(a)(2)(F))
Emergency Powers and Contingency Plans (110(a)(2)(G))
Authority for SIP Revisions for Revised NAAQS (110(a)(2)(H))
Authority for SIP Revisions for New Nonattainment Areas (110(a)(2)(I))
Consultation, Public Notification and Prevention of Significant Deterioration (PSD)/Visibility (110(a)(2)(J))
Air Quality Monitoring and Reporting (110(a)(2)(K))
Permitting Fees (110(a)(2)(L))
Consultation/Participation with Affected Local Entities (110(a)(2)(M))

Section 110(a) Requirements and This Submission

The Department has addressed the regulation of PM_2.5 in a several ways. One of these was through a revision to 6 NYCRR Part 200. In this revision, subdivision (av) was amended to include the new fine particulate matter (i.e., PM_2.5) National Ambient Air Quality Standard nonattainment area designation and geographic boundary as promulgated by the United States Environmental Protection Agency on January 5, 2005.

Changes to 6 NYCRR Part 231, "New Source Review of New and Modified Facilities," are also currently in the rule-making process, and will be submitted to EPA as expeditiously as practicable for approval and inclusion in the SIP. Additionally, the new control measures described in Section 8 of this document will reduce PM_2.5 emissions.

With the rules already in place along with the changes described above, New York State will have adequate authority to implement the PM_2.5 NAAQS as demonstrated by the projections of future air quality in this document.

Planned revisions to 6 NYCRR Part 227, described elsewhere in this document, will require that sources of PM_2.5 whose potential to emit exceeds 100 tons per year to conduct an analysis of reasonably available control technology that can be applied to the applicable sources. The Department expects that additional controls will result.

Enforceable Emission Limitations and Other Control Measures (110(a)(2)(A))

CAA 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 matter.

Enforceable emission limitations and other control measures for PM_2.5 in New York are described in detail in Sections 8, 9 and 12 of this document.

Ambient Air Quality Monitoring, Compilation, Analysis and Reporting (110(a)(2)(B))

CAA section 110(a)(2)(B) requires SIPs to include provisions to provide for the establishment and operation of ambient air quality monitors, collecting and analyzing ambient air quality data, and making these data available to EPA upon request. This information is included in the various SIPs that have been submitted to EPA.

The New York State Department of Environmental Conservation (Department) measures air pollutants at 80 sites across the state, using continuous and/or manual instrumentation. These sites are part of the federally-mandated National Core Sites (Ncore) multi-pollutant monitoring network and the State and Local Air Monitoring Stations (SLAMS) Network. Real time direct reading measurements include gaseous criteria pollutants (ozone, sulfur dioxide, oxides of nitrogen, carbon monoxide), PM_2.5 (fine particulate with a diameter less than 2.5 microns), and meteorological data. Filter based PM_2.5, lead, and acid deposition samples are collected manually and shipped to the laboratory for analysis. The information obtained is compared to the NAAQS and is used to determine the attainment status of areas where these pollutants are monitored.

The near real-time data for gaseous pollutants and PM_2.5 are used for Air Quality Index (AQI) projection, and can be accessed by interested public on the DEC web site. The Department also provides real-time data to EPA for AIRNOW live national ozone and PM₁₀ and PM_2.5 mapping. All ambient measurements undergo data validation and are subsequently submitted to EPA's Air Quality System (AQS) for public access.

The Department commits to continue to operate an air quality monitoring network that complies with EPA requirements and to submit this data to EPA's Air Quality System.

Enforcement and Stationary Source Permitting (110(a)(2)(C))

CAA 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 PSD and nonattainment new source review (NNSR) requirements. New York's SIP currently includes NNSR requirements. In addition, there is a federal implementation plan in effect for PSD requirements, which EPA currently administers in New York State.

New York is currently in the rule-making process for 6 NYCRR Part 231, "New Source Review of New and Modified Facilities," which will be submitted to EPA as expeditiously as practicable for approval and inclusion in the SIP. Part 231 will include 8-hour ozone and PM_2.5 PSD and NNSR permitting requirements for major stationary sources in the state. In the interim, New York confirms that the current state NNSR permitting program remains in effect and continues to apply to the State's major stationary sources. EPA has been implementing the PSD program in New York State since 2004.

New York commits to the continued enforcement of all SIP measures and the regulation of construction of new or modified stationary sources to meet NNSR requirements. In addition, New York will ensure that federal PSD requirements which are included in EPA-issued PSD permits are incorporated into Title V operating permits until such time as a federally-enforceable PSD program based on Part 231 comes into effect. When the latter occurs, New York will ensure that all federally-enforceable requirements are applied and enforced.

Interstate Transport (110(a)(2)(D))

CAA section 110(a)(2)(D) requires SIPs to include provisions prohibiting any source or other type of emissions activity in one State from contributing significantly to nonattainment, or interfering with maintenance, of the NAAQS in another State, or from interfering with measures required to prevent significant deterioration of air quality or to protect visibility in another State.

On September 17, 2007, the Department submitted a SIP revision for ozone and particulate matter that satisfies New York's 110(a)(2)(D) obligations to submit a SIP revision that contains adequate provisions to prohibit air emissions identified by EPA as adversely affecting another state's air quality through interstate transport. EPA proposed approval (72 FR 55723) of this SIP revision on October 1, 2007. The Department disagrees with EPA that the provisions of the Clean Air Interstate Rule (CAIR) are adequate for the above stated purposes and is working with the states of the Ozone Transport Commission (OTC) and Mid-Atlantic Northeast Visibility Union (MANE-VU) to develop a more appropriate multi-state program to address the interstate transport of air pollution.

In accordance with EPA guidance issued on August 15, 2006, states may continue to rely on their existing NNSR and PSD permitting programs to prevent significant deterioration of air quality within their own boundaries and in adjacent states. New York confirms that the current state NNSR permitting program remains in effect and continues to apply to the State's major stationary sources. EPA has been implementing the PSD program in New York State since 2004.

Assurance of Adequate Resources (110(a)(2)(E))

CAA section 110(a)(2)(E) requires States to provide (i) necessary assurances that the State will have adequate personnel, funding and authority under State law to carry out its SIP, (ii) requirements that the state comply with the requirements respecting state boards under CAA section 128, 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.

The Division of Air Resources (DAR), with a staff of 274, receives both operating and capital funding. Operating funds are allocated to the Division annually and are used for daily administrative expenses. These expenses include salaries, fringe benefits, indirect and non-personnel services such as travel, supply and equipment costs. Indirect costs are, in turn, allocated to other Departments or divisions that support DAR activities. DAR is allocated operating funds from five sources: General Fund, Utility Environmental Regulatory Account, Co-operative Agreements (i.e., CAA section 103 and 105 grants) and the Clean Air Fund, which is comprised of the Title V and Mobile Source Accounts.

Capital funds are allocated to the Division at the discretion of the State legislature and are used for the financing or acquisition of capital facilities such as the construction of an air monitoring site. The Division is allocated Capital funds from three sources: General Fund, Mobile Source Account and Rehabilitation and Improvement.

Section 110(a)(2)(E)(ii) requires that the state comply with the requirements respecting state boards under CAA section 128. New York's Public Officer's Law (POL) satisfies these requirements. Specifically, POL section 74(2) states "No officer or employee of a state agency, member of the legislature or legislative employee should have any interest, financial or otherwise, direct or indirect, or engage in any business or transaction or professional activity or incur any obligation of any nature, which is in substantial conflict with the proper discharge of his duties in the public interest." POL 74(3)(e) states "No officer or employee of a state agency, member of the legislature or legislative employee should engage in any transaction as representative or agent of the state with any business entity in which he has a direct or indirect financial interest that might reasonably tend to conflict with the proper discharge of his official duties."

Finally, the Department confirms 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.

Stationary Source Monitoring System and Reporting (110(a)(2)(F))

CAA section 110(a)(2)(F) requires States to establish a system to monitor emissions from stationary sources and to submit periodic emissions reports.

Authority for this provision is provided under article 19 of the ECL. In particular, ECL section 19-0311 [Operating Permit Program] states in section 3 that operating permits issued pursuant to this section shall include, among other things, "provisions for detailed monitoring, record-keeping and reporting, including requirements that records be kept for five years, and that monitoring records be submitted to the department at least every six months. . ."

Emergency Powers and Contingency Plans (110(a)(2)(G))

CAA 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 episodes in their SIPs. Articles 3 and 19 of the ECL provide this authority to the Department and are included in the SIP.

As an aid to the States in addressing the PM_2.5 related requirements of Section 110(a)(2)(G) pertaining to emergency episode provisions, EPA indicates in the October 2, 2007 guidance, that it intends to take action to revise 40 CFR, Part 5 1, subpart H (sections 51.150). The rule changes will establish the priority classifications which determine the emergency episode plan requirements for each area and establish a significant harm level (SHL) for PM_2.5. Until these changes are final, EPA recommends that States rely on relevant information contained in upcoming EPA rule proposals or other EPA-issued interim guidance to satisfy the section 110(a)(2)(G) requirements for PM_2.5. After EPA issues final rules, EPA will work with States to revise SIP submissions that were based on interim information to the extent that States were able to do so under their rules and statutes.

In New York State at the present time, ECL section 3-0301 entitled "General functions, powers and duties of the department and the commissioner" authorizes the Department to prevent and control air pollution emergencies, as defined in subdivision 1 of ECL section 3. In exercising such prevention and control the department and the commissioner may limit the consumption of fuels and use of vehicles, curtail or require the cessation of industrial processes and limit or require the cessation of incineration and open burning, and take any other action he may deem necessary to prevent and/or control air pollution emergencies. The Department adopted 6 NYCRR Part 207, Control Measures for an Air Pollution Episode, and EPA approved this regulation as part of the New York SIP (46 FR 55690).

Authority for SIP Revisions for Revised NAAQS (110(a)(2)(H))

CAA 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 the NAAQS, or in response to an EPA finding that the SIP is substantially inadequate.

Revisions to the SIP are authorized by Article 19 and sections 3-0301, 19-0103, 19-0301, 19-0303 and 19-0305 of the ECL, among others. Article 19 of the ECL was adopted to protect New York's air resources from pollution and to effectuate the policy of the State to maintain a reasonable degree of purity of the air resources, consistent with the public health and welfare and the industrial development of the State. To this end, the Legislature gave the Department specific powers and duties, including the power to promulgate regulations for preventing, controlling, or prohibiting air pollution. The Department 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 air regulations. Section 71-2105 provides criminal enforcement authority.

This general statement of authority is included in the SIP.

Authority for SIP Revisions for New Nonattainment Areas (110(a)(2)(I))

CAA section 110(a)(2)(I) requires States to have the authority to revise their SIPs in response to changes in nonattainment areas.

This general statement of authority is included in the SIP.

Consultation, Public Notification and PSD/Visibility (110(a)(2)(J))

CAA section 110(a)(2)(J) requires States to meet the applicable requirements of CAA section 121 relating to consultation, CAA section 127 relating to public information and Part C relating to PSD and visibility protection.

CAA section 121 requires States to provide a satisfactory process of consultation with general purpose local governments, designated organizations of elected officials of local governments and any Federal land manager having authority over Federal land to which the State plan applies. On December 22, 2005, the Department reestablished a SIP Coordinating Council consisting of senior policy representatives from 19 state agencies and authorities, and a SIP Task Force consisting of officials from thirty-seven local governments and designated organizations of elected officials. Periodic meetings of both groups were held during the ozone and PM_2.5 SIP development period.

CAA section 127 requires State plans to contain measures which will be effective to notify the public during any calendar year, on a regular basis, of instances or areas in which any national primary ambient air quality standard is exceeded or was exceeded during any portion of the preceding calendar year to advise the public of the health hazards associated with such pollution, and to enhance public awareness of the measures which can be taken to prevent such standards from being exceeded and the ways in which the public can participate on regulatory and other efforts to improve air quality.

The Department's website, at http://www.dec.ny.gov/chemical/34985.html, contains an Air Quality Index (AQI) for reporting daily air quality to the public. It describes how clean or polluted the air is, and what associated health effects might be a concern. 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 Department, in cooperation with the New York State Department of Health, posts warnings on the above-referenced website 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.

In accordance with EPA guidance issued on August 15, 2006, states may continue to rely on their existing NNSR and PSD permitting programs to prevent significant deterioration of air quality within their own boundaries and in adjacent states. New York confirms that the current state NNSR permitting program remains in effect and continues to apply for the State's major stationary sources. EPA has been implementing the PSD program in New York State since 2004.

In addition, New York is currently in the rule-making process for 6 NYCRR Part 231, "New Source Review of New and Modified Facilities," which will be submitted to EPA as expeditiously as practicable for approval and inclusion in the SIP. Part 231 will include 8-hour ozone and PM_2.5 PSD and NNSR permitting requirements for major sources in the state.

With respect to visibility protection, and consistent with EPA's August 15, 2006, guidance, it is impossible at this time for New York to accurately determine whether there is interference with measures in another state's SIP designed to protect visibility because the affected Class I states have not submitted their regional haze SIPs to EPA, nor have they provided the Department with the pertinent information needed to identify the control measures necessary to reach the haze program's reasonable progress goals. New York will address the visibility protection requirements when the regional haze SIP is completed and submitted to EPA.

Air Quality Modeling / Data Submission (110(a)(2)(K))

CAA section 110(a)(2)(K) requires States to provide for the performance of such air quality modeling as the Administrator may prescribe for the purpose of predicting the effect on ambient air quality of any emissions of any air pollutant for which the Administrator has established a NAAQS. It also requires States to submit, upon request, data related to such air quality modeling to the Administrator.

The Department certifies that the air quality modeling and analysis used in 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 the Administrator if requested.

* US EPA 2007. "Guidance on the use of models and other analyses for demonstrating attainment of air quality goals for ozone, PM_2.5 and regional haze." EPA-454/B-07-002.

Permitting Fees (110(a)(2)(L))

CAA section 110(a)(2)(L) requires States to require each major stationary source to pay permitting fees sufficient to cover the reasonable costs of reviewing, planning, approving, implementing and enforcing permits.

The ECL satisfies this requirement. ECL section 19-0311(c) requires the Department 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 Act. ECL section 72-0303 requires major stationary sources to pay operating permit program fees in an amount sufficient to cover the costs of the operating permit program.

In addition, paragraph 201-6.5(a)(7) of Subpart 201-6, the Department'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."

New York commits to continue to implement major stationary source permit fee regulations found in 6 NYCRR subpart 482-2.

Consultation/Participation by Affected Local Entities (110(a)(2)(M))

CAA section 110(a)(2)(M) requires States to provide for consultation and participation by local political subdivisions affected by the plan.

The Department 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 established on December 22, 2005, which consists of officials from thirty-seven local governments and designated organizations of elected officials.

The Department commits to continue to provide for consultation and participation by local political subdivisions.

4.2 Conclusions

CAA sections 110(a)(1) and (2) require States to address basic State Implementation Plan (SIP) requirements related to the attainment of new or revised National Ambient Air Quality Standards (NAAQSs) in all SIP submissions, including emission inventories, monitoring and modeling to assure attainment, maintenance and enforcement of the standards. Based on an analysis of the present submission and the application of EPA's October 2, 2007, guidance to past submissions, the Department certifies that:

This attainment SIP for the annual PM_2.5 NAAQS meets the requirements of CAA sections 110(a)(1) and (2), and
There are no previous submissions of SIPs for PM_2.5, so there is no necessity to demonstrate that past PM_2.5 SIP submissions have met the requirements of CAA sections 110(a)(1) and (2).