2.0 General Planning Provisions
Pursuant to the requirements of 40 CFR Sections 51.308(a) and (b), New York submits this State Implementation Plan (SIP) to meet the requirements of the EPA's Regional Haze rules under the requirements set forth in the Clean Air Act. Elements of this SIP address the core elements required by 40 CFR Section 51.308(d), the Best Available Retrofit Technology (BART) components of 40 CFR Section 50.308(e), the establishment of Reasonable Progress Goals (RPG) and the measures that contributing states like New York must take to take to do their part in meeting the RPG. In addition, this SIP addresses Regional Planning, State and Federal Land Manager coordination, and contains a commitment to provide plan revisions and adequacy determinations as necessary.
2.1 SIP Submission Dates
Section 51.308(b) required that this SIP be submitted by December 17, 2007. As a result of a delay in the notification of New York of the measures needed to meet Class I area reasonable progress goals, it was necessary to wait to make the required submission until the measures had been identified by the Class I states.
The State of New Hampshire notified the Department in a letter dated May 16, 2008 of the completion of the consultation process that resulted in MANE-VU states agreeing to emission management strategies that would meet the reasonable progress goal requirements of Section 40 CFR 51.308(d)(1) of the Clean Air Act. While MANE-VU member states agreed to a course of action that included pursuing the adoption and implementation of the emission management strategies on a June 20, 2007 conference call, discussions and analyses continued into early 2008 before the level of reductions these strategies would attain was determined. It wasn't until the May 16, 2008 letter that the State of New York was informed that this course of action was indeed final.
Another factor seriously disrupting the haze SIP development process was the July 11, 2008 decision from the U.S. Court of Appeals for the District of Columbia Circuit that would vacate the Clean Air Interstate Rule (CAIR) and remand the rule back to EPA. This disruption has resulted in the need for both Class I states and contributing states to reevaluate the control strategies and other elements of their regional haze SIPs, which caused states to delay submissions further. Complicating this matter was EPA's petition for rehearing and the Court's request for a briefing asking if it should stay the mandate until EPA revises the rule in response to the remand. On December 23, 2008, the U.S. Court of Appeals for the District of Columbia Circuit decided to remand the rule back to EPA without vacatur of CAIR, but did not impose a particular schedule by which EPA must alter CAIR.
Section 51.308(f) requires New York to submit a revision to this SIP by July 31, 2018 and every ten years thereafter, at which point additional adjustments to the strategies described in this SIP may take place.
Section 51.308(g) requires New York to submit a report to the EPA every five years evaluating progress toward the reasonable progress goal for each Class I Federal area located outside New York that may be affected by emissions from within New York. The first progress report is due five years from submittal of the initial SIP and must be in the form of a SIP revision. At that time, a new emission inventory and modeling results should be available. Modifications to this SIP can also be done at that time. In accordance with Section 51.308(h), New York will also submit a formal determination of the adequacy of its existing Regional Haze SIP revision at the time the progress report is submitted. The first progress report is due five years from submittal of the initial implementation plan and must be in the form of an implementation plan revision or, if no changes to New York's SIP are necessary, in the form of a negative declaration that further revision of the existing SIP is not needed.
2.2 New York Statutory Authority
New York is proposing this SIP in accordance with State laws and rules, and has the necessary authority, as described below, to adopt the SIP and other required rules and regulations.
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 more than 80 sites across the state, using continuous and/or manual instrumentation. These sites are part of the federally-mandated National Air Monitoring Stations Network (NAMS) 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), PM2.5 (fine particulate with a diameter less than 2.5 microns), and meteorological data. Filter based PM2.5, 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 PM2.5 are used for Air Quality Index (AQI) projection, and can be accessed by interested parties on the Department web site. The Department also provides real-time data to EPA for AIRNow live national ozone 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 Prevention of Significant Deterioration (PSD) and nonattainment new source review (NNSR) requirements. On March 12, 2009, New York submitted 6 NYCRR Part 231, New Source Review for New and Modified Facilities, to EPA for approval and inclusion in the SIP. This regulation meets the federal requirements for the application of PSD and New Source Review requirements in New York and is presently in effect in New York. The application of these requirements ensures that major sources of PM2.5 in the state meet the requirements of the federal PSD and NNSR permitting programs as they apply to PM2.5. With PSD and NNSR requirements for PM2.5 now in effect in New York, the Department meets the requirement ensuring that major sources in this state will not cause or contribute to air pollution in excess of the NAAQS in New York or other states.
New York ensures that all applicable federal PSD requirements which are included in PSD permits are incorporated into Title V operating permits, and that all federally-enforceable requirements are applied and enforced. New York therefore affirms that the current NNSR and PSD permitting programs remain in effect and continue to apply to the state's major stationary sources, and that the requirements from these programs are federally enforceable.
Environmental Conservation Law (ECL) Section 19-0305 and Article 71 Sections 71-2103 and 71-2105 authorizes the commissioner of the Department to enforce the codes, rules and regulations of the Department established in accordance with Article 19. The SIP is a compilation of rules and regulations that have been duly promulgated by the Department in accordance with its statutory authority and consistent with the State Administrative Procedures Act. Therefore, the Department has the authority to enforce all SIP measures.
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 7428, 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 264, 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., EPA 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 7428. 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.
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.
Among other provisions, 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. 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.
Revisions to the SIP are authorized by the same citations as described in the above paragraph regarding SIP revisions for revised NAAQS.
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. Though there are no Federal lands within New York State to which the State plan applies, the Department has participated in the consultation process of the Regional Haze SIP (40 CFR 51.308) with the Federal Land Managers, States and Tribes of the Mid-Atlantic Northeast Visibility Union (MANE-VU), and other regional planning organizations where emissions from New York are reasonably anticipated to contribute to visibility impairment to Class I areas.
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. These warnings are also aired through the media, and are available on the toll-free Ozone Hotline at 1-800-535-1345. 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. Additional ozone information to enhance public awareness is located at http://www.dec.ny.gov/chemical/8400.html.
Air Quality Modeling/Data (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 200. "Guidance on the use of models and other analyses for demonstrating attainment of air quality goals for ozone, PM2.5 and regional haze." EPA-454/B-07-002.
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.