Proposed Rule2026-06938
Air Plan Approval; New York; Interstate Transport Requirements for the 2010 SO2 NAAQS
Primary source
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Published
April 10, 2026
Issuing agencies
Environmental Protection Agency
Abstract
Pursuant to the Federal Clean Air Act (CAA or the Act), the Environmental Protection Agency (EPA) is proposing to approve the portion of the State Implementation Plan (SIP) submittal from the State of New York demonstrating that the State satisfies the interstate transport requirements, also known as the "good neighbor" provision of the CAA, for the 2010 1-hour sulfur dioxide (SO<INF>2</INF>) primary National Ambient Air Quality Standard (NAAQS). The good neighbor provision requires that each State's implementation plan contain adequate provisions prohibiting the interstate transport of air pollution in amounts that will contribute significantly to nonattainment, or interfere with maintenance, of the NAAQS in any other State.
Full Text
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<title>Federal Register, Volume 91 Issue 69 (Friday, April 10, 2026)</title>
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[Federal Register Volume 91, Number 69 (Friday, April 10, 2026)]
[Proposed Rules]
[Pages 18341-18347]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-06938]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R02-OAR-2025-1047; FRL-13227-01-R2]
Air Plan Approval; New York; Interstate Transport Requirements
for the 2010 SO2 NAAQS
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the
[[Page 18342]]
Environmental Protection Agency (EPA) is proposing to approve the
portion of the State Implementation Plan (SIP) submittal from the State
of New York demonstrating that the State satisfies the interstate
transport requirements, also known as the ``good neighbor'' provision
of the CAA, for the 2010 1-hour sulfur dioxide (SO<INF>2</INF>) primary
National Ambient Air Quality Standard (NAAQS). The good neighbor
provision requires that each State's implementation plan contain
adequate provisions prohibiting the interstate transport of air
pollution in amounts that will contribute significantly to
nonattainment, or interfere with maintenance, of the NAAQS in any other
State.
DATES: Written comments must be received on or before May 11, 2026.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R02-
OAR-2025-1047, at <a href="https://www.regulations.gov">https://www.regulations.gov</a> (our preferred method),
or the other submission methods identified in the link below. Once
submitted, comments cannot be edited or removed from the docket. EPA
may publish any comment received to its public docket. Do not submit to
EPA's docket at <a href="https://www.regulations.gov">https://www.regulations.gov</a> any information you
consider to be Confidential Business Information (CBI), Proprietary
Business Information (PBI), 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). Please visit <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a> for additional submission methods; the
full EPA public comment policy; information about CBI, PBI, or
multimedia submissions; and general guidance on making effective
comments.
FOR FURTHER INFORMATION CONTACT: Stephanie Lin, Environmental
Protection Agency, Air Programs Branch, Region 2, 290 Broadway, New
York, New York 10007-1866, telephone number: (212) 637-3711, email
address: <a href="/cdn-cgi/l/email-protection#58143136760b2c3d28303936313d183d2839763f372e"><span class="__cf_email__" data-cfemail="da96b3b4f489aebfaab2bbb4b3bf9abfaabbf4bdb5ac">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
A. Infrastructure SIPs
B. 2010 1-Hour SO<INF>2</INF> NAAQS Designations Background
II. Relevant Factors Used To Evaluate 2010 1-Hour SO<INF>2</INF>
Interstate Transport SIPs
III. New York's SIP Submission and the EPA's Analysis
A. State Submission
B. The EPA's Evaluation Methodology
C. The EPA's Prong 1 Evaluation--Contribute Significantly to
Nonattainment
D. The EPA's Prong 2 Evaluation--Interference With Maintenance
IV. The EPA's Proposed Action
V. Statutory and Executive Order Reviews
I. Background
A. Infrastructure SIPs
On June 2, 2010, the EPA established a revised primary 1-hour
SO<INF>2</INF> NAAQS with a level of 75 parts per billion (ppb), based
on a 3-year average of the annual 99th percentile of daily maximum 1-
hour average concentrations.\1\ CAA section 110(a)(1) requires all
states to submit, within three years after promulgation of a new or
revised NAAQS, SIP submissions to provide for the implementation,
maintenance, and enforcement of the NAAQS.\2\ The EPA has historically
referred to these SIPs as ``infrastructure SIPs.'' Specifically,
section 110(a)(1) provides the procedural and timing requirements for
SIP submissions. Section 110(a)(2) lists specific elements that all
states must meet related to a newly established or revised NAAQS, such
as requirements for monitoring, basic program requirements, and legal
authority, that are designed to assure attainment and maintenance of
the NAAQS.
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\1\ See 75 FR 35520 (June 22, 2010).
\2\ On December 10, 2024, the EPA revised the secondary NAAQS
for SO<INF>2</INF> to an annual average, averaged over three
consecutive years, with a level of 10 parts per billion (ppb). See
89 FR 105692 (December 27, 2024).
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Section 110(a)(2)(D)(i)(I) of the CAA requires that a state's SIP
include provisions prohibiting any source or other type of emissions
activity in the state from emitting any air pollutant in amounts that
will contribute significantly to nonattainment, or interfere with
maintenance, of the NAAQS in any other State. The EPA has long
interpreted this language to enact a ``functional prohibition'' on
certain emissions from upwind states, necessitating the EPA's
independent assessment whether those emissions will occur or have been
adequately controlled in the state where they originate.\3\ The EPA
often refers to these requirements as Prong 1 (significant contribution
to nonattainment of the NAAQS) and Prong 2 (interference with
maintenance of the NAAQS). We are addressing Prongs 1 and 2 in this
action. All other applicable infrastructure SIP requirements of the New
York SIP submission are addressed in separate rulemakings.
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\3\ See Genon Rema LLC v. EPA, 722 F.3d 513, 520-24 (3d Cir.
2013); Appalachian Power Co. v. EPA, 249 F.2d 1032, 1045-47 (D.C.
Cir. 2001); see also 71 FR 25328, 25335 (April 28, 2006) (explaining
that the SIP/FIP process under section 110 and the petitioning
process for direct federal regulation under section 126 provide
independent means of effectuating the same ``functional
prohibition'' found in CAA section 110(a)(2)(D)(i)(I)).
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B. 2010 1-Hour SO2 NAAQS Designations Background
In this proposed action, the EPA has considered information from
the 2010 1-hour SO<INF>2</INF> NAAQS designations process, as discussed
in more detail in section III.C of this notice. For this reason, a
brief summary of the EPA's designations process for the 2010 1-hour
SO<INF>2</INF> NAAQS is included here.\4\
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\4\ While designations may provide useful information for
purposes of analyzing transport, the EPA notes that designations
themselves are not dispositive of whether or not upwind emissions
are impacting areas in downwind states. The EPA has consistently
taken the position that CAA section 110(a)(2)(D)(i)(I) requires
elimination of significant contribution and interference with
maintenance in other states, and this analysis is not limited to
designated nonattainment areas. Nor must designations for
nonattainment areas have first occurred before states or the EPA can
act under section 110(a)(2)(D)(i)(I). See, e.g., Clean Air
Interstate Rule, 70 FR 25162, 25265 (May 12, 2005); Cross State Air
Pollution Rule, 76 FR 48208, 48211 (Aug. 8, 2011); Final Response to
Petition from New Jersey Regarding SO<INF>2</INF> Emissions From the
Portland Generating Station, 76 FR 69052 (Nov. 7, 2011) (finding
facility in violation of the prohibitions of CAA section
110(a)(2)(D)(i)(I) with respect to the 2010 1-hour SO<INF>2</INF>
NAAQS prior to issuance of designations for that standard).
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After the promulgation of a new or revised NAAQS, the EPA is
required to designate areas as ``nonattainment,'' ``attainment,'' or
``unclassifiable'' pursuant to CAA section 107(d)(1)-(2). The process
for designating areas following promulgation of a new or revised NAAQS
is contained in CAA section 107(d). The EPA promulgated the 2010 1-hour
SO<INF>2</INF> NAAQS on June 2, 2010. See 75 FR 35520 (June 22, 2010).
The EPA Administrator signed the first round of designations, Round 1,
for the 2010 1-hour SO<INF>2</INF> NAAQS on July 25, 2013. See 78 FR
47191 (August 5, 2013).\5\ The Agency published the Data Requirements
Rule (DRR) on August 21, 2015 (80 FR 51052) to provide expectations for
collection of data, either monitoring or modeling, for the remaining
designations.\6\ The Federal
[[Page 18343]]
Register notices for Round 2 designations published on July 12, 2016
(81 FR 45039) and on December 13, 2016 (81 FR 89870). \7\ Round 3
designations were published on January 9, 2018 (83 FR 1098) and April
5, 2018 (83 FR 14597).\8\ Round 4 designations were published on March
26, 2021 (86 FR 16055) and April 14, 2021 (86 FR 19576).\9\
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\5\ EPA and state documents and public comments related to the
Round 1 final designations are in the docket at <a href="http://regulations.gov">regulations.gov</a> with
Docket ID No. EPA-HQ-OAR-2012-0233 and at EPA's website for
SO<INF>2</INF> designations at <a href="https://www.epa.gov/sulfur-dioxide-designations">https://www.epa.gov/sulfur-dioxide-designations</a>.
\6\ The DRR requires state air agencies to characterize air
quality, through air dispersion modeling or monitoring, in areas
associated with sources that emitted in 2014 2,000 tons per year
(tpy) or more of SO<INF>2</INF>, or that have otherwise been listed
under the DRR by EPA or state air agencies. In lieu of modeling or
monitoring, state air agencies, by specified dates, could elect to
impose federally enforceable emissions limitations on those sources
restricting their annual SO<INF>2</INF> emissions to less than 2,000
tpy, or provide documentation that the sources have been shut down.
EPA used the information generated by implementation of the DRR to
help inform Round 4 designations for the 2010 1-hour SO<INF>2</INF>
NAAQS.
\7\ EPA and state documents and public comments related to the
Round 2 final designations are in the docket at <a href="http://regulations.gov">regulations.gov</a> with
Docket ID No. EPA-HQ-OAR-2014-0464 and at EPA's website for
SO<INF>2</INF> designations at <a href="https://www.epa.gov/sulfur-dioxide-designations">https://www.epa.gov/sulfur-dioxide-designations</a>.
\8\ EPA and state documents and public comments related to Round
3 final designations are in the docket at <a href="http://regulations.gov">regulations.gov</a> with
Docket ID No. EPA-HQ-OAR-2017-0003 and at EPA's website for
SO<INF>2</INF> designations at <a href="https://www.epa.gov/sulfur-dioxide-designations">https://www.epa.gov/sulfur-dioxide-designations</a>.
\9\ EPA and state documents and public comments related to Round
4 final designations are in the docket at <a href="http://regulations.gov">regulations.gov</a> with
Docket ID No. EPA-HQ-OAR-2020-0037 and at EPA's website for
SO<INF>2</INF> designations at <a href="https://www.epa.gov/sulfur-dioxide-designations">https://www.epa.gov/sulfur-dioxide-designations</a>. The Round 4 2010 1-hour SO<INF>2</INF> NAAQS
designations action was signed by former EPA Administrator Andrew
Wheeler on December 21, 2020, pursuant to a court-ordered deadline
of December 31, 2020. For administrative purposes only, and in
compliance with requirements of the Office of the Federal Register,
former Acting Administrator Jane Nishida re-signed the same action
on March 10, 2021, for publication in the Federal Register.
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During the second round of designations, EPA designated Erie and
Niagara counties in New York State as ``unclassifiable/attainment''
based on an assessment and characterization of air quality performed
using air dispersion modeling software analyzing actual emissions in
the area surrounding Huntley and Somerset Generating Stations, and
other nearby sources which may have a potential impact in the area of
analysis where maximum concentrations of SO<INF>2</INF> are
expected.\10\ Huntley and Somerset were identified by EPA as meeting
the criteria for further analysis to determine whether there is
nonattainment.\11\ Based on information received from New York in
response to the DRR, the EPA identified 11 additional sources \12\ for
which the State of New York was required to characterize air quality
through modeling or monitoring or impose federally enforceable
controls, bringing the total number of DRR sources for New York to
13.\13\ For New York, the EPA designated the partial St. Lawrence
County area as nonattainment during the fourth round of SO<INF>2</INF>
designations, effective April 30, 2021, based on available monitoring
data.\14\ In Round 4, the EPA also designated the remaining areas--the
remaining portion of St. Lawrence County, Cayuga County, Seneca County,
and Tompkins County--as attainment/unclassifiable, completing the area
designations for the 2010 1-hour SO<INF>2</INF> NAAQS in New York.
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\10\ 81 FR 45039 (July 12, 2016); <a href="https://www.epa.gov/sites/default/files/2016-03/documents/ny-rec-r2.pdf">https://www.epa.gov/sites/default/files/2016-03/documents/ny-rec-r2.pdf</a>.
\11\ <a href="https://www.epa.gov/sites/default/files/2016-03/documents/ny-epa-tsd-r2.pdf">https://www.epa.gov/sites/default/files/2016-03/documents/ny-epa-tsd-r2.pdf</a>.
\12\ <a href="https://www.epa.gov/sites/default/files/2016-06/documents/ny-response.pdf">https://www.epa.gov/sites/default/files/2016-06/documents/ny-response.pdf</a>.
\13\ <a href="https://www.epa.gov/sites/default/files/2016-06/documents/drr-source-list-epa.pdf">https://www.epa.gov/sites/default/files/2016-06/documents/drr-source-list-epa.pdf</a>.
\14\ <a href="https://www.epa.gov/sites/default/files/2020-12/documents/06-ny-rd4_final_so2_designations_tsd.pdf">https://www.epa.gov/sites/default/files/2020-12/documents/06-ny-rd4_final_so2_designations_tsd.pdf</a>; see 86 FR 16055 (March 19,
2021).
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II. Relevant Factors Used To Evaluate 2010 1-Hour SO2 Interstate
Transport SIPs
Although SO<INF>2</INF> is emitted from a similar universe of point
and nonpoint sources as is directly emitted fine particulate matter
(PM<INF>2.5</INF>) and the precursors to ozone and PM<INF>2.5</INF>,
interstate transport of SO<INF>2</INF> is unlike the transport of
PM<INF>2.5</INF> or ozone, which disperse over a wide area and can
contribute to nonattainment or maintenance issues hundreds of miles
from precursor-emitting sources or activities. SO<INF>2</INF> emissions
usually do not undergo long-range transport in the atmosphere. The
transport of SO<INF>2</INF> relative to the 2010 1-hour SO<INF>2</INF>
NAAQS is more analogous to the transport of lead (Pb) relative to the
Pb NAAQS in that emissions of SO<INF>2</INF> typically result in 1-hour
pollutant impacts of greatest concern near the emissions source.
However, ambient 1-hour concentrations of SO<INF>2</INF> do not
decrease as quickly with distance from the source as do 3-month average
concentrations of Pb, because SO<INF>2</INF> gas is not removed by
deposition as rapidly as are Pb particles. Emitted SO<INF>2</INF> has
wider-ranging impacts than emitted Pb, but it does not have such wide-
ranging (far downwind) impacts that treatment in a manner similar to
ozone or PM<INF>2.5</INF> would be appropriate. Accordingly, the
approaches that the EPA has adopted for ozone or PM<INF>2.5</INF>
transport are too regionally focused, and the approach for Pb transport
is too tightly circumscribed to the source, to be appropriate for
assessing SO<INF>2</INF> transport. SO<INF>2</INF> transport is
therefore a unique case and necessitates an approach that lies between
these other approaches to assessing pollutant transport.
In this proposed rulemaking, and consistent with prior
SO<INF>2</INF> transport analyses, the EPA focused on a 50 kilometer
(km)-wide zone around sources of interest because the physical
properties of SO<INF>2</INF> result in relatively localized pollutant
impacts near an emission source that drop off with distance. Given the
properties of SO<INF>2</INF>, the EPA believes that significant impacts
in a downwind State are unlikely at distances greater than 50 km from a
source and thus, we are focusing our review on areas within 50 km of
the state lines. This scale of analysis is consistent with the ``urban
scale'' which is the largest appropriate spatial scale for
SO<INF>2</INF> monitors and is useful for assessing SO<INF>2</INF>
transport and trends in area-wide air quality.\15\
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\15\ For the definition of spatial scales for SO<INF>2</INF>,
see 40 CFR part 58, Appendix D, section 4.4 (``Sulfur Dioxide
(SO<INF>2</INF>) Design Criteria''). For further discussion on how
the EPA applies these definitions with respect to interstate
transport of SO<INF>2</INF>, see the EPA's proposed rulemaking on
Connecticut's SO<INF>2</INF> transport SIP. See 82 FR 21351, 21352,
21354 (May 8, 2017).
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As discussed in section III, and in further detail in the Technical
Support Document (TSD) for this action, the EPA reviewed New York's
SO<INF>2</INF> SIP submittal. We also have elected to review and assess
other available information regarding SO<INF>2</INF> emissions and air
quality for sources in New York to assist in our own evaluation. We
independently analyzed such information to determine whether New York
meets the interstate transport requirements described in the CAA.\16\
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\16\ This proposed action is based on the information contained
in the administrative record for this action and does not prejudge
any future EPA action that may make other determinations regarding
the air quality status in New York and downwind states. Any such
future action, such as action on a CAA section 126(b) petition or
area designations under any NAAQS, would be based on separate
administrative records and the EPA's analyses of information that
becomes available at that time. Future available information may
include, monitoring data and modeling analyses conducted by states,
air agencies, and third-party stakeholders.
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Consistent with our prior evaluations of other state's
SO<INF>2</INF> transport obligations, we conducted a weight of evidence
(WOE) analysis evaluating several sources of information, including
current air quality data from monitors as well as available emissions
and/or source modeling for sources in New York and in neighboring
states within 50 km of the New York border. A WOE approach can be
appropriate in instances, such as in this case, to determine whether or
not SO<INF>2</INF> emissions from New York contribute to nonattainment
or maintenance issues in adjoining states. A WOE analysis that is based
strictly on available data may not
[[Page 18344]]
be sufficient in all instances for evaluating interstate SO<INF>2</INF>
transport, and additional analysis may be necessary. Further, the term
``WOE'' does not establish the legal or technical meaning for what
constitutes significant contribution to nonattainment or interference
with maintenance for the 2010 SO<INF>2</INF> NAAQS. Rather, the term
refers to the gathering and consideration of a wide range of
information, on a case-by-case basis, to make a determination regarding
whether a statutory or regulatory standard is met.
In other SO<INF>2</INF> transport SIP actions, the EPA has
generally been able to use a WOE analysis of available information to
reach a conclusion that there are no SO<INF>2</INF> nonattainment or
maintenance issues in the relevant areas of other states, or that no
sources in the upwind state are contributing to those issues. If the
available evidence indicated, however, that an upwind source, sources,
or emissions activities were contributing to an out-of-state
SO<INF>2</INF> nonattainment or maintenance problem, then further
analysis and a regulatory determination would be necessary concerning
what amount of those emissions, if any, constituted ``significant
contribution'' under Prong 1 or Prong 2 of the good neighbor provision.
We find that there is sufficient information to allow the EPA to
make a determination that under baseline conditions and likely future
emissions scenarios no New York sources are contributing or will
contribute to any out-of-state SO<INF>2</INF> nonattainment or
maintenance concerns. Therefore, it is not necessary for purposes of
this action to render a determination concerning what amount of
emissions would be ``significant'' and therefore subject to prohibition
under the good neighbor provision.\17\
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\17\ Cf. Genon Rema v. EPA, 722 F.3d 513 (3d Cir. 2013)
(upholding EPA grant of CAA section 126(b) petition and
establishment of direct federal emissions control requirements on
SO<INF>2</INF> source in Pennsylvania found to be significantly
contributing to nonattainment and interfering with maintenance of
the 2010 SO<INF>2</INF> NAAQS in New Jersey).
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III. New York's SIP Submission and the EPA's Analysis
A. State Submission
On October 3, 2013, New York submitted to the EPA a SIP revision to
address the requirements of CAA section 110(a)(1) and (2), including
section 110(a)(2)(D)(i)(I) for the 2010 SO<INF>2</INF> NAAQS.
New York's SIP submittal stated that New York has no nonattainment
areas for SO<INF>2</INF> within its own border, and the air quality
modeling and monitoring information that was available at the time
showed no violations of the NAAQS at the time of the submittal. New
York also affirmed that it would continue to enforce all SIP measures
and the regulation of construction of new or modified stationary
sources to meet NNSR requirements and mitigate the interstate transport
of SO<INF>2.</INF>
New York's SIP submittal also stated the New York would continue to
administer the CAIR program until a valid replacement for CSAPR was
implemented.
The 2005 Clean Air Interstate Rule \18\ (CAIR) covered 28 eastern
states (including New York) and the District of Columbia. CAIR was
designed to address interstate transport of ozone and fine particulate
matter (PM<INF>2.5</INF>) pollution. CAIR required the covered eastern
states to make reductions in SO<INF>2</INF> and nitrogen oxides
(NO<INF>X</INF>) emissions that significantly contribute to the
nonattainment or interference with the maintenance of the 1997
PM<INF>2.5</INF> and 1997 ozone NAAQS in any downwind state (70 FR
25161, May 12, 2005). CAIR addressed interstate transport for the 1997
PM<INF>2.5</INF> and 1997 ozone NAAQS but did not address interstate
transport for the 2010 SO<INF>2</INF> NAAQS. Subsequently, the D.C.
Circuit invalidated CAIR and required that the rule be revised.\19\ The
court, however, left CAIR in place in order to ``temporarily preserve
the environmental values covered by CAIR'' until the EPA could, by
rulemaking, replace CAIR consistent with the court's opinion.\20\ In
2011, the EPA promulgated the Cross-State Air Pollution Rule (CSAPR) to
replace CAIR.\21\ CSAPR addresses interstate transport for the 1997
PM<INF>2.5</INF>, 1997 ozone and 2006 PM<INF>2.5</INF> NAAQS. CSAPR
replaced CAIR beginning on January 1, 2015.\22\ Neither CAIR nor CSAPR
directly addresses interstate transport for the 2010 SO<INF>2</INF>
NAAQS.
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\18\ 70 FR 25162 (May 12, 2005).
\19\ North Carolina v. EPA, 531 F. 3d 896, 901 (D.C. Cir. 2008),
modified on reh'g, 550 F. 3d 1176 (D.C. Cir. 2008).
\20\ 550 F. 3d at 1178.
\21\ 76 FR 48207 (August 8, 2011).
\22\ CSAPR has been subject to extensive litigation, and on July
28, 2015, the D.C. Circuit issued a decision generally upholding
CSAPR but remanding without vacating the CSAPR emissions budgets for
a number of states. New York's ozone season NO<INF>X</INF> budgets
were not included in the remand. EME Homer City Generation v. EPA,
795 F.3d 118, 138 (D.C. Cir. 2015). On October 26, 2016, we
finalized an update to CSAPR that addresses the 1997 ozone NAAQS
portion of the remand as well as the CAA requirements addressing
interstate transport for the 2008 ozone NAAQS. 81 FR 74504 (October
26, 2016).
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Because CAIR is no longer in place (and was only allowed to remain
temporarily in place pending its replacement at the time of New York's
submission, see 76 FR 48208, 48223-24 (Aug. 8, 2011)) and because it
did not address the 2010 SO<INF>2</INF> NAAQS, New York's reliance on
CAIR is not adequate on its own to demonstrate the State meets the
requirements of CAA section 110(a)(2)(D)(i)(I).
In addition, both CAIR and CSAPR focused on achieving widespread
reductions in PM<INF>2.5</INF> precursor pollutants, which include
SO<INF>2</INF>. While the programs reduced SO<INF>2</INF> emissions
from power plants, they did so with the goal of reducing
PM<INF>2.5</INF> levels, not with the goal of preventing contribution
to nonattainment or interference with maintenance of the SO<INF>2</INF>
standard. These programs alone cannot be relied upon to demonstrate
prohibited interstate transport of SO<INF>2</INF> emissions were
prevented. New York did not provide an analysis to show how the
reductions from these programs would sufficiently address
SO<INF>2</INF> to prevent prohibited impacts. Moreover, these rules
required emissions reductions through emissions trading programs for
power plants. As such, they were not designed to ensure a particular
level of emissions reduction at a particular power plant and did not
address SO<INF>2</INF> emissions at all from nonpower plant sources or
emissions activities. Thus, despite these programs, individual power
plant and non-power plant sources that are near State borders may be
able to continue to emit at uncontrolled levels, potentially
contributing to SO<INF>2</INF> nonattainment or maintenance issues in
other States. As such, these programs alone cannot be relied upon to
demonstrate prohibited interstate transport of SO<INF>2</INF> emissions
were prevented.
While the rationale provided by New York is not an adequate basis
on its own by which the EPA can determine the approvability of the
State's submission, the EPA may elect to consider additional
information to assist in reaching a conclusion as to whether the
submission may be approved, in whole or in part, as satisfying the
Act's requirements, or does not meet the Act's requirements. Here, the
EPA may consider all relevant information, or generate new data and
analysis, to make an independent judgment in evaluating States'
compliance with the good neighbor provision, which concerns the effects
of States' emissions in other States. Therefore, the EPA considered
additional available information as described below and in more detail
in the TSD for this action, to determine if New York's SIP complies
with 110(a)(2)(D)(i)(I) requirements.
Because (1) neither CAIR nor CSAPR directly address interstate
transport for
[[Page 18345]]
the 2010 SO<INF>2</INF> NAAQS (CAIR is no longer in place) and is not
adequate on its own to demonstrate that the State meets the
requirements of CAA section 110(a)(2)(D)(i)(I), and (2) due to the
development of more detailed information concerning potential
SO<INF>2</INF> air quality concerns in or around New York, including
the partial St. Lawrence County SO<INF>2</INF> nonattainment area
designated on March 21, 2021, the EPA is electing to consider
additional information to assist in reaching a conclusion as to whether
New York's submission may be approved, in whole or in part, as
satisfying the Act's requirements. The EPA may consider all relevant
information, or generate new data and analysis, to make an independent
judgment in evaluating states' compliance with the good neighbor
provision, which concerns the effects of states' emissions in other
states. Therefore, the EPA considered additional available information
as described below and in more detail in the TSD for this action, to
reach a determination whether New York's SIP complies with
110(a)(2)(D)(i)(I) requirements.
B. The EPA's Evaluation Methodology
The EPA conducted a WOE analysis for Prong 1 and Prong 2
separately.\23\ In its WOE analysis, the EPA evaluated all available
information, including air quality data, emission sources, and modeling
and emission trends in New York and the states that border or are
within 50 km of New York. To identify which sources and emissions
activities in New York could potentially impact downwind air quality in
other states with respect to the 2010 1-hour SO<INF>2</INF> NAAQS, the
EPA used information in the EPA's National Emissions Inventory (NEI)
\24\ and Emissions Inventory System (EIS).\25\ The NEI is a
comprehensive and detailed database of air emissions for criteria
pollutants, criteria pollutant precursors, and hazardous air pollutants
from air emissions sources, updated every three years using information
provided by the states and other information available to the EPA. For
this analysis, we largely relied on data from the 2020 NEI, because it
is the most recently available, complete, and quality assured dataset.
However, in evaluating emissions trends, both state-wide and at the
facility level, the EPA also considered data from prior NEI reports and
EIS queries, as part of the overall WOE analysis.
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\23\ In North Carolina v. EPA, 531 F.3d at 910-911 (D.C. Cir.
2008), the D.C. Circuit explained that the regulating authority must
give Prong 2 ``independent significance'' from Prong 1 by evaluating
the impact of upwind state emissions on downwind areas that, while
currently in attainment, are at risk of future nonattainment.
\24\ EPA's NEI is available and accessible to the public at
<a href="https://www.epa.gov/air-emissions-inventories/national-emissions-inventory">https://www.epa.gov/air-emissions-inventories/national-emissions-inventory</a>.
\25\ The EIS is EPA's database used to receive and store
emissions data and generate emissions inventories. The EIS Gateway
is a web-based tool developed to provide only registered EPA, State,
local and Tribal users with access to emission inventory data for
sources in their jurisdiction.
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As shown in Table 1, the majority of SO<INF>2</INF> emissions in
New York originate from point sources. In 2020, total SO<INF>2</INF>
emissions from point sources in New York comprised approximately 63.79
percent of the total SO<INF>2</INF> emissions in the State. Non-point
sources, on road and non-road emissions sources are individually much
smaller and also more dispersed throughout the State and are therefore
unlikely to contribute to high ambient concentrations when compared to
point source contributions. Further analysis in the TSD shows that
facilities with reported emissions greater than 100 tons per year (tpy)
represent approximately 2.74 percent of the total number of New York
SO<INF>2</INF> point sources but are responsible for 5,520 tons of
SO<INF>2</INF> or 76 percent of the total New York 2020 SO<INF>2</INF>
point source emissions.\26\ Based on this analysis, the EPA focused our
WOE analysis on SO<INF>2</INF> emissions from New York's larger point
sources (i.e., point sources emitting over 100 tpy of SO<INF>2</INF>)
that are located within 50 km of one or more State borders.
---------------------------------------------------------------------------
\26\ See Table 9 in the EPA's TSD.
Table 1--Summary of 2020 SO2 Emissions in New York by Source Category
------------------------------------------------------------------------
2020 emissions Percent of total
Category (tpy) SO2 emissions
------------------------------------------------------------------------
Point............................. 7,295 63.79
Nonpoint.......................... 3,761 32.89
Onroad............................ 338 2.95
Nonroad........................... 42 0.37
-------------------------------------
SO2 Emissions Total........... 11,436 100
------------------------------------------------------------------------
As described in this section, the EPA proposes that an assessment
of New York's satisfaction of the Prong 1 and 2 requirements under CAA
section 110(a)(2)(D)(i)(I) for the 2010 1-hour SO<INF>2</INF> NAAQS may
be reasonably based upon several factors. These factors include
evaluation of all relevant air quality modeling or monitoring
information, the predicted downwind impacts projected in previous
relevant modeling studies for the relevant sources and nearby areas,
assessment of New York's SO<INF>2</INF> point source emissions of more
than 100 tpy of SO<INF>2</INF> per facility that are located within
approximately 50 km of another state, assessment of other states' point
sources emitting more than 100 tpy of SO<INF>2</INF> located within
approximately 50 km of New York, and assessment of federal regulations
and SIP-approved regulations affecting New York's SO<INF>2</INF>
sources. The EPA's evaluation is informed by all available data at the
time of this rulemaking.\27\
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\27\ EPA notes that the evaluation of other states' satisfaction
of section 110(a)(2)(D)(i)(I) for the 2010 1-hour SO<INF>2</INF>
NAAQS can be informed by similar factors found in this proposed
rulemaking but may not be identical to the approach taken in this or
any future rulemaking for New York, depending on available
information and state-specific circumstances.
---------------------------------------------------------------------------
The EPA notes that if this information were insufficient to draw a
reasonable conclusion concerning whether New York is ``significantly
contributing'' or not, then it would not be possible to propose
approval based only on this information. In other words, in general,
the absence of information concerning whether interstate transport is
occurring is not in itself sufficient justification for approving a
good neighbor SIP submission. For example, if there were inadequate
monitoring or modeling information to characterize the effects of a
large, near-border source of SO<INF>2</INF> emissions, it may be
appropriate to conduct, or ask the state to conduct, further analysis
to better characterize that source and its effects, in order to reach a
determination concerning
[[Page 18346]]
whether the good neighbor provision is being met. See, e.g., 88 FR
41344 (June 26, 2023) (proposing approval of Tennessee SO<INF>2</INF>
transport SIP submission based on updated modeling conducted to better
characterize emissions from the Eastman Chemical facility). In this
case, the information available to the EPA, as analyzed in the
accompanying TSD and summarized below, is sufficient to conclude that
sources in New York are not and will not emit SO<INF>2</INF> pollution
in violation of the good neighbor provision for the 2010 SO<INF>2</INF>
NAAQS.
C. The EPA's Prong 1 Evaluation--Contribute Significantly to
Nonattainment
Prong 1 of the ``good neighbor'' provision requires states' plans
to prohibit emissions that will contribute significantly to
nonattainment of the NAAQS in another state. The EPA's evaluation \28\
of whether New York has met its Prong 1 transport obligations was
accomplished by considering all available information, including the
following: SO<INF>2</INF> ambient air quality in New York and
neighboring states; SO<INF>2</INF> emissions trends for New York and
neighboring states; potential ambient impacts of SO<INF>2</INF>
emissions from certain facilities \29\ in New York on neighboring
states; New York's SIP-approved regulations specific to SO<INF>2</INF>
emissions and permit requirements; and other SIP-approved or federally
enforceable regulations which may reduce SO<INF>2</INF> emissions
either directly or indirectly.
---------------------------------------------------------------------------
\28\ A detailed review of EPA's evaluation of emissions, air
monitoring data, other technical information, and rationale for
proposed approval of this SIP revision as meeting CAA section
110(a)(2)(D)(i)(I) for the 2010 1-hour SO<INF>2</INF> NAAQS may be
found in the TSD.
\29\ The physical properties of SO<INF>2</INF> result in
relatively localized pollutant impacts near the emissions source.
Therefore, the EPA selected a spatial scale with dimensions up to 50
km from point sources.
---------------------------------------------------------------------------
Based on the EPA's analysis, we propose to determine that there are
no SO<INF>2</INF> nonattainment issues in the relevant areas in other
states bordering New York, and as such the EPA proposes to determine
that New York's SIP satisfies the requirements of Prong 1 of CAA
section 110(a)(2)(D)(i)(I). This proposed determination is based on the
following considerations:
<bullet> There is one monitor recording violations of the 2010 1-
hour SO<INF>2</INF> NAAQS located in New York. However, all monitors
within 50 km of the New York border have design values (DV) \30\ that
are below the 75 ppb SO<INF>2</INF> NAAQS. Current DVs for New York's
AQS SO<INF>2</INF> monitors within 50 km of another state's border have
remained below the 2010 1-hour SO<INF>2</INF> NAAQS from 2019-2023;
similarly, SO<INF>2</INF> monitors in neighboring states (Pennsylvania,
Vermont, Connecticut, New Jersey, Massachusetts) within 50 km of New
York have 2023 DVs (2021-2023) below the 2010 1-hour SO<INF>2</INF>
NAAQS;
---------------------------------------------------------------------------
\30\ The design value is the 3-year average of the 99th
percentile 1-hour daily maximums at a monitor. A control strategy
should be designed to bring the value to attainment of the standard.
---------------------------------------------------------------------------
<bullet> Downward SO<INF>2</INF> emissions trends in New York and
its surrounding states (Pennsylvania, Vermont, Connecticut, New Jersey,
Massachusetts), when considered together with the other factors
discussed as part of EPA's WOE analysis, further support that New
York's sources will not significantly contribute to any other states'
nonattainment of the 2010 1-hour SO<INF>2</INF> NAAQS;
<bullet> A source-specific analyses of every New York 100 tpy
source located within 50 km of the state border indicates that the
sources do not contribute to nonattainment in other states. These
analyses draw upon available emissions data, monitoring data, air
quality modeling, control requirements, wind rose data, and other
relevant information to assess the likelihood of air quality impacts
from these sources to areas in surrounding states. A detailed
discussion of each source-specific analysis is contained in Section
IV.B.3 of the TSD accompanying this action. Below we cover some of the
principal evidence that confirms that emissions from New York do not
contribute to nonattainment in other states.
<bullet> All monitors closest to the New York SO<INF>2</INF> Areas
of Interest (Sources > 100 tpy located within 50 km of adjacent state)
have consistently recorded DVs well below the standard for years 2012-
2023, indicating that these facilities are not causing exceedances in
New York and would not cause exceedances in Pennsylvania, Vermont,
Connecticut, New Jersey and Massachusetts.
<bullet> For the St. Lawrence source--Alcoa--monitors nearby have
recorded DVs above the NAAQS. However, this source being 122 km from
the nearest state line (Vermont) supports a determination that
emissions from these sources are not contributing to nonattainment
across the border into neighboring states.
<bullet> For the remainder of the New York SO<INF>2</INF> Areas of
Interest (Sources > 100 tpy located within 50 km of adjacent state),
either wind rose data, amount of emissions in 2022, or distance between
the sources and the nearest neighboring state border supported a
determination that these sources will not contribute to nonattainment
of the NAAQS in Massachusetts. New Jersey, Connecticut, Vermont, and
Pennsylvania.
<bullet> Further there are SIP-approved and federal emissions
control regulations within New York that will continue to ensure that
SO<INF>2</INF> emissions will be effectively controlled for existing
and new sources or modifications.
Based on this evaluation, as more thoroughly discussed in our TSD
for this action, the EPA proposes to find that sources within New York
will not significantly contribute to nonattainment of the 2010 1-hour
SO<INF>2</INF> NAAQS in any other state.
D. The EPA's Prong 2 Evaluation--Interference With Maintenance
Prong 2 of the ``good neighbor'' provision requires state plans to
prohibit emissions that will interfere with maintenance of a NAAQS in
another state. The EPA's evaluation of whether New York has met its
Prong 2 transport obligations was accomplished by considering all
available information, with a focus on current air quality data,
SO<INF>2</INF> emissions trends for New York and neighboring states,
and how existing and future sources of SO<INF>2</INF> are addressed
through existing SIP-approved and federally enforceable regulations.
This evaluation builds upon the analysis conducted for significant
contribution to nonattainment (Prong 1), which evaluated SO<INF>2</INF>
ambient air quality in New York and neighboring states and potential
ambient impacts of SO<INF>2</INF> emissions from certain facilities in
New York on neighboring states.
Based on the EPA's analysis, we propose to find that SO<INF>2</INF>
levels in neighboring states near the New York border do not indicate
an inability to maintain the SO<INF>2</INF> NAAQS that could be
attributed in part to sources in New York, and as such the EPA proposes
to determine that New York's SIP satisfies the requirements of Prong 2
of CAA section 110(a)(2)(D)(i)(I). This determination is based on the
following considerations:
<bullet> Current 2021-2023 DVs for SO<INF>2</INF> monitors in New
York within 50 km of another state's border and in neighboring states
(Pennsylvania, New Jersey, Vermont, Connecticut, and Massachusetts)
within 50 km of New York's border are below the standard except for one
(Alcoa West), indicating that the areas in the vicinity of these
monitors are all currently in attainment of the 2010 1-hour
SO<INF>2</INF> NAAQS except for the partial St. Lawrence area;
<bullet> State-wide emissions trends in New York and surrounding
states indicate generally declining SO<INF>2</INF> emissions and
consequently ambient air concentrations in the relevant areas;
[[Page 18347]]
<bullet> Current New York statutes, SIP-approved measures, and
federal emissions control programs control SO<INF>2</INF> emissions
from certain sources within New York; and
<bullet> New York's SIP-approved PSD, major New Source Review (NSR)
regulations and minor source NSR permit programs address future new and
modified SO<INF>2</INF> sources above major and minor permitting
thresholds with the intent of ensuring that the SO<INF>2</INF> NAAQS
will not be exceeded as a result of new facility construction or
existing facility modification within the state or in surrounding
states.
Based on this evaluation, as more thoroughly discussed in our TSD
for this action, the EPA proposes to find that sources within New York
will not interfere with maintenance of the 2010 1-hour SO<INF>2</INF>
NAAQS in any other state.
IV. The EPA's Proposed Action
The EPA is proposing to approve the Prong 1 and Prong 2 portions of
the infrastructure SIP submission submitted by the state of New York on
October 3, 2013, addressing interstate transport for the 2010 1-hour
SO<INF>2</INF> NAAQS. Based on the EPA's WOE analysis and as more
thoroughly discussed in the TSD, the EPA proposes to determine that
emissions from New York will not contribute significantly to
nonattainment in, or interfere with maintenance of, any other state
with respect to the 2010 SO<INF>2</INF> NAAQS. We therefore propose to
find that New York's SIP contains adequate provisions consistent with
CAA section 110(a)(2)(D)(i)(I).
V. 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, 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 action:
<bullet> Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Order 12866 (58
FR 51735, October 4, 1993);
<bullet> Is not subject to Executive Order 14192 (90 FR 9065,
February 6, 2025) because SIP actions are exempt from review under
Executive Order 12866:
<bullet> Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> 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.);
<bullet> Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
<bullet> Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
<bullet> Is not subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it approves a state program;
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001); and
<bullet> 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 application of those requirements would be inconsistent
with the CAA.
In addition, the SIP 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, Sulfur dioxide, Reporting and
recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Michael Martucci,
Regional Administrator, Region 2.
[FR Doc. 2026-06938 Filed 4-9-26; 8:45 am]
BILLING CODE 6560-50-P
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