Response to Clean Air Act Section 126(b) Petition From New York, 22787-22805 [2019-09928]
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Federal Register / Vol. 84, No. 97 / Monday, May 20, 2019 / Proposed Rules
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SIP-approved regulations:
1,1,1,2,2,3,4,5,5,5-decafluoro-3methoxy-4-(trifluoromethyl)pentane
(HFE–7300); propylene carbonate;
dimethyl carbonate; trans-1,3,3,3tetrafluoropropene; HCF2OCF2H (HFE–
134); HCF2OCF2OCF2H (HFE–236cal2);
HCF2OCF2CF2OCF2H (HFE–338pcc13);
HCF2OCF2OCF2CF2OCF2H (H-Galden
1040x or H-Galden ZT 130 (or 150 or
180)); trans-1-chloro-3,3,3-trifluoroprop1-ene; 2,3,3,3-tetrafluoropropene; and 2amino-2-methyl-1-propanol. These
compounds are excluded from the VOC
definition on the basis that each of these
compounds makes a negligible
contribution to tropospheric ozone
formation. EPA is proposing to approve
this revision because it is consistent
with revisions to the Federal definition
of VOC at 40 CFR 51.100(s). EPA is also
proposing to approve this revision
because, as noted in Section I, above, it
is consistent with other similar SIPapproved regulations. The revision also
includes the following minor,
administrative changes: Spelling
corrections to certain compounds
already listed in paragraph 1 and a
spelling correction that changes
‘‘negligibility’’ to ‘‘negligibly’’ in
paragraph 2 of Part II, Chapter 4, Section
4–2, of the Chattanooga Code.
Pursuant to CAA section 110(l), the
Administrator shall not approve a
revision of a plan if the revision would
interfere with any applicable
requirement concerning attainment and
reasonable further progress (as defined
in CAA section 171), or any other
applicable requirement of the Act. The
County’s addition of exemptions from
the definition of VOC in paragraph 1 in
the Chattanooga City Code, Part II,
Chapter 4, Section 4–2, Definitions, of
the are approvable under section 110(l)
because they reflect changes to federal
regulations based on findings that the
aforementioned compounds are
negligibly reactive and make a
negligible contribution to tropospheric
ozone formation.
III. Incorporation by Reference
In this document, EPA is proposing to
include in a final EPA rule regulatory
text that includes incorporation by
reference. In accordance with
requirements of 1 CFR 51.5, EPA is
proposing to incorporate by reference
Part II, Chapter 4, Section 4–2, of the
Chattanooga City Code, state effective
January 23, 2017, which revised the
definition of VOC so that it better aligns
with the federal regulations. EPA has
made, and will continue to make, these
materials generally available through
www.regulations.gov and at the EPA
Region 4 office (please contact the
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person identified in the FOR FURTHER
section of this
preamble for more information).
INFORMATION CONTACT
IV. Proposed Action
EPA is proposing to approve the
aforementioned changes to the
Chattanooga portion of the Tennessee
SIP because the changes are consistent
with section 110 of the CAA and meet
the regulatory requirements of the Act.
EPA views these changes as being
consistent with the CAA and does not
believe that these changes will result in
a change in emissions.
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
Act and applicable Federal regulations.
See 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. This action merely proposes to
approve state law as meeting Federal
requirements and does not impose
additional requirements beyond those
imposed by state law. For that reason,
this proposed action:
• Is not a significant regulatory action
subject to review by the Office of
Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• Is not an Executive Order 13771 (82
FR 9339, February 2, 2017) regulatory
action because SIP approvals are
exempted under Executive Order 12866;
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
section 12(d) of the National
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Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
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 as specified by Executive
Order 13175 (65 FR 67249, November 9,
2000), nor will it impose substantial
direct costs on tribal governments or
preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Ozone, Volatile organic
compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 6, 2019.
Mary S. Walker,
Acting Regional Administrator, Region 4.
[FR Doc. 2019–10346 Filed 5–17–19; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–HQ–OAR–2018–0170; FRL–9993–55–
OAR]
RIN 2060–AU04
Response to Clean Air Act Section
126(b) Petition From New York
Environmental Protection
Agency (EPA).
ACTION: Notice of proposed action on
petition.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to deny a
Clean Air Act (CAA or Act) petition
submitted by the state of New York on
March 12, 2018. The petition requests
that the EPA make a finding that
emissions from a group of hundreds of
identified sources in nine states
(Illinois, Indiana, Kentucky, Maryland,
Michigan, Ohio, Pennsylvania, Virginia
and West Virginia) significantly
contribute to nonattainment and
interfere with maintenance of the 2008
and 2015 ozone national ambient air
quality standards (NAAQS) in
Chautauqua County and the New York
SUMMARY:
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Metropolitan Area (NYMA) in violation
of the good neighbor provision. The
EPA proposes to deny the petition
because New York has not met its
statutory burden to demonstrate, and
the EPA has not independently found,
that the group of identified sources
emits or would emit in violation of the
good neighbor provision for the 2008 or
2015 ozone NAAQS in Chautauqua
County and the NYMA.
DATES:
Comments. Comments must be
received on or before July 15, 2019.
Public hearing: The EPA will hold a
public hearing on this proposal on June
11, 2019, in Washington DC. Please refer
to ADDRESSES for additional information
on the comment period and public
hearing.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–HQ–
OAR–2018–0170, at https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or removed from Regulations.gov.
The EPA may publish any comment
received to its public docket. Do not
submit electronically any information
you consider to be Confidential
Business Information (CBI) or other
information whose disclosure is
restricted by statute. Multimedia
submissions (audio, video, etc.) must be
accompanied by a written comment.
The written comment is considered the
official comment and should include
discussion of all points you wish to
make. The EPA will generally not
consider comments or comment
contents located outside of the primary
submission (e.g., on the Web, Cloud, or
other file sharing system). For
additional submission methods, the full
EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www2.epa.gov/dockets/
commenting-epa-dockets. Certain other
material, such as copyrighted material,
will not be placed on the internet but
may be viewed, with prior arrangement,
at the EPA Docket Center. Publicly
available docket materials are available
either electronically in
www.regulations.gov or in hard copy at
the Air and Radiation Docket and
Information Center, EPA/DC, EPA
William Jefferson Clinton West
Building, Room 3334, 1301 Constitution
Avenue NW, Washington, DC. The
Public Reading Room is open from 8:30
a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The
telephone number for the Public
Reading Room is (202) 566–1744 and
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the telephone number for the Air and
Radiation Docket and Information
Center is (202) 566–1742. For additional
information about the EPA’s public
docket, visit the EPA Docket Center
homepage at: https://www.epa.gov/
epahome/dockets.htm.
Public hearing: The June 11, 2019,
public hearing will be held at the EPA,
William Jefferson Clinton East Building,
Room 1117A, 1201 Constitution Avenue
NW, Washington, DC 20004. The public
hearing will convene at 9:00 a.m. and
end at 6:00 p.m. Eastern Time (ET) or
1 hour after the last registered speaker
has spoken. The EPA will make every
effort to accommodate all individuals
interested in providing oral testimony.
A lunch break is scheduled from 12:00
p.m. until 1:00 p.m. Please note that this
hearing will be held at a U.S.
government facility. Individuals
planning to attend the hearing should be
prepared to show valid picture
identification to the security staff to gain
access to the meeting room. The REAL
ID Act, passed by Congress in 2005,
established new requirements for
entering federal facilities. These
requirements took effect July 21, 2014.
If your driver’s license is issued by
American Samoa, you must present an
additional form of identification to enter
the federal building where the public
hearing will be held. Acceptable
alternative forms of identification
include: Federal employee badges,
passports, enhanced driver’s licenses
and military identification cards. For
additional information for the status of
your state regarding REAL ID, go to
https://www.dhs.gov/real-idenforcement-brief. In addition, you will
need to obtain a property pass for any
personal belongings you bring with you.
Upon leaving the building, you will be
required to return this property pass to
the security desk. No large signs will be
allowed in the building, and
demonstrations will not be allowed on
federal property for security reasons.
If you would like to present oral
testimony at the hearing, please notify
Ms. Pamela Long, U.S. Environmental
Protection Agency, Office of Air Quality
Planning and Standards, Air Quality
Policy Division, (C504–01), Research
Triangle Park, NC 27711, telephone
(919) 541–0641, fax number (919) 541–
5509, email address long.pam@epa.gov,
no later than 4:00 p.m. ET on June 7,
2011. Ms. Long will arrange a general
time slot for you to speak. The EPA will
make every effort to follow the schedule
as closely as possible on the day of the
hearing.
Oral testimony will be limited to 5
minutes for each commenter. The EPA
encourages commenters to provide the
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EPA with a copy of their oral testimony
electronically (via email) or in hard
copy form. Commenters should notify
Ms. Long if they need specific
translation services for non-English
speaking commenters.
The hearing schedule, including the
list of speakers, will be posted on the
EPA’s Web at site https://www.epa.gov/
ozone-pollution/ozone-nationalambient-air-quality-standards-naaqssection-126-petitions prior to the
hearing. Verbatim transcripts of the
hearing and written statements will be
included in the docket for the action.
The public hearing will provide
interested parties the opportunity to
present data, views or arguments
concerning the EPA’s proposed
response to the petition from New York.
The EPA may ask clarifying questions
during the oral presentations but will
not respond to the presentations at that
time. Written statements and supporting
information that are submitted during
the comment period will be considered
with the same weight as any oral
comments and supporting information
presented at the public hearing. Written
comments must be postmarked by the
last day of the comment period.
FOR FURTHER INFORMATION CONTACT: For
additional information regarding this
proposed action, please contact: Beth W.
Palma, U.S. EPA, Office of Air Quality
Planning and Standards, Air Quality
Policy Division, Mail Code C539–04,
Research Triangle Park, NC 27711,
telephone (919) 541–5432, email at
palma.elizabeth@epa.gov. For
information on the public hearing or to
register to speak at the hearing, contact
Ms. Pamela Long, U.S. Environmental
Protection Agency, Office of Air Quality
Planning and Standards, Air Quality
Planning Division, Mail Code C504–01,
Research Triangle Park, NC 27711,
telephone (919) 541–0641, fax number
(919) 541–5509, email at long.pam@
epa.gov (preferred method for
registering).
SUPPLEMENTARY INFORMATION: The
information in this document is
organized as follows:
I. General Information
II. Executive Summary of the EPA’s Proposed
Decision on the CAA Section 126(b)
Petition From New York
III. Background and Legal Authority
A. Ground-Level Ozone and the Interstate
Transport of Ozone
B. CAA Sections 110 and 126
C. The EPA’s Historical Approach To
Addressing Interstate Transport of Ozone
Under the Good Neighbor Provision
D. The CAA Section 126(b) Petition From
New York
IV. The EPA’s Proposed Decision on the CAA
Section 126(b) Petition From New York
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A. The EPA’s Approach for Granting or
Denying CAA Section 126(b) Petitions
Regarding the 2008 and 2015 8-Hour
Ozone NAAQS
B. The EPA’s Evaluation of Whether the
Petition Is Sufficient To Support a CAA
Section 126(b) Finding
V. Conclusion
VI. Judicial Review
VII. Statutory Authority
I. General Information
Throughout this document wherever
‘‘we,’’ ‘‘us,’’ ‘‘our’’ or ‘‘Agency’’ is used,
we mean the United States (U.S.) EPA.
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Where can I get a copy of this document
and other related information?
The EPA has established a docket for
this action under Docket ID No. EPA–
HQ–OAR–2018–0170 (available at
https://www.regulations.gov). The EPA
has made available information related
to the proposed action and the public
hearing at website: https://
www.epa.gov/ozone-pollution/ozonenational-ambient-air-quality-standardsnaaqs-section-126-petitions.
II. Executive Summary of the EPA’s
Proposed Decision on the CAA Section
126(b) Petition From New York
In March 2018, the state of New York
submitted a petition requesting that the
EPA make a finding pursuant to CAA
section 126(b) that emissions from over
350 facilities in nine states significantly
contribute to nonattainment and/or
interfere with maintenance of the 2008
and 2015 ozone NAAQS in violation of
CAA section 110(a)(2)(D)(i)(I), otherwise
known as the good neighbor provision.
For the reasons explained in this notice,
the EPA is proposing to deny the
petition because New York has not met
its statutory burden to demonstrate that
the group of sources identified in the
petition emits or would emit in
violation of the good neighbor provision
for the 2008 or 2015 ozone NAAQS in
either Chautauqua County or the
NYMA.
The EPA is evaluating the petition
consistent with the same four-step
interstate transport framework that the
EPA has used in previous regulatory
actions addressing regional ozone
transport problems. The EPA is,
therefore, using this framework to
evaluate whether the petition meets the
standard to demonstrate under CAA
section 126(b) that the sources emit or
would emit in violation of the good
neighbor provision. The EPA’s proposed
denial rests on both the first and third
steps of this framework. With respect to
the 2008 and 2015 ozone NAAQS in
Chautauqua County, the EPA is
proposing to deny the petition at step 1
of the framework (i.e., whether there
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will be a downwind air quality problem
relative to the relevant NAAQS) based
on the conclusion that the petition has
not identified, and the EPA has not
independently found, relevant air
quality problems. With respect to the
2008 ozone NAAQS in the NYMA, the
EPA is similarly proposing to deny the
petition based on the conclusion that
the petition has not identified, and the
EPA has not independently found,
relevant air quality problems. Thus, the
EPA is proposing to find as to these
areas and NAAQS that the petition has
not met its burden at step 1 of the fourstep interstate transport framework.
Thus, the group of identified sources
neither emits nor would emit pollution
in violation of the good neighbor
provision. With respect to the 2015
ozone NAAQS in the NYMA, the EPA
has identified a relevant downwind air
quality problem, and, thus, the EPA is
not proposing a denial at step 1 as to
this portion of the petition.
The EPA is additionally proposing to
deny the petition as to all areas and
NAAQS at step 3 of the framework (i.e.,
whether, considering cost and airquality factors, emissions from sources
in the named state(s) will significantly
contribute to nonattainment or interfere
with maintenance of a NAAQS at a
receptor in another state). The EPA is
proposing to find that material elements
in the petition’s assessment of whether
the sources may be further controlled
through implementation of costeffective controls are insufficient and,
thus, New York has not met its step 3
burden to demonstrate that the named
sources currently emit or would emit in
violation of the good neighbor provision
with respect to the relevant ozone
NAAQS. As to the claims in the petition
regarding Chautauqua County (for both
NAAQS) and the NYMA (for the 2008
ozone NAAQS), this provides an
independent basis for denial in addition
to the proposed denial under step 3. The
EPA is taking comment on whether to
also deny the petition because the
petitioner has not provided justification
for the proposition that identification of
such a large, undifferentiated number of
sources located in numerous upwind
states constitutes a ‘‘group of stationary
sources’’ within the context of CAA
section 126(b).
Section III of this notice provides
background information regarding the
EPA’s approach to addressing the
interstate transport of ozone under CAA
sections 110(a)(2)(D)(i)(I) and 126(b) and
provides a summary of the relevant
issues raised in New York’s CAA
section 126(b) petition. Section IV of
this notice details the EPA’s proposed
action to deny the petition, including an
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explanation of the EPA’s approach for
granting or denying CAA section 126(b)
petitions regarding the 2008 and 2015 8hour ozone NAAQS and the EPA’s
evaluation of the sufficiency of New
York’s petition, identifying technical
insufficiencies in the petition and
explaining how the EPA’s own analysis
informs its evaluation of the claims in
the petition.
III. Background and Legal Authority
A. Ground-Level Ozone and the
Interstate Transport of Ozone
On March 12, 2008, the EPA
promulgated a revision to the groundlevel ozone NAAQS, lowering both the
primary and secondary standards to 75
parts per billion (ppb).1 On October 1,
2015, the EPA further revised the
ground-level ozone NAAQS to 70 ppb.2
In this proposal, consistent with
previous rulemakings described in
Section III.C.2, the EPA relies on
analyses that reflect the regional nature
of transported ground-level ozone
pollution. Ground-level ozone is not
emitted directly into the air but is a
secondary air pollutant created by
chemical reactions between nitrogen
oxides (NOX), carbon monoxide (CO),
methane (CH4), and non-methane
volatile organic compounds (VOCs) in
the presence of sunlight. Emissions from
mobile sources, electric generating units
(EGUs), industrial facilities, gasoline
vapors, and chemical solvents are some
of the major anthropogenic sources of
ozone precursors. The potential for
ground-level ozone formation increases
during periods with warmer
temperatures and stagnant air masses.
Therefore, ozone levels are generally
higher during the summer months.3 4
Ground-level ozone concentrations and
temperature are highly correlated in the
eastern U.S., with observed ozone
increases of 2–3 ppb per degree Celsius
reported.5
Precursor emissions can be
transported downwind directly or, after
1 See National Ambient Air Quality Standards for
Ozone, Final Rule, 73 FR 16436 (March 27, 2008).
2 See National Ambient Air Quality Standards for
Ozone, Final Rule, 80 FR 65292 (October 26, 2015).
3 Rasmussen, D.J. et al. (2012). Surface ozonetemperature relationships in the eastern U.S.: A
monthly climatology for evaluating chemistryclimate models. Atmospheric Environment 47: 142–
153.
4 High ozone concentrations have also been
observed in cold months, where a few areas in the
western U.S. have experienced high levels of local
VOC and NOX emissions that have formed ozone
when snow is on the ground and temperatures are
near or below freezing.
5 Bloomer, B.J., J.W. Stehr, C.A. Piety, R.J.
Salawitch, and R.R. Dickerson (2009). Observed
relationships of ozone air pollution with
temperature and emissions, Geophys. Res. Lett., 36,
L09803.
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transformation in the atmosphere, as
ozone. Studies have established that
ozone formation, atmospheric residence,
and transport can occur on a regional
scale (i.e., across hundreds of miles)
over much of the eastern U.S. Thus, in
any given location, ozone pollution
levels are affected by a combination of
local emissions and emissions from
upwind sources. Numerous
observational studies have
demonstrated the transport of ozone and
its precursors and the impact of upwind
emissions on high concentrations of
ozone pollution.6
The EPA concluded in several
previous rulemakings (summarized in
Section III.C.2) that interstate ozone
transport can be an important
component of peak ozone
concentrations during the summer
ozone season and that NOX control
strategies are effective for reducing
regional-scale ozone transport. Model
assessments have looked at impacts on
peak ozone concentrations after
potential emissions reduction scenarios
for NOX and VOCs for NOX-limited and
VOC-limited areas. For example, Jiang
and Fast concluded that NOX emissions
reduction strategies are effective in
lowering ozone mixing ratios in urban
areas and Liao et al. showed that NOX
reductions result in lower peak ozone
concentrations in non-attainment areas
in the Mid-Atlantic.7 8
Studies have found that NOX
emissions reductions can be effective in
reducing ozone pollution as quantified
by the form of the 2008 ozone standard
(8-hour peak concentrations).
Specifically, studies have found that
NOX emissions reductions from EGUs,
mobile sources, and other source
categories can be effective in reducing
the upper-end of the cumulative ozone
distribution in the summer on a regional
scale.9 Analysis of air quality
monitoring data trends shows
reductions in summertime ozone
concurrent with implementation of NOX
6 For example, Bergin, M.S. et al. (2007). Regional
air quality: Local and interstate impacts of NOX and
SO2 emissions on ozone and fine particulate matter
in the eastern United States. Environmental Sci &
Tech. 41: 4677–4689.
7 Jiang, G.; Fast, J.D. (2004). Modeling the effects
of VOC and NOX emissions sources on ozone
formation in Houston during the TexAQS 2000 field
campaign. Atmospheric Environment 38: 5071–
5085.
8 Liao, K. et al. (2014) Impacts of interstate
transport of pollutants on high ozone events over
the Mid-Atlantic United States. Atmospheric
Environment 84: 100–112.
9 Hidy, G.M. and Blanchard C.L. (2015). Precursor
reductions and ground-level ozone in the
Continental United States. J. of Air & Waste
Management Ass’n 65, 10.
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reduction programs.10 Gilliland et al.
examined the NOX State
Implementation Plan (SIP) Call,11
discussed in more detail in Section
III.C.2, and presented reductions in
observed versus modeled ozone
concentrations in the eastern U.S.
downwind from major NOX sources.12
The results showed significant
reductions in ozone concentrations (10–
25 percent) from observed
measurements (CASTNET and AQS) 13
between 2002 and 2005, linking
reductions in EGU NOX emissions from
upwind states with ozone reductions
downwind of the major source areas.14
Additionally, Ge´go et al. showed that
ground-level ozone concentrations were
significantly reduced after
implementation of the NOX SIP Call.15
Thus, these studies support the EPA’s
continued focus on regional and
seasonal NOX control strategies to
address regional interstate ozone
pollution transport.
B. CAA Sections 110 and 126
The statutory authority for this action
is provided by CAA sections 126 and
110(a)(2)(D)(i). Section 126(b) of the
CAA provides, among other things, that
any state or political subdivision may
petition the Administrator of the EPA to
find that any major source or group of
stationary sources in an upwind state
emits or would emit any air pollutant in
violation of the prohibition of CAA
section 110(a)(2)(D)(i), referred to as the
good neighbor provision of the Act.16
Petitions submitted pursuant to this
section are commonly referred to as
10 Simon, H. et al. (2015). Ozone trends across the
United States over a period of decreasing NOX and
VOC emissions. Environmental Science &
Technology 49, 186–195.
11 See Finding of Significant Contribution and
Rulemaking for Certain States in the Ozone
Transport Assessment Group Region for Purposes of
Reducing Regional Transport of Ozone (NOX SIP
Call). 63 FR 57356 (October 27, 1998).
12 Gilliland, A.B. et al. (2008). Dynamic
evaluation of regional air quality models: Assessing
changes in O3 stemming from changes in emissions
and meteorology. Atmospheric Environment 42:
5110–5123.
13 CASTNET is the EPA’s Clean Air Status and
Trends Network. AQS is the EPA’s Air Quality
System.
14 Hou, Strickland & Liao (2015). Contributions of
regional air pollutant emissions to ozone and fine
particulate matter-related mortalities in eastern U.S.
urban areas. Environmental Research 137: 475–484.
15 Ge
´ go et al. (2007). Observation-based
assessment of the impact of nitrogen oxides
emission reductions on O3 air quality over the
eastern United States. J. of Applied Meteorology
and Climatology 46: 994–1008.
16 The text of CAA section 126 as codified in the
U.S. Code cross-references section 110(a)(2)(D)(ii)
instead of section 110(a)(2)(D)(i). The courts have
confirmed that this is a scrivener’s error and the
correct cross-reference is to CAA section
110(a)(2)(D)(i). See Appalachian Power Co. v. EPA,
249 F.3d 1032, 1040–44 (D.C. Cir. 2001).
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CAA section 126(b) petitions. Similarly,
findings by the Administrator, pursuant
to this section, that a source or group of
sources emits air pollutants in violation
of the CAA section 110(a)(2)(D)(i)
prohibition are commonly referred to as
CAA section 126(b) findings.
CAA section 126(c) explains the effect
of a CAA section 126(b) finding and
establishes the conditions under which
continued operation of a source subject
to such a finding may be permitted.
Specifically, CAA section 126(c)
provides that it is a violation of section
126 of the Act and of the applicable SIP:
(1) For any major proposed new or
modified source subject to a CAA
section 126(b) finding to be constructed
or operate in violation of the prohibition
of CAA section 110(a)(2)(D)(i) or (2) for
any major existing source for which
such a finding has been made to stay in
operation more than 3 months after the
date of the finding. The statute,
however, also gives the Administrator
discretion to permit the continued
operation of a source beyond 3 months
if the source complies with emissions
limitations and compliance schedules
provided by the EPA to bring about
compliance with the requirements
contained in CAA sections
110(a)(2)(D)(i) and 126 as expeditiously
as practicable, but in any event no later
than 3 years from the date of the
finding.
Section 110(a)(2)(D)(i) of the CAA
requires states to prohibit certain
emissions from in-state sources if such
emissions impact the air quality in
downwind states. Specifically, CAA
sections 110(a)(1) and 110(a)(2)(D)(i)(I)
require all states, within 3 years of
promulgation of a new or revised
NAAQS, to submit SIPs that contain
adequate provisions prohibiting any
source or other type of emissions
activity within the state from emitting
any air pollutant in amounts which will
contribute significantly to
nonattainment in, or interfere with
maintenance by, any other state with
respect to that NAAQS. As described
further in Section III.C.2, the EPA has
developed several regional rulemakings
to address the requirements of CAA
section 110(a)(2)(D)(i)(I) for the various
ozone NAAQS. The EPA’s most recent
rulemaking, Determination Regarding
Good Neighbor Obligations for the 2008
Ozone National Ambient Air Quality
Standard (the Determination Rule),
finalized a determination that the
existing Cross-State Air Pollution Rule
Update for the 2008 Ozone NAAQS
(CSAPR Update) 17 fully addresses
17 See Cross-State Air Pollution Rule Update for
the 2008 Ozone National Ambient Air Quality
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certain states’ interstate transport
obligations under CAA section
110(a)(2)(D)(i)(I) for the 2008 ozone
NAAQS. 83 FR 65878 (December 21,
2018).
Section 110(a)(2)(D)(ii) of the CAA
further requires SIPs to contain
adequate provisions insuring
compliance with the applicable
requirements of, inter alia, CAA section
126. Thus, where the EPA has made a
finding pursuant to CAA section 126(b),
this provision requires states to revise
their SIPs to adopt any emissions
limitations and compliance schedules
provided by the EPA under CAA section
126(c).
C. The EPA’s Historical Approach To
Addressing Interstate Transport of
Ozone Under the Good Neighbor
Provision
Given that formation, atmospheric
residence, and transport of ozone can
occur on a regional scale (i.e., across
hundreds of miles) and that many
separate areas across the eastern U.S.
have struggled to attain and maintain
the NAAQS, the states and the EPA
have historically addressed the
interstate transport of ozone pursuant to
the good neighbor provision by
promulgating rulemakings that employ
regional trading programs to reduce
NOX emissions. Each of these
rulemakings followed a similar four-step
interstate transport framework to
evaluate the extent of the ozone
transport problem (i.e., the breadth of
downwind ozone problems and the
contributions from upwind states) and,
ultimately, to find that downwind
states’ problems attaining and
maintaining the ozone NAAQS result
from an interconnected system of
transported pollution emitted by
multiple upwind sources located in
different upwind states combined with
downwind (i.e., locally generated)
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1. Description of the Four-Step
Interstate Transport Framework
Through the development and
implementation of several previous
rulemakings,18 the EPA, working in
partnership with states, established the
Standards, Final Rule, 81 FR 74504 (October 26,
2016).
18 See Finding of Significant Contribution and
Rulemaking for Certain States in the Ozone
Transport Assessment Group Region for Purposes of
Reducing Regional Transport of Ozone (also known
as the NOX SIP Call), 63 FR 57356 (October 27,
1998); Clean Air Interstate Rule (CAIR) Final Rule,
70 FR 25162 (May 12, 2005); CSAPR Final Rule, 76
FR 48208 (August 8, 2011); CSAPR Update Final
Rule, 81 FR 74504 (October 26, 2016);
Determination Rule, 83 FR 65878 (December 21,
2018).
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following four-step interstate transport
framework to address the requirements
of the good neighbor provision for
regional pollutants such as ozone and
fine particulate matter (PM2.5):
(1) Identify downwind receptors that
are expected to have problems attaining
or maintaining the NAAQS. The EPA
historically identified downwind areas
with air quality problems, or receptors,
using air quality modeling projections
for a future analytic year and, where
appropriate, considering monitored air
quality data.
(2) Determine which upwind states
are linked to these identified downwind
air quality problems and thus warrant
further analysis to determine whether
their emissions violate the good
neighbor provision. In the EPA’s most
recent transport rulemakings for the
1997 and 2008 ozone NAAQS, as well
as the 1997 and 2006 PM2.5 NAAQS, the
Agency identified such upwind states to
be those modeled to contribute at or
above a threshold relative to the
applicable NAAQS.
(3) For states linked to downwind air
quality problems, identify upwind
emissions (if any) on a statewide basis
that will significantly contribute to
nonattainment or interfere with
maintenance of a standard at a receptor
in another state. In the EPA’s prior
rulemakings for ozone and PM2.5, the
Agency identified and apportioned
emissions reduction responsibility
among multiple upwind states linked to
downwind air quality problems by
identifying a uniform level of control
stringency based on cost and air quality
factors evaluated in a multi-factor test.
(4) For upwind states that are found
to have emissions that will significantly
contribute to nonattainment or interfere
with maintenance of the NAAQS
downwind, implement the necessary
emissions reductions within the state.
When the EPA has promulgated federal
implementation plans (FIPs) addressing
the good neighbor provision for ozone
and PM2.5 NAAQS in prior transport
rulemakings, the EPA has typically
required affected sources in upwind
states to participate in allowance trading
programs to achieve the necessary
emissions reductions.19 In addition, the
EPA has also offered states the
opportunity to participate in
comparable EPA-operated allowance
19 While the EPA has chosen to implement
emissions reductions through allowance trading
programs for states found to have a downwind
impact, upwind states can choose to submit a SIP
that implements such reductions through other
enforceable mechanisms that meet the requirements
of the good neighbor provision, such as the
enforceable mechanisms that the petitioner
apparently favors and argues for in its petition.
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trading programs to achieve the
necessary emissions reductions through
SIPs.
Using the four-step framework to
evaluate a particular interstate transport
problem allows the EPA to determine
whether upwind sources are actually
linked to a downwind air quality
problem, whether and which sources
can be cost-effectively controlled to
address that downwind air quality
problem, what level of emissions should
be eliminated to address the downwind
air quality problem, and the means of
implementing corresponding emissions
limits (i.e., source-specific rates, or
statewide emissions budgets in a limited
regional allowance trading program).
The outcome of this assessment varies
based on the scope of the air quality
problem, the availability and cost of
controls at sources in upwind states,
and the estimated impact of upwind
emissions reductions on downwind
ozone concentrations.
2. Prior Regional Rulemakings Under
the Good Neighbor Provision
The EPA’s first regional interstate
transport rulemaking, the NOX SIP Call,
addressed the 1979 ozone NAAQS. 63
FR 57356 (October 27, 1998).20 The NOX
SIP Call was the result of the analytic
work and recommendations of the
Ozone Transport Assessment Group,
which was organized and led by states
in consultation with the EPA and other
stakeholders. The EPA used this
collaboratively-developed analysis to
conclude in the NOX SIP Call that ‘‘[t]he
fact that virtually every nonattainment
problem is caused by numerous sources
over a wide geographic area is a factor
suggesting that the solution to the
problem is the implementation over a
wide area of controls on many sources,
each of which may have a small or
unmeasurable ambient impact by itself.’’
63 FR 57356, 57377 (October 27, 1998).
The NOX SIP Call promulgated
statewide emissions budgets and
required upwind states to adopt SIPs
that would decrease their NOX
emissions to meet these budgets,
thereby prohibiting the emissions that
significantly contribute to
nonattainment or interfere with
maintenance of the ozone NAAQS in
downwind states. The EPA also
promulgated a model rule for a regional
allowance trading program called the
20 As originally promulgated, the NO SIP Call
X
also addressed good neighbor obligations under the
1997 8-hour ozone NAAQS, but the EPA
subsequently stayed the rule’s provisions with
respect to that standard. 40 CFR 51.121(q). The EPA
recently finalized an action rescinding the 1997
ozone NAAQS as a basis for the NOX SIP Call. 84
FR 8422 (March 8, 2019).
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NOX Budget Trading Program that states
could adopt in their SIPs as a
mechanism to achieve some or all
required emissions reductions. All
jurisdictions covered by the NOX SIP
Call ultimately chose to adopt the NOX
Budget Trading Program into their SIPs.
The NOX SIP Call was ultimately
upheld by the U.S. Court of Appeals for
the District of Columbia Circuit (D.C.
Circuit) in all pertinent respects. See
Michigan v. EPA, 213 F.3d 663 (2000).
In coordination with the NOX SIP Call
rulemaking under CAA section
110(a)(2)(D)(i)(I), the EPA also
addressed several pending CAA section
126(b) petitions submitted by eight
northeastern states regarding the same
air quality issues addressed by the NOX
SIP Call, specifically interstate ozone
transport for the 1979 ozone NAAQS.
These CAA section 126(b) petitions
asked the EPA to find that ozone
emissions from numerous sources
located in 30 states and the District of
Columbia had adverse air quality
impacts on the petitioning downwind
states. Half of the petitioning states (i.e.,
Connecticut, Maine, New York, and
Pennsylvania) requested an allowance
trading program to reduce NOX
emissions and remedy regional
interstate ozone transport. 63 FR 56297
(October 21, 1998). Based on analysis
conducted for the NOX SIP Call
regarding upwind state impacts on
downwind air quality, the EPA, in May
1999, made technical determinations
regarding the claims in the petitions, but
did not at that time make the CAA
section 126(b) findings requested by the
petitions. 64 FR 28250 (May 25, 1999).
In making these technical
determinations, the EPA concluded that
the NOX SIP Call would fully address
and remediate the claims raised in these
petitions and that the EPA would,
therefore, not need to take separate
action to remedy any potential
violations of the CAA section
110(a)(2)(D)(i) prohibition. 64 FR 28252.
However, subsequent litigation over the
NOX SIP Call led the EPA to ‘‘de-link’’
the CAA section 126(b) petition
response from the NOX SIP Call, and the
EPA made final CAA section 126(b)
findings for 12 states named in the
petitions and the District of Columbia.
The EPA found that sources in these
states emitted in violation of the
prohibition in the good neighbor
provision with respect to the 1979
ozone NAAQS based on the affirmative
technical determinations made in the
May 1999 rulemaking. To remedy the
violation under CAA section 126(c), the
EPA required affected sources in the
upwind states to participate in a
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regional allowance trading program
whose requirements were designed to be
interchangeable with the requirements
of the optional NOX Budget Trading
Program model rule provided under the
NOX SIP Call. 65 FR 2674 (January 18,
2000). The EPA’s action on these CAA
section 126(b) petitions was upheld by
the D.C. Circuit. See Appalachian Power
Co. v. EPA, 249 F.3d 1032 (D.C. Cir.
2001).
The EPA next promulgated the Clean
Air Interstate Rule (CAIR), 70 FR 25162
(May 12, 2005), to address interstate
transport under the good neighbor
provision with respect to the 1997
ozone NAAQS, as well as the 1997
PM2.5 NAAQS. 70 FR 25172. The EPA
adopted the same approach for
quantifying the level of states’
significant contribution to downwind
nonattainment in CAIR as it used in the
NOX SIP Call, based on the
determination in the NOX SIP Call that
downwind ozone nonattainment is due
to the impact of emissions from
numerous upwind sources and states.
70 FR 25162, 25172 (May 12, 2005). The
EPA explained that ‘‘[t]ypically, two or
more States contribute transported
pollution to a single downwind area, so
that the ‘collective contribution’ is
much larger than the contribution of any
single State.’’ 70 FR 25186. CAIR
included two distinct regulatory
processes: (1) A rulemaking to define
significant contribution (i.e., the
emissions reduction obligation) under
the good neighbor provision and
provide for submission of SIPs
eliminating that contribution, 70 FR
25162 (May 12, 2005); and (2) a
rulemaking to promulgate, where
necessary, FIPs imposing emissions
limitations in the event states did not
submit SIPs. 71 FR 25328 (April 28,
2006). The FIPs required EGUs in
affected states to participate in regional
allowance trading programs, which
replaced the previous NOX Budget
Trading Program.
In conjunction with the second CAIR
rulemaking, which promulgated
backstop FIPs, the EPA acted on a CAA
section 126(b) petition received from the
state of North Carolina on March 19,
2004, seeking a finding that large EGUs
located in 13 states were significantly
contributing to nonattainment and/or
interfering with maintenance of the
1997 ozone NAAQS and the 1997 PM2.5
NAAQS in North Carolina. Citing the
analyses conducted to support the
promulgation of CAIR, the EPA denied
North Carolina’s CAA section 126(b)
petition in full based on determinations
either that the named states were not
adversely impacting downwind air
quality in violation of the good neighbor
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provision, or that such impacts were
fully remedied by implementation of the
emissions reductions required by the
CAIR FIPs. 71 FR 25328, 25330 (April
28, 2006).
The D.C. Circuit found that the EPA’s
approach to CAA section
110(a)(2)(D)(i)(I) in CAIR was
‘‘fundamentally flawed’’ in several
respects, and the rule was remanded in
July 2008 with the instruction that the
EPA replace the rule ‘‘from the ground
up.’’ North Carolina, 531 F.3d at 929.
The decision concluded the EPA’s
analysis and compliance mechanisms
did not address all elements required by
the statute. The EPA’s separate action
denying North Carolina’s CAA section
126(b) petition was not challenged.
On August 8, 2011, the EPA
promulgated CSAPR to replace CAIR. 76
FR 48208 (August 8, 2011). CSAPR
addressed the same (1997) ozone and
PM2.5 NAAQS as CAIR and additionally
addressed interstate transport for the
2006 PM2.5 NAAQS by requiring 28
states to reduce sulfur dioxide (SO2)
emissions, annual NOX emissions, and/
or ozone season NOX emissions that
would significantly contribute to other
states’ nonattainment or interfere with
other states’ ability to maintain these air
quality standards. Consistent with prior
determinations made in the NOX SIP
Call and CAIR, the EPA again found that
multiple upwind states contributed to
ozone nonattainment in multiple
downwind states. Specifically, the EPA
found ‘‘that the total ‘collective
contribution’ from upwind sources
represents a large portion of PM2.5 and
ozone at downwind locations and that
the total amount of transport is
composed of the individual contribution
from numerous upwind states.’’ 76 FR
48237. Accordingly, the EPA conducted
a regional analysis, calculated emissions
budgets for affected states, and required
EGUs in these states to participate in
new regional allowance trading
programs to reduce statewide emissions
levels.21 CSAPR was subject to nearly 4
years of litigation. Ultimately, the
Supreme Court upheld the EPA’s
approach to calculating emissions
reduction obligations and apportioning
upwind state responsibility under the
good neighbor provision, but also held
that the EPA was precluded from
requiring more emissions reductions
21 The CSAPR trading programs included
assurance provisions to ensure that emissions are
reduced within each individual state, in accordance
with North Carolina, 531 F.3d at 907–08 (holding
the EPA must require elimination of emissions from
each upwind state that contribute significantly to
nonattainment and interfere with maintenance in
downwind areas). Those provisions were also
included in the CSAPR Update and took effect with
the 2017 CSAPR compliance periods.
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than necessary to address downwind air
quality problems, or ‘‘over-controlling’’
upwind state emissions. See EPA v.
EME Homer City Generation, L.P., 134 S.
Ct. 1584, 1607–09 (2014) (EME Homer
City).22
In 2016, the EPA promulgated the
CSAPR Update to address the good
neighbor provision requirements for the
2008 ozone NAAQS. 81 FR 74504
(October 26, 2016). The CSAPR Update
built upon previous regulatory efforts to
address the collective contributions of
ozone pollution from 22 states in the
eastern U.S. to widespread downwind
air quality problems. As with previous
rulemakings, the EPA evaluated the
nature (i.e., breadth and
interconnectedness) of the ozone
problem and NOX reduction potential
from EGUs, including essentially all the
EGUs at the facilities named in the New
York CAA section 126(b) petition.23 In
the CSAPR Update, the EPA quantified
emissions reduction obligations for each
state based on an analysis of control
strategies that could be implemented by
the 2017 ozone season and implemented
those emissions reductions through FIPs
which required EGUs in affected states
to participate in a regional allowance
trading program to further reduce
statewide NOX emissions levels.
At the time the EPA finalized the
CSAPR Update in 2016, the EPA was
unable to determine whether the rule
fully resolved good neighbor obligations
with respect to the 2008 ozone NAAQS
for most (i.e., 21) of the states subject to
that action, including those addressed
in New York’s petition (i.e., Illinois,
Indiana, Kentucky, Maryland, Michigan,
Ohio, Pennsylvania, Virginia and West
Virginia). The EPA stated that, based on
its analysis at that time, the emissions
reductions required by the rule ‘‘may
not be all that is needed’’ to address
transported emissions.24 81 FR 74521–
22 On remand from the Supreme Court, the D.C.
Circuit further affirmed various aspects of the
CSAPR, while remanding the rule without vacatur
for reconsideration of certain states’ emissions
budgets where it found those budgets may overcontrol emissions beyond what was necessary to
address the good neighbor requirements. EME
Homer City Generation, L.P. v. EPA, 795 F.3d 118
(2015) (EME Homer City II). The EPA addressed the
remand in several rulemaking actions in 2016 and
2017.
23 The EPA uses the language ‘‘essentially all the
EGUs at the facilities named . . .’’ (emphasis
added) to clarify that the New York petition
identifies sources at the facility, rather than at the
unit, level. The CSAPR Update looked at unit-level
data and included all fossil-fuel-fired boiler or
combustion turbine EGUs with a capacity (electrical
output) greater than 25 megawatts (MW). See 81 FR
74563 (October 26, 2016).
24 The EPA determined that the emissions
reductions required by the CSAPR Update satisfied
the full scope of the good neighbor obligation for
Tennessee with respect to the 2008 ozone NAAQS.
81 FR 74551–52 (October 26, 2016).
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22 (October 26, 2016). The information
available at that time suggested that
downwind air quality problems would
remain in 2017 after implementation of
the CSAPR Update and that upwind
states continued to be linked to those
downwind problems at or above the
one-percent threshold. However, in the
CSAPR Update, the EPA could not
determine whether, in step 3 of the fourstep interstate transport framework, the
EPA had quantified all emissions
reductions that may be considered costeffective because the rule did not
evaluate non-EGU ozone season NOX
reductions and further EGU control
strategies (i.e., the implementation of
new post-combustion controls) that
were achievable on timeframes
extending beyond the 2017 analytic
year.
On December 6, 2018, the EPA
finalized a determination that, based on
the latest available emissions inventory
and air quality modeling data for a 2023
analytic year, the CSAPR Update fully
addresses the good neighbor provision
requirements for the 2008 ozone
NAAQS for 20 eastern states (among the
22) previously addressed in the CSAPR
Update. 83 FR 65878 (December 21,
2018). The EPA’s Determination Rule
applied the four-step interstate transport
framework but did not move beyond an
analysis at step 1 of the four-step
framework, because the EPA found that
there would be no remaining
nonattainment or maintenance receptors
for the 2008 ozone NAAQS in the
eastern U.S. in 2023. Therefore, with the
CSAPR Update fully implemented, the
EPA finalized in the Determination Rule
a finding that the 20 states addressed by
that action (including eight of the nine
states named in New York’s petition)
will not contribute significantly to
nonattainment in, or interfere with
maintenance by, any other state
regarding the 2008 ozone NAAQS. The
EPA had already determined that the
remaining two states would have no
remaining good neighbor obligation for
the 2008 ozone NAAQS—one in the
CSAPR Update (Tennessee), 81 FR
74540 (October 26, 2016), and the other
in a separate SIP approval (Kentucky,
the ninth state named in New York’s
petition), 83 FR 33730 (July 17, 2018).
Most recently, the EPA acted on five
CAA section 126(b) petitions submitted
by the states of Delaware and Maryland
regarding various sources in five
upwind states with regard to the 2008
and 2015 ozone NAAQS. In denying the
petitions, the EPA applied the same
four-step interstate transport framework
used in prior rulemakings and relied on
analysis and determinations made in the
CSAPR Update for purposes of
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evaluating the good neighbor obligations
with respect to the 2008 ozone NAAQS.
83 FR 50444 (October 5, 2018).
D. The CAA Section 126(b) Petition
From New York
On March 12, 2018, the New York
State Department of Environmental
Conservation (NY DEC) submitted a
CAA section 126(b) petition alleging
that emissions from a group of specified
upwind sources in Illinois, Indiana,
Kentucky, Maryland, Michigan, Ohio,
Pennsylvania, Virginia, and West
Virginia significantly contribute to
nonattainment and interfere with
maintenance of the 2008 and 2015
ozone NAAQS in New York State,
specifically in the New York-Northern
New Jersey-Long Island, NY-NJ-CT area
(hereafter the New York metropolitan
area or NYMA) and in Chautauqua
County in western New York.
1. The petition asserts that
Chautauqua County and the NYMA
have an air quality problem for the 2008
and the 2015 ozone NAAQS.
The petition explains that the EPA
designated the Chautauqua County area
(i.e., Jamestown, New York) as Marginal
nonattainment for the 2008 ozone
NAAQS and that the area attained the
NAAQS by the Marginal area attainment
date of July 20, 2015. The petition
asserts, however, that the area remains
in danger of exceeding the ozone
NAAQS, particularly the 2015 standard.
The petition also explains that the
EPA designated the NYMA as Marginal
nonattainment for the 2008 ozone
NAAQS. The NYMA failed to attain the
NAAQS by the Marginal attainment
deadline of July 20, 2015, and the EPA
subsequently reclassified the area to a
Moderate nonattainment area on June 3,
2016.25 The petition further asserts that
all three states in the NYMA (i.e., New
York, New Jersey and Connecticut) have
surpassed their three-percent-per-year
emissions reductions requirements for
the 2008 NAAQS; yet certified
monitoring data through 2016 and (at
the time of the petition submittal)
preliminary 2017 data indicate that the
area is not attaining the 2008 NAAQS,
with one monitor in Connecticut
recording a preliminary 2017 design
value of 83 ppb. The petition, thus,
concludes that the area will likely be
designated nonattainment for the 2015
ozone NAAQS.26
25 The EPA notes that New York submitted its
CAA section 126(b) petition before the EPA
proposed to reclassify the NYMA as a Serious
nonattainment area. 83 FR 56781 (November 14,
2018).
26 The petition asserts that the EPA had not yet
issued final designations at the time the petition
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2. The petition asserts that NOX
transport from the nine named states
impacts air quality in New York State.
The petition identifies nine states that
were linked to air quality problems in
New York in the EPA’s 2017
contribution modeling in the CSAPR
Update based on impacts equal to or
greater than the threshold of one percent
of the 2008 NAAQS (or 0.75 ppb or
more): Illinois, Indiana, Kentucky,
Maryland, Michigan, Ohio,
Pennsylvania, Virginia and West
Virginia. The petition also asserts that
the high concentrations of ozone that
are transported to New York are largely
the result of emissions from major
stationary sources of NOX located in the
linked states. The petition cites efforts
by New York and other parties to
mitigate regional transport of NOX,
including implementation of the NOX
Budget Trading Program under the NOX
SIP Call and the CSAPR allowance
trading programs.
Additionally, the petition describes a
study that allegedly found that air
transported into Chautauqua County on
the worst air quality days results in
maximum daily ozone concentrations
that, on average, are within 2 ppb of the
2015 ozone NAAQS and often exceed
the standard of 70 ppb.27 The petition
concludes that, given the absence of
major sources in the Chautauqua County
area, reductions in ozone precursor
emissions are needed from upwind
states, especially from sources in
Illinois, Indiana, Kentucky, Michigan,
Ohio, and Virginia.
3. The petition asserts that facilities
emitting (or projected to emit) above 400
tons of NOX significantly contribute to
air quality problems or interfere with
maintenance in New York State.
When analyzing significant ozone
contributions, the petition considers the
highest emitting facilities from the
previously named linked states.
Specifically, the petition identifies EGU
and non-EGU facilities emitting, or
projected to emit, 400 tons per year or
more of NOX in each of these linked
was submitted. On April 30, 2018, the EPA
designated New York-Northern New Jersey-Long
Island, NY-NJ-CT area as a Moderate nonattainment
area, the same as the NYMA nonattainment area for
2008 ozone NAAQS. 83 FR 25776 (June 4, 2018).
27 The petition discusses the results of a study
titled the ‘‘Dunkirk Monitor Transport Study,’’
which presents an analysis of back-trajectories used
to single out interstate airflow on ‘‘design days,’’
which the petition defines as days considered in the
calculation of the design values. The subject days
include the four days in each year from 2013 to
2017 with the largest daily maximum 8-hour ozone
concentrations at the Dunkirk monitoring site in
Chautauqua County, New York. The Dunkirk
monitoring site is the design value monitoring site
in Chautauqua County (i.e., the site with the highest
design value in the county).
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states and asserts that these facilities are
expected to have the greatest impact on
the ability of the NYMA and
Chautauqua County to attain and
maintain the 2008 and 2015 NAAQS.28
The petition asserts that the identified
facilities can reasonably be retrofitted
with control equipment or can operate
existing controls more frequently to
reduce NOX.
The petition provides and uses NY
DEC generated air quality modeling data
to quantify projected 2017 impacts on
ozone concentrations from the collective
NOX emissions of the EGU and nonEGU (including oil and gas) facilities
that emitted at least 400 tons-per-year of
NOX in each state that was linked in the
EPA’s modeling for the CSAPR Update
(‘‘400 tons-per-year sources’’).
According to the petition, results from
NY DEC’s independent modeling
analysis show single-day impacts from
individual states’ groups of 400 tonsper-year sources of up to 6.34 ppb in
Chautauqua County and 4.97 ppb in the
New York portion of the NYMA
nonattainment area.29
The petition asserts that, where the
maximum influence from an individual
state’s combined 400 tons-per-year
sources exceeds 0.75 ppb at a particular
monitor, this indicates significant
contribution to nonattainment or
interference with maintenance of the
2008 ozone NAAQS, and an influence
above 0.70 ppb indicates significant
contribution to nonattainment or
interference with maintenance of the
2015 ozone NAAQS.
The petition also challenges the
applicability of the EPA’s recently28 The petition identifies which facilities emit 400
tons per year of more of NOX based on 2017 EGU
projections by the Mid-Atlantic Regional Air
Management Association (MARAMA). The petition
also identifies non-EGU sources emitting greater
than 400 tons of NOX in the 2014 National
Emissions Inventory (NEI).
29 The petition provides additional detail
regarding the modeling methodology. Specifically,
the petition notes that NY DEC used version 5.0.2
of the Community Multiscale Air Quality (CMAQ)
model with the EPA’s Weather Research Forecast
(WRF) 2011 meteorological data to model hourly
ozone concentrations during the period May 18 to
July 30 for a 2017 ‘‘baseline’’ scenario and
additional state-by-state ‘‘control’’ modeling
scenarios in which emissions from the named
sources in a given state were set to zero. The
petition explains that NY DEC then used the
modeled concentrations to calculate the 8-hour
daily maximum average (MDA8) in each grid cell
on each day of the modeling period for each
modeled scenario. The difference in MDA8
concentrations between the 2017 baseline and each
state zero-out run was used to represent the
contributions on each day. The NY DEC then
selected the largest single-day contribution from
among the highest ozone concentration days to
support their analysis of contributions relative to a
one-percent-of-the-NAAQS threshold.
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released 2023 air quality modeling 30 to
this CAA section 126(b) petition. The
petition states that NY DEC has
significant concerns about the
assumptions and results of the EPA’s
modeling, such as the EPA’s expectation
that uncontrolled EGUs will greatly
reduce their emissions rates in the
absence of unit-level enforceable limits
and the concern that the EPA may have
underestimated the ozone concentration
results for monitoring sites located near
significant water bodies based on the
treatment of model cells containing a
land/water interface. The petition also
asserts that modeling of 2023 is
insufficient to support good neighbor
SIPs and cannot be used to support a
review of New York’s petition because
CAA section 126(c) explicitly states that
compliance must be met ‘‘in no case
later than three years after the date of [a
CAA section 126(b)] finding,’’ and 2023
is more than 3 years after the deadline
by which the EPA must act on the NY
DEC petition. The EPA notes that New
York submitted its CAA section 126(b)
petition before the EPA finalized the
Determination Rule.
4. The petition requests that the EPA
establish enforceable emissions
limitations for the named major NOX
sources at levels designed to prevent
them from significantly contributing to
nonattainment or interfering with
maintenance in New York State.
The petition requests that the EPA
establish permanent and enforceable
NOX emissions limits based on New
York’s determination of available costeffective controls. Specifically, the
petition requests that the named sources
be subject to emissions limits consistent
with Reasonably Available Control
Technology (RACT) as defined by New
York State, which bases its presumptive
limits and facility-specific control
analyses on a standard of $5,000 per ton
of NOX reduced.31 The petition
acknowledges that some of the facilities
identified in the petition may already
30 See the EPA’s October 27, 2017 memorandum
titled, ‘‘Supplemental Information on the Interstate
Transport State Implementation Plan Submissions
for the 2008 Ozone National Ambient Air Quality
Standards under Clean Air Act Section
110(a)(2)(D)(i)(I)’’ that provided future year ozone
design values for monitoring sites in the U.S. based
on updated air quality modeling (for 2023) and
monitoring data.
31 According to the petition, New York’s standard
of $5,000 per ton of NOX reduced for RACT is
inflation-adjusted. Hence, the EPA observes that
this cost per ton will not change in future years
even if inflation leads to increases in NOX control
costs per ton of NOX reduced beyond current
estimates. For example, assuming a control cost of
$5,000 per ton of NOX reduced, a 10 percent
inflation rate will yield a control cost of $5,500 per
ton (1.10 * 5,000), but the inflation-adjusted RACT
basis of $5,000 per ton of NOX reduced remains
unchanged.
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operate with a NOX emissions rate
similar to New York’s RACT limits.
Nonetheless, the petition asks that the
EPA establish enforceable daily
emissions limits during the ozone
season to require these sources to
continue to operate at these rates in the
future. The petition claims that
enforceable emissions limits would
prevent emissions controls from being
turned off, which the petition asserts
occurs when the sources in the state are
collectively emitting well-below their
seasonal CSAPR budgets.
5. Subsequent actions and
correspondence regarding the New York
petition.
Consistent with CAA section
307(d)(10), the EPA determined that the
60-day period for responding to New
York’s petition was insufficient for the
EPA to complete the necessary technical
review, develop an adequate proposal,
and allow time for notice and comment,
including an opportunity for public
hearing, on a proposed finding
regarding whether emissions from the
group of identified sources in nine
states (Illinois, Indiana, Kentucky,
Maryland, Michigan, Ohio,
Pennsylvania, Virginia and West
Virginia) significantly contribute to
nonattainment and interfere with
maintenance of the 2008 and 2015
ozone NAAQS in New York State. On
May 11, 2018, the EPA published a final
rule extending the deadline for acting
on New York’s section 126(b) petition to
November 9, 2018.32
Since receiving New York’s section
126(b) petition on March 14, 2018, the
EPA has received several letters from
the public providing information
regarding the content of the subject
petition. We briefly describe those
letters here.
On April 13, 2018, the U.S. Chamber
of Commerce submitted a letter to the
EPA requesting an extension beyond the
60-day statutory deadline for petition
response and claiming legal and
technical deficiencies in the New York
petition. Specifically, the U.S. Chamber
of Commerce asserts that the petition
over-estimates emissions from
‘‘numerous’’ facilities identified in the
petition and inappropriately includes
monitoring sites that currently attain the
ozone NAAQS. Further the U.S.
Chamber of Commerce contends that
applying New York’s definition of
RACT outside of New York raises
‘‘significant constitutional and statutory
issues.’’
On June 20, 2018, Sunoco Partners
Marketing & Terminals submitted a
letter to the EPA providing corrections
32 83
to the operating status of the Marcus
Hook Refinery, identified in the New
York section 126(b) petition as the
Sunoco Inc. (R&M)/Marcus Hook
Refinery, and requesting that the EPA
remove the identified source from the
list of facilities emitting more than 400
tons per year of NOX.
On April 25, 2018, the Air
Stewardship Coalition (ASC) submitted
a letter to the EPA requesting an
extension beyond the 60-day statutory
deadline for petition response citing the
technical complexity of the New York
petition. ASC submitted a follow-up
letter on September 24, 2018, asking the
EPA to deny New York’s section 126(b)
petition. The ASC letter asserts that
New York State has no ozone attainment
issues outside of the NYMA and that the
NY DEC’s independent modeling used a
‘‘non-standard approach’’ that resulted
in ‘‘flawed’’ results.
On May 31, 2018, the Midwest Ozone
Group (MOG) submitted a letter asking
the EPA to deny New York’s section
126(b) petition. The MOG letter asserts
that the New York petition is deficient
in that it incorrectly characterizes the
emissions from identified sources and
states; the petition does not consider
exceptional events or international
transport; and the petition does not
consider the EPA’s most recent
modeling showing that all New York
monitoring sites will attain the 2008
ozone NAAQS. Further, MOG provides
the results of its own independent
modeling of the May 1 through August
31, 2011, ozone season run at a 4kilometer (km) grid resolution rather
than the 12 km grid resolution used in
the EPA’s modeling. MOG asserts that at
the finer resolution, all monitoring sites
in New York attain both the 2008 and
the 2015 ozone NAAQS. MOG provided
the EPA with supplemental comments
and analyses on October 19, 2018, and
on December 17, 2018. MOG asserts that
its additional comments further support
the EPA’s denial of the New York
section 126(b) petition.
The EPA acknowledges receipt of
these letters and has made them
available in the docket for this action.
However, the EPA is not responding
directly to these letters in this notice nor
is the EPA relying on the information
provided in these letters as a basis for
its proposed action. Rather, the EPA
encourages interested parties to review
this proposal and then submit relevant
comments during the public comment
period.
FR 21909 (May 11, 2018).
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22795
IV. The EPA’s Proposed Decision on the
CAA Section 126(b) Petition From New
York
A. The EPA’s Approach for Granting or
Denying CAA Section 126(b) Petitions
Regarding the 2008 and 2015 8-Hour
Ozone NAAQS
As discussed in Section III.B of this
notice, section 126(b) of the CAA
provides a mechanism for states and
other political subdivisions to seek
abatement of pollution in other states
that may be affecting their air quality.
Section 126(b) does not, however,
identify a specific methodology or
specific criteria for the Administrator to
apply when making a CAA section
126(b) finding or denying a petition.
Therefore, the EPA has the discretion to
identify relevant criteria and develop a
reasonable methodology for making a
CAA section 126(b) finding. See, e.g.,
Chevron, U.S.A., Inc. v. NRDC, 467 U.S.
837, 842–43 (1984); Smiley v. Citibank,
517 U.S. 735, 744–45 (1996).
With respect to the statutory
requirements of section 126 and section
110(a)(2)(D)(i) of the CAA, the EPA has
consistently acknowledged that
Congress created these provisions as
two independent statutory tools to
address the problem of interstate
pollution transport. See, e.g., 76 FR
69052, 69054 (November 7, 2011).33 The
fact that Congress did not indicate any
preference for one over the other,
suggests that either tool could serve as
a legitimate means to produce the
desired result. While the provisions in
CAA section 110(a)(2)(D)(i) and section
126 are independent, they are also
closely linked. A violation of the
prohibition in CAA section
110(a)(2)(D)(i) is a condition precedent
for action under CAA section 126(b)
and, critically, both provisions construe
significant contribution to
nonattainment and interference with
maintenance identically (since the
identical terms are naturally interpreted
as meaning the same thing in the two
linked provisions). See Appalachian
Power, 249 F. 3d at 1049–50.
Thus, in addressing a CAA section
126(b) petition for ozone transport, the
EPA believes it is appropriate to
interpret these ambiguous terms (i.e.,
‘‘contribute significantly to
nonattainment’’ and ‘‘interfere with
maintenance’’) consistent with the
EPA’s past approach to evaluating
interstate ozone pollution transport
33 Courts have also upheld the EPA’s position that
CAA sections 110(a)(2)(D)(i) and section 126 are
two independent statutory tools to address the same
problem of interstate transport. See GenOn REMA,
LLC v. EPA, 722 F.3d 513, 520–23 (3d Cir. 2013);
Appalachian Power, 249 F.3d at 1047.
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under the good neighbor provision, and
its interpretation and application of that
related provision of the statute. As
described further in Section III of this
notice, ozone is a regional air pollutant
and the EPA’s previous analyses and
regulatory actions have evaluated the
regional interstate ozone transport
problem using a four-step analytic
framework. The EPA most recently
applied this four-step framework in
promulgating the CSAPR Update and
the Determination Rule to address
interstate transport with respect to the
2008 ozone NAAQS under CAA section
110(a)(2)(D)(i)(I). This approach is
particularly applicable with respect to
New York’s claims regarding the 2008
ozone NAAQS because both
rulemakings address projected air
quality problems in New York and the
impacts of upwind states, including
those named in the petition, on such
areas. Given the specific cross-reference
in CAA section 126(b) to the substantive
prohibition in CAA section
110(a)(2)(D)(i), the EPA believes any
prior findings made under the good
neighbor provision are informative—if
not determinative—for a CAA section
126(b) action. Therefore, in this
instance, the EPA’s decision whether to
grant or deny the CAA section 126(b)
petition regarding the 2008 8-hour
ozone NAAQS depends on application
of the four-step interstate transport
framework.
While the EPA previously applied the
four-step interstate transport framework
and interpreted significant contribution
and interference with maintenance
under CAA section 110(a)(2)(D)(i) for
the 2008 ozone NAAQS via the CSAPR
Update and the Determination Rule, the
EPA has not yet engaged in a
rulemaking action to apply the good
neighbor provision for the 2015 ozone
NAAQS. However, the EPA recently
released technical information intended
to inform states’ development of SIPs to
address the 2015 ozone standard.34 This
information included the results of air
quality modeling to identify potential
downwind air quality problems in 2023,
which we discuss in more detail in
Section IV.B.1 of this document. As part
of the memorandum releasing the
technical information, the EPA
acknowledged that states have the
flexibility to pursue approaches that
may differ from the EPA’s historical
approach to evaluating interstate
transport in developing their good
34 See Information on the Interstate Transport
State Implementation Plan Submissions for the
2015 Ozone National Ambient Air Quality
Standards under Clean Air Act Section
110(a)(2)(D)(i)(I) (March 27, 2018).
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neighbor SIPs.35 Nonetheless, the EPA’s
technical analysis and the potential
flexibilities identified in the
memorandum generally followed the
basic elements of the EPA’s historical
four-step interstate transport framework.
As described previously, CAA section
126(b) does not identify a specific
methodology or specific criteria for the
Administrator to apply when making a
CAA section 126(b) finding or denying
a petition. Thus, given the EPA’s
discretion to identify relevant criteria
and develop a reasonable methodology
to inform a CAA section 126(b) finding,
the EPA believes that it continues to be
appropriate for the Agency to evaluate
the claims regarding the 2015 ozone
NAAQS in New York’s section 126(b)
petition consistent with the EPA’s fourstep interstate transport framework used
to evaluate other ozone NAAQS.
Accordingly, because the EPA
interprets ‘‘contribute significantly to
nonattainment’’ and ‘‘interfere with
maintenance’’ to mean the same thing
under both sections 110(a)(2)(D)(i) and
126(b), the EPA’s decision whether to
grant or deny a CAA section 126(b)
petition regarding both the 2008 and
2015 ozone NAAQS depends on
application of the analysis used to
address CAA section 110(a)(2)(D). That
is, the EPA assesses whether there is a
downwind air quality problem in the
petitioning state (i.e., step 1 of the fourstep interstate transport framework);
whether the upwind state where the
source subject to the petition is located
is linked to the downwind air quality
problem (i.e., step 2); and, if such a
linkage exists, whether there are costeffective emissions reductions available
from sources in the upwind state to
support a conclusion that the sources in
the state significantly contribute to
nonattainment or interfere with
maintenance of the NAAQS (i.e., step 3).
In interpreting the phrase ‘‘emits or
would emit in violation of the
prohibition of section [110(a)(2)(D)(i)],’’
if the EPA or a state has already adopted
provisions that eliminate the significant
35 The EPA has also released two additional
memoranda providing guidance to states
developing good neighbor SIPs for the 2015 ozone
NAAQS. See Analysis of Contribution Thresholds
for Use in Clean Air Act Section 110(a)(2)(D)(i)(I)
Interstate Transport State Implementation Plan
Submissions for the 2015 Ozone National Ambient
Air Quality Standards (August 31, 2018); and
Considerations for Identifying Maintenance
Receptors for Use in Clean Air Act Section
110(a)(2)(D)(i)(I) Interstate Transport State
Implementation Plan Submissions for the 2015
Ozone National Ambient Air Quality Standards
(October 19, 2018). All three memoranda are
available in the docket for this proposed action and
at https://www.epa.gov/airmarkets/memo-andsupplemental-information-regarding-interstatetransport-sips-2015-ozone-naaqs.
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contribution to nonattainment or
interference with maintenance of the
NAAQS in downwind states, then there
simply is no violation of the CAA
section 110(a)(2)(D)(i)(I) prohibition.
Stated another way, requiring additional
reductions from upwind sources would
result in eliminating emissions that do
not contribute significantly to
nonattainment or interfere with
maintenance of the NAAQS. Such an
action is beyond the scope of the
prohibition in CAA section
110(a)(2)(D)(i)(I) and, therefore, beyond
the scope of the EPA’s authority to make
the requested finding under CAA
section 126(b). See EME Homer City,
134 S. Ct. at 1604 n.18, 1608–09
(holding the EPA may not require
sources in upwind states to reduce
emissions by more than necessary to
eliminate significant contribution to
nonattainment or interference with
maintenance of the NAAQS in
downwind states under the good
neighbor provision).
Thus, it follows that if a state already
has a SIP that the EPA approved as
adequate to meet the requirements of
CAA section 110(a)(2)(D)(i)(I) for a
specific NAAQS, the EPA would not
find that a source in that state was
emitting in violation of the prohibition
of CAA section 110(a)(2)(D)(i)(I) absent
new information demonstrating that the
SIP is now insufficient to address the
prohibition for that NAAQS. Similarly,
if the EPA has promulgated a FIP that
it has determined fully eliminates
emissions that significantly contribute
to nonattainment or interfere with
maintenance in a downwind state for a
specific NAAQS, the EPA has no basis
to find that sources in the upwind state
are emitting or would emit in violation
of the CAA section 110(a)(2)(D)(i)(I)
prohibition, absent new information to
the contrary for that NAAQS.
The EPA notes that the approval of a
SIP or promulgation of a FIP
implementing CAA section
110(a)(2)(D)(i)(I) constitutes a
determination that a state’s emissions
are adequately controlled considering
the specific facts that the EPA analyzed
while approving the SIP or
promulgating the FIP. If a petitioner
produces new data or information
showing a different level of contribution
or other facts the EPA did not consider
when approving the SIP or
promulgating the FIP, compliance with
a SIP or FIP may not be determinative
regarding whether the upwind sources
emit or would emit in violation of the
prohibition of CAA section
110(a)(2)(D)(i)(I). See 64 FR 28250,
28274 n.15 (May 25, 1999); 71 FR
25328, 25336 n.6 (April 28, 2006);
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Appalachian Power, 249 F.3d at 1067
(later developments can be the basis for
another CAA section 126 petition).
Thus, in circumstances where a state is
implementing a SIP or the EPA is
implementing a FIP addressing CAA
section 110(a)(2)(D)(i)(I), the EPA will
evaluate the CAA section 126(b) petition
to determine if the submitted petition
raises new information that merits
further consideration.
B. The EPA’s Evaluation of Whether the
Petition Is Sufficient To Support a CAA
Section 126(b) Finding
Consistent with the EPA’s approach to
evaluating several prior CAA section
126(b) petitions, the EPA interprets
CAA section 126(b) as placing an initial
burden on the petitioner to establish a
technical basis for the specific finding
requested. Thus, the EPA first looks to
see if the petition identifies or contains
a sufficient basis to make the requested
finding. See, e.g., 76 FR 19662, 19666
(April 7, 2011) (proposed response to
petition from New Jersey regarding SO2
emissions from the Portland Generating
Station); 83 FR 16064, 16070 (April 13,
2018) (final response to petition from
Connecticut regarding ozone emissions
from the Brunner Island Steam Electric
Station); 83 FR 50444, 50452 (October 5,
2018) (final response to petitions from
Delaware and Maryland regarding ozone
emissions from four and 36 EGUs,
respectively).
The EPA’s interpretation of the statute
is reasonable especially given the
expeditious and limited timeframe
Congress allotted to the EPA for action
on a CAA section 126(b) petition: As
described in Section III.D.5, Congress
provided the EPA with only 60 days
from its receipt of a CAA section 126(b)
petition to hold a hearing and act on
that petition. Given the short statutory
deadline, it is reasonable for the EPA to
conclude that Congress did not intend a
requirement that the EPA undertake
extensive fact-finding or independent
analysis as part of its action on a
petition and instead place the burden
upon the petitioner to provide adequate
support for a requested finding under
CAA section 126(b), an interpretation
affirmed by the courts. See New York v.
EPA, 852 F.2d 574 (D.C. Cir. 1988)
(upholding the EPA’s interpretation of
the statutory burden in reviewing the
EPA’s denial of separate CAA section
126(b) petitions filed by Pennsylvania,
Maine, and New York regarding air
quality impacts from numerous sources
located in seven midwestern states); see
also see also Citizens Against Ruining
the Environment v. EPA, 535 F.3d 670
(7th Cir.) (2008) (affirming the EPA’s
similar interpretation of the petitioner’s
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burden under CAA section 502(b)(2)
given the parallel 60-day deadline for
the EPA to respond to a title V petition).
In New York v. EPA, the D.C. Circuit
evaluated the EPA’s obligation in acting
on a CAA section 126(b) petition,
determining both that the 60-day
deadline for action meant Congress did
not intend for the EPA to undertake a
‘‘litany of tasks’’ in evaluating the
petition and that denial was proper
where the states failed to substantiate
the claims raised in their petitions. Id.
Accordingly, where a CAA section
126(b) petition does not contain
sufficient technical information or
justification to support the requested
finding without the EPA undertaking an
independent analysis, it is reasonable
for the EPA to interpret CAA section
126(b) to support a denial of the
petition.
The remedy provision under CAA
section 126(c) further supports the
reasonableness of the EPA’s
interpretation. CAA section 126(c) by
default requires an existing source to
cease operation within 3 months if the
EPA makes the requested finding under
CAA section 126(b). It is difficult to
imagine that Congress intended to
require sources to shut down entirely
absent a sufficient demonstration that
that such an extreme remedy was
necessary. This concern is exacerbated
by the provision of CAA section 126(b)
that permits a petitioner to target
‘‘groups of sources,’’ as New York did in
the petition that is subject to this action,
because Congress certainly could not
have envisioned that hundreds of
stationary sources would be required to
shut down within 3 months without a
complete and compelling justification.
The potential for such an unintended
consequence further supports the
placement of burden on the petitioner to
demonstrate in the first instance
whether the identified sources emit or
would emit in violation of the good
neighbor provision. While CAA section
126(c) provides in the alternative that
the EPA may permit continued
operation if it establishes emissions
limitations for the sources subject to the
finding, this too is a detailed analytic
task that requires time and resources to
develop.
While the EPA interprets CAA section
126(b) as putting the burden on the
petitioner, rather than the EPA, to
provide a basis or justification for
making the requested finding, nothing
precludes the EPA from choosing to
conduct an independent analysis on a
discretionary basis when the Agency
determines it would be helpful in
evaluating a petition. As discussed in
Section III, the EPA has chosen to
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invoke its discretion in prior actions on
CAA section 126(b) petitions concerning
ozone, primarily where the Agency
already had technical data or findings it
could rely on as part of its independent
analysis. Notably, because this
supplemental information already
existed at the time the EPA acted on
those petitions, the EPA could leverage
such information in its action without
undertaking new analyses that would
naturally take significantly more time
and resources to develop.36 As further
described in Sections IV.B.1–3, where
the EPA has existing relevant
information at its disposal that could
help inform its proposed decision on
New York’s section 126(b) petition, the
EPA is using such information as part of
its discretionary independent analysis
of the petition.
1. The EPA’s Evaluation of New York’s
Petition Considering Step 1
With respect to step 1 of the four-step
interstate transport framework, the EPA
began by evaluating New York’s petition
to determine whether the state
identified a downwind air quality
problem (nonattainment or
maintenance) that may be impacted by
ozone transport from other states. The
EPA conducted this evaluation for
Chautauqua County and the NYMA
regarding both the 2008 and 2015 ozone
NAAQS.
As discussed in Section III.C, the EPA
typically focuses its analysis regarding
potential downwind air quality
problems on a future analytic year given
the forward-looking nature of the good
neighbor obligation in CAA section
110(a)(2)(D)(i)(I). The good neighbor
provision requires that states prohibit
emissions that ‘‘will’’ significantly
contribute to nonattainment or interfere
with maintenance of the NAAQS in any
other state. The EPA reasonably
interprets this language as permitting
states and the EPA in implementing the
good neighbor provision to
prospectively evaluate downwind air
quality problems and the need for
further upwind emissions reductions. In
the EPA’s prior regional transport
rulemakings, the Agency generally
evaluated whether upwind states ‘‘will’’
have such an impact based on
projections of air quality in the future
year that considers the timeframes for
regionwide implementation of control
strategies and the timeframe in which a
rulemaking requiring such controls
would be finalized. For the 1998 NOX
SIP Call, the EPA used an analytic year
of 2007. For the 2005 CAIR, the EPA
36 See 83 FR 16064 (April 13, 2018); 83 FR 50444
(October 5, 2018).
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used analytic years of 2009 and 2010 for
ozone and PM2.5, respectively. 63 FR
57450; 70 FR 25241. The D.C. Circuit
affirmed the EPA’s interpretation of
‘‘will’’ in CAIR, finding the EPA’s
consideration of future projected air
quality (in addition to current measured
data) to be a reasonable interpretation of
an ambiguous term. North Carolina, 531
F.3d at 913–14. The EPA applied the
same approach in finalizing CSAPR in
2011 and the CSAPR Update in 2016 by
evaluating air quality in 2012 and 2017,
respectively. 76 FR 48211; 81 FR 74537.
Particularly relevant to this action, the
EPA also applied this interpretation of
‘‘will’’ in the 2018 Determination Rule
to evaluate remaining good neighbor
obligations with respect to the 2008
ozone NAAQS for the CSAPR Update
states, including the nine upwind states
cited in New York’s petition. 83 FR
65889–90. As explained in that action,
a key decision informing the application
of the interstate transport framework is
the selection of a future analytic year.
Several court decisions have guided the
factors that the EPA considers in
selecting an appropriate future analytic
year for such an analysis. First, in North
Carolina, the D.C. Circuit held that the
timeframe for implementation of
emissions reductions required by the
good neighbor provision should be
selected by considering the relevant
attainment dates of downwind
nonattainment areas affected by
interstate transport of air pollution. 531
F.3d at 911–12. Moreover, the Supreme
Court and the D.C. Circuit have both
held that the EPA may not over-control
upwind state emissions relative to the
downwind air quality problems.
Specifically, the courts found that the
Agency may not require emissions
reductions (at steps 3 and 4 of the
interstate transport framework) from a
state that are greater than necessary to
achieve attainment and maintenance of
the NAAQS in all the downwind areas
to which that state is linked. See EME
Homer City, 134 S. Ct. at 1600–01; EME
Homer City II, 795 F.3d at 127, 129–30
(on remand from the Supreme Court,
finding ozone-season NOX budgets for
ten states invalid because the EPA’s
modeling showed that the downwind
air quality problems to which these
states were linked would be resolved by
the time the budgets would be
implemented). These court decisions
support the Agency’s choice to use a
future analytic year to help ensure that
any emissions reductions that the EPA
may require of sources in upwind states
do not over- or under-control emissions
with respect to downwind air quality at
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the time by which that those controls
could feasibly be implemented.
Thus, in determining the appropriate
future analytic year for purposes of
assessing remaining interstate transport
obligations for the 2008 ozone NAAQS
in the Determination Rule, the EPA
considered two primary factors: (1) The
applicable attainment dates for the 2008
ozone NAAQS; and (2) the timing to
feasibly implement new NOX control
strategies not previously addressed in
the CSAPR Update. As the applicable
attainment dates, the EPA explained
that the next attainment dates for the
2008 ozone NAAQS would be July 20,
2021, for nonattainment areas classified
as Serious, and July 20, 2027, for
nonattainment areas classified as
Severe.
The EPA then evaluated the
timeframe necessary to implement
additional NOX control strategies at
various sources across the region. For
EGUs, the EPA explained that it was
appropriate to give particular weight to
the timeframe required for
implementation of selective catalytic
reduction (SCR) across the region
because of the potential for larger
emissions reductions as compared to
selective non-catalytic reduction
(SNCR). The EPA determined that SCR
project development and installation
may require up to 39 months for an
individual power plant installing
controls on more than one boiler,37 and
that a minimum of 48 months (4 years)
is a reasonable time-period to allow to
complete all necessary steps of SCR
projects at EGUs on a regional scale,
considering the necessary stages of postcombustion control project planning,
shepherding of labor and material
supply, installation, coordination of
outages, testing, and operation. The EPA
further concluded that SNCR
installations, while generally having
shorter project timeframes (i.e., up to 16
months for an individual power plant
installing controls on more than one
boiler), share similar implementation
steps with and need to account for the
same regional factors as SCR
installations.38 The EPA, therefore,
37 See Table 3–1 in Engineering and Economic
Factors Affecting the Installation of Control
Technologies for Multipollutant Strategies. EPA
Final Report. EPA–600/R–02/073. October 2002.
Available at https://cfpub.epa.gov/si/si_public_
record_report.cfm?Lab=NRMRL&dirEntryId=63473.
38 See the month-by-month evaluation of SNCR
installation presented in Exhibit A–6 in Engineering
and Economic Factors Affecting the Installation of
Control Technologies for Multipollutant Strategies.
EPA Final Report. EPA–600/R–02/073. October
2002. Available at https://cfpub.epa.gov/si/si_
public_record_
report.cfm?Lab=NRMRL&dirEntryId=63473.
Evaluation is also in the EPA’s CSAPR Update EGU
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concluded that it may reasonably take
up to 4 years to install the new
emissions controls regionwide for EGUs.
83 FR 65893–901.
The EPA further explained that many
of the same considerations affecting the
EPA’s analysis of regionwide
implementation of controls at EGUs
would also affect the regionwide
implementation of controls at nonEGUs, which may be more complex
considering the diversity of non-EGU
sources as well as the greater number
and smaller size of the individual
sources. The EPA noted that
preliminary estimates for the
implementation of some potential
control technologies on non-EGUs only
account for the time between bid
evaluation and startup but do not
account for additional considerations
such as pre-bid evaluation studies,
permitting, and installation of
monitoring equipment. Accordingly, the
EPA concluded that it was reasonable to
assume for purposes of the
Determination Rule that an expeditious
timeframe for installing sector- or
region-wide controls on non-EGU
sources could also be 4 years or more.
83 FR 65901–04.
Considering the timeframes for
regionwide implementation of control
strategies and the timeframe in which a
rulemaking requiring such controls
would be finalized, the EPA concluded
that reductions from such control
strategies were unlikely to be
implemented for a full ozone season
until 2023. The EPA acknowledged that
2023 is later than the attainment date for
nonattainment areas classified as
Serious (July 20, 2021), but concluded
that it was unlikely emissions control
requirements could be feasibly
promulgated and implemented by that
earlier date. Accordingly, the EPA
determined that 2023 was a reasonable
year to assess downwind air quality to
evaluate any remaining requirements
under the good neighbor provision for
the 2008 ozone NAAQS.39 83 FR 65901–
05.
After selecting the analytic year, the
EPA then used the Comprehensive Air
Quality Model with Extensions (CAMx
v6.40) to model emissions in 2011 and
NOX Mitigation Strategies Final Rule TSD. See
Docket ID No. EPA–HQ–OAR–2015–0500 (available
at https://www.regulations.gov).
39 Using the 2023 analytic year also allowed the
EPA to begin the updated analysis using the data
sets originally developed for a January 2017 Notice
of Data Availability (NODA) (82 FR 1733, January
6, 2017), which the EPA revised in response to
stakeholder feedback. Accordingly, the EPA
initiated its analysis more quickly than if a different
year had been chosen, which might have delayed
subsequent rulemaking actions and therefore
emissions reductions.
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2023, based on updates provided to the
EPA from states and other stakeholders
in the January 6, 2017 NODA and an
October 27, 2017, EPA memorandum.40
This updated modeling was used in the
Determination Rule to estimate ozone
design values in 2023, as described in
the Determination Rule Air Quality
Modeling Technical Support Document
(TSD).41 The EPA used outputs from the
2011 and 2023 model simulations to
project base period 2009–2013 average
and maximum ozone design values to
2023 at monitoring sites nationwide. In
projecting future year design values, the
EPA applied its own modeling
guidance,42 which recommends using
model predictions from the ‘‘3 x 3’’
array of grid cells surrounding the
location of the monitoring site.43
Considering the comments on the
January 2017 NODA and other analyses,
the EPA also projected 2023 design
values based on a modified version of
the ‘‘3 x 3’’ approach for those
monitoring sites located in coastal areas.
Briefly, in this alternative approach, the
EPA eliminated from the design value
calculations those modeling data in grid
cells that are dominated by water (i.e.,
more than 50 percent of the area in the
grid cell is water) and that do not
contain a monitoring site (i.e., if a grid
cell is more than 50 percent water but
contains an air quality monitor, that cell
would remain in the calculation).44 For
40 See Notice of Availability of the Environmental
Protection Agency’s Preliminary Interstate Ozone
Transport Modeling Data for the 2015 Ozone
National Ambient Air Quality Standard (NAAQS),
82 FR 1733 (January 6, 2017). This memorandum
also supplements the information provided in,
‘‘Supplemental Information on the Interstate
Transport State Implementation Plan Submissions
for the 2008 Ozone National Ambient Air Quality
Standards under Clean Air Act Section
110(a)(2)(D)(i)(I).’’ Memorandum from Stephen D.
Page, Director, U.S. EPA Office of Air Quality
Planning and Standards, to Regional Air Division
Directors, Regions 1–10. October 27, 2017.
Available at https://www.epa.gov/sites/production/
files/2017-10/documents/final_2008_o3_naaqs_
transport_memo_10-27-17b.pdf.
41 Air Quality Modeling Technical Support
Document for the Updated 2023 Projected Ozone
Design Values. U.S. EPA Office of Air Quality
Planning and Standards. June 2018. Document
developed to support the Determination Rule, 83 FR
65878 (December 21, 2018). Available at https://
www.epa.gov/airmarkets/air-quality-modelingtechnical-support-document-updated-2023projected-ozone-design.
42 ‘‘Draft Modeling Guidance for Demonstrating
Attainment of Air Quality Goals for Ozone, PM2.5,
and Regional Haze.’’ Memorandum from Richard
Wayland, Division Director, Air Quality Assessment
Division, U.S. EPA Office of Air Quality Planning
and Standards, to Regional Air Division Directors,
Regions 1–10. December 3, 2014. Available at
https://www3.epa.gov/scram001/guidance/guide/
Draft-O3-PM-RH-Modeling_Guidance-2014.pdf.
43 The EPA’s modeling uses 12 km2 grid cells.
44 A model grid cell is identified as a ‘‘water’’ cell
if more than 50 percent of the grid cell is water
based on the 2006 National Land Cover Database.
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each individual monitoring site, the
base period 2009–2013 average and
maximum design values, 2023 projected
average and maximum design values
based on both the ‘‘3 x 3’’ approach and
the alternative approach affecting
coastal sites are available in Excel
format in the docket for this action and
at https://www.epa.gov/airmarkets/
october-2017-memo-and-informationinterstate-transport-sips-2008-ozonenaaqs.
In the Determination Rule, the EPA
followed the same approach for
identifying receptors based on this
modeling as in the CSAPR Update
rulemaking process. That is, the EPA
considered a combination of modeling
projections and monitoring data to
identify receptor sites that are projected
to have problems attaining or
maintaining the NAAQS.45 Specifically,
the EPA identified nonattainment
receptors as those monitoring sites with
current measured values exceeding the
NAAQS that also have projected (i.e., in
2023) average design values exceeding
the NAAQS. The EPA also identified
maintenance receptors as those
monitoring sites with projected
maximum design values exceeding the
NAAQS. Specifically, maintenance
receptors included sites with current
measured values below the NAAQS
with projected average and maximum
design values exceeding the NAAQS
and monitoring sites with projected
average design values below the
NAAQS but with projected maximum
design values exceeding the NAAQS.
Pertinent to this action, the EPA’s
examination in the Determination Rule
of the 2023 projected design values for
Chautauqua County indicates that this
area is not projected to be in
nonattainment or have a maintenance
problem in 2023 for either the 2008 or
the 2015 ozone NAAQS. The EPA’s
examination of the 2023 projected
design values for the NYMA indicates
that this area is not projected to be in
nonattainment or have a maintenance
problem in 2023 for the 2008 ozone
NAAQS. However, the modeling
indicates that the NYMA is projected to
be in nonattainment in 2023 with
respect to the 2015 ozone NAAQS.
Grid cells that meet this criterion are treated as
entirely over water in the WRF modeling used to
develop the 2011 meteorology for the EPA’s air
quality modeling. (See Air Quality Modeling
Technical Support Document for the Updated 2023
Projected Ozone Design Values. U.S. EPA Office of
Air Quality Planning and Standards. June 2018.
Document developed to support the Determination
Rule, 83 FR 65878 (December 21, 2018). Available
at https://www.epa.gov/airmarkets/air-qualitymodeling-technical-support-document-updated2023-projected-ozone-design.)
45 See 81 FR 74530–74532 (October 26, 2016).
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22799
Because the EPA has already
conducted a rulemaking evaluating good
neighbor obligations for the 2008 ozone
NAAQS under CAA section
110(a)(2)(D)(i)(I) and because, as
discussed previously, CAA section
126(b) directly incorporates the CAA
section 110(a)(2)(D)(i) standard, the EPA
believes it is also appropriate to
consider the 2023 modeling conducted
for the Determination Rule in evaluating
whether New York’s petition has
adequately demonstrated that there will
be a downwind air quality problem with
respect to the 2008 ozone NAAQS in
Chautauqua County and the NYMA.
Moreover, the EPA believes it is
appropriate to consider the 2023
modeling when evaluating the petition’s
claims with respect to the 2015 ozone
NAAQS because the 2023 ozone season
aligns with the attainment year for
Moderate ozone nonattainment areas.46
While the EPA is not reopening the
analysis and findings made in the
Determination Rule with respect to the
2008 ozone NAAQS in this action, the
EPA is evaluating the petition,
consistent with the standard of review
described in Section IV.A, to determine
whether additional information not
considered in the Determination Rule
should influence the EPA’s finding as to
whether the sources named in New
York’s petition emit or would emit in
violation of the prohibition of CAA
section 110(a)(2)(D)(i)(I).
The EPA notes that the petition
asserts that the EPA cannot use its 2023
modeling to support a review of the
petition in part because the 2023
analytic year does not fit the timeframe
under CAA section 126(c), which
requires that compliance with any CAA
section 126(b) finding must be met ‘‘in
no case later than three years after the
date’’ of such finding. However, the
EPA’s evaluation of air quality in 2023
is a necessary step to determine whether
the sources named in New York’s
petition are in violation of the good
neighbor provision in the first instance,
and, thus, subject to the provisions of
CAA section 126(c). Moreover, the
choice of 2023 as an analytic year does
not preclude the implementation of a
remedy in an earlier year if the
necessary finding is made under CAA
section 126(b). If the EPA were to
determine based on its analysis of the
2023 projections that the named sources
emit or would emit in violation of the
good neighbor provision, the EPA could
46 The 2023 ozone season represents the last full
season from which data can be used to determine
attainment with the 2015 ozone NAAQS by the
August 3, 2024, attainment date for nonattainment
areas classified as Moderate.
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still implement a remedy that complies
with the earlier timeline set out under
CAA section 126(c). Therefore, the
EPA’s reasonable choice of 2023 as an
analytic year for evaluating New York’s
petition does not, in and of itself,
preclude implementation of a remedy at
an earlier date.
The New York petition further raises
concerns about the assumptions and
results of the EPA’s modeling.
Specifically, the petition indicates
significant concerns with the EPA’s
expectation that uncontrolled EGUs will
greatly reduce their emissions rates in
the absence of unit-level enforceable
limits and with the EPA’s treatment of
model cells containing a land/water
interface. The petition does not further
elaborate on the basis for these
concerns, and the EPA, therefore, has no
reason to believe that its 2023 modeling
is unreliable. Moreover, the EPA already
addressed concerns regarding the EGU
assumptions in the 2023 modeling in
response to comments raised in the
Determination Rule. See 83 FR 65886–
89 (explaining statutory rationale
regarding when enforceable emissions
limitations are required and responding
to comments); 83 FR 65913–15
(responding to comments concerning
projections of EGU emissions in 2023).
As described earlier in this section, the
EPA also addressed concerns regarding
the treatment of model cells containing
land/water interface in the
Determination Rule by calculating
design values using two different
methodologies. The petition does not
provide any new information not
already considered by the EPA in the
Determination Rule as to these issues
and therefore, has no basis to reconsider
its conclusions finalized in that action.
The next two sections discuss the
EPA’s evaluation of the petition’s step 1
analysis regarding Chautauqua County
and the NYMA with respect to both the
2008 and 2015 ozone NAAQS. The EPA
first evaluates the sufficiency of the
analysis provided in the petition for
each area and then considers how the
2023 modeling or other pertinent
information should inform the EPA’s
conclusion regarding whether there will
be downwind nonattainment or
maintenance concerns in each area with
respect to each NAAQS.
Chautauqua County
First, for Chautauqua County, New
York’s petition does not provide
sufficient information to demonstrate
that there will be a downwind
nonattainment or maintenance problem
with respect to either the 2008 or the
2015 ozone NAAQS. Although the
petition correctly indicates that the EPA
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previously designated Chautauqua
County as Marginal nonattainment
under the 2008 ozone NAAQS, the
petition did not demonstrate that there
will be a future nonattainment or
maintenance problem in that area for
that NAAQS that must be addressed
under the good neighbor provision.
While a prior designation of an area as
nonattainment may provide useful
information for purposes of analyzing
interstate transport under the good
neighbor provision, designations
themselves are not dispositive of
whether a downwind area will have an
air quality problem in the future.47 As
discussed earlier, the EPA evaluates
downwind ozone air quality problems
for purposes of step 1 of the four-step
interstate transport framework using
observed and modeled future air quality
concentrations for a year that considers
the relevant attainment deadlines for the
NAAQS and the anticipated compliance
timeframe for potential control
strategies.48 New York’s section 126(b)
petition does not include analyses
indicating that Chautauqua County may
be violating or have difficulty
maintaining the 2008 or 2015 ozone
NAAQS either currently or in a relevant
future year. In fact, the petition
acknowledges that this area attained the
NAAQS by the relevant attainment date.
The petition also did not present air
quality projections indicating that
Chautauqua County will not be in
attainment or will struggle to maintain
the NAAQS in a relevant future year.
The petition alleges that the area
remains in danger of exceeding the
ozone NAAQS but does not provide any
evidence to support this assertion. Thus,
the petition has not established that
emissions from the named sources are
linked to a nonattainment or
maintenance problem in Chautauqua
County.
Additionally, the EPA has air quality
data that support an independent
analysis of step 1 of the four-step
interstate transport framework to assess
whether Chautauqua County will have
an air quality problem relative to either
the 2008 or the 2015 ozone NAAQS.
First, the 2015–2017 design value in
47 The EPA has consistently taken the position
that CAA section 110(a)(2)(D) refers to prevention
of ‘‘nonattainment’’ in any area in another state, not
only in designated nonattainment areas. 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 SO2 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 SO2 NAAQS prior to issuance
of designations for that standard).
48 81 FR 74517.
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Chautauqua County is 68 ppb, which is
below the level of both the 2008 and
2015 ozone NAAQS.49 Furthermore, the
EPA recently finalized a determination
that the Jamestown, New York Marginal
nonattainment area (Chautauqua
County) has attained the 2008 ozone
NAAQS.50 Additionally, the EPA’s
recent air quality modeling described
earlier in this section indicates that the
monitor in Chautauqua County is
expected to continue to both attain and
maintain the standard in 2023, with an
average 2023 design value of 58.5 ppb
and a maximum 2023 design value of
60.7 ppb.51 Consequently, due to the
facts that the petition has not identified
an air quality problem in Chautauqua
County for the 2008 or 2015 ozone
NAAQS, that the EPA’s independent
analysis affirms that Chautauqua County
is attaining both the 2008 and 2015
ozone NAAQS, and that all available
evidence indicates that the monitoring
sites will continue to attain and
maintain the NAAQS in the future, the
EPA is proposing to deny New York’s
petition regarding Chautauqua County
for both the 2008 and the 2015 ozone
NAAQS.
New York Metropolitan Area
Second, with respect to the NYMA,
the petition does not provide sufficient
information to indicate that there will
be a future nonattainment or
maintenance problem with respect to
the 2008 ozone NAAQS. As described in
Section III.D of this notice, the petition
correctly asserts that the NYMA was
designated nonattainment for the 2008
ozone NAAQS and has failed to attain
the NAAQS by the attainment deadline.
Additionally, the petition points to
preliminary 2015–2017 air quality data
indicating that some monitoring sites in
the NYMA are above the 2008 NAAQS.
However, the EPA does not agree that an
area’s current attainment status alone is
sufficient evidence regarding whether
there will be a nonattainment or
maintenance problem that must be
addressed under either the good
neighbor provision or CAA section 126.
49 The 2015–2017 design value for Chautauqua
County in the ‘‘Jamestown-Dunkirk-Fredonia, NY
CBSA’’ at AQS site 360130006 is 68 ppb. Available
at https://www.epa.gov/sites/production/files/201807/ozone_designvalues_20152017_final_07_24_
18.xlsx.
50 See Approval and Promulgation of Air Quality
Implementation Plans; New York; Determination of
Attainment of the 2008 8-Hour Ozone National
Ambient Air Quality Standard for the Jamestown,
New York Marginal Nonattainment Area, 83 FR
49492 (October 2, 2018).
51 See 2023 design values for AQS site 360130006
in spreadsheet released with the EPA’s March 2018
memorandum. Available at https://www.epa.gov/
sites/production/files/2018-05/updated_2023_
modeling_dvs_collective_contributions.xlsx.
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Rather, as previously discussed, the
EPA evaluates whether there will be
downwind nonattainment or
maintenance concerns in each area with
respect to each NAAQS under the good
neighbor provision (and, thus, also
under CAA section 126(b)) using
observed and modeled future air quality
concentrations for a relevant future
analytic year.
Further, the EPA has additional
information related to potential
projected nonattainment or maintenance
problems in the NYMA. The EPA’s
recent air quality projections for 2023,
based on the latest available emissions
inventory, indicate that all monitoring
sites in the NYMA will attain and
maintain the 2008 ozone NAAQS. As
discussed in Section III.C.2 of this
notice, the EPA already determined that
the CSAPR Update fully addresses the
good neighbor provision requirements
for the 2008 ozone NAAQS for all
eastern states previously addressed in
that rule. This analysis indicates that all
remaining receptors for the 2008 ozone
NAAQS identified in the CSAPR
Update, including those in the NYMA,
are expected to attain and maintain that
NAAQS in 2023 under step 1 of the
four-step interstate transport framework,
and, therefore, upwind states have no
remaining obligations under the good
neighbor provision. New York has not
provided any new information that
contradicts the EPA’s conclusion in the
Determination Rule that the NYMA will
no longer have an air quality problem in
the future. Therefore, the EPA is
proposing to deny New York’s petition
regarding the 2008 ozone NAAQS in the
NYMA because New York has not
demonstrated that there will be a
nonattainment or maintenance problem
in the NYMA in a relevant future year
and the EPA’s own analysis projects that
there will be no air quality problems
under step 1.
Regarding the 2015 ozone NAAQS,
the EPA’s projections indicate that the
average design value for five of the six
monitoring sites in the NYMA and the
maximum design values at all six
monitoring sites in the NYMA will be
above the 2015 ozone NAAQS in
2023.52 Therefore, although New York
did not evaluate whether there will be
an air quality problem with respect to
the 2015 ozone NAAQS in a future year,
the EPA’s independent analysis of step
52 The EPA also notes that four of the six
monitoring sites are in the state of Connecticut and
two monitoring sites are in New York. However, the
EPA interprets CAA section 126(b)’s petition
authority to be limited to states and political
subdivisions seeking to address interstate transport
of pollution impacting downwind receptors within
their geographical borders. See 83 FR 50460.
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1 of the interstate transport framework
indicates that the NYMA is projected to
have a downwind air quality problem
relative to the 2015 NAAQS.
2. The EPA’s Evaluation of New York’s
Petition Considering Step 2
With respect to step 2 of the four-step
interstate transport framework, the EPA
evaluated New York’s petition to
determine whether there is sufficient
information to conclude that the state
identified that the upwind states where
the sources named in the petition are
located are linked to a downwind air
quality problem. Because, as described
earlier, neither the information in the
petition nor existing information
available to the EPA indicates there will
be downwind nonattainment or
maintenance concerns in Chautauqua
County with respect to the 2008 and
2015 ozone NAAQS, or in the NYMA
with respect to the 2008 ozone NAAQS,
the EPA has no basis to find a linkage
at step 2 of the four-step framework
between the named upwind states and
these downwind areas with regard to
the respective NAAQS.
With respect to the NYMA for the
2015 ozone NAAQS, existing
information available to the EPA
supports an assessment that emissions
from at least some of the states named
in the petition are linked to a downwind
air quality problem at step 2. As the
following paragraphs explain, the
linkages between upwind and
downwind states are further informed
by an air quality screening threshold.
Historically, at step 2, the EPA has
used an air quality screening threshold
to determine whether a state contributes
to a downwind air quality problem in
amounts that warrant further evaluation
as part of a multi-factor analysis in step
3. Upwind states that impact a
downwind receptor by less than the
screening threshold do not contribute to
the downwind air quality problem at
step 2. The EPA has therefore
previously determined, without
conducting any additional analysis, that
such states do not significantly
contribute to nonattainment or interfere
with maintenance of the NAAQS under
the good neighbor provision. Upwind
states that impact a downwind receptor
at or above the threshold are identified
as contributing to a downwind air
quality problem (i.e., they are said to be
‘‘linked’’ to that downwind receptor).
The EPA then proceeds to the multifactor step 3 analysis to determine if the
linked upwind state significantly
contributes to nonattainment or
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interferes with maintenance of the
NAAQS at the downwind receptor(s).53
In previous federal actions,54 the
EPA’s analysis of the sum of
contributions from all linked upwind
states (i.e., collective contribution)
concluded that a screening threshold
equivalent to 1 percent of the 1997 and
2008 ozone NAAQS was appropriate at
step 2. In an August 31, 2018,
memorandum, the EPA presented the
results of our analysis of collective
contribution for the 2015 ozone
NAAQS 55 using data drawn from the
results of the EPA’s updated 2023
modeling.56 This analysis, which
followed the thresholds analyses
conducted in both the CSAPR and
CSAPR Update rulemakings,57 58
included the evaluation of data
pertinent to several potential thresholds
(i.e., 1 percent of the 2015 ozone
NAAQS or 0.70 ppb, 1 ppb and 2 ppb)
that could be applicable to the
development of SIP revisions to address
the 2015 ozone NAAQS of 70 ppb. The
EPA ultimately suggested in this
memorandum that a threshold of 1 ppb
may be appropriate for states to use to
develop SIP revisions addressing the
good neighbor provision for the 2015
ozone NAAQS.
In addition to the 2023 modeling used
to identify potential downwind air
quality problems described in the prior
section, the EPA has also performed
state-level ozone source apportionment
53 Note that upwind states that are linked to a
downwind receptor at step 2 may nevertheless be
found to not significantly contribute to
nonattainment or interfere with maintenance at the
receptor depending on the outcome of the step 3
analysis.
54 In the Cross-State Air Pollution Rule (CSAPR),
the EPA used 0.80 parts per billion (ppb) as the
threshold, which is 1 percent of the 1997 ozone
NAAQS. 76 FR 48208, 48238 (August 8, 2011). Most
recently, in the Cross-State Air Pollution Rule
Update for the 2008 Ozone NAAQS (CSAPR
Update), the EPA used 0.75 ppb as the threshold,
which is 1 percent of the 2008 ozone NAAQS. 81
FR 74504, 74518 (October 26, 2016).
55 See Analysis of Contribution Thresholds for
Use in Clean Air Act Section 110(a)(2)(D)(i)(I)
Interstate Transport State Implementation Plan
Submissions for the 2015 Ozone National Ambient
Air Quality Standards (August 31, 2018).
56 Information on the Interstate Transport State
Implementation Plan Submissions for the 2015
Ozone National Ambient Air Quality Standards
under Clean Air Act Section 110(a)(2)(D)(i)(I)
(March 2018). https://www.epa.gov/airmarkets/
march-2018-memo-and-supplemental-informationregarding-interstate-transport-sips-2015.
57 Air Quality Modeling Technical Support
Document for the Final Cross State Air Pollution
Rule Update (August 2016). https://www.epa.gov/
airmarkets/air-quality-modeling-technical-supportdocument-final-cross-state-air-pollution-rule.
58 Air Quality Modeling Final Rule Technical
Support Document (for the Final Transport Rule
now known as CSAPR; June 2011). https://
www.epa.gov/csapr/air-quality-modeling-final-ruletechnical-support-document.
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modeling to provide information
regarding the expected contribution of
statewide, anthropogenic NOX and VOC
emissions in each state to projected
2023 ozone concentrations. If the EPA
applies a 1 percent threshold like that
used in prior rulemakings (e.g., 0.70
ppb) to the results of the contribution
modeling, the EPA’s analysis indicates
that all nine upwind states named in the
petition are linked to an air quality
problem in the NYMA for the 2015
ozone NAAQS. If the EPA instead
applies the alternative 1 ppb threshold,
the EPA’s analysis indicates that the
sources in six (i.e., Maryland, Michigan,
Ohio, Pennsylvania, Virginia and West
Virginia) of the nine states named in
New York’s petition are linked to an air
quality problem in the NYMA for the
2015 ozone NAAQS, while three states
(i.e., Illinois, Indiana and Kentucky) are
not.59 The EPA is not in this action
determining which of the potential
thresholds described in this section (i.e.,
1 percent of the NAAQS (0.70 ppb) or
1 ppb) is appropriate for addressing
collective contribution for the 2015
ozone NAAQS for purposes of New
York’s petition. However, the EPA
acknowledges that emissions from at
least some of the named upwind states
are linked to projected air quality
problems in the NYMA for the 2015
ozone NAAQS. Therefore, the EPA will
evaluate, in the following section,
whether the petition has adequately
demonstrated at step 3 of the four-step
interstate transport framework that the
sources in the upwind states will
significantly contribute to
nonattainment or interfere with
maintenance of the NAAQS.
3. The EPA’s Evaluation of New York’s
Petition Considering Step 3
As described in Section III.C.1 of this
notice, once an upwind state is linked
to a downwind air quality problem at
steps 1 and 2 of the four-step interstate
transport framework, the next step is to
identify the emissions reductions, if
any, needed from particular sources to
eliminate the upwind state’s significant
contribution to nonattainment and
interference with maintenance of the
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59 As
identified previously in this notice, the
EPA’s recent modeling included essentially all the
EGUs at the facilities named in the New York
petition. We say ‘‘essentially’’ because the New
York petition identifies sources at the facility,
rather than at the unit, level while the EPA looks
at unit-level data and includes all fossil-fuel-fired
boiler or combustion turbine EGUs with a capacity
(electrical output) greater than 25 MW. See
Information on the Interstate Transport State
Implementation Plan Submissions for the 2015
Ozone National Ambient Air Quality Standards
under Clean Air Act Section 110(a)(2)(D)(i)(I)
(March 27, 2018).
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NAAQS (i.e., step 3 of the four-step
interstate transport framework).60 For
the reasons discussed in the following
paragraphs, the EPA is proposing to find
that material elements in New York’s
assessment of step 3 are insufficient,
such that the EPA cannot conclude that
any source or group of sources in any
of the named states will significantly
contribute to nonattainment or interfere
with maintenance in Chautauqua
County or the NYMA relative to the
2008 and 2015 ozone NAAQS. Thus, the
EPA is proposing to deny the petition as
to all named sources in all the named
upwind states because New York has
not met its burden to demonstrate that
the sources emit or would emit in
violation of the good neighbor provision
with respect to either the 2008 or 2015
ozone NAAQS. We also note that the
petition addresses hundreds of sources
across nine states. The EPA is taking
comment on whether to also deny the
petition because the petitioner has not
provided justification for the
proposition that identification of such a
large, undifferentiated number of
sources located in numerous upwind
states constitutes a ‘‘group of stationary
sources’’ within the context of CAA
section 126(b). For example, ‘‘group of
stationary sources’’ could mean
stationary sources within a geographic
region, sources identified by a specific
North American Industry Classification
System (NAICS) Code, sources emitting
over a defined threshold and/or any
combination of these or other defining
characteristics. Although the EPA
already has identified a sufficient basis
to propose denial of the petition as to
Chautauqua County (for the 2008 and
2015 ozone NAAQS) and NYMA (for the
2008 ozone NAAQS) at step 1 of the
four-step framework, the EPA is also
relying on our analysis of step 3 as an
additional and independent basis for
denial as to the petition’s claims for
these areas.
As discussed in Section III.C.1 of this
notice, within step 3 of the four-step
interstate transport framework, the EPA
has historically considered several
factors to determine whether sources in
linked upwind states have emissions
60 Contrary to New York’s assertion in its petition,
identification of a linkage between an upwind state
and a downwind receptor does not conclude the
determination regarding whether sources in the
upwind state will significantly contribute to
nonattainment or interfere with maintenance of the
NAAQS. The conclusion that a state’s emissions
met or exceeded the threshold only indicated that
further analysis was appropriate to determine
whether any of the upwind state’s emissions met
the statutory criteria under the good neighbor
provision. See EME Homer City, 134 S. Ct. at 1596–
97 (noting upwind states are only obliged to
eliminate emissions meeting both the step 2 and 3
inquiries).
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that will significantly contribute to
nonattainment or interfere with
maintenance of the ozone NAAQS. In
particular, the EPA has generally
considered various control, cost, and air
quality factors and data, including: The
types of control strategies that can be
implemented at sources within the
upwind states; the costs of
implementing such control strategies;
the amount of potential emissions
reductions from implementation of
control strategies at upwind sources; the
potential downwind air quality
improvements from such emissions
reductions and the severity of the
downwind air quality problem (i.e.,
whether the air quality problem will be
resolved through implementation of the
emissions reductions). See 76 FR
48248–49 and 48254–55; 81 FR 74519;
Ozone Transport Policy Analysis Final
Rule TSD, p. 3 (Docket ID No. EPA–HQ–
OAR–2015–0500). The EPA has
typically considered these various cost
and air quality factors in a multifactor
analysis to identify the appropriate
uniform level of emissions controls to
apply to sources across a region of
upwind states that are collectively
linked to downwind air quality
problems and, based on the selected
level of control, to quantify the amount
of emissions (if any) from each upwind
state that contribute to nonattainment or
interfere with maintenance in a
downwind area and, thus, should be
subject to control.61 In these prior rules,
the EPA has selected the level of control
stringency deemed cost-effective when
these factors are balanced together.
Assessing multiple factors allows the
EPA to consider the full range of
circumstances and state-specific factors
that affect the relationship between
upwind emissions and downwind
nonattainment and maintenance
problems. For example, the EPA’s
assessment of cost considerations
accounts for the existing level of
controls at sources in upwind states as
well as the potential for, and relative
61 For example, in the CSAPR Update (81 FR
74505), the EPA noted that ozone transport occurs
on a regional scale, that such transport is responsive
to changes in NOX emissions, and that NOX
emissions reductions from EGUs were effective in
reducing 8-hour peak ozone concentrations during
the ozone season. Accordingly, the EPA selected a
uniform control stringency to apply to states
covered by the rule by identifying the emissions
reduction potential from EGUs in linked upwind
states available at various levels of control
stringency represented by cost, assessed how these
potential emissions reductions would affect each
state’s air quality contributions to each receptor,
evaluated the total change in air quality at each
receptor resulting from the emissions reductions,
and evaluated whether the air quality problems at
each receptor would be resolved. The EPA applied
a similar approach in the CSAPR Final Rule. 76 FR
48248 (August 8, 2011).
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difficulty of, achieving additional
emissions reductions.62 Additionally,
assessment of the downwind air quality
impacts from the potential upwind
emissions reductions is essential to
determining whether various levels of
potential control stringency would
under- or over-control upwind state
emissions relative to the identified
downwind air quality problems. The
Supreme Court has found the EPA’s
approach to apportioning emissions
reduction responsibility among multiple
upwind states to be ‘‘an efficient and
equitable solution to the allocation
problem’’ presented by the good
neighbor provision for regional
problems like the transport of ozone
pollution. EME Homer City, 134 S. Ct.
at 1607.
As discussed in Section IV.A, the EPA
interprets the substantive standard
under CAA section 126(b) consistent
with its interpretation of the good
neighbor provision in CAA section
110(a)(2)(D)(i). Accordingly, the EPA
believes it could be reasonable to
consider the same factors whether
evaluating ozone transport in the
context of a good neighbor SIP under
CAA section 110 or a section 126(b)
petition. Thus, the EPA has reviewed
New York’s petition to determine
whether it has provided sufficient
information to support a determination
based on the same type of cost and air
quality factors that the EPA evaluated in
past rulemakings addressing regional
ozone transport under the good
neighbor provision. The EPA notes that
it considered these factors in the CSAPR
Update and implemented emissions
reductions found to be cost-effective at
EGUs (including within the upwind
states identified in New York’s petition)
by the 2017 ozone season, but it did not
evaluate potential control strategies
available on a longer implementation
timeframe or at non-EGUs. 81 FR
74521–22. The EPA has not conducted
a regional step 3 analysis for any
sources with respect to the 2015 ozone
NAAQS, but nonetheless believes
consideration of the same type of cost
and air quality factors could be
reasonable for evaluating upwind state
obligations under the good neighbor
provision for that standard.
The EPA’s review of the petition
indicates that New York has not
sufficiently developed or evaluated the
cost and air quality data and factors that
the EPA has generally relied on in step
3, has not conducted any sort of
multifactor analysis to determine
whether cost-effective controls are
62 See CSAPR Final Rule. 76 FR 48248 (August 8,
2011).
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available at the named sources, and has
not provided any alternative analysis
that would support a conclusion at step
3 that the named sources will
significantly contribute to
nonattainment or interfere with
maintenance of the NAAQS. The
petition, therefore, has not adequately
supported the conclusions that the
sources named in its petition will
significantly contribute to
nonattainment or interfere with
maintenance of either the 2008 or the
2015 ozone NAAQS. Here, the petition
simply names facilities that appear to
have larger emissions than other
facilities (at least 400 tons of NOX per
year) without supporting why the
named facilities should make certain
reductions. The petition could have
included one or more of the following
potential analyses to evaluate, compare
and identify ‘‘significant’’ emissions
from of the named sources, consistent
with the EPA’s past practice in
evaluating regional ozone transport: (i)
Verifying that the named sources whose
emissions are those from the most
recent emissions inventory continue to
emit NOX at the same rate or continue
to operate; 63 (ii) describing or
quantifying potentially available
emissions reductions from the named
sources (i.e., the control technologies/
techniques and the costs of those
control technologies/techniques); (iii)
describing the downwind air quality
impacts of controlling the named
sources relative to other sources; or (iv)
providing information on the relative
cost of the available emissions
reductions and whether they are less
expensive than other reductions from
other sources. In the absence of such
analyses, the petition has not
demonstrated, based on information
available at this time, that the sources
named in the petition should be
required to make further emissions
reductions under the good neighbor
provision.
The petition also has not
demonstrated how relevant cost and air
quality factors should be weighed to
determine an appropriate level of
control for the named sources. Instead,
the petition simply suggests that
upwind sources should be subject to a
comparable level of control as sources
63 Such information may be found in the EPA’s
Enforcement and Compliance Data (ECHO), which
is a publicly available database containing
information for nearly all point sources in the U.S.
Data are typically updated several times a month.
The operating status of the point source at the
facility level is available. Thus, the operating status
of non-EGU point sources can be determined
outside of having an up to date NEI version
available. This is likely to be accurate for the
operating status of EGUs as well.
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in downwind states (i.e., the $5,000/ton
level of control sources in New York are
subjected to for purposes of RACT).
While information such as costs of
controls in the downwind area may
provide useful data for consideration
when evaluating upwind emissions
reduction potential, such information is
not determinative of the appropriate
level of upwind control. Nothing in the
text of the good neighbor provision
indicates that upwind states are
required to implement RACT, which is
a requirement that applies to designated
nonattainment areas, see CAA section
172(c)(1) (nonattainment areas
generally), 182(b)(2) (ozone
nonattainment areas classified as
Moderate), nor does the provision
require uniformity of control strategies
imposed in both upwind and downwind
states. Rather, the provision indicates
that states are required to prohibit those
emissions which ‘‘contribute
significantly to nonattainment’’ or
‘‘interfere with maintenance’’ of the
NAAQS in a downwind state, terms that
the Supreme Court has found to be
ambiguous. See EME Homer City, 134 S.
Ct. 1584. The EPA has always
considered cost under the good
neighbor provision as part of a
multifactor analysis based on the facts
and circumstances of the air quality
problem at the time of each evaluation,
but the EPA has never set upwind
control obligations based solely on the
level of controls imposed for purposes
of RACT in downwind nonattainment
areas, as the petition suggests the EPA
do here. The EPA believes that such a
multifactor analysis that considers
relevant cost and air quality factors is
important for any evaluation of a CAA
section 126(b) petition regarding
interstate transport of ozone (a regional
pollutant with contribution from a
variety of sources), as the EPA reviews
whether the particular sources
identified in the petition should be
controlled in light of the costs and
collective impact of emissions on air
quality in the area, including emissions
from other anthropogenic sources. The
petition fails to conduct any comparable
analysis. Review of the named sources
in New York’s petition provides a
starting point for such an analysis but
does not complete the analysis or even
provide the type of data that would be
necessary for the EPA to conduct such
an analysis to determine whether the
named sources emit or would emit in
violation of the good neighbor
provision.
The petition also suggests that
upwind sources should be subject to a
comparable level of control as sources
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in downwind states, in part, because it
asserts that, while the CSAPR program
provides the legal and technical basis
for states to eliminate their significant
contributions to excessive ozone
pollution, the EPA has failed to
implement a full, federal-level remedy
to completely address the issue of
transported ozone. Instead the EPA
issued EGU NOX ozone season
emissions budgets as a partial remedy
for interstate transport for the 2008
ozone NAAQS. The petition asserts that,
according to the analyses in the CSAPR
Update, after application of the rule’s
NOX budgets, the EPA’s modeling still
projected multiple remaining
nonattainment and maintenance
receptors in the NYMA, including
monitoring sites in Fairfield and New
Haven Counties in the Connecticut
portion of the area, which would
continue to project nonattainment in
2017.
While the EPA acknowledged in the
CSAPR Update that the FIPs may only
be a partial remedy for interstate
transport for the 2008 ozone NAAQS,
the EPA subsequently promulgated the
Determination Rule, in which the EPA
concluded that the existing CSAPR
Update fully addresses the interstate
transport obligations under CAA section
110(a)(2)(D)(i)(I) for the 2008 ozone
NAAQS for certain states, including
eight of the states named in New York’s
petition (Illinois, Indiana, Maryland,
Michigan, Ohio, Pennsylvania, Virginia
and West Virginia), because the
downwind air quality problems
projected in 2017 would be resolved in
2023. 83 FR 65878 (December 21, 2018).
The EPA also approved a SIP from
Kentucky which similarly determined
that the CSAPR Update FIP would fully
satisfy the state’s good neighbor
obligation with respect to the 2008
ozone NAAQS (83 FR 33730). Together,
the EPA found that these actions fully
address the good neighbor requirements
with respect to the 2008 ozone NAAQS
for the states named in the petition. For
the reasons explained in this section,
the petition has failed to demonstrate
that it is necessary to implement
additional, source-specific, unit-level
emissions limits at any of the sources
named in the petition to ensure
reductions are being achieved under the
CSAPR Update.
As discussed earlier, the EPA
interprets CAA section 126(b) as placing
the burden on the petitioner to
demonstrate in the first instance that a
finding under the provision is justified.
The breadth of New York’s petition
demonstrates why the EPA’s
interpretation is particularly reasonable.
The petition names over 350 sources
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from several different source sectors
(both EGUs and non-EGUs) in nine
different upwind states and asked the
EPA to evaluate and implement sourcespecific emissions limits for each
source. While the EPA has air quality
modeling information relevant to the
step 1 and 2 analyses discussed earlier,
this analysis was conducted for separate
rulemaking actions and not solely for
use in evaluating this petition. The EPA
has not already conducted the type of
multifactor analysis that would
normally be used in step 3 to determine
whether such a large group of upwind
sources emits or would emit in violation
of the good neighbor provision. The
EPA also does not currently have
information available to independently
conduct such an analysis, especially for
such a variety of sources. As noted in
the Determination Rule (81 FR 65878),
the EPA lacks the relevant data to
conduct such an analysis for the
multiple non-EGU source categories,
including those referred to in this
petition. Collecting the relevant data
and conducting such an analysis
independently would require the EPA to
invest significant time and resources. As
the EPA noted in Section IV.B, the 60day deadline provided by Congress for
action under CAA section 126(b) is
evidence that Congress did not intend
for the EPA to be required to conduct
such detailed independent analyses
before acting on the petitions, especially
where a petition addresses a large
number and variety of sources and seeks
tailored unit-level remedies, as New
York’s petition does. While the EPA
acknowledges that this task may also be
resource-and time-intensive for a
petitioner, the EPA nonetheless
interprets the timeframe imposed on the
EPA in CAA section 126(b) (along with
the potentially severe consequences
under CAA section 126(c) if a finding is
made) as evidence that the burden is on
the petitioner in the first instance to
demonstrate that the statutory threshold
has been met. For the reasons discussed
in this section, the petition does not
provide the EPA with a sufficient basis
to conclude at step 3 that sources in the
named states will significantly
contribute to nonattainment or interfere
with maintenance in New York with
respect to either the 2008 or 2015 ozone
NAAQS. Therefore, on this basis, the
EPA is proposing to deny New York’s
petition as to all named sources
because, in addition to the specific
failures described above for steps 1 and
2, the state has also failed to meet its
burden to demonstrate at step 3 that the
sources emit or would emit in violation
of the good neighbor provision.
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V. Conclusion
Based on the information discussed in
this notice, the EPA is proposing to
deny New York’s CAA section 126(b)
petition. The EPA has described several
technical deficiencies with the petition
and, therefore, proposes to deny on the
basis that New York has not met its
burden to demonstrate that the named
sources emit or would emit in violation
of the good neighbor provision with
respect to the 2008 ozone NAAQS or the
2015 ozone NAAQS. For Chautauqua
County, the petition does not provide
sufficient information to indicate that
there will be a downwind air quality
problem (either nonattainment or
maintenance) with respect to either the
2008 or the 2015 ozone NAAQS. For the
NYMA, with respect to the 2008 ozone
NAAQS, the petition does not provide
sufficient information to indicate that
the NYMA should be considered a
nonattainment or maintenance receptor
pursuant to the good neighbor
provision. Furthermore, the EPA’s own
independent analysis of available
information indicates that there is not
currently nor is there projected to be an
air quality problem with respect to
either NAAQS in Chautauqua County,
and that there is not projected to be any
further air quality problem with respect
to the 2008 ozone NAAQS in the
NYMA. As an additional independent
basis for the proposed denial, even if the
EPA assumed that the named upwind
states were linked to downwind air
quality problems in New York at steps
1 and 2 of its interstate transport
framework, material elements in the
petition’s step 3 analysis are
insufficient, such that the EPA cannot
conclude that any named source or
group of sources in any of the named
states will significantly contribute to
nonattainment or interfere with
maintenance in any area in New York
with respect to either NAAQS. The EPA
requests comment on its proposed
denial of New York’s CAA section
126(b) petitions, including the bases for
the decision described herein.
VI. Judicial Review
Section 307(b)(1) of the CAA indicates
which Federal Courts of Appeal have
venue for petitions of review of final
actions by the EPA. This section
provides, in part, that petitions for
review must be filed in the Court of
Appeals for the District of Columbia
Circuit if: (i) The agency action consists
of ‘‘nationally applicable regulations
promulgated, or final action taken, by
the Administrator;’’ or (ii) such action is
locally or regionally applicable, but
‘‘such action is based on a
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determination of nationwide scope or
effect and if in taking such action the
Administrator finds and publishes that
such action is based on such a
determination.’’
To the extent a court finds this action
to be locally or regionally applicable,
the EPA proposes to find that this action
is based on a determination of
‘‘nationwide scope or effect’’ within the
meaning of CAA section 307(b)(1). This
action addresses emissions impacts
from sources located in nine states,
which are located in multiple EPA
Regions and federal circuits. The
proposed action is also based on a
common core of factual findings and
analyses concerning the transport of
pollutants between the different states.
For these reasons, to the extent a court
finds this action to be locally or
regionally applicable, the Administrator
proposes to determine that any final
action related to this proposal is based
on a determination of nationwide scope
or effect for purposes of section
307(b)(1) of the CAA. Thus, pursuant to
CAA section 307(b), any petitions for
review of any final action related to this
proposal must be filed in the Court of
Appeals for the District of Columbia
Circuit within 60 days from the date
such final action is published in the
Federal Register.
VII. Statutory Authority
42 U.S.C. 7410, 7426, 7601.
Dated: May 6, 2019.
Andrew R. Wheeler,
Administrator.
[FR Doc. 2019–09928 Filed 5–17–19; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 282
[EPA–R08–UST–2018–0729; FRL–9991–42–
Region 8]
Colorado: Final Approval of State
Underground Storage Tank Program
Revisions and Codification
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
Pursuant to the Resource
Conservation and Recovery Act (RCRA
or Act), the Environmental Protection
Agency (EPA) is proposing to approve
revisions to the state of Colorado’s
Underground Storage Tank (UST)
Program submitted by the State. This
action is based on the EPA’s
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determination that the State’s revisions
satisfy all requirements for UST
program approval. This action also
proposes to codify Colorado’s state
program, as revised by Colorado and
approved by the EPA, and to
incorporate by reference the State
regulations that we have determined
meet the requirements for approval. The
State’s federally authorized and codified
UST program, as revised pursuant to
this action, will remain subject to the
EPA’s inspection and enforcement
authorities under sections 9005 and
9006 of RCRA Subtitle I and other
applicable statutory and regulatory
provisions.
DATES: Send written comments by June
19, 2019.
ADDRESSES: Submit your comments by
one of the following methods:
1. Federal eRulemaking Portal:
https://www.regulations.gov. Follow the
online instructions for submitting
comments.
2. Email: Hendrix.Mark@epa.gov.
3. Mail: Mark Hendrix, Region 8,
Project Officer, UST, Solid Waste and
PCB Unit, Resource Conservation and
Recovery Program, Office of
Partnerships and Regulatory Assistance
(Mail Code: 8P–R), EPA Region 8, 1595
Wynkoop Street, Denver, Colorado
80202–1129.
4. Hand Delivery or Courier: Deliver
your comments to Mark Hendrix,
Region 8, Project Officer, UST, Solid
Waste and PCB Unit, Resource
Conservation and Recovery Program,
Office of Partnerships and Regulatory
Assistance (Mail Code: 8P–R), EPA
Region 8, 1595 Wynkoop Street, Denver,
Colorado 80202–1129.
Instructions: Direct your comments to
Docket ID No. EPA–R08–UST–2018–
0729. The EPA’s policy is that all
comments received will be included in
the public docket without change and
may be available online at https://
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through https://
www.regulations.gov or email. The
federal https://www.regulations.gov
website is an ‘‘anonymous access’’
system, which means the EPA will not
know your identity or contact
information unless you provide it in the
body of your comment. If you send an
email comment directly to the EPA
PO 00000
Frm 00068
Fmt 4702
Sfmt 9990
22805
without going through https://
www.regulations.gov, your email
address will be automatically captured
and included as part of the comment
that is placed in the public docket and
made available on the internet. If you
submit an electronic comment, the EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
disk or CD–ROM you submit. If the EPA
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, the EPA may not
be able to consider your comment.
Electronic files should avoid the use of
special characters, any form of
encryption and be free of any defects or
viruses.
You can view and copy the
documents that form the basis for this
action and associated publicly available
materials from 8:30 a.m. to 4:00 p.m.,
Monday through Friday, at the
following location: EPA Region 8, 1595
Wynkoop Street, Denver, Colorado
80202–1129, phone number (303) 312–
6561. Interested persons wanting to
examine these documents should make
an appointment with the office at least
2 days in advance.
FOR FURTHER INFORMATION CONTACT:
Mark Hendrix, Region 8, Project Officer,
UST, Solid Waste and PCB Unit,
Resource Conservation and Recovery
Program, Office of Partnerships and
Regulatory Assistance (Mail Code: 8P–
R), EPA Region 8, 1595 Wynkoop Street,
Denver, Colorado 80202–1129, phone
number (303) 312–6561, email address:
Hendrix.Mark@epa.gov.
For
additional information, see the direct
final rule published in the ‘‘Rules and
Regulations’’ section of this Federal
Register.
Authority: This rule is issued under
the authority of Sections 2002(a), 9004,
and 7004(b) of the Solid Waste Disposal
Act, as amended, 42 U.S.C. 6912, 6991c,
6991d, and 6991e.
SUPPLEMENTARY INFORMATION:
List of Subjects in 40 CFR Part 282
Environmental protection,
Administrative practice and procedure,
Hazardous substances, Incorporation by
reference, State program approval,
Underground storage tanks.
Dated: April 29, 2019.
Debra Thomas,
Acting Regional Administrator, EPA Region
8.
[FR Doc. 2019–10411 Filed 5–17–19; 8:45 am]
BILLING CODE 6560–50–P
E:\FR\FM\20MYP1.SGM
20MYP1
Agencies
[Federal Register Volume 84, Number 97 (Monday, May 20, 2019)]
[Proposed Rules]
[Pages 22787-22805]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-09928]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-HQ-OAR-2018-0170; FRL-9993-55-OAR]
RIN 2060-AU04
Response to Clean Air Act Section 126(b) Petition From New York
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of proposed action on petition.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to deny
a Clean Air Act (CAA or Act) petition submitted by the state of New
York on March 12, 2018. The petition requests that the EPA make a
finding that emissions from a group of hundreds of identified sources
in nine states (Illinois, Indiana, Kentucky, Maryland, Michigan, Ohio,
Pennsylvania, Virginia and West Virginia) significantly contribute to
nonattainment and interfere with maintenance of the 2008 and 2015 ozone
national ambient air quality standards (NAAQS) in Chautauqua County and
the New York
[[Page 22788]]
Metropolitan Area (NYMA) in violation of the good neighbor provision.
The EPA proposes to deny the petition because New York has not met its
statutory burden to demonstrate, and the EPA has not independently
found, that the group of identified sources emits or would emit in
violation of the good neighbor provision for the 2008 or 2015 ozone
NAAQS in Chautauqua County and the NYMA.
DATES:
Comments. Comments must be received on or before July 15, 2019.
Public hearing: The EPA will hold a public hearing on this proposal
on June 11, 2019, in Washington DC. Please refer to ADDRESSES for
additional information on the comment period and public hearing.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2018-0170, at https://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. The EPA may publish any
comment received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (e.g., on the Web, Cloud, or other
file sharing system). For additional submission methods, the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets. Certain other material,
such as copyrighted material, will not be placed on the internet but
may be viewed, with prior arrangement, at the EPA Docket Center.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the Air and Radiation Docket
and Information Center, EPA/DC, EPA William Jefferson Clinton West
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC. The
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is (202) 566-1744 and the telephone number for the Air and
Radiation Docket and Information Center is (202) 566-1742. For
additional information about the EPA's public docket, visit the EPA
Docket Center homepage at: https://www.epa.gov/epahome/dockets.htm.
Public hearing: The June 11, 2019, public hearing will be held at
the EPA, William Jefferson Clinton East Building, Room 1117A, 1201
Constitution Avenue NW, Washington, DC 20004. The public hearing will
convene at 9:00 a.m. and end at 6:00 p.m. Eastern Time (ET) or 1 hour
after the last registered speaker has spoken. The EPA will make every
effort to accommodate all individuals interested in providing oral
testimony. A lunch break is scheduled from 12:00 p.m. until 1:00 p.m.
Please note that this hearing will be held at a U.S. government
facility. Individuals planning to attend the hearing should be prepared
to show valid picture identification to the security staff to gain
access to the meeting room. The REAL ID Act, passed by Congress in
2005, established new requirements for entering federal facilities.
These requirements took effect July 21, 2014. If your driver's license
is issued by American Samoa, you must present an additional form of
identification to enter the federal building where the public hearing
will be held. Acceptable alternative forms of identification include:
Federal employee badges, passports, enhanced driver's licenses and
military identification cards. For additional information for the
status of your state regarding REAL ID, go to https://www.dhs.gov/real-id-enforcement-brief. In addition, you will need to obtain a property
pass for any personal belongings you bring with you. Upon leaving the
building, you will be required to return this property pass to the
security desk. No large signs will be allowed in the building, and
demonstrations will not be allowed on federal property for security
reasons.
If you would like to present oral testimony at the hearing, please
notify Ms. Pamela Long, U.S. Environmental Protection Agency, Office of
Air Quality Planning and Standards, Air Quality Policy Division, (C504-
01), Research Triangle Park, NC 27711, telephone (919) 541-0641, fax
number (919) 541-5509, email address [email protected], no later than
4:00 p.m. ET on June 7, 2011. Ms. Long will arrange a general time slot
for you to speak. The EPA will make every effort to follow the schedule
as closely as possible on the day of the hearing.
Oral testimony will be limited to 5 minutes for each commenter. The
EPA encourages commenters to provide the EPA with a copy of their oral
testimony electronically (via email) or in hard copy form. Commenters
should notify Ms. Long if they need specific translation services for
non-English speaking commenters.
The hearing schedule, including the list of speakers, will be
posted on the EPA's Web at site https://www.epa.gov/ozone-pollution/ozone-national-ambient-air-quality-standards-naaqs-section-126-petitions prior to the hearing. Verbatim transcripts of the hearing and
written statements will be included in the docket for the action.
The public hearing will provide interested parties the opportunity
to present data, views or arguments concerning the EPA's proposed
response to the petition from New York. The EPA may ask clarifying
questions during the oral presentations but will not respond to the
presentations at that time. Written statements and supporting
information that are submitted during the comment period will be
considered with the same weight as any oral comments and supporting
information presented at the public hearing. Written comments must be
postmarked by the last day of the comment period.
FOR FURTHER INFORMATION CONTACT: For additional information regarding
this proposed action, please contact: Beth W. Palma, U.S. EPA, Office
of Air Quality Planning and Standards, Air Quality Policy Division,
Mail Code C539-04, Research Triangle Park, NC 27711, telephone (919)
541-5432, email at [email protected]. For information on the
public hearing or to register to speak at the hearing, contact Ms.
Pamela Long, U.S. Environmental Protection Agency, Office of Air
Quality Planning and Standards, Air Quality Planning Division, Mail
Code C504-01, Research Triangle Park, NC 27711, telephone (919) 541-
0641, fax number (919) 541-5509, email at [email protected] (preferred
method for registering).
SUPPLEMENTARY INFORMATION: The information in this document is
organized as follows:
I. General Information
II. Executive Summary of the EPA's Proposed Decision on the CAA
Section 126(b) Petition From New York
III. Background and Legal Authority
A. Ground-Level Ozone and the Interstate Transport of Ozone
B. CAA Sections 110 and 126
C. The EPA's Historical Approach To Addressing Interstate
Transport of Ozone Under the Good Neighbor Provision
D. The CAA Section 126(b) Petition From New York
IV. The EPA's Proposed Decision on the CAA Section 126(b) Petition
From New York
[[Page 22789]]
A. The EPA's Approach for Granting or Denying CAA Section 126(b)
Petitions Regarding the 2008 and 2015 8-Hour Ozone NAAQS
B. The EPA's Evaluation of Whether the Petition Is Sufficient To
Support a CAA Section 126(b) Finding
V. Conclusion
VI. Judicial Review
VII. Statutory Authority
I. General Information
Throughout this document wherever ``we,'' ``us,'' ``our'' or
``Agency'' is used, we mean the United States (U.S.) EPA.
Where can I get a copy of this document and other related information?
The EPA has established a docket for this action under Docket ID
No. EPA-HQ-OAR-2018-0170 (available at https://www.regulations.gov). The
EPA has made available information related to the proposed action and
the public hearing at website: https://www.epa.gov/ozone-pollution/ozone-national-ambient-air-quality-standards-naaqs-section-126-petitions.
II. Executive Summary of the EPA's Proposed Decision on the CAA Section
126(b) Petition From New York
In March 2018, the state of New York submitted a petition
requesting that the EPA make a finding pursuant to CAA section 126(b)
that emissions from over 350 facilities in nine states significantly
contribute to nonattainment and/or interfere with maintenance of the
2008 and 2015 ozone NAAQS in violation of CAA section
110(a)(2)(D)(i)(I), otherwise known as the good neighbor provision. For
the reasons explained in this notice, the EPA is proposing to deny the
petition because New York has not met its statutory burden to
demonstrate that the group of sources identified in the petition emits
or would emit in violation of the good neighbor provision for the 2008
or 2015 ozone NAAQS in either Chautauqua County or the NYMA.
The EPA is evaluating the petition consistent with the same four-
step interstate transport framework that the EPA has used in previous
regulatory actions addressing regional ozone transport problems. The
EPA is, therefore, using this framework to evaluate whether the
petition meets the standard to demonstrate under CAA section 126(b)
that the sources emit or would emit in violation of the good neighbor
provision. The EPA's proposed denial rests on both the first and third
steps of this framework. With respect to the 2008 and 2015 ozone NAAQS
in Chautauqua County, the EPA is proposing to deny the petition at step
1 of the framework (i.e., whether there will be a downwind air quality
problem relative to the relevant NAAQS) based on the conclusion that
the petition has not identified, and the EPA has not independently
found, relevant air quality problems. With respect to the 2008 ozone
NAAQS in the NYMA, the EPA is similarly proposing to deny the petition
based on the conclusion that the petition has not identified, and the
EPA has not independently found, relevant air quality problems. Thus,
the EPA is proposing to find as to these areas and NAAQS that the
petition has not met its burden at step 1 of the four-step interstate
transport framework. Thus, the group of identified sources neither
emits nor would emit pollution in violation of the good neighbor
provision. With respect to the 2015 ozone NAAQS in the NYMA, the EPA
has identified a relevant downwind air quality problem, and, thus, the
EPA is not proposing a denial at step 1 as to this portion of the
petition.
The EPA is additionally proposing to deny the petition as to all
areas and NAAQS at step 3 of the framework (i.e., whether, considering
cost and air-quality factors, emissions from sources in the named
state(s) will significantly contribute to nonattainment or interfere
with maintenance of a NAAQS at a receptor in another state). The EPA is
proposing to find that material elements in the petition's assessment
of whether the sources may be further controlled through implementation
of cost-effective controls are insufficient and, thus, New York has not
met its step 3 burden to demonstrate that the named sources currently
emit or would emit in violation of the good neighbor provision with
respect to the relevant ozone NAAQS. As to the claims in the petition
regarding Chautauqua County (for both NAAQS) and the NYMA (for the 2008
ozone NAAQS), this provides an independent basis for denial in addition
to the proposed denial under step 3. The EPA is taking comment on
whether to also deny the petition because the petitioner has not
provided justification for the proposition that identification of such
a large, undifferentiated number of sources located in numerous upwind
states constitutes a ``group of stationary sources'' within the context
of CAA section 126(b).
Section III of this notice provides background information
regarding the EPA's approach to addressing the interstate transport of
ozone under CAA sections 110(a)(2)(D)(i)(I) and 126(b) and provides a
summary of the relevant issues raised in New York's CAA section 126(b)
petition. Section IV of this notice details the EPA's proposed action
to deny the petition, including an explanation of the EPA's approach
for granting or denying CAA section 126(b) petitions regarding the 2008
and 2015 8-hour ozone NAAQS and the EPA's evaluation of the sufficiency
of New York's petition, identifying technical insufficiencies in the
petition and explaining how the EPA's own analysis informs its
evaluation of the claims in the petition.
III. Background and Legal Authority
A. Ground-Level Ozone and the Interstate Transport of Ozone
On March 12, 2008, the EPA promulgated a revision to the ground-
level ozone NAAQS, lowering both the primary and secondary standards to
75 parts per billion (ppb).\1\ On October 1, 2015, the EPA further
revised the ground-level ozone NAAQS to 70 ppb.\2\
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\1\ See National Ambient Air Quality Standards for Ozone, Final
Rule, 73 FR 16436 (March 27, 2008).
\2\ See National Ambient Air Quality Standards for Ozone, Final
Rule, 80 FR 65292 (October 26, 2015).
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In this proposal, consistent with previous rulemakings described in
Section III.C.2, the EPA relies on analyses that reflect the regional
nature of transported ground-level ozone pollution. Ground-level ozone
is not emitted directly into the air but is a secondary air pollutant
created by chemical reactions between nitrogen oxides (NOX),
carbon monoxide (CO), methane (CH4), and non-methane
volatile organic compounds (VOCs) in the presence of sunlight.
Emissions from mobile sources, electric generating units (EGUs),
industrial facilities, gasoline vapors, and chemical solvents are some
of the major anthropogenic sources of ozone precursors. The potential
for ground-level ozone formation increases during periods with warmer
temperatures and stagnant air masses. Therefore, ozone levels are
generally higher during the summer months.3 4 Ground-level
ozone concentrations and temperature are highly correlated in the
eastern U.S., with observed ozone increases of 2-3 ppb per degree
Celsius reported.\5\
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\3\ Rasmussen, D.J. et al. (2012). Surface ozone-temperature
relationships in the eastern U.S.: A monthly climatology for
evaluating chemistry-climate models. Atmospheric Environment 47:
142-153.
\4\ High ozone concentrations have also been observed in cold
months, where a few areas in the western U.S. have experienced high
levels of local VOC and NOX emissions that have formed
ozone when snow is on the ground and temperatures are near or below
freezing.
\5\ Bloomer, B.J., J.W. Stehr, C.A. Piety, R.J. Salawitch, and
R.R. Dickerson (2009). Observed relationships of ozone air pollution
with temperature and emissions, Geophys. Res. Lett., 36, L09803.
---------------------------------------------------------------------------
Precursor emissions can be transported downwind directly or, after
[[Page 22790]]
transformation in the atmosphere, as ozone. Studies have established
that ozone formation, atmospheric residence, and transport can occur on
a regional scale (i.e., across hundreds of miles) over much of the
eastern U.S. Thus, in any given location, ozone pollution levels are
affected by a combination of local emissions and emissions from upwind
sources. Numerous observational studies have demonstrated the transport
of ozone and its precursors and the impact of upwind emissions on high
concentrations of ozone pollution.\6\
---------------------------------------------------------------------------
\6\ For example, Bergin, M.S. et al. (2007). Regional air
quality: Local and interstate impacts of NOX and
SO2 emissions on ozone and fine particulate matter in the
eastern United States. Environmental Sci & Tech. 41: 4677-4689.
---------------------------------------------------------------------------
The EPA concluded in several previous rulemakings (summarized in
Section III.C.2) that interstate ozone transport can be an important
component of peak ozone concentrations during the summer ozone season
and that NOX control strategies are effective for reducing
regional-scale ozone transport. Model assessments have looked at
impacts on peak ozone concentrations after potential emissions
reduction scenarios for NOX and VOCs for NOX-
limited and VOC-limited areas. For example, Jiang and Fast concluded
that NOX emissions reduction strategies are effective in
lowering ozone mixing ratios in urban areas and Liao et al. showed that
NOX reductions result in lower peak ozone concentrations in
non-attainment areas in the Mid-Atlantic.7 8
---------------------------------------------------------------------------
\7\ Jiang, G.; Fast, J.D. (2004). Modeling the effects of VOC
and NOX emissions sources on ozone formation in Houston
during the TexAQS 2000 field campaign. Atmospheric Environment 38:
5071-5085.
\8\ Liao, K. et al. (2014) Impacts of interstate transport of
pollutants on high ozone events over the Mid-Atlantic United States.
Atmospheric Environment 84: 100-112.
---------------------------------------------------------------------------
Studies have found that NOX emissions reductions can be
effective in reducing ozone pollution as quantified by the form of the
2008 ozone standard (8-hour peak concentrations). Specifically, studies
have found that NOX emissions reductions from EGUs, mobile
sources, and other source categories can be effective in reducing the
upper-end of the cumulative ozone distribution in the summer on a
regional scale.\9\ Analysis of air quality monitoring data trends shows
reductions in summertime ozone concurrent with implementation of
NOX reduction programs.\10\ Gilliland et al. examined the
NOX State Implementation Plan (SIP) Call,\11\ discussed in
more detail in Section III.C.2, and presented reductions in observed
versus modeled ozone concentrations in the eastern U.S. downwind from
major NOX sources.\12\ The results showed significant
reductions in ozone concentrations (10-25 percent) from observed
measurements (CASTNET and AQS) \13\ between 2002 and 2005, linking
reductions in EGU NOX emissions from upwind states with
ozone reductions downwind of the major source areas.\14\ Additionally,
G[eacute]go et al. showed that ground-level ozone concentrations were
significantly reduced after implementation of the NOX SIP
Call.\15\ Thus, these studies support the EPA's continued focus on
regional and seasonal NOX control strategies to address
regional interstate ozone pollution transport.
---------------------------------------------------------------------------
\9\ Hidy, G.M. and Blanchard C.L. (2015). Precursor reductions
and ground-level ozone in the Continental United States. J. of Air &
Waste Management Ass'n 65, 10.
\10\ Simon, H. et al. (2015). Ozone trends across the United
States over a period of decreasing NOX and VOC emissions.
Environmental Science & Technology 49, 186-195.
\11\ See Finding of Significant Contribution and Rulemaking for
Certain States in the Ozone Transport Assessment Group Region for
Purposes of Reducing Regional Transport of Ozone (NOX SIP
Call). 63 FR 57356 (October 27, 1998).
\12\ Gilliland, A.B. et al. (2008). Dynamic evaluation of
regional air quality models: Assessing changes in O3
stemming from changes in emissions and meteorology. Atmospheric
Environment 42: 5110-5123.
\13\ CASTNET is the EPA's Clean Air Status and Trends Network.
AQS is the EPA's Air Quality System.
\14\ Hou, Strickland & Liao (2015). Contributions of regional
air pollutant emissions to ozone and fine particulate matter-related
mortalities in eastern U.S. urban areas. Environmental Research 137:
475-484.
\15\ G[eacute]go et al. (2007). Observation-based assessment of
the impact of nitrogen oxides emission reductions on O3
air quality over the eastern United States. J. of Applied
Meteorology and Climatology 46: 994-1008.
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B. CAA Sections 110 and 126
The statutory authority for this action is provided by CAA sections
126 and 110(a)(2)(D)(i). Section 126(b) of the CAA provides, among
other things, that any state or political subdivision may petition the
Administrator of the EPA to find that any major source or group of
stationary sources in an upwind state emits or would emit any air
pollutant in violation of the prohibition of CAA section
110(a)(2)(D)(i), referred to as the good neighbor provision of the
Act.\16\ Petitions submitted pursuant to this section are commonly
referred to as CAA section 126(b) petitions. Similarly, findings by the
Administrator, pursuant to this section, that a source or group of
sources emits air pollutants in violation of the CAA section
110(a)(2)(D)(i) prohibition are commonly referred to as CAA section
126(b) findings.
---------------------------------------------------------------------------
\16\ The text of CAA section 126 as codified in the U.S. Code
cross-references section 110(a)(2)(D)(ii) instead of section
110(a)(2)(D)(i). The courts have confirmed that this is a
scrivener's error and the correct cross-reference is to CAA section
110(a)(2)(D)(i). See Appalachian Power Co. v. EPA, 249 F.3d 1032,
1040-44 (D.C. Cir. 2001).
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CAA section 126(c) explains the effect of a CAA section 126(b)
finding and establishes the conditions under which continued operation
of a source subject to such a finding may be permitted. Specifically,
CAA section 126(c) provides that it is a violation of section 126 of
the Act and of the applicable SIP: (1) For any major proposed new or
modified source subject to a CAA section 126(b) finding to be
constructed or operate in violation of the prohibition of CAA section
110(a)(2)(D)(i) or (2) for any major existing source for which such a
finding has been made to stay in operation more than 3 months after the
date of the finding. The statute, however, also gives the Administrator
discretion to permit the continued operation of a source beyond 3
months if the source complies with emissions limitations and compliance
schedules provided by the EPA to bring about compliance with the
requirements contained in CAA sections 110(a)(2)(D)(i) and 126 as
expeditiously as practicable, but in any event no later than 3 years
from the date of the finding.
Section 110(a)(2)(D)(i) of the CAA requires states to prohibit
certain emissions from in-state sources if such emissions impact the
air quality in downwind states. Specifically, CAA sections 110(a)(1)
and 110(a)(2)(D)(i)(I) require all states, within 3 years of
promulgation of a new or revised NAAQS, to submit SIPs that contain
adequate provisions prohibiting any source or other type of emissions
activity within the state from emitting any air pollutant in amounts
which will contribute significantly to nonattainment in, or interfere
with maintenance by, any other state with respect to that NAAQS. As
described further in Section III.C.2, the EPA has developed several
regional rulemakings to address the requirements of CAA section
110(a)(2)(D)(i)(I) for the various ozone NAAQS. The EPA's most recent
rulemaking, Determination Regarding Good Neighbor Obligations for the
2008 Ozone National Ambient Air Quality Standard (the Determination
Rule), finalized a determination that the existing Cross-State Air
Pollution Rule Update for the 2008 Ozone NAAQS (CSAPR Update) \17\
fully addresses
[[Page 22791]]
certain states' interstate transport obligations under CAA section
110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS. 83 FR 65878 (December 21,
2018).
---------------------------------------------------------------------------
\17\ See Cross-State Air Pollution Rule Update for the 2008
Ozone National Ambient Air Quality Standards, Final Rule, 81 FR
74504 (October 26, 2016).
---------------------------------------------------------------------------
Section 110(a)(2)(D)(ii) of the CAA further requires SIPs to
contain adequate provisions insuring compliance with the applicable
requirements of, inter alia, CAA section 126. Thus, where the EPA has
made a finding pursuant to CAA section 126(b), this provision requires
states to revise their SIPs to adopt any emissions limitations and
compliance schedules provided by the EPA under CAA section 126(c).
C. The EPA's Historical Approach To Addressing Interstate Transport of
Ozone Under the Good Neighbor Provision
Given that formation, atmospheric residence, and transport of ozone
can occur on a regional scale (i.e., across hundreds of miles) and that
many separate areas across the eastern U.S. have struggled to attain
and maintain the NAAQS, the states and the EPA have historically
addressed the interstate transport of ozone pursuant to the good
neighbor provision by promulgating rulemakings that employ regional
trading programs to reduce NOX emissions. Each of these
rulemakings followed a similar four-step interstate transport framework
to evaluate the extent of the ozone transport problem (i.e., the
breadth of downwind ozone problems and the contributions from upwind
states) and, ultimately, to find that downwind states' problems
attaining and maintaining the ozone NAAQS result from an interconnected
system of transported pollution emitted by multiple upwind sources
located in different upwind states combined with downwind (i.e.,
locally generated) ozone.
1. Description of the Four-Step Interstate Transport Framework
Through the development and implementation of several previous
rulemakings,\18\ the EPA, working in partnership with states,
established the following four-step interstate transport framework to
address the requirements of the good neighbor provision for regional
pollutants such as ozone and fine particulate matter
(PM2.5):
---------------------------------------------------------------------------
\18\ See Finding of Significant Contribution and Rulemaking for
Certain States in the Ozone Transport Assessment Group Region for
Purposes of Reducing Regional Transport of Ozone (also known as the
NOX SIP Call), 63 FR 57356 (October 27, 1998); Clean Air
Interstate Rule (CAIR) Final Rule, 70 FR 25162 (May 12, 2005); CSAPR
Final Rule, 76 FR 48208 (August 8, 2011); CSAPR Update Final Rule,
81 FR 74504 (October 26, 2016); Determination Rule, 83 FR 65878
(December 21, 2018).
---------------------------------------------------------------------------
(1) Identify downwind receptors that are expected to have problems
attaining or maintaining the NAAQS. The EPA historically identified
downwind areas with air quality problems, or receptors, using air
quality modeling projections for a future analytic year and, where
appropriate, considering monitored air quality data.
(2) Determine which upwind states are linked to these identified
downwind air quality problems and thus warrant further analysis to
determine whether their emissions violate the good neighbor provision.
In the EPA's most recent transport rulemakings for the 1997 and 2008
ozone NAAQS, as well as the 1997 and 2006 PM2.5 NAAQS, the
Agency identified such upwind states to be those modeled to contribute
at or above a threshold relative to the applicable NAAQS.
(3) For states linked to downwind air quality problems, identify
upwind emissions (if any) on a statewide basis that will significantly
contribute to nonattainment or interfere with maintenance of a standard
at a receptor in another state. In the EPA's prior rulemakings for
ozone and PM2.5, the Agency identified and apportioned
emissions reduction responsibility among multiple upwind states linked
to downwind air quality problems by identifying a uniform level of
control stringency based on cost and air quality factors evaluated in a
multi-factor test.
(4) For upwind states that are found to have emissions that will
significantly contribute to nonattainment or interfere with maintenance
of the NAAQS downwind, implement the necessary emissions reductions
within the state. When the EPA has promulgated federal implementation
plans (FIPs) addressing the good neighbor provision for ozone and
PM2.5 NAAQS in prior transport rulemakings, the EPA has
typically required affected sources in upwind states to participate in
allowance trading programs to achieve the necessary emissions
reductions.\19\ In addition, the EPA has also offered states the
opportunity to participate in comparable EPA-operated allowance trading
programs to achieve the necessary emissions reductions through SIPs.
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\19\ While the EPA has chosen to implement emissions reductions
through allowance trading programs for states found to have a
downwind impact, upwind states can choose to submit a SIP that
implements such reductions through other enforceable mechanisms that
meet the requirements of the good neighbor provision, such as the
enforceable mechanisms that the petitioner apparently favors and
argues for in its petition.
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Using the four-step framework to evaluate a particular interstate
transport problem allows the EPA to determine whether upwind sources
are actually linked to a downwind air quality problem, whether and
which sources can be cost-effectively controlled to address that
downwind air quality problem, what level of emissions should be
eliminated to address the downwind air quality problem, and the means
of implementing corresponding emissions limits (i.e., source-specific
rates, or statewide emissions budgets in a limited regional allowance
trading program). The outcome of this assessment varies based on the
scope of the air quality problem, the availability and cost of controls
at sources in upwind states, and the estimated impact of upwind
emissions reductions on downwind ozone concentrations.
2. Prior Regional Rulemakings Under the Good Neighbor Provision
The EPA's first regional interstate transport rulemaking, the
NOX SIP Call, addressed the 1979 ozone NAAQS. 63 FR 57356
(October 27, 1998).\20\ The NOX SIP Call was the result of
the analytic work and recommendations of the Ozone Transport Assessment
Group, which was organized and led by states in consultation with the
EPA and other stakeholders. The EPA used this collaboratively-developed
analysis to conclude in the NOX SIP Call that ``[t]he fact
that virtually every nonattainment problem is caused by numerous
sources over a wide geographic area is a factor suggesting that the
solution to the problem is the implementation over a wide area of
controls on many sources, each of which may have a small or
unmeasurable ambient impact by itself.'' 63 FR 57356, 57377 (October
27, 1998). The NOX SIP Call promulgated statewide emissions
budgets and required upwind states to adopt SIPs that would decrease
their NOX emissions to meet these budgets, thereby
prohibiting the emissions that significantly contribute to
nonattainment or interfere with maintenance of the ozone NAAQS in
downwind states. The EPA also promulgated a model rule for a regional
allowance trading program called the
[[Page 22792]]
NOX Budget Trading Program that states could adopt in their
SIPs as a mechanism to achieve some or all required emissions
reductions. All jurisdictions covered by the NOX SIP Call
ultimately chose to adopt the NOX Budget Trading Program
into their SIPs. The NOX SIP Call was ultimately upheld by
the U.S. Court of Appeals for the District of Columbia Circuit (D.C.
Circuit) in all pertinent respects. See Michigan v. EPA, 213 F.3d 663
(2000).
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\20\ As originally promulgated, the NOX SIP Call also
addressed good neighbor obligations under the 1997 8-hour ozone
NAAQS, but the EPA subsequently stayed the rule's provisions with
respect to that standard. 40 CFR 51.121(q). The EPA recently
finalized an action rescinding the 1997 ozone NAAQS as a basis for
the NOX SIP Call. 84 FR 8422 (March 8, 2019).
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In coordination with the NOX SIP Call rulemaking under
CAA section 110(a)(2)(D)(i)(I), the EPA also addressed several pending
CAA section 126(b) petitions submitted by eight northeastern states
regarding the same air quality issues addressed by the NOX
SIP Call, specifically interstate ozone transport for the 1979 ozone
NAAQS. These CAA section 126(b) petitions asked the EPA to find that
ozone emissions from numerous sources located in 30 states and the
District of Columbia had adverse air quality impacts on the petitioning
downwind states. Half of the petitioning states (i.e., Connecticut,
Maine, New York, and Pennsylvania) requested an allowance trading
program to reduce NOX emissions and remedy regional
interstate ozone transport. 63 FR 56297 (October 21, 1998). Based on
analysis conducted for the NOX SIP Call regarding upwind
state impacts on downwind air quality, the EPA, in May 1999, made
technical determinations regarding the claims in the petitions, but did
not at that time make the CAA section 126(b) findings requested by the
petitions. 64 FR 28250 (May 25, 1999). In making these technical
determinations, the EPA concluded that the NOX SIP Call
would fully address and remediate the claims raised in these petitions
and that the EPA would, therefore, not need to take separate action to
remedy any potential violations of the CAA section 110(a)(2)(D)(i)
prohibition. 64 FR 28252. However, subsequent litigation over the
NOX SIP Call led the EPA to ``de-link'' the CAA section
126(b) petition response from the NOX SIP Call, and the EPA
made final CAA section 126(b) findings for 12 states named in the
petitions and the District of Columbia. The EPA found that sources in
these states emitted in violation of the prohibition in the good
neighbor provision with respect to the 1979 ozone NAAQS based on the
affirmative technical determinations made in the May 1999 rulemaking.
To remedy the violation under CAA section 126(c), the EPA required
affected sources in the upwind states to participate in a regional
allowance trading program whose requirements were designed to be
interchangeable with the requirements of the optional NOX
Budget Trading Program model rule provided under the NOX SIP
Call. 65 FR 2674 (January 18, 2000). The EPA's action on these CAA
section 126(b) petitions was upheld by the D.C. Circuit. See
Appalachian Power Co. v. EPA, 249 F.3d 1032 (D.C. Cir. 2001).
The EPA next promulgated the Clean Air Interstate Rule (CAIR), 70
FR 25162 (May 12, 2005), to address interstate transport under the good
neighbor provision with respect to the 1997 ozone NAAQS, as well as the
1997 PM2.5 NAAQS. 70 FR 25172. The EPA adopted the same
approach for quantifying the level of states' significant contribution
to downwind nonattainment in CAIR as it used in the NOX SIP
Call, based on the determination in the NOX SIP Call that
downwind ozone nonattainment is due to the impact of emissions from
numerous upwind sources and states. 70 FR 25162, 25172 (May 12, 2005).
The EPA explained that ``[t]ypically, two or more States contribute
transported pollution to a single downwind area, so that the
`collective contribution' is much larger than the contribution of any
single State.'' 70 FR 25186. CAIR included two distinct regulatory
processes: (1) A rulemaking to define significant contribution (i.e.,
the emissions reduction obligation) under the good neighbor provision
and provide for submission of SIPs eliminating that contribution, 70 FR
25162 (May 12, 2005); and (2) a rulemaking to promulgate, where
necessary, FIPs imposing emissions limitations in the event states did
not submit SIPs. 71 FR 25328 (April 28, 2006). The FIPs required EGUs
in affected states to participate in regional allowance trading
programs, which replaced the previous NOX Budget Trading
Program.
In conjunction with the second CAIR rulemaking, which promulgated
backstop FIPs, the EPA acted on a CAA section 126(b) petition received
from the state of North Carolina on March 19, 2004, seeking a finding
that large EGUs located in 13 states were significantly contributing to
nonattainment and/or interfering with maintenance of the 1997 ozone
NAAQS and the 1997 PM2.5 NAAQS in North Carolina. Citing the
analyses conducted to support the promulgation of CAIR, the EPA denied
North Carolina's CAA section 126(b) petition in full based on
determinations either that the named states were not adversely
impacting downwind air quality in violation of the good neighbor
provision, or that such impacts were fully remedied by implementation
of the emissions reductions required by the CAIR FIPs. 71 FR 25328,
25330 (April 28, 2006).
The D.C. Circuit found that the EPA's approach to CAA section
110(a)(2)(D)(i)(I) in CAIR was ``fundamentally flawed'' in several
respects, and the rule was remanded in July 2008 with the instruction
that the EPA replace the rule ``from the ground up.'' North Carolina,
531 F.3d at 929. The decision concluded the EPA's analysis and
compliance mechanisms did not address all elements required by the
statute. The EPA's separate action denying North Carolina's CAA section
126(b) petition was not challenged.
On August 8, 2011, the EPA promulgated CSAPR to replace CAIR. 76 FR
48208 (August 8, 2011). CSAPR addressed the same (1997) ozone and
PM2.5 NAAQS as CAIR and additionally addressed interstate
transport for the 2006 PM2.5 NAAQS by requiring 28 states to
reduce sulfur dioxide (SO2) emissions, annual NOX
emissions, and/or ozone season NOX emissions that would
significantly contribute to other states' nonattainment or interfere
with other states' ability to maintain these air quality standards.
Consistent with prior determinations made in the NOX SIP
Call and CAIR, the EPA again found that multiple upwind states
contributed to ozone nonattainment in multiple downwind states.
Specifically, the EPA found ``that the total `collective contribution'
from upwind sources represents a large portion of PM2.5 and
ozone at downwind locations and that the total amount of transport is
composed of the individual contribution from numerous upwind states.''
76 FR 48237. Accordingly, the EPA conducted a regional analysis,
calculated emissions budgets for affected states, and required EGUs in
these states to participate in new regional allowance trading programs
to reduce statewide emissions levels.\21\ CSAPR was subject to nearly 4
years of litigation. Ultimately, the Supreme Court upheld the EPA's
approach to calculating emissions reduction obligations and
apportioning upwind state responsibility under the good neighbor
provision, but also held that the EPA was precluded from requiring more
emissions reductions
[[Page 22793]]
than necessary to address downwind air quality problems, or ``over-
controlling'' upwind state emissions. See EPA v. EME Homer City
Generation, L.P., 134 S. Ct. 1584, 1607-09 (2014) (EME Homer City).\22\
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\21\ The CSAPR trading programs included assurance provisions to
ensure that emissions are reduced within each individual state, in
accordance with North Carolina, 531 F.3d at 907-08 (holding the EPA
must require elimination of emissions from each upwind state that
contribute significantly to nonattainment and interfere with
maintenance in downwind areas). Those provisions were also included
in the CSAPR Update and took effect with the 2017 CSAPR compliance
periods.
\22\ On remand from the Supreme Court, the D.C. Circuit further
affirmed various aspects of the CSAPR, while remanding the rule
without vacatur for reconsideration of certain states' emissions
budgets where it found those budgets may over-control emissions
beyond what was necessary to address the good neighbor requirements.
EME Homer City Generation, L.P. v. EPA, 795 F.3d 118 (2015) (EME
Homer City II). The EPA addressed the remand in several rulemaking
actions in 2016 and 2017.
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In 2016, the EPA promulgated the CSAPR Update to address the good
neighbor provision requirements for the 2008 ozone NAAQS. 81 FR 74504
(October 26, 2016). The CSAPR Update built upon previous regulatory
efforts to address the collective contributions of ozone pollution from
22 states in the eastern U.S. to widespread downwind air quality
problems. As with previous rulemakings, the EPA evaluated the nature
(i.e., breadth and interconnectedness) of the ozone problem and
NOX reduction potential from EGUs, including essentially all
the EGUs at the facilities named in the New York CAA section 126(b)
petition.\23\ In the CSAPR Update, the EPA quantified emissions
reduction obligations for each state based on an analysis of control
strategies that could be implemented by the 2017 ozone season and
implemented those emissions reductions through FIPs which required EGUs
in affected states to participate in a regional allowance trading
program to further reduce statewide NOX emissions levels.
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\23\ The EPA uses the language ``essentially all the EGUs at the
facilities named . . .'' (emphasis added) to clarify that the New
York petition identifies sources at the facility, rather than at the
unit, level. The CSAPR Update looked at unit-level data and included
all fossil-fuel-fired boiler or combustion turbine EGUs with a
capacity (electrical output) greater than 25 megawatts (MW). See 81
FR 74563 (October 26, 2016).
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At the time the EPA finalized the CSAPR Update in 2016, the EPA was
unable to determine whether the rule fully resolved good neighbor
obligations with respect to the 2008 ozone NAAQS for most (i.e., 21) of
the states subject to that action, including those addressed in New
York's petition (i.e., Illinois, Indiana, Kentucky, Maryland, Michigan,
Ohio, Pennsylvania, Virginia and West Virginia). The EPA stated that,
based on its analysis at that time, the emissions reductions required
by the rule ``may not be all that is needed'' to address transported
emissions.\24\ 81 FR 74521-22 (October 26, 2016). The information
available at that time suggested that downwind air quality problems
would remain in 2017 after implementation of the CSAPR Update and that
upwind states continued to be linked to those downwind problems at or
above the one-percent threshold. However, in the CSAPR Update, the EPA
could not determine whether, in step 3 of the four-step interstate
transport framework, the EPA had quantified all emissions reductions
that may be considered cost-effective because the rule did not evaluate
non-EGU ozone season NOX reductions and further EGU control
strategies (i.e., the implementation of new post-combustion controls)
that were achievable on timeframes extending beyond the 2017 analytic
year.
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\24\ The EPA determined that the emissions reductions required
by the CSAPR Update satisfied the full scope of the good neighbor
obligation for Tennessee with respect to the 2008 ozone NAAQS. 81 FR
74551-52 (October 26, 2016).
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On December 6, 2018, the EPA finalized a determination that, based
on the latest available emissions inventory and air quality modeling
data for a 2023 analytic year, the CSAPR Update fully addresses the
good neighbor provision requirements for the 2008 ozone NAAQS for 20
eastern states (among the 22) previously addressed in the CSAPR Update.
83 FR 65878 (December 21, 2018). The EPA's Determination Rule applied
the four-step interstate transport framework but did not move beyond an
analysis at step 1 of the four-step framework, because the EPA found
that there would be no remaining nonattainment or maintenance receptors
for the 2008 ozone NAAQS in the eastern U.S. in 2023. Therefore, with
the CSAPR Update fully implemented, the EPA finalized in the
Determination Rule a finding that the 20 states addressed by that
action (including eight of the nine states named in New York's
petition) will not contribute significantly to nonattainment in, or
interfere with maintenance by, any other state regarding the 2008 ozone
NAAQS. The EPA had already determined that the remaining two states
would have no remaining good neighbor obligation for the 2008 ozone
NAAQS--one in the CSAPR Update (Tennessee), 81 FR 74540 (October 26,
2016), and the other in a separate SIP approval (Kentucky, the ninth
state named in New York's petition), 83 FR 33730 (July 17, 2018).
Most recently, the EPA acted on five CAA section 126(b) petitions
submitted by the states of Delaware and Maryland regarding various
sources in five upwind states with regard to the 2008 and 2015 ozone
NAAQS. In denying the petitions, the EPA applied the same four-step
interstate transport framework used in prior rulemakings and relied on
analysis and determinations made in the CSAPR Update for purposes of
evaluating the good neighbor obligations with respect to the 2008 ozone
NAAQS. 83 FR 50444 (October 5, 2018).
D. The CAA Section 126(b) Petition From New York
On March 12, 2018, the New York State Department of Environmental
Conservation (NY DEC) submitted a CAA section 126(b) petition alleging
that emissions from a group of specified upwind sources in Illinois,
Indiana, Kentucky, Maryland, Michigan, Ohio, Pennsylvania, Virginia,
and West Virginia significantly contribute to nonattainment and
interfere with maintenance of the 2008 and 2015 ozone NAAQS in New York
State, specifically in the New York-Northern New Jersey-Long Island,
NY-NJ-CT area (hereafter the New York metropolitan area or NYMA) and in
Chautauqua County in western New York.
1. The petition asserts that Chautauqua County and the NYMA have an
air quality problem for the 2008 and the 2015 ozone NAAQS.
The petition explains that the EPA designated the Chautauqua County
area (i.e., Jamestown, New York) as Marginal nonattainment for the 2008
ozone NAAQS and that the area attained the NAAQS by the Marginal area
attainment date of July 20, 2015. The petition asserts, however, that
the area remains in danger of exceeding the ozone NAAQS, particularly
the 2015 standard.
The petition also explains that the EPA designated the NYMA as
Marginal nonattainment for the 2008 ozone NAAQS. The NYMA failed to
attain the NAAQS by the Marginal attainment deadline of July 20, 2015,
and the EPA subsequently reclassified the area to a Moderate
nonattainment area on June 3, 2016.\25\ The petition further asserts
that all three states in the NYMA (i.e., New York, New Jersey and
Connecticut) have surpassed their three-percent-per-year emissions
reductions requirements for the 2008 NAAQS; yet certified monitoring
data through 2016 and (at the time of the petition submittal)
preliminary 2017 data indicate that the area is not attaining the 2008
NAAQS, with one monitor in Connecticut recording a preliminary 2017
design value of 83 ppb. The petition, thus, concludes that the area
will likely be designated nonattainment for the 2015 ozone NAAQS.\26\
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\25\ The EPA notes that New York submitted its CAA section
126(b) petition before the EPA proposed to reclassify the NYMA as a
Serious nonattainment area. 83 FR 56781 (November 14, 2018).
\26\ The petition asserts that the EPA had not yet issued final
designations at the time the petition was submitted. On April 30,
2018, the EPA designated New York-Northern New Jersey-Long Island,
NY-NJ-CT area as a Moderate nonattainment area, the same as the NYMA
nonattainment area for 2008 ozone NAAQS. 83 FR 25776 (June 4, 2018).
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[[Page 22794]]
2. The petition asserts that NOX transport from the nine
named states impacts air quality in New York State.
The petition identifies nine states that were linked to air quality
problems in New York in the EPA's 2017 contribution modeling in the
CSAPR Update based on impacts equal to or greater than the threshold of
one percent of the 2008 NAAQS (or 0.75 ppb or more): Illinois, Indiana,
Kentucky, Maryland, Michigan, Ohio, Pennsylvania, Virginia and West
Virginia. The petition also asserts that the high concentrations of
ozone that are transported to New York are largely the result of
emissions from major stationary sources of NOX located in
the linked states. The petition cites efforts by New York and other
parties to mitigate regional transport of NOX, including
implementation of the NOX Budget Trading Program under the
NOX SIP Call and the CSAPR allowance trading programs.
Additionally, the petition describes a study that allegedly found
that air transported into Chautauqua County on the worst air quality
days results in maximum daily ozone concentrations that, on average,
are within 2 ppb of the 2015 ozone NAAQS and often exceed the standard
of 70 ppb.\27\ The petition concludes that, given the absence of major
sources in the Chautauqua County area, reductions in ozone precursor
emissions are needed from upwind states, especially from sources in
Illinois, Indiana, Kentucky, Michigan, Ohio, and Virginia.
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\27\ The petition discusses the results of a study titled the
``Dunkirk Monitor Transport Study,'' which presents an analysis of
back-trajectories used to single out interstate airflow on ``design
days,'' which the petition defines as days considered in the
calculation of the design values. The subject days include the four
days in each year from 2013 to 2017 with the largest daily maximum
8-hour ozone concentrations at the Dunkirk monitoring site in
Chautauqua County, New York. The Dunkirk monitoring site is the
design value monitoring site in Chautauqua County (i.e., the site
with the highest design value in the county).
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3. The petition asserts that facilities emitting (or projected to
emit) above 400 tons of NOX significantly contribute to air
quality problems or interfere with maintenance in New York State.
When analyzing significant ozone contributions, the petition
considers the highest emitting facilities from the previously named
linked states. Specifically, the petition identifies EGU and non-EGU
facilities emitting, or projected to emit, 400 tons per year or more of
NOX in each of these linked states and asserts that these
facilities are expected to have the greatest impact on the ability of
the NYMA and Chautauqua County to attain and maintain the 2008 and 2015
NAAQS.\28\ The petition asserts that the identified facilities can
reasonably be retrofitted with control equipment or can operate
existing controls more frequently to reduce NOX.
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\28\ The petition identifies which facilities emit 400 tons per
year of more of NOX based on 2017 EGU projections by the
Mid-Atlantic Regional Air Management Association (MARAMA). The
petition also identifies non-EGU sources emitting greater than 400
tons of NOX in the 2014 National Emissions Inventory
(NEI).
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The petition provides and uses NY DEC generated air quality
modeling data to quantify projected 2017 impacts on ozone
concentrations from the collective NOX emissions of the EGU
and non-EGU (including oil and gas) facilities that emitted at least
400 tons-per-year of NOX in each state that was linked in
the EPA's modeling for the CSAPR Update (``400 tons-per-year
sources''). According to the petition, results from NY DEC's
independent modeling analysis show single-day impacts from individual
states' groups of 400 tons-per-year sources of up to 6.34 ppb in
Chautauqua County and 4.97 ppb in the New York portion of the NYMA
nonattainment area.\29\
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\29\ The petition provides additional detail regarding the
modeling methodology. Specifically, the petition notes that NY DEC
used version 5.0.2 of the Community Multiscale Air Quality (CMAQ)
model with the EPA's Weather Research Forecast (WRF) 2011
meteorological data to model hourly ozone concentrations during the
period May 18 to July 30 for a 2017 ``baseline'' scenario and
additional state-by-state ``control'' modeling scenarios in which
emissions from the named sources in a given state were set to zero.
The petition explains that NY DEC then used the modeled
concentrations to calculate the 8-hour daily maximum average (MDA8)
in each grid cell on each day of the modeling period for each
modeled scenario. The difference in MDA8 concentrations between the
2017 baseline and each state zero-out run was used to represent the
contributions on each day. The NY DEC then selected the largest
single-day contribution from among the highest ozone concentration
days to support their analysis of contributions relative to a one-
percent-of-the-NAAQS threshold.
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The petition asserts that, where the maximum influence from an
individual state's combined 400 tons-per-year sources exceeds 0.75 ppb
at a particular monitor, this indicates significant contribution to
nonattainment or interference with maintenance of the 2008 ozone NAAQS,
and an influence above 0.70 ppb indicates significant contribution to
nonattainment or interference with maintenance of the 2015 ozone NAAQS.
The petition also challenges the applicability of the EPA's
recently-released 2023 air quality modeling \30\ to this CAA section
126(b) petition. The petition states that NY DEC has significant
concerns about the assumptions and results of the EPA's modeling, such
as the EPA's expectation that uncontrolled EGUs will greatly reduce
their emissions rates in the absence of unit-level enforceable limits
and the concern that the EPA may have underestimated the ozone
concentration results for monitoring sites located near significant
water bodies based on the treatment of model cells containing a land/
water interface. The petition also asserts that modeling of 2023 is
insufficient to support good neighbor SIPs and cannot be used to
support a review of New York's petition because CAA section 126(c)
explicitly states that compliance must be met ``in no case later than
three years after the date of [a CAA section 126(b)] finding,'' and
2023 is more than 3 years after the deadline by which the EPA must act
on the NY DEC petition. The EPA notes that New York submitted its CAA
section 126(b) petition before the EPA finalized the Determination
Rule.
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\30\ See the EPA's October 27, 2017 memorandum titled,
``Supplemental Information on the Interstate Transport State
Implementation Plan Submissions for the 2008 Ozone National Ambient
Air Quality Standards under Clean Air Act Section
110(a)(2)(D)(i)(I)'' that provided future year ozone design values
for monitoring sites in the U.S. based on updated air quality
modeling (for 2023) and monitoring data.
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4. The petition requests that the EPA establish enforceable
emissions limitations for the named major NOX sources at
levels designed to prevent them from significantly contributing to
nonattainment or interfering with maintenance in New York State.
The petition requests that the EPA establish permanent and
enforceable NOX emissions limits based on New York's
determination of available cost-effective controls. Specifically, the
petition requests that the named sources be subject to emissions limits
consistent with Reasonably Available Control Technology (RACT) as
defined by New York State, which bases its presumptive limits and
facility-specific control analyses on a standard of $5,000 per ton of
NOX reduced.\31\ The petition acknowledges that some of the
facilities identified in the petition may already
[[Page 22795]]
operate with a NOX emissions rate similar to New York's RACT
limits. Nonetheless, the petition asks that the EPA establish
enforceable daily emissions limits during the ozone season to require
these sources to continue to operate at these rates in the future. The
petition claims that enforceable emissions limits would prevent
emissions controls from being turned off, which the petition asserts
occurs when the sources in the state are collectively emitting well-
below their seasonal CSAPR budgets.
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\31\ According to the petition, New York's standard of $5,000
per ton of NOX reduced for RACT is inflation-adjusted.
Hence, the EPA observes that this cost per ton will not change in
future years even if inflation leads to increases in NOX
control costs per ton of NOX reduced beyond current
estimates. For example, assuming a control cost of $5,000 per ton of
NOX reduced, a 10 percent inflation rate will yield a
control cost of $5,500 per ton (1.10 * 5,000), but the inflation-
adjusted RACT basis of $5,000 per ton of NOX reduced
remains unchanged.
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5. Subsequent actions and correspondence regarding the New York
petition.
Consistent with CAA section 307(d)(10), the EPA determined that the
60-day period for responding to New York's petition was insufficient
for the EPA to complete the necessary technical review, develop an
adequate proposal, and allow time for notice and comment, including an
opportunity for public hearing, on a proposed finding regarding whether
emissions from the group of identified sources in nine states
(Illinois, Indiana, Kentucky, Maryland, Michigan, Ohio, Pennsylvania,
Virginia and West Virginia) significantly contribute to nonattainment
and interfere with maintenance of the 2008 and 2015 ozone NAAQS in New
York State. On May 11, 2018, the EPA published a final rule extending
the deadline for acting on New York's section 126(b) petition to
November 9, 2018.\32\
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\32\ 83 FR 21909 (May 11, 2018).
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Since receiving New York's section 126(b) petition on March 14,
2018, the EPA has received several letters from the public providing
information regarding the content of the subject petition. We briefly
describe those letters here.
On April 13, 2018, the U.S. Chamber of Commerce submitted a letter
to the EPA requesting an extension beyond the 60-day statutory deadline
for petition response and claiming legal and technical deficiencies in
the New York petition. Specifically, the U.S. Chamber of Commerce
asserts that the petition over-estimates emissions from ``numerous''
facilities identified in the petition and inappropriately includes
monitoring sites that currently attain the ozone NAAQS. Further the
U.S. Chamber of Commerce contends that applying New York's definition
of RACT outside of New York raises ``significant constitutional and
statutory issues.''
On June 20, 2018, Sunoco Partners Marketing & Terminals submitted a
letter to the EPA providing corrections to the operating status of the
Marcus Hook Refinery, identified in the New York section 126(b)
petition as the Sunoco Inc. (R&M)/Marcus Hook Refinery, and requesting
that the EPA remove the identified source from the list of facilities
emitting more than 400 tons per year of NOX.
On April 25, 2018, the Air Stewardship Coalition (ASC) submitted a
letter to the EPA requesting an extension beyond the 60-day statutory
deadline for petition response citing the technical complexity of the
New York petition. ASC submitted a follow-up letter on September 24,
2018, asking the EPA to deny New York's section 126(b) petition. The
ASC letter asserts that New York State has no ozone attainment issues
outside of the NYMA and that the NY DEC's independent modeling used a
``non-standard approach'' that resulted in ``flawed'' results.
On May 31, 2018, the Midwest Ozone Group (MOG) submitted a letter
asking the EPA to deny New York's section 126(b) petition. The MOG
letter asserts that the New York petition is deficient in that it
incorrectly characterizes the emissions from identified sources and
states; the petition does not consider exceptional events or
international transport; and the petition does not consider the EPA's
most recent modeling showing that all New York monitoring sites will
attain the 2008 ozone NAAQS. Further, MOG provides the results of its
own independent modeling of the May 1 through August 31, 2011, ozone
season run at a 4-kilometer (km) grid resolution rather than the 12 km
grid resolution used in the EPA's modeling. MOG asserts that at the
finer resolution, all monitoring sites in New York attain both the 2008
and the 2015 ozone NAAQS. MOG provided the EPA with supplemental
comments and analyses on October 19, 2018, and on December 17, 2018.
MOG asserts that its additional comments further support the EPA's
denial of the New York section 126(b) petition.
The EPA acknowledges receipt of these letters and has made them
available in the docket for this action. However, the EPA is not
responding directly to these letters in this notice nor is the EPA
relying on the information provided in these letters as a basis for its
proposed action. Rather, the EPA encourages interested parties to
review this proposal and then submit relevant comments during the
public comment period.
IV. The EPA's Proposed Decision on the CAA Section 126(b) Petition From
New York
A. The EPA's Approach for Granting or Denying CAA Section 126(b)
Petitions Regarding the 2008 and 2015 8-Hour Ozone NAAQS
As discussed in Section III.B of this notice, section 126(b) of the
CAA provides a mechanism for states and other political subdivisions to
seek abatement of pollution in other states that may be affecting their
air quality. Section 126(b) does not, however, identify a specific
methodology or specific criteria for the Administrator to apply when
making a CAA section 126(b) finding or denying a petition. Therefore,
the EPA has the discretion to identify relevant criteria and develop a
reasonable methodology for making a CAA section 126(b) finding. See,
e.g., Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-43 (1984);
Smiley v. Citibank, 517 U.S. 735, 744-45 (1996).
With respect to the statutory requirements of section 126 and
section 110(a)(2)(D)(i) of the CAA, the EPA has consistently
acknowledged that Congress created these provisions as two independent
statutory tools to address the problem of interstate pollution
transport. See, e.g., 76 FR 69052, 69054 (November 7, 2011).\33\ The
fact that Congress did not indicate any preference for one over the
other, suggests that either tool could serve as a legitimate means to
produce the desired result. While the provisions in CAA section
110(a)(2)(D)(i) and section 126 are independent, they are also closely
linked. A violation of the prohibition in CAA section 110(a)(2)(D)(i)
is a condition precedent for action under CAA section 126(b) and,
critically, both provisions construe significant contribution to
nonattainment and interference with maintenance identically (since the
identical terms are naturally interpreted as meaning the same thing in
the two linked provisions). See Appalachian Power, 249 F. 3d at 1049-
50.
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\33\ Courts have also upheld the EPA's position that CAA
sections 110(a)(2)(D)(i) and section 126 are two independent
statutory tools to address the same problem of interstate transport.
See GenOn REMA, LLC v. EPA, 722 F.3d 513, 520-23 (3d Cir. 2013);
Appalachian Power, 249 F.3d at 1047.
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Thus, in addressing a CAA section 126(b) petition for ozone
transport, the EPA believes it is appropriate to interpret these
ambiguous terms (i.e., ``contribute significantly to nonattainment''
and ``interfere with maintenance'') consistent with the EPA's past
approach to evaluating interstate ozone pollution transport
[[Page 22796]]
under the good neighbor provision, and its interpretation and
application of that related provision of the statute. As described
further in Section III of this notice, ozone is a regional air
pollutant and the EPA's previous analyses and regulatory actions have
evaluated the regional interstate ozone transport problem using a four-
step analytic framework. The EPA most recently applied this four-step
framework in promulgating the CSAPR Update and the Determination Rule
to address interstate transport with respect to the 2008 ozone NAAQS
under CAA section 110(a)(2)(D)(i)(I). This approach is particularly
applicable with respect to New York's claims regarding the 2008 ozone
NAAQS because both rulemakings address projected air quality problems
in New York and the impacts of upwind states, including those named in
the petition, on such areas. Given the specific cross-reference in CAA
section 126(b) to the substantive prohibition in CAA section
110(a)(2)(D)(i), the EPA believes any prior findings made under the
good neighbor provision are informative--if not determinative--for a
CAA section 126(b) action. Therefore, in this instance, the EPA's
decision whether to grant or deny the CAA section 126(b) petition
regarding the 2008 8-hour ozone NAAQS depends on application of the
four-step interstate transport framework.
While the EPA previously applied the four-step interstate transport
framework and interpreted significant contribution and interference
with maintenance under CAA section 110(a)(2)(D)(i) for the 2008 ozone
NAAQS via the CSAPR Update and the Determination Rule, the EPA has not
yet engaged in a rulemaking action to apply the good neighbor provision
for the 2015 ozone NAAQS. However, the EPA recently released technical
information intended to inform states' development of SIPs to address
the 2015 ozone standard.\34\ This information included the results of
air quality modeling to identify potential downwind air quality
problems in 2023, which we discuss in more detail in Section IV.B.1 of
this document. As part of the memorandum releasing the technical
information, the EPA acknowledged that states have the flexibility to
pursue approaches that may differ from the EPA's historical approach to
evaluating interstate transport in developing their good neighbor
SIPs.\35\ Nonetheless, the EPA's technical analysis and the potential
flexibilities identified in the memorandum generally followed the basic
elements of the EPA's historical four-step interstate transport
framework. As described previously, CAA section 126(b) does not
identify a specific methodology or specific criteria for the
Administrator to apply when making a CAA section 126(b) finding or
denying a petition. Thus, given the EPA's discretion to identify
relevant criteria and develop a reasonable methodology to inform a CAA
section 126(b) finding, the EPA believes that it continues to be
appropriate for the Agency to evaluate the claims regarding the 2015
ozone NAAQS in New York's section 126(b) petition consistent with the
EPA's four-step interstate transport framework used to evaluate other
ozone NAAQS.
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\34\ See Information on the Interstate Transport State
Implementation Plan Submissions for the 2015 Ozone National Ambient
Air Quality Standards under Clean Air Act Section 110(a)(2)(D)(i)(I)
(March 27, 2018).
\35\ The EPA has also released two additional memoranda
providing guidance to states developing good neighbor SIPs for the
2015 ozone NAAQS. See Analysis of Contribution Thresholds for Use in
Clean Air Act Section 110(a)(2)(D)(i)(I) Interstate Transport State
Implementation Plan Submissions for the 2015 Ozone National Ambient
Air Quality Standards (August 31, 2018); and Considerations for
Identifying Maintenance Receptors for Use in Clean Air Act Section
110(a)(2)(D)(i)(I) Interstate Transport State Implementation Plan
Submissions for the 2015 Ozone National Ambient Air Quality
Standards (October 19, 2018). All three memoranda are available in
the docket for this proposed action and at https://www.epa.gov/airmarkets/memo-and-supplemental-information-regarding-interstate-transport-sips-2015-ozone-naaqs.
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Accordingly, because the EPA interprets ``contribute significantly
to nonattainment'' and ``interfere with maintenance'' to mean the same
thing under both sections 110(a)(2)(D)(i) and 126(b), the EPA's
decision whether to grant or deny a CAA section 126(b) petition
regarding both the 2008 and 2015 ozone NAAQS depends on application of
the analysis used to address CAA section 110(a)(2)(D). That is, the EPA
assesses whether there is a downwind air quality problem in the
petitioning state (i.e., step 1 of the four-step interstate transport
framework); whether the upwind state where the source subject to the
petition is located is linked to the downwind air quality problem
(i.e., step 2); and, if such a linkage exists, whether there are cost-
effective emissions reductions available from sources in the upwind
state to support a conclusion that the sources in the state
significantly contribute to nonattainment or interfere with maintenance
of the NAAQS (i.e., step 3).
In interpreting the phrase ``emits or would emit in violation of
the prohibition of section [110(a)(2)(D)(i)],'' if the EPA or a state
has already adopted provisions that eliminate the significant
contribution to nonattainment or interference with maintenance of the
NAAQS in downwind states, then there simply is no violation of the CAA
section 110(a)(2)(D)(i)(I) prohibition. Stated another way, requiring
additional reductions from upwind sources would result in eliminating
emissions that do not contribute significantly to nonattainment or
interfere with maintenance of the NAAQS. Such an action is beyond the
scope of the prohibition in CAA section 110(a)(2)(D)(i)(I) and,
therefore, beyond the scope of the EPA's authority to make the
requested finding under CAA section 126(b). See EME Homer City, 134 S.
Ct. at 1604 n.18, 1608-09 (holding the EPA may not require sources in
upwind states to reduce emissions by more than necessary to eliminate
significant contribution to nonattainment or interference with
maintenance of the NAAQS in downwind states under the good neighbor
provision).
Thus, it follows that if a state already has a SIP that the EPA
approved as adequate to meet the requirements of CAA section
110(a)(2)(D)(i)(I) for a specific NAAQS, the EPA would not find that a
source in that state was emitting in violation of the prohibition of
CAA section 110(a)(2)(D)(i)(I) absent new information demonstrating
that the SIP is now insufficient to address the prohibition for that
NAAQS. Similarly, if the EPA has promulgated a FIP that it has
determined fully eliminates emissions that significantly contribute to
nonattainment or interfere with maintenance in a downwind state for a
specific NAAQS, the EPA has no basis to find that sources in the upwind
state are emitting or would emit in violation of the CAA section
110(a)(2)(D)(i)(I) prohibition, absent new information to the contrary
for that NAAQS.
The EPA notes that the approval of a SIP or promulgation of a FIP
implementing CAA section 110(a)(2)(D)(i)(I) constitutes a determination
that a state's emissions are adequately controlled considering the
specific facts that the EPA analyzed while approving the SIP or
promulgating the FIP. If a petitioner produces new data or information
showing a different level of contribution or other facts the EPA did
not consider when approving the SIP or promulgating the FIP, compliance
with a SIP or FIP may not be determinative regarding whether the upwind
sources emit or would emit in violation of the prohibition of CAA
section 110(a)(2)(D)(i)(I). See 64 FR 28250, 28274 n.15 (May 25, 1999);
71 FR 25328, 25336 n.6 (April 28, 2006);
[[Page 22797]]
Appalachian Power, 249 F.3d at 1067 (later developments can be the
basis for another CAA section 126 petition). Thus, in circumstances
where a state is implementing a SIP or the EPA is implementing a FIP
addressing CAA section 110(a)(2)(D)(i)(I), the EPA will evaluate the
CAA section 126(b) petition to determine if the submitted petition
raises new information that merits further consideration.
B. The EPA's Evaluation of Whether the Petition Is Sufficient To
Support a CAA Section 126(b) Finding
Consistent with the EPA's approach to evaluating several prior CAA
section 126(b) petitions, the EPA interprets CAA section 126(b) as
placing an initial burden on the petitioner to establish a technical
basis for the specific finding requested. Thus, the EPA first looks to
see if the petition identifies or contains a sufficient basis to make
the requested finding. See, e.g., 76 FR 19662, 19666 (April 7, 2011)
(proposed response to petition from New Jersey regarding SO2
emissions from the Portland Generating Station); 83 FR 16064, 16070
(April 13, 2018) (final response to petition from Connecticut regarding
ozone emissions from the Brunner Island Steam Electric Station); 83 FR
50444, 50452 (October 5, 2018) (final response to petitions from
Delaware and Maryland regarding ozone emissions from four and 36 EGUs,
respectively).
The EPA's interpretation of the statute is reasonable especially
given the expeditious and limited timeframe Congress allotted to the
EPA for action on a CAA section 126(b) petition: As described in
Section III.D.5, Congress provided the EPA with only 60 days from its
receipt of a CAA section 126(b) petition to hold a hearing and act on
that petition. Given the short statutory deadline, it is reasonable for
the EPA to conclude that Congress did not intend a requirement that the
EPA undertake extensive fact-finding or independent analysis as part of
its action on a petition and instead place the burden upon the
petitioner to provide adequate support for a requested finding under
CAA section 126(b), an interpretation affirmed by the courts. See New
York v. EPA, 852 F.2d 574 (D.C. Cir. 1988) (upholding the EPA's
interpretation of the statutory burden in reviewing the EPA's denial of
separate CAA section 126(b) petitions filed by Pennsylvania, Maine, and
New York regarding air quality impacts from numerous sources located in
seven midwestern states); see also see also Citizens Against Ruining
the Environment v. EPA, 535 F.3d 670 (7th Cir.) (2008) (affirming the
EPA's similar interpretation of the petitioner's burden under CAA
section 502(b)(2) given the parallel 60-day deadline for the EPA to
respond to a title V petition). In New York v. EPA, the D.C. Circuit
evaluated the EPA's obligation in acting on a CAA section 126(b)
petition, determining both that the 60-day deadline for action meant
Congress did not intend for the EPA to undertake a ``litany of tasks''
in evaluating the petition and that denial was proper where the states
failed to substantiate the claims raised in their petitions. Id.
Accordingly, where a CAA section 126(b) petition does not contain
sufficient technical information or justification to support the
requested finding without the EPA undertaking an independent analysis,
it is reasonable for the EPA to interpret CAA section 126(b) to support
a denial of the petition.
The remedy provision under CAA section 126(c) further supports the
reasonableness of the EPA's interpretation. CAA section 126(c) by
default requires an existing source to cease operation within 3 months
if the EPA makes the requested finding under CAA section 126(b). It is
difficult to imagine that Congress intended to require sources to shut
down entirely absent a sufficient demonstration that that such an
extreme remedy was necessary. This concern is exacerbated by the
provision of CAA section 126(b) that permits a petitioner to target
``groups of sources,'' as New York did in the petition that is subject
to this action, because Congress certainly could not have envisioned
that hundreds of stationary sources would be required to shut down
within 3 months without a complete and compelling justification. The
potential for such an unintended consequence further supports the
placement of burden on the petitioner to demonstrate in the first
instance whether the identified sources emit or would emit in violation
of the good neighbor provision. While CAA section 126(c) provides in
the alternative that the EPA may permit continued operation if it
establishes emissions limitations for the sources subject to the
finding, this too is a detailed analytic task that requires time and
resources to develop.
While the EPA interprets CAA section 126(b) as putting the burden
on the petitioner, rather than the EPA, to provide a basis or
justification for making the requested finding, nothing precludes the
EPA from choosing to conduct an independent analysis on a discretionary
basis when the Agency determines it would be helpful in evaluating a
petition. As discussed in Section III, the EPA has chosen to invoke its
discretion in prior actions on CAA section 126(b) petitions concerning
ozone, primarily where the Agency already had technical data or
findings it could rely on as part of its independent analysis. Notably,
because this supplemental information already existed at the time the
EPA acted on those petitions, the EPA could leverage such information
in its action without undertaking new analyses that would naturally
take significantly more time and resources to develop.\36\ As further
described in Sections IV.B.1-3, where the EPA has existing relevant
information at its disposal that could help inform its proposed
decision on New York's section 126(b) petition, the EPA is using such
information as part of its discretionary independent analysis of the
petition.
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\36\ See 83 FR 16064 (April 13, 2018); 83 FR 50444 (October 5,
2018).
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1. The EPA's Evaluation of New York's Petition Considering Step 1
With respect to step 1 of the four-step interstate transport
framework, the EPA began by evaluating New York's petition to determine
whether the state identified a downwind air quality problem
(nonattainment or maintenance) that may be impacted by ozone transport
from other states. The EPA conducted this evaluation for Chautauqua
County and the NYMA regarding both the 2008 and 2015 ozone NAAQS.
As discussed in Section III.C, the EPA typically focuses its
analysis regarding potential downwind air quality problems on a future
analytic year given the forward-looking nature of the good neighbor
obligation in CAA section 110(a)(2)(D)(i)(I). The good neighbor
provision requires that states prohibit emissions that ``will''
significantly contribute to nonattainment or interfere with maintenance
of the NAAQS in any other state. The EPA reasonably interprets this
language as permitting states and the EPA in implementing the good
neighbor provision to prospectively evaluate downwind air quality
problems and the need for further upwind emissions reductions. In the
EPA's prior regional transport rulemakings, the Agency generally
evaluated whether upwind states ``will'' have such an impact based on
projections of air quality in the future year that considers the
timeframes for regionwide implementation of control strategies and the
timeframe in which a rulemaking requiring such controls would be
finalized. For the 1998 NOX SIP Call, the EPA used an
analytic year of 2007. For the 2005 CAIR, the EPA
[[Page 22798]]
used analytic years of 2009 and 2010 for ozone and PM2.5,
respectively. 63 FR 57450; 70 FR 25241. The D.C. Circuit affirmed the
EPA's interpretation of ``will'' in CAIR, finding the EPA's
consideration of future projected air quality (in addition to current
measured data) to be a reasonable interpretation of an ambiguous term.
North Carolina, 531 F.3d at 913-14. The EPA applied the same approach
in finalizing CSAPR in 2011 and the CSAPR Update in 2016 by evaluating
air quality in 2012 and 2017, respectively. 76 FR 48211; 81 FR 74537.
Particularly relevant to this action, the EPA also applied this
interpretation of ``will'' in the 2018 Determination Rule to evaluate
remaining good neighbor obligations with respect to the 2008 ozone
NAAQS for the CSAPR Update states, including the nine upwind states
cited in New York's petition. 83 FR 65889-90. As explained in that
action, a key decision informing the application of the interstate
transport framework is the selection of a future analytic year. Several
court decisions have guided the factors that the EPA considers in
selecting an appropriate future analytic year for such an analysis.
First, in North Carolina, the D.C. Circuit held that the timeframe for
implementation of emissions reductions required by the good neighbor
provision should be selected by considering the relevant attainment
dates of downwind nonattainment areas affected by interstate transport
of air pollution. 531 F.3d at 911-12. Moreover, the Supreme Court and
the D.C. Circuit have both held that the EPA may not over-control
upwind state emissions relative to the downwind air quality problems.
Specifically, the courts found that the Agency may not require
emissions reductions (at steps 3 and 4 of the interstate transport
framework) from a state that are greater than necessary to achieve
attainment and maintenance of the NAAQS in all the downwind areas to
which that state is linked. See EME Homer City, 134 S. Ct. at 1600-01;
EME Homer City II, 795 F.3d at 127, 129-30 (on remand from the Supreme
Court, finding ozone-season NOX budgets for ten states
invalid because the EPA's modeling showed that the downwind air quality
problems to which these states were linked would be resolved by the
time the budgets would be implemented). These court decisions support
the Agency's choice to use a future analytic year to help ensure that
any emissions reductions that the EPA may require of sources in upwind
states do not over- or under-control emissions with respect to downwind
air quality at the time by which that those controls could feasibly be
implemented.
Thus, in determining the appropriate future analytic year for
purposes of assessing remaining interstate transport obligations for
the 2008 ozone NAAQS in the Determination Rule, the EPA considered two
primary factors: (1) The applicable attainment dates for the 2008 ozone
NAAQS; and (2) the timing to feasibly implement new NOX
control strategies not previously addressed in the CSAPR Update. As the
applicable attainment dates, the EPA explained that the next attainment
dates for the 2008 ozone NAAQS would be July 20, 2021, for
nonattainment areas classified as Serious, and July 20, 2027, for
nonattainment areas classified as Severe.
The EPA then evaluated the timeframe necessary to implement
additional NOX control strategies at various sources across
the region. For EGUs, the EPA explained that it was appropriate to give
particular weight to the timeframe required for implementation of
selective catalytic reduction (SCR) across the region because of the
potential for larger emissions reductions as compared to selective non-
catalytic reduction (SNCR). The EPA determined that SCR project
development and installation may require up to 39 months for an
individual power plant installing controls on more than one boiler,\37\
and that a minimum of 48 months (4 years) is a reasonable time-period
to allow to complete all necessary steps of SCR projects at EGUs on a
regional scale, considering the necessary stages of post-combustion
control project planning, shepherding of labor and material supply,
installation, coordination of outages, testing, and operation. The EPA
further concluded that SNCR installations, while generally having
shorter project timeframes (i.e., up to 16 months for an individual
power plant installing controls on more than one boiler), share similar
implementation steps with and need to account for the same regional
factors as SCR installations.\38\ The EPA, therefore, concluded that it
may reasonably take up to 4 years to install the new emissions controls
regionwide for EGUs. 83 FR 65893-901.
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\37\ See Table 3-1 in Engineering and Economic Factors Affecting
the Installation of Control Technologies for Multipollutant
Strategies. EPA Final Report. EPA-600/R-02/073. October 2002.
Available at https://cfpub.epa.gov/si/si_public_record_report.cfm?Lab=NRMRL&dirEntryId=63473.
\38\ See the month-by-month evaluation of SNCR installation
presented in Exhibit A-6 in Engineering and Economic Factors
Affecting the Installation of Control Technologies for
Multipollutant Strategies. EPA Final Report. EPA-600/R-02/073.
October 2002. Available at https://cfpub.epa.gov/si/si_public_record_report.cfm?Lab=NRMRL&dirEntryId=63473. Evaluation
is also in the EPA's CSAPR Update EGU NOX Mitigation
Strategies Final Rule TSD. See Docket ID No. EPA-HQ-OAR-2015-0500
(available at https://www.regulations.gov).
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The EPA further explained that many of the same considerations
affecting the EPA's analysis of regionwide implementation of controls
at EGUs would also affect the regionwide implementation of controls at
non-EGUs, which may be more complex considering the diversity of non-
EGU sources as well as the greater number and smaller size of the
individual sources. The EPA noted that preliminary estimates for the
implementation of some potential control technologies on non-EGUs only
account for the time between bid evaluation and startup but do not
account for additional considerations such as pre-bid evaluation
studies, permitting, and installation of monitoring equipment.
Accordingly, the EPA concluded that it was reasonable to assume for
purposes of the Determination Rule that an expeditious timeframe for
installing sector- or region-wide controls on non-EGU sources could
also be 4 years or more. 83 FR 65901-04.
Considering the timeframes for regionwide implementation of control
strategies and the timeframe in which a rulemaking requiring such
controls would be finalized, the EPA concluded that reductions from
such control strategies were unlikely to be implemented for a full
ozone season until 2023. The EPA acknowledged that 2023 is later than
the attainment date for nonattainment areas classified as Serious (July
20, 2021), but concluded that it was unlikely emissions control
requirements could be feasibly promulgated and implemented by that
earlier date. Accordingly, the EPA determined that 2023 was a
reasonable year to assess downwind air quality to evaluate any
remaining requirements under the good neighbor provision for the 2008
ozone NAAQS.\39\ 83 FR 65901-05.
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\39\ Using the 2023 analytic year also allowed the EPA to begin
the updated analysis using the data sets originally developed for a
January 2017 Notice of Data Availability (NODA) (82 FR 1733, January
6, 2017), which the EPA revised in response to stakeholder feedback.
Accordingly, the EPA initiated its analysis more quickly than if a
different year had been chosen, which might have delayed subsequent
rulemaking actions and therefore emissions reductions.
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After selecting the analytic year, the EPA then used the
Comprehensive Air Quality Model with Extensions (CAMx v6.40) to model
emissions in 2011 and
[[Page 22799]]
2023, based on updates provided to the EPA from states and other
stakeholders in the January 6, 2017 NODA and an October 27, 2017, EPA
memorandum.\40\ This updated modeling was used in the Determination
Rule to estimate ozone design values in 2023, as described in the
Determination Rule Air Quality Modeling Technical Support Document
(TSD).\41\ The EPA used outputs from the 2011 and 2023 model
simulations to project base period 2009-2013 average and maximum ozone
design values to 2023 at monitoring sites nationwide. In projecting
future year design values, the EPA applied its own modeling
guidance,\42\ which recommends using model predictions from the ``3 x
3'' array of grid cells surrounding the location of the monitoring
site.\43\ Considering the comments on the January 2017 NODA and other
analyses, the EPA also projected 2023 design values based on a modified
version of the ``3 x 3'' approach for those monitoring sites located in
coastal areas. Briefly, in this alternative approach, the EPA
eliminated from the design value calculations those modeling data in
grid cells that are dominated by water (i.e., more than 50 percent of
the area in the grid cell is water) and that do not contain a
monitoring site (i.e., if a grid cell is more than 50 percent water but
contains an air quality monitor, that cell would remain in the
calculation).\44\ For each individual monitoring site, the base period
2009-2013 average and maximum design values, 2023 projected average and
maximum design values based on both the ``3 x 3'' approach and the
alternative approach affecting coastal sites are available in Excel
format in the docket for this action and at https://www.epa.gov/airmarkets/october-2017-memo-and-information-interstate-transport-sips-2008-ozone-naaqs.
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\40\ See Notice of Availability of the Environmental Protection
Agency's Preliminary Interstate Ozone Transport Modeling Data for
the 2015 Ozone National Ambient Air Quality Standard (NAAQS), 82 FR
1733 (January 6, 2017). This memorandum also supplements the
information provided in, ``Supplemental Information on the
Interstate Transport State Implementation Plan Submissions for the
2008 Ozone National Ambient Air Quality Standards under Clean Air
Act Section 110(a)(2)(D)(i)(I).'' Memorandum from Stephen D. Page,
Director, U.S. EPA Office of Air Quality Planning and Standards, to
Regional Air Division Directors, Regions 1-10. October 27, 2017.
Available at https://www.epa.gov/sites/production/files/2017-10/documents/final_2008_o3_naaqs_transport_memo_10-27-17b.pdf.
\41\ Air Quality Modeling Technical Support Document for the
Updated 2023 Projected Ozone Design Values. U.S. EPA Office of Air
Quality Planning and Standards. June 2018. Document developed to
support the Determination Rule, 83 FR 65878 (December 21, 2018).
Available at https://www.epa.gov/airmarkets/air-quality-modeling-technical-support-document-updated-2023-projected-ozone-design.
\42\ ``Draft Modeling Guidance for Demonstrating Attainment of
Air Quality Goals for Ozone, PM2.5, and Regional Haze.''
Memorandum from Richard Wayland, Division Director, Air Quality
Assessment Division, U.S. EPA Office of Air Quality Planning and
Standards, to Regional Air Division Directors, Regions 1-10.
December 3, 2014. Available at https://www3.epa.gov/scram001/guidance/guide/Draft-O3-PM-RH-Modeling_Guidance-2014.pdf.
\43\ The EPA's modeling uses 12 km\2\ grid cells.
\44\ A model grid cell is identified as a ``water'' cell if more
than 50 percent of the grid cell is water based on the 2006 National
Land Cover Database. Grid cells that meet this criterion are treated
as entirely over water in the WRF modeling used to develop the 2011
meteorology for the EPA's air quality modeling. (See Air Quality
Modeling Technical Support Document for the Updated 2023 Projected
Ozone Design Values. U.S. EPA Office of Air Quality Planning and
Standards. June 2018. Document developed to support the
Determination Rule, 83 FR 65878 (December 21, 2018). Available at
https://www.epa.gov/airmarkets/air-quality-modeling-technical-support-document-updated-2023-projected-ozone-design.)
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In the Determination Rule, the EPA followed the same approach for
identifying receptors based on this modeling as in the CSAPR Update
rulemaking process. That is, the EPA considered a combination of
modeling projections and monitoring data to identify receptor sites
that are projected to have problems attaining or maintaining the
NAAQS.\45\ Specifically, the EPA identified nonattainment receptors as
those monitoring sites with current measured values exceeding the NAAQS
that also have projected (i.e., in 2023) average design values
exceeding the NAAQS. The EPA also identified maintenance receptors as
those monitoring sites with projected maximum design values exceeding
the NAAQS. Specifically, maintenance receptors included sites with
current measured values below the NAAQS with projected average and
maximum design values exceeding the NAAQS and monitoring sites with
projected average design values below the NAAQS but with projected
maximum design values exceeding the NAAQS.
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\45\ See 81 FR 74530-74532 (October 26, 2016).
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Pertinent to this action, the EPA's examination in the
Determination Rule of the 2023 projected design values for Chautauqua
County indicates that this area is not projected to be in nonattainment
or have a maintenance problem in 2023 for either the 2008 or the 2015
ozone NAAQS. The EPA's examination of the 2023 projected design values
for the NYMA indicates that this area is not projected to be in
nonattainment or have a maintenance problem in 2023 for the 2008 ozone
NAAQS. However, the modeling indicates that the NYMA is projected to be
in nonattainment in 2023 with respect to the 2015 ozone NAAQS.
Because the EPA has already conducted a rulemaking evaluating good
neighbor obligations for the 2008 ozone NAAQS under CAA section
110(a)(2)(D)(i)(I) and because, as discussed previously, CAA section
126(b) directly incorporates the CAA section 110(a)(2)(D)(i) standard,
the EPA believes it is also appropriate to consider the 2023 modeling
conducted for the Determination Rule in evaluating whether New York's
petition has adequately demonstrated that there will be a downwind air
quality problem with respect to the 2008 ozone NAAQS in Chautauqua
County and the NYMA. Moreover, the EPA believes it is appropriate to
consider the 2023 modeling when evaluating the petition's claims with
respect to the 2015 ozone NAAQS because the 2023 ozone season aligns
with the attainment year for Moderate ozone nonattainment areas.\46\
While the EPA is not reopening the analysis and findings made in the
Determination Rule with respect to the 2008 ozone NAAQS in this action,
the EPA is evaluating the petition, consistent with the standard of
review described in Section IV.A, to determine whether additional
information not considered in the Determination Rule should influence
the EPA's finding as to whether the sources named in New York's
petition emit or would emit in violation of the prohibition of CAA
section 110(a)(2)(D)(i)(I).
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\46\ The 2023 ozone season represents the last full season from
which data can be used to determine attainment with the 2015 ozone
NAAQS by the August 3, 2024, attainment date for nonattainment areas
classified as Moderate.
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The EPA notes that the petition asserts that the EPA cannot use its
2023 modeling to support a review of the petition in part because the
2023 analytic year does not fit the timeframe under CAA section 126(c),
which requires that compliance with any CAA section 126(b) finding must
be met ``in no case later than three years after the date'' of such
finding. However, the EPA's evaluation of air quality in 2023 is a
necessary step to determine whether the sources named in New York's
petition are in violation of the good neighbor provision in the first
instance, and, thus, subject to the provisions of CAA section 126(c).
Moreover, the choice of 2023 as an analytic year does not preclude the
implementation of a remedy in an earlier year if the necessary finding
is made under CAA section 126(b). If the EPA were to determine based on
its analysis of the 2023 projections that the named sources emit or
would emit in violation of the good neighbor provision, the EPA could
[[Page 22800]]
still implement a remedy that complies with the earlier timeline set
out under CAA section 126(c). Therefore, the EPA's reasonable choice of
2023 as an analytic year for evaluating New York's petition does not,
in and of itself, preclude implementation of a remedy at an earlier
date.
The New York petition further raises concerns about the assumptions
and results of the EPA's modeling. Specifically, the petition indicates
significant concerns with the EPA's expectation that uncontrolled EGUs
will greatly reduce their emissions rates in the absence of unit-level
enforceable limits and with the EPA's treatment of model cells
containing a land/water interface. The petition does not further
elaborate on the basis for these concerns, and the EPA, therefore, has
no reason to believe that its 2023 modeling is unreliable. Moreover,
the EPA already addressed concerns regarding the EGU assumptions in the
2023 modeling in response to comments raised in the Determination Rule.
See 83 FR 65886-89 (explaining statutory rationale regarding when
enforceable emissions limitations are required and responding to
comments); 83 FR 65913-15 (responding to comments concerning
projections of EGU emissions in 2023). As described earlier in this
section, the EPA also addressed concerns regarding the treatment of
model cells containing land/water interface in the Determination Rule
by calculating design values using two different methodologies. The
petition does not provide any new information not already considered by
the EPA in the Determination Rule as to these issues and therefore, has
no basis to reconsider its conclusions finalized in that action.
The next two sections discuss the EPA's evaluation of the
petition's step 1 analysis regarding Chautauqua County and the NYMA
with respect to both the 2008 and 2015 ozone NAAQS. The EPA first
evaluates the sufficiency of the analysis provided in the petition for
each area and then considers how the 2023 modeling or other pertinent
information should inform the EPA's conclusion regarding whether there
will be downwind nonattainment or maintenance concerns in each area
with respect to each NAAQS.
Chautauqua County
First, for Chautauqua County, New York's petition does not provide
sufficient information to demonstrate that there will be a downwind
nonattainment or maintenance problem with respect to either the 2008 or
the 2015 ozone NAAQS. Although the petition correctly indicates that
the EPA previously designated Chautauqua County as Marginal
nonattainment under the 2008 ozone NAAQS, the petition did not
demonstrate that there will be a future nonattainment or maintenance
problem in that area for that NAAQS that must be addressed under the
good neighbor provision. While a prior designation of an area as
nonattainment may provide useful information for purposes of analyzing
interstate transport under the good neighbor provision, designations
themselves are not dispositive of whether a downwind area will have an
air quality problem in the future.\47\ As discussed earlier, the EPA
evaluates downwind ozone air quality problems for purposes of step 1 of
the four-step interstate transport framework using observed and modeled
future air quality concentrations for a year that considers the
relevant attainment deadlines for the NAAQS and the anticipated
compliance timeframe for potential control strategies.\48\ New York's
section 126(b) petition does not include analyses indicating that
Chautauqua County may be violating or have difficulty maintaining the
2008 or 2015 ozone NAAQS either currently or in a relevant future year.
In fact, the petition acknowledges that this area attained the NAAQS by
the relevant attainment date. The petition also did not present air
quality projections indicating that Chautauqua County will not be in
attainment or will struggle to maintain the NAAQS in a relevant future
year. The petition alleges that the area remains in danger of exceeding
the ozone NAAQS but does not provide any evidence to support this
assertion. Thus, the petition has not established that emissions from
the named sources are linked to a nonattainment or maintenance problem
in Chautauqua County.
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\47\ The EPA has consistently taken the position that CAA
section 110(a)(2)(D) refers to prevention of ``nonattainment'' in
any area in another state, not only in designated nonattainment
areas. 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
SO2 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 SO2 NAAQS prior to issuance of designations for that
standard).
\48\ 81 FR 74517.
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Additionally, the EPA has air quality data that support an
independent analysis of step 1 of the four-step interstate transport
framework to assess whether Chautauqua County will have an air quality
problem relative to either the 2008 or the 2015 ozone NAAQS. First, the
2015-2017 design value in Chautauqua County is 68 ppb, which is below
the level of both the 2008 and 2015 ozone NAAQS.\49\ Furthermore, the
EPA recently finalized a determination that the Jamestown, New York
Marginal nonattainment area (Chautauqua County) has attained the 2008
ozone NAAQS.\50\ Additionally, the EPA's recent air quality modeling
described earlier in this section indicates that the monitor in
Chautauqua County is expected to continue to both attain and maintain
the standard in 2023, with an average 2023 design value of 58.5 ppb and
a maximum 2023 design value of 60.7 ppb.\51\ Consequently, due to the
facts that the petition has not identified an air quality problem in
Chautauqua County for the 2008 or 2015 ozone NAAQS, that the EPA's
independent analysis affirms that Chautauqua County is attaining both
the 2008 and 2015 ozone NAAQS, and that all available evidence
indicates that the monitoring sites will continue to attain and
maintain the NAAQS in the future, the EPA is proposing to deny New
York's petition regarding Chautauqua County for both the 2008 and the
2015 ozone NAAQS.
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\49\ The 2015-2017 design value for Chautauqua County in the
``Jamestown-Dunkirk-Fredonia, NY CBSA'' at AQS site 360130006 is 68
ppb. Available at https://www.epa.gov/sites/production/files/2018-07/ozone_designvalues_20152017_final_07_24_18.xlsx.
\50\ See Approval and Promulgation of Air Quality Implementation
Plans; New York; Determination of Attainment of the 2008 8-Hour
Ozone National Ambient Air Quality Standard for the Jamestown, New
York Marginal Nonattainment Area, 83 FR 49492 (October 2, 2018).
\51\ See 2023 design values for AQS site 360130006 in
spreadsheet released with the EPA's March 2018 memorandum. Available
at https://www.epa.gov/sites/production/files/2018-05/updated_2023_modeling_dvs_collective_contributions.xlsx.
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New York Metropolitan Area
Second, with respect to the NYMA, the petition does not provide
sufficient information to indicate that there will be a future
nonattainment or maintenance problem with respect to the 2008 ozone
NAAQS. As described in Section III.D of this notice, the petition
correctly asserts that the NYMA was designated nonattainment for the
2008 ozone NAAQS and has failed to attain the NAAQS by the attainment
deadline. Additionally, the petition points to preliminary 2015-2017
air quality data indicating that some monitoring sites in the NYMA are
above the 2008 NAAQS. However, the EPA does not agree that an area's
current attainment status alone is sufficient evidence regarding
whether there will be a nonattainment or maintenance problem that must
be addressed under either the good neighbor provision or CAA section
126.
[[Page 22801]]
Rather, as previously discussed, the EPA evaluates whether there will
be downwind nonattainment or maintenance concerns in each area with
respect to each NAAQS under the good neighbor provision (and, thus,
also under CAA section 126(b)) using observed and modeled future air
quality concentrations for a relevant future analytic year.
Further, the EPA has additional information related to potential
projected nonattainment or maintenance problems in the NYMA. The EPA's
recent air quality projections for 2023, based on the latest available
emissions inventory, indicate that all monitoring sites in the NYMA
will attain and maintain the 2008 ozone NAAQS. As discussed in Section
III.C.2 of this notice, the EPA already determined that the CSAPR
Update fully addresses the good neighbor provision requirements for the
2008 ozone NAAQS for all eastern states previously addressed in that
rule. This analysis indicates that all remaining receptors for the 2008
ozone NAAQS identified in the CSAPR Update, including those in the
NYMA, are expected to attain and maintain that NAAQS in 2023 under step
1 of the four-step interstate transport framework, and, therefore,
upwind states have no remaining obligations under the good neighbor
provision. New York has not provided any new information that
contradicts the EPA's conclusion in the Determination Rule that the
NYMA will no longer have an air quality problem in the future.
Therefore, the EPA is proposing to deny New York's petition regarding
the 2008 ozone NAAQS in the NYMA because New York has not demonstrated
that there will be a nonattainment or maintenance problem in the NYMA
in a relevant future year and the EPA's own analysis projects that
there will be no air quality problems under step 1.
Regarding the 2015 ozone NAAQS, the EPA's projections indicate that
the average design value for five of the six monitoring sites in the
NYMA and the maximum design values at all six monitoring sites in the
NYMA will be above the 2015 ozone NAAQS in 2023.\52\ Therefore,
although New York did not evaluate whether there will be an air quality
problem with respect to the 2015 ozone NAAQS in a future year, the
EPA's independent analysis of step 1 of the interstate transport
framework indicates that the NYMA is projected to have a downwind air
quality problem relative to the 2015 NAAQS.
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\52\ The EPA also notes that four of the six monitoring sites
are in the state of Connecticut and two monitoring sites are in New
York. However, the EPA interprets CAA section 126(b)'s petition
authority to be limited to states and political subdivisions seeking
to address interstate transport of pollution impacting downwind
receptors within their geographical borders. See 83 FR 50460.
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2. The EPA's Evaluation of New York's Petition Considering Step 2
With respect to step 2 of the four-step interstate transport
framework, the EPA evaluated New York's petition to determine whether
there is sufficient information to conclude that the state identified
that the upwind states where the sources named in the petition are
located are linked to a downwind air quality problem. Because, as
described earlier, neither the information in the petition nor existing
information available to the EPA indicates there will be downwind
nonattainment or maintenance concerns in Chautauqua County with respect
to the 2008 and 2015 ozone NAAQS, or in the NYMA with respect to the
2008 ozone NAAQS, the EPA has no basis to find a linkage at step 2 of
the four-step framework between the named upwind states and these
downwind areas with regard to the respective NAAQS.
With respect to the NYMA for the 2015 ozone NAAQS, existing
information available to the EPA supports an assessment that emissions
from at least some of the states named in the petition are linked to a
downwind air quality problem at step 2. As the following paragraphs
explain, the linkages between upwind and downwind states are further
informed by an air quality screening threshold.
Historically, at step 2, the EPA has used an air quality screening
threshold to determine whether a state contributes to a downwind air
quality problem in amounts that warrant further evaluation as part of a
multi-factor analysis in step 3. Upwind states that impact a downwind
receptor by less than the screening threshold do not contribute to the
downwind air quality problem at step 2. The EPA has therefore
previously determined, without conducting any additional analysis, that
such states do not significantly contribute to nonattainment or
interfere with maintenance of the NAAQS under the good neighbor
provision. Upwind states that impact a downwind receptor at or above
the threshold are identified as contributing to a downwind air quality
problem (i.e., they are said to be ``linked'' to that downwind
receptor). The EPA then proceeds to the multi-factor step 3 analysis to
determine if the linked upwind state significantly contributes to
nonattainment or interferes with maintenance of the NAAQS at the
downwind receptor(s).\53\
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\53\ Note that upwind states that are linked to a downwind
receptor at step 2 may nevertheless be found to not significantly
contribute to nonattainment or interfere with maintenance at the
receptor depending on the outcome of the step 3 analysis.
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In previous federal actions,\54\ the EPA's analysis of the sum of
contributions from all linked upwind states (i.e., collective
contribution) concluded that a screening threshold equivalent to 1
percent of the 1997 and 2008 ozone NAAQS was appropriate at step 2. In
an August 31, 2018, memorandum, the EPA presented the results of our
analysis of collective contribution for the 2015 ozone NAAQS \55\ using
data drawn from the results of the EPA's updated 2023 modeling.\56\
This analysis, which followed the thresholds analyses conducted in both
the CSAPR and CSAPR Update rulemakings,57 58 included the
evaluation of data pertinent to several potential thresholds (i.e., 1
percent of the 2015 ozone NAAQS or 0.70 ppb, 1 ppb and 2 ppb) that
could be applicable to the development of SIP revisions to address the
2015 ozone NAAQS of 70 ppb. The EPA ultimately suggested in this
memorandum that a threshold of 1 ppb may be appropriate for states to
use to develop SIP revisions addressing the good neighbor provision for
the 2015 ozone NAAQS.
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\54\ In the Cross-State Air Pollution Rule (CSAPR), the EPA used
0.80 parts per billion (ppb) as the threshold, which is 1 percent of
the 1997 ozone NAAQS. 76 FR 48208, 48238 (August 8, 2011). Most
recently, in the Cross-State Air Pollution Rule Update for the 2008
Ozone NAAQS (CSAPR Update), the EPA used 0.75 ppb as the threshold,
which is 1 percent of the 2008 ozone NAAQS. 81 FR 74504, 74518
(October 26, 2016).
\55\ See Analysis of Contribution Thresholds for Use in Clean
Air Act Section 110(a)(2)(D)(i)(I) Interstate Transport State
Implementation Plan Submissions for the 2015 Ozone National Ambient
Air Quality Standards (August 31, 2018).
\56\ Information on the Interstate Transport State
Implementation Plan Submissions for the 2015 Ozone National Ambient
Air Quality Standards under Clean Air Act Section 110(a)(2)(D)(i)(I)
(March 2018). https://www.epa.gov/airmarkets/march-2018-memo-and-supplemental-information-regarding-interstate-transport-sips-2015.
\57\ Air Quality Modeling Technical Support Document for the
Final Cross State Air Pollution Rule Update (August 2016). https://www.epa.gov/airmarkets/air-quality-modeling-technical-support-document-final-cross-state-air-pollution-rule.
\58\ Air Quality Modeling Final Rule Technical Support Document
(for the Final Transport Rule now known as CSAPR; June 2011).
https://www.epa.gov/csapr/air-quality-modeling-final-rule-technical-support-document.
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In addition to the 2023 modeling used to identify potential
downwind air quality problems described in the prior section, the EPA
has also performed state-level ozone source apportionment
[[Page 22802]]
modeling to provide information regarding the expected contribution of
statewide, anthropogenic NOX and VOC emissions in each state
to projected 2023 ozone concentrations. If the EPA applies a 1 percent
threshold like that used in prior rulemakings (e.g., 0.70 ppb) to the
results of the contribution modeling, the EPA's analysis indicates that
all nine upwind states named in the petition are linked to an air
quality problem in the NYMA for the 2015 ozone NAAQS. If the EPA
instead applies the alternative 1 ppb threshold, the EPA's analysis
indicates that the sources in six (i.e., Maryland, Michigan, Ohio,
Pennsylvania, Virginia and West Virginia) of the nine states named in
New York's petition are linked to an air quality problem in the NYMA
for the 2015 ozone NAAQS, while three states (i.e., Illinois, Indiana
and Kentucky) are not.\59\ The EPA is not in this action determining
which of the potential thresholds described in this section (i.e., 1
percent of the NAAQS (0.70 ppb) or 1 ppb) is appropriate for addressing
collective contribution for the 2015 ozone NAAQS for purposes of New
York's petition. However, the EPA acknowledges that emissions from at
least some of the named upwind states are linked to projected air
quality problems in the NYMA for the 2015 ozone NAAQS. Therefore, the
EPA will evaluate, in the following section, whether the petition has
adequately demonstrated at step 3 of the four-step interstate transport
framework that the sources in the upwind states will significantly
contribute to nonattainment or interfere with maintenance of the NAAQS.
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\59\ As identified previously in this notice, the EPA's recent
modeling included essentially all the EGUs at the facilities named
in the New York petition. We say ``essentially'' because the New
York petition identifies sources at the facility, rather than at the
unit, level while the EPA looks at unit-level data and includes all
fossil-fuel-fired boiler or combustion turbine EGUs with a capacity
(electrical output) greater than 25 MW. See Information on the
Interstate Transport State Implementation Plan Submissions for the
2015 Ozone National Ambient Air Quality Standards under Clean Air
Act Section 110(a)(2)(D)(i)(I) (March 27, 2018).
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3. The EPA's Evaluation of New York's Petition Considering Step 3
As described in Section III.C.1 of this notice, once an upwind
state is linked to a downwind air quality problem at steps 1 and 2 of
the four-step interstate transport framework, the next step is to
identify the emissions reductions, if any, needed from particular
sources to eliminate the upwind state's significant contribution to
nonattainment and interference with maintenance of the NAAQS (i.e.,
step 3 of the four-step interstate transport framework).\60\ For the
reasons discussed in the following paragraphs, the EPA is proposing to
find that material elements in New York's assessment of step 3 are
insufficient, such that the EPA cannot conclude that any source or
group of sources in any of the named states will significantly
contribute to nonattainment or interfere with maintenance in Chautauqua
County or the NYMA relative to the 2008 and 2015 ozone NAAQS. Thus, the
EPA is proposing to deny the petition as to all named sources in all
the named upwind states because New York has not met its burden to
demonstrate that the sources emit or would emit in violation of the
good neighbor provision with respect to either the 2008 or 2015 ozone
NAAQS. We also note that the petition addresses hundreds of sources
across nine states. The EPA is taking comment on whether to also deny
the petition because the petitioner has not provided justification for
the proposition that identification of such a large, undifferentiated
number of sources located in numerous upwind states constitutes a
``group of stationary sources'' within the context of CAA section
126(b). For example, ``group of stationary sources'' could mean
stationary sources within a geographic region, sources identified by a
specific North American Industry Classification System (NAICS) Code,
sources emitting over a defined threshold and/or any combination of
these or other defining characteristics. Although the EPA already has
identified a sufficient basis to propose denial of the petition as to
Chautauqua County (for the 2008 and 2015 ozone NAAQS) and NYMA (for the
2008 ozone NAAQS) at step 1 of the four-step framework, the EPA is also
relying on our analysis of step 3 as an additional and independent
basis for denial as to the petition's claims for these areas.
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\60\ Contrary to New York's assertion in its petition,
identification of a linkage between an upwind state and a downwind
receptor does not conclude the determination regarding whether
sources in the upwind state will significantly contribute to
nonattainment or interfere with maintenance of the NAAQS. The
conclusion that a state's emissions met or exceeded the threshold
only indicated that further analysis was appropriate to determine
whether any of the upwind state's emissions met the statutory
criteria under the good neighbor provision. See EME Homer City, 134
S. Ct. at 1596-97 (noting upwind states are only obliged to
eliminate emissions meeting both the step 2 and 3 inquiries).
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As discussed in Section III.C.1 of this notice, within step 3 of
the four-step interstate transport framework, the EPA has historically
considered several factors to determine whether sources in linked
upwind states have emissions that will significantly contribute to
nonattainment or interfere with maintenance of the ozone NAAQS. In
particular, the EPA has generally considered various control, cost, and
air quality factors and data, including: The types of control
strategies that can be implemented at sources within the upwind states;
the costs of implementing such control strategies; the amount of
potential emissions reductions from implementation of control
strategies at upwind sources; the potential downwind air quality
improvements from such emissions reductions and the severity of the
downwind air quality problem (i.e., whether the air quality problem
will be resolved through implementation of the emissions reductions).
See 76 FR 48248-49 and 48254-55; 81 FR 74519; Ozone Transport Policy
Analysis Final Rule TSD, p. 3 (Docket ID No. EPA-HQ-OAR-2015-0500). The
EPA has typically considered these various cost and air quality factors
in a multifactor analysis to identify the appropriate uniform level of
emissions controls to apply to sources across a region of upwind states
that are collectively linked to downwind air quality problems and,
based on the selected level of control, to quantify the amount of
emissions (if any) from each upwind state that contribute to
nonattainment or interfere with maintenance in a downwind area and,
thus, should be subject to control.\61\ In these prior rules, the EPA
has selected the level of control stringency deemed cost-effective when
these factors are balanced together. Assessing multiple factors allows
the EPA to consider the full range of circumstances and state-specific
factors that affect the relationship between upwind emissions and
downwind nonattainment and maintenance problems. For example, the EPA's
assessment of cost considerations accounts for the existing level of
controls at sources in upwind states as well as the potential for, and
relative
[[Page 22803]]
difficulty of, achieving additional emissions reductions.\62\
Additionally, assessment of the downwind air quality impacts from the
potential upwind emissions reductions is essential to determining
whether various levels of potential control stringency would under- or
over-control upwind state emissions relative to the identified downwind
air quality problems. The Supreme Court has found the EPA's approach to
apportioning emissions reduction responsibility among multiple upwind
states to be ``an efficient and equitable solution to the allocation
problem'' presented by the good neighbor provision for regional
problems like the transport of ozone pollution. EME Homer City, 134 S.
Ct. at 1607.
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\61\ For example, in the CSAPR Update (81 FR 74505), the EPA
noted that ozone transport occurs on a regional scale, that such
transport is responsive to changes in NOX emissions, and
that NOX emissions reductions from EGUs were effective in
reducing 8-hour peak ozone concentrations during the ozone season.
Accordingly, the EPA selected a uniform control stringency to apply
to states covered by the rule by identifying the emissions reduction
potential from EGUs in linked upwind states available at various
levels of control stringency represented by cost, assessed how these
potential emissions reductions would affect each state's air quality
contributions to each receptor, evaluated the total change in air
quality at each receptor resulting from the emissions reductions,
and evaluated whether the air quality problems at each receptor
would be resolved. The EPA applied a similar approach in the CSAPR
Final Rule. 76 FR 48248 (August 8, 2011).
\62\ See CSAPR Final Rule. 76 FR 48248 (August 8, 2011).
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As discussed in Section IV.A, the EPA interprets the substantive
standard under CAA section 126(b) consistent with its interpretation of
the good neighbor provision in CAA section 110(a)(2)(D)(i).
Accordingly, the EPA believes it could be reasonable to consider the
same factors whether evaluating ozone transport in the context of a
good neighbor SIP under CAA section 110 or a section 126(b) petition.
Thus, the EPA has reviewed New York's petition to determine whether it
has provided sufficient information to support a determination based on
the same type of cost and air quality factors that the EPA evaluated in
past rulemakings addressing regional ozone transport under the good
neighbor provision. The EPA notes that it considered these factors in
the CSAPR Update and implemented emissions reductions found to be cost-
effective at EGUs (including within the upwind states identified in New
York's petition) by the 2017 ozone season, but it did not evaluate
potential control strategies available on a longer implementation
timeframe or at non-EGUs. 81 FR 74521-22. The EPA has not conducted a
regional step 3 analysis for any sources with respect to the 2015 ozone
NAAQS, but nonetheless believes consideration of the same type of cost
and air quality factors could be reasonable for evaluating upwind state
obligations under the good neighbor provision for that standard.
The EPA's review of the petition indicates that New York has not
sufficiently developed or evaluated the cost and air quality data and
factors that the EPA has generally relied on in step 3, has not
conducted any sort of multifactor analysis to determine whether cost-
effective controls are available at the named sources, and has not
provided any alternative analysis that would support a conclusion at
step 3 that the named sources will significantly contribute to
nonattainment or interfere with maintenance of the NAAQS. The petition,
therefore, has not adequately supported the conclusions that the
sources named in its petition will significantly contribute to
nonattainment or interfere with maintenance of either the 2008 or the
2015 ozone NAAQS. Here, the petition simply names facilities that
appear to have larger emissions than other facilities (at least 400
tons of NOX per year) without supporting why the named
facilities should make certain reductions. The petition could have
included one or more of the following potential analyses to evaluate,
compare and identify ``significant'' emissions from of the named
sources, consistent with the EPA's past practice in evaluating regional
ozone transport: (i) Verifying that the named sources whose emissions
are those from the most recent emissions inventory continue to emit
NOX at the same rate or continue to operate; \63\ (ii)
describing or quantifying potentially available emissions reductions
from the named sources (i.e., the control technologies/techniques and
the costs of those control technologies/techniques); (iii) describing
the downwind air quality impacts of controlling the named sources
relative to other sources; or (iv) providing information on the
relative cost of the available emissions reductions and whether they
are less expensive than other reductions from other sources. In the
absence of such analyses, the petition has not demonstrated, based on
information available at this time, that the sources named in the
petition should be required to make further emissions reductions under
the good neighbor provision.
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\63\ Such information may be found in the EPA's Enforcement and
Compliance Data (ECHO), which is a publicly available database
containing information for nearly all point sources in the U.S. Data
are typically updated several times a month. The operating status of
the point source at the facility level is available. Thus, the
operating status of non-EGU point sources can be determined outside
of having an up to date NEI version available. This is likely to be
accurate for the operating status of EGUs as well.
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The petition also has not demonstrated how relevant cost and air
quality factors should be weighed to determine an appropriate level of
control for the named sources. Instead, the petition simply suggests
that upwind sources should be subject to a comparable level of control
as sources in downwind states (i.e., the $5,000/ton level of control
sources in New York are subjected to for purposes of RACT). While
information such as costs of controls in the downwind area may provide
useful data for consideration when evaluating upwind emissions
reduction potential, such information is not determinative of the
appropriate level of upwind control. Nothing in the text of the good
neighbor provision indicates that upwind states are required to
implement RACT, which is a requirement that applies to designated
nonattainment areas, see CAA section 172(c)(1) (nonattainment areas
generally), 182(b)(2) (ozone nonattainment areas classified as
Moderate), nor does the provision require uniformity of control
strategies imposed in both upwind and downwind states. Rather, the
provision indicates that states are required to prohibit those
emissions which ``contribute significantly to nonattainment'' or
``interfere with maintenance'' of the NAAQS in a downwind state, terms
that the Supreme Court has found to be ambiguous. See EME Homer City,
134 S. Ct. 1584. The EPA has always considered cost under the good
neighbor provision as part of a multifactor analysis based on the facts
and circumstances of the air quality problem at the time of each
evaluation, but the EPA has never set upwind control obligations based
solely on the level of controls imposed for purposes of RACT in
downwind nonattainment areas, as the petition suggests the EPA do here.
The EPA believes that such a multifactor analysis that considers
relevant cost and air quality factors is important for any evaluation
of a CAA section 126(b) petition regarding interstate transport of
ozone (a regional pollutant with contribution from a variety of
sources), as the EPA reviews whether the particular sources identified
in the petition should be controlled in light of the costs and
collective impact of emissions on air quality in the area, including
emissions from other anthropogenic sources. The petition fails to
conduct any comparable analysis. Review of the named sources in New
York's petition provides a starting point for such an analysis but does
not complete the analysis or even provide the type of data that would
be necessary for the EPA to conduct such an analysis to determine
whether the named sources emit or would emit in violation of the good
neighbor provision.
The petition also suggests that upwind sources should be subject to
a comparable level of control as sources
[[Page 22804]]
in downwind states, in part, because it asserts that, while the CSAPR
program provides the legal and technical basis for states to eliminate
their significant contributions to excessive ozone pollution, the EPA
has failed to implement a full, federal-level remedy to completely
address the issue of transported ozone. Instead the EPA issued EGU
NOX ozone season emissions budgets as a partial remedy for
interstate transport for the 2008 ozone NAAQS. The petition asserts
that, according to the analyses in the CSAPR Update, after application
of the rule's NOX budgets, the EPA's modeling still
projected multiple remaining nonattainment and maintenance receptors in
the NYMA, including monitoring sites in Fairfield and New Haven
Counties in the Connecticut portion of the area, which would continue
to project nonattainment in 2017.
While the EPA acknowledged in the CSAPR Update that the FIPs may
only be a partial remedy for interstate transport for the 2008 ozone
NAAQS, the EPA subsequently promulgated the Determination Rule, in
which the EPA concluded that the existing CSAPR Update fully addresses
the interstate transport obligations under CAA section
110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS for certain states,
including eight of the states named in New York's petition (Illinois,
Indiana, Maryland, Michigan, Ohio, Pennsylvania, Virginia and West
Virginia), because the downwind air quality problems projected in 2017
would be resolved in 2023. 83 FR 65878 (December 21, 2018). The EPA
also approved a SIP from Kentucky which similarly determined that the
CSAPR Update FIP would fully satisfy the state's good neighbor
obligation with respect to the 2008 ozone NAAQS (83 FR 33730).
Together, the EPA found that these actions fully address the good
neighbor requirements with respect to the 2008 ozone NAAQS for the
states named in the petition. For the reasons explained in this
section, the petition has failed to demonstrate that it is necessary to
implement additional, source-specific, unit-level emissions limits at
any of the sources named in the petition to ensure reductions are being
achieved under the CSAPR Update.
As discussed earlier, the EPA interprets CAA section 126(b) as
placing the burden on the petitioner to demonstrate in the first
instance that a finding under the provision is justified. The breadth
of New York's petition demonstrates why the EPA's interpretation is
particularly reasonable. The petition names over 350 sources from
several different source sectors (both EGUs and non-EGUs) in nine
different upwind states and asked the EPA to evaluate and implement
source-specific emissions limits for each source. While the EPA has air
quality modeling information relevant to the step 1 and 2 analyses
discussed earlier, this analysis was conducted for separate rulemaking
actions and not solely for use in evaluating this petition. The EPA has
not already conducted the type of multifactor analysis that would
normally be used in step 3 to determine whether such a large group of
upwind sources emits or would emit in violation of the good neighbor
provision. The EPA also does not currently have information available
to independently conduct such an analysis, especially for such a
variety of sources. As noted in the Determination Rule (81 FR 65878),
the EPA lacks the relevant data to conduct such an analysis for the
multiple non-EGU source categories, including those referred to in this
petition. Collecting the relevant data and conducting such an analysis
independently would require the EPA to invest significant time and
resources. As the EPA noted in Section IV.B, the 60-day deadline
provided by Congress for action under CAA section 126(b) is evidence
that Congress did not intend for the EPA to be required to conduct such
detailed independent analyses before acting on the petitions,
especially where a petition addresses a large number and variety of
sources and seeks tailored unit-level remedies, as New York's petition
does. While the EPA acknowledges that this task may also be resource-
and time-intensive for a petitioner, the EPA nonetheless interprets the
timeframe imposed on the EPA in CAA section 126(b) (along with the
potentially severe consequences under CAA section 126(c) if a finding
is made) as evidence that the burden is on the petitioner in the first
instance to demonstrate that the statutory threshold has been met. For
the reasons discussed in this section, the petition does not provide
the EPA with a sufficient basis to conclude at step 3 that sources in
the named states will significantly contribute to nonattainment or
interfere with maintenance in New York with respect to either the 2008
or 2015 ozone NAAQS. Therefore, on this basis, the EPA is proposing to
deny New York's petition as to all named sources because, in addition
to the specific failures described above for steps 1 and 2, the state
has also failed to meet its burden to demonstrate at step 3 that the
sources emit or would emit in violation of the good neighbor provision.
V. Conclusion
Based on the information discussed in this notice, the EPA is
proposing to deny New York's CAA section 126(b) petition. The EPA has
described several technical deficiencies with the petition and,
therefore, proposes to deny on the basis that New York has not met its
burden to demonstrate that the named sources emit or would emit in
violation of the good neighbor provision with respect to the 2008 ozone
NAAQS or the 2015 ozone NAAQS. For Chautauqua County, the petition does
not provide sufficient information to indicate that there will be a
downwind air quality problem (either nonattainment or maintenance) with
respect to either the 2008 or the 2015 ozone NAAQS. For the NYMA, with
respect to the 2008 ozone NAAQS, the petition does not provide
sufficient information to indicate that the NYMA should be considered a
nonattainment or maintenance receptor pursuant to the good neighbor
provision. Furthermore, the EPA's own independent analysis of available
information indicates that there is not currently nor is there
projected to be an air quality problem with respect to either NAAQS in
Chautauqua County, and that there is not projected to be any further
air quality problem with respect to the 2008 ozone NAAQS in the NYMA.
As an additional independent basis for the proposed denial, even if the
EPA assumed that the named upwind states were linked to downwind air
quality problems in New York at steps 1 and 2 of its interstate
transport framework, material elements in the petition's step 3
analysis are insufficient, such that the EPA cannot conclude that any
named source or group of sources in any of the named states will
significantly contribute to nonattainment or interfere with maintenance
in any area in New York with respect to either NAAQS. The EPA requests
comment on its proposed denial of New York's CAA section 126(b)
petitions, including the bases for the decision described herein.
VI. Judicial Review
Section 307(b)(1) of the CAA indicates which Federal Courts of
Appeal have venue for petitions of review of final actions by the EPA.
This section provides, in part, that petitions for review must be filed
in the Court of Appeals for the District of Columbia Circuit if: (i)
The agency action consists of ``nationally applicable regulations
promulgated, or final action taken, by the Administrator;'' or (ii)
such action is locally or regionally applicable, but ``such action is
based on a
[[Page 22805]]
determination of nationwide scope or effect and if in taking such
action the Administrator finds and publishes that such action is based
on such a determination.''
To the extent a court finds this action to be locally or regionally
applicable, the EPA proposes to find that this action is based on a
determination of ``nationwide scope or effect'' within the meaning of
CAA section 307(b)(1). This action addresses emissions impacts from
sources located in nine states, which are located in multiple EPA
Regions and federal circuits. The proposed action is also based on a
common core of factual findings and analyses concerning the transport
of pollutants between the different states.
For these reasons, to the extent a court finds this action to be
locally or regionally applicable, the Administrator proposes to
determine that any final action related to this proposal is based on a
determination of nationwide scope or effect for purposes of section
307(b)(1) of the CAA. Thus, pursuant to CAA section 307(b), any
petitions for review of any final action related to this proposal must
be filed in the Court of Appeals for the District of Columbia Circuit
within 60 days from the date such final action is published in the
Federal Register.
VII. Statutory Authority
42 U.S.C. 7410, 7426, 7601.
Dated: May 6, 2019.
Andrew R. Wheeler,
Administrator.
[FR Doc. 2019-09928 Filed 5-17-19; 8:45 am]
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