Response to Clean Air Act Section 126(b) Petition From New York, 56058-56093 [2019-21207]
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FOR FURTHER INFORMATION CONTACT:
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–HQ–OAR–2018–0170; FRL–10000–58–
OAR]
RIN 2060–AU04
Response to Clean Air Act Section
126(b) Petition From New York
Environmental Protection
Agency (EPA).
ACTION: Notification of final action on
petition.
AGENCY:
The Environmental Protection
Agency (EPA) is denying a Clean Air
Act (CAA or Act) petition submitted by
the State of New York on March 12,
2018. The petition requested 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 Metropolitan
Area (NYMA) in violation of the good
neighbor provision. The EPA is denying
the petition because the petitioner, New
York, has not demonstrated, and the
EPA did not independently find, 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: This final action is effective on
October 18, 2019.
ADDRESSES: The EPA has established a
docket for this action under Docket ID
No. EPA–HQ–OAR–2018–0170. All
documents in the docket are listed and
publicly available at https://
www.regulations.gov. Publicly available
docket materials are also available 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.
SUMMARY:
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Please direct questions concerning this
final action to 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.
SUPPLEMENTARY INFORMATION: The
information in this document is
organized as follows:
I. General Information
A. Executive Summary of the EPA’s
Decision on the CAA Section 126(b)
Petition From New York
B. The CAA Section 126(b) Petition From
New York
C. Summary of the EPA’s May 6, 2019,
Proposal
II. 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
III. The EPA’s Final Response to the CAA
Section 126(b) Petition From New York
A. Reasonableness of Applying the FourStep Interstate Transport Framework for
This Action
B. The EPA’s Standard of Review for This
CAA Section 126(b) Petition Regarding
the 2008 and 2015 8-Hour Ozone
NAAQS
C. The EPA’s Evaluation of Whether the
Petition Is Sufficient To Support a CAA
Section 126(b) Finding
IV. Determinations Under CAA Section
307(b)(1) and (d)
V. Statutory Authority
I. General Information
A. Executive Summary of the EPA’s
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
approximately 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.
On May 6, 2019, the EPA issued a
proposal to deny the CAA section 126(b)
petition from New York. 84 FR 22787
(May 20, 2019). The Agency solicited
comments on the proposal and hosted a
public hearing on June 11, 2019, during
which four speakers testified. The EPA
also received 44 written comments
submitted to the docket on the proposed
denial. This Federal Register
notification addresses certain significant
comments the Agency received. The
EPA addressed the remaining comments
in the separate Response to Comments
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(RTC) document available in the docket
for this action.
As described in further detail in this
notification, the EPA is finalizing the
denial of the CAA section 126(b)
petition submitted by the State of New
York. Generally, the New York petition
(and comments supportive of the EPA
granting this petition) suggests that
residents of New York are exposed to
unhealthy levels of ground-level ozone
pollution. The petition identifies
approximately 350 electric generating
unit (EGU) facilities and non-EGU
facilities emitting, or projected to emit,
400 tons per year or more of nitrogen
oxides (NOX) in nine upwind states and
requests that the EPA establish
permanent and enforceable emissions
limitations for the named major NOX
sources at levels designed to prevent
them from significantly contributing to
nonattainment or interfering with
maintenance of the 2008 and 2015
ozone NAAQS in New York State. In
crafting this final action, the EPA has
considered public comments on its May
6, 2019, proposal to deny this petition.
Consistent with the EPA’s proposal
and based on the best data and
information available to the Agency at
this time, the Agency is finalizing its
denial of this petition. This denial is
based on New York’s failure to meet 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 with
respect to either Chautauqua County or
the New York-Northern New JerseyLong Island, New York-New JerseyConnecticut area (hereafter, the New
York metropolitan area or NYMA).
As indicated in the EPA’s proposal,
the EPA evaluated New York’s CAA
section 126(b) 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’s 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 denying 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 does not
provide sufficient information to
indicate that Chautauqua County should
be considered a nonattainment or
maintenance receptor pursuant to the
good neighbor provision. With respect
to the 2008 ozone NAAQS in the
NYMA, the EPA is also denying the
petition at step 1 of the framework
based on the conclusion that the
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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 in 2023, an air quality
problem with respect to either NAAQS
in Chautauqua County, and that in 2023
there is not projected to be any further
air quality problem with respect to the
2008 ozone NAAQS in the NYMA.1
Thus, for these areas and NAAQS, the
EPA has found that the petition has not
met its burden at step 1 of the four-step
interstate transport framework to
demonstrate that the group of identified
sources either emits or would emit
pollution in violation of the good
neighbor provision. With respect to the
2015 ozone NAAQS in the NYMA, the
Agency’s 2023 modeling shows a
relevant downwind air quality problem,
and, thus, the EPA is not denying this
portion of the petition with respect to
step 1.
The EPA is additionally denying the
petition as to all areas for the 2008 and
2015 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 has
found 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 did not meet its step 3
burden to demonstrate that the named
1 The EPA notes that on September 13, 2019, the
D.C. Circuit issued an opinion remanding the Cross
State Air Pollution Rule Update (CSAPR Update, 81
FR 74504 (October 26, 2016)) in Wisconsin v. EPA,
No. 16–1406. The court held that the rule is
inconsistent with the CAA because it does not fully
address upwind states’ obligations under the good
neighbor provision by the relevant attainment date
for downwind areas. Nonetheless, the EPA is
subject to a court-ordered deadline to take final
action on New York’s CAA section 126(b) petition
by September 20, 2019. As explained in this
notification, the EPA is finalizing its denial of New
York’s CAA section 126(b) petition, in part, because
the petitioner did not meet its burden to
demonstrate both that there is a relevant downwind
air quality under the good neighbor provision in a
relevant future year in either Chautauqua County or
the NYMA, and that there are cost-effective
emissions reductions available at the named
sources. This basis for denial based on Petitioner’s
failure to meet its burden is independent and
severable from any portion of the denial based on
the EPA’s discretionary evaluation of downwind air
quality in New York using the Agency’s 2023
modeling data. The EPA may make any necessary
or appropriate modifications to this final action
subsequently to reflect its understanding of the
court’s holding in Wisconsin.
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sources currently emit or would emit in
violation of the good neighbor provision
with respect to the relevant ozone
NAAQS.2
In making this final decision, the EPA
reviewed the petition from New York,
the public comments received, the
relevant statutory authorities and other
relevant materials. Accordingly, the
EPA denies the CAA section 126(b)
petition from New York.
The remainder of this notification is
organized as follows: The General
Information part of this notification
(Section I) continues with a summary of
the relevant issues raised in New York’s
CAA section 126(b) petition and a
summary of the EPA’s May 6, 2019,
proposed action. Section II of this
notification provides background
material and 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).
Section III of this notification discusses
the EPA’s standard of review for this
action and details the bases for the
EPA’s final action to deny this petition,
including responses to significant
comments received on the proposal.
B. The CAA Section 126(b) Petition
From New York
On March 12, 2018, the State of New
York, through 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 the NYMA and in
Chautauqua County in western New
York.
The petition contends that, although
the Chautauqua County area (i.e., the
area in and around Jamestown, New
York) was at the time of petition
submittal (and is currently) attaining
both the 2008 and the 2015 ozone
NAAQS, the area may have difficulty
maintaining its attainment status in the
2 The EPA solicited comment on whether to also
deny the petition because the petitioner did not
sufficiently justify that its 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). Based on the other bases for denial,
the EPA does not need to reach the question of
whether the petitioners’ failed to sufficiently justify
its interpretation of a ‘‘group of stationary sources’’
but notes that the absence of supporting
information for such a determination makes the
Agency unlikely to side with petitioners on the
information provided.
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future. The petition also explains that
the NYMA is currently designated
nonattainment for the 2008 ozone
NAAQS and, at the time New York
submitted the petition, the area would
likely be designated nonattainment for
the 2015 ozone NAAQS.3 The petition
further asserts that all three states in the
multistate 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
parts per billion (ppb).
The New York petition alleges that
emissions from numerous, named
upwind sources significantly contribute
to nonattainment and interfere with
maintenance of the 2008 and 2015 8hour ozone NAAQS in New York based
on two arguments. First, the petition
alleges that the EPA’s 2017 contribution
modeling conducted in support of the
EPA’s Cross-State Air Pollution Rule
(CSAPR) Update 4 shows that the nine
states in which these sources are located
contribute 1 percent or more of the 2008
8-hour ozone NAAQS (or 0.75 ppb or
more) to ozone concentrations in New
York. Second, 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.5
When identifying what constitutes
significant ozone contributions, the
petition considers the highest emitting
facilities (i.e., EGU and non-EGU
facilities emitting, or projected to emit,
400 tons per year or more of NOX) from
the named states and asserts that these
facilities are expected to have the
3 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 (NYMA) as a
Moderate nonattainment area for the 2015 ozone
NAAQS. 83 FR 25776 (June 4, 2018).
4 81 FR 74504 (October 26, 2016).
5 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 4 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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greatest impact on the ability of the
NYMA and Chautauqua County to attain
and maintain the 2008 and 2015
NAAQS.6 The petition uses NY DEC
generated air quality modeling data to
show single-day, 8-hour average impacts
from the group of 400 ton-per-year
sources identified in any individual
state of up to 6.34 ppb in Chautauqua
County and 4.97 ppb in the New York
portion of the NYMA nonattainment
area.7 The petition asserts that instances
in which the maximum impact from an
individual state’s total combined 400
ton-per-year sources exceeds 0.75 ppb at
a particular monitor indicate significant
contribution to nonattainment or
interference with maintenance of the
2008 ozone NAAQS. The petition
further asserts that impacts above 0.70
ppb indicate significant contribution to
nonattainment or interference with
maintenance of the 2015 ozone NAAQS.
NY DEC used its own independent
modeling to support the assertions in
their CAA section 126(b) petition
because the State ‘‘has significant
concerns’’ about the assumptions and
results of the EPA’s recently released
2023 air quality modeling and its
applicability to the CAA section 126(b)
petition process.8 The petition takes
particular issue with the EPA’s
expectation that uncontrolled EGUs will
greatly reduce their emissions rates in
the absence of unit-level enforceable
limits and expresses the additional
6 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. The petition also
identifies non-EGU sources emitting greater than
400 tons of NOX in the 2014 National Emissions
Inventory.
7 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 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 stateby-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
1-percent-of-the-NAAQS threshold.
8 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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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
state implementation plans (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.
After asserting that the identified
sources within the named upwind states
significantly contribute to
nonattainment or interfere with
maintenance of the 2008 and 2015
ozone NAAQS in New York, the
petition further asserts that these named
sources can reasonably be retrofitted
with control equipment or can operate
existing controls more frequently to
reduce NOX emissions. The petition
requests that the EPA establish
permanent and enforceable emissions
limitations for the named sources at
levels designed to prevent them from
significantly contributing to
nonattainment or interfering with
maintenance in New York State.
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. The petition
acknowledges that some of the facilities
identified in the petition may already
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. Section III.D
of the proposal provides more detail
regarding the content of the New York
CAA section 126(b) petition.
After receiving New York’s CAA
section 126(b) petition in March of
2018, and consistent with CAA section
307(d)(10), the EPA determined that the
60-day period for responding to New
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York’s petition was insufficient for the
EPA to act on the petition. On May 11,
2018, the EPA published a document
extending the deadline for acting on
New York’s CAA section 126(b) petition
to November 9, 2018.9 That document is
in the docket for this rulemaking.
C. Summary of the EPA’s May 6, 2019,
Proposal
In Section IV of the proposal, the EPA
explained its basis for proposing to deny
the CAA section 126(b) petition from
New York. Given that ozone is a
regional pollutant and that the EPA had
recently evaluated regional ozone
pollution in two recent rulemakings—
the CSAPR Update 10 and the
Determination Regarding Good
Neighbor Obligations for the 2008
Ozone National Ambient Air Quality
Standard 11 (the Determination Rule)—
the EPA proposed to evaluate New
York’s CAA section 126(b) petition
consistent with the same four-step
interstate transport framework (see
Section II.C.1 of this action) that the
EPA has used in previous regulatory
actions to evaluate regional ozone
transport problems.
The EPA identified multiple bases for
the proposed denial. The EPA noted
that the Agency’s historical approach to
evaluating CAA section 126(b) petitions
first looks at whether a petition
independently identifies or establishes a
technical basis for the requested CAA
section 126(b) finding. 84 FR 22797. In
this regard, the Agency proposed to find
that several aspects of New York’s
analyses are insufficient to support New
York’s conclusion that the sources
named in the petitions emit or would
emit in violation of the good neighbor
provision. First, considering step 1 of
the four-step interstate transport
framework, the EPA proposed to find
that New York’s petition does not
provide sufficient information to
demonstrate that there is a current or
expected future downwind
nonattainment or maintenance problem
in Chautauqua County with respect to
either the 2008 or the 2015 ozone
NAAQS. Id. at 22800. Similarly, with
respect to the NYMA, the EPA proposed
to find, at step 1, that the New York
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. Id. at 22800–
01. Second, considering step 3 of the
four-step interstate transport framework,
the EPA proposed to find that material
9 83
FR 21909 (May 11, 2018).
FR 74504 (October 26, 2016).
11 83 FR 65878 (December 21, 2018).
10 81
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elements in New York’s analyses are
technically deficient, 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. Id. at 22802.
The EPA further proposed to rely on
its own independent analysis to
evaluate the requested CAA section
126(b) findings at step 1 considering
available air quality monitoring and
modeling data. Id. at 22800. The EPA
proposed to find that its independent
analysis provides no basis to conclude
that Chautauqua County will have an air
quality problem relative to either the
2008 or the 2015 ozone NAAQS. The
EPA explained that the 2015–2017
design value in Chautauqua County is
68 ppb, which is below the level of both
the 2008 and 2015 ozone NAAQS.12
Furthermore, the EPA indicated that it
had recently finalized a determination
that the Jamestown, New York Marginal
nonattainment area (Chautauqua
County) has attained the 2008 ozone
NAAQS.13 Additionally, Section IV.B of
the proposal explained that 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 the 2008 ozone
NAAQS. The EPA’s air quality modeling
supporting the Determination Rule also
indicates that the monitor in
Chautauqua County is expected to
continue to both attain and maintain the
2015 ozone NAAQS standard in 2023,
with an average 2023 design value of
58.5 ppb and a maximum 2023 design
value of 60.7 ppb.14
The EPA also proposed to find that its
independent analysis, conducted to
support the Determination Rule,
provides no basis to conclude that the
NYMA will have a future air quality
problem relative to the 2008 ozone
NAAQS. The EPA’s examination of the
2023 projected design values for the
12 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.
13 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).
14 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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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.
As noted previously, considering step
3 of the four-step interstate transport
framework, the EPA proposed to find
that material elements in New York’s
analyses are technically deficient, 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. As
discussed in Section IV.B of the
proposal, the EPA did not
independently conduct a regional step 3
analysis for any sources with respect to
the 2015 ozone NAAQS because the
EPA interprets CAA section 126(b) as
placing the burden on the petitioner to
establish a technical basis for the
specific finding requested, and, unlike
the step 1 analysis, the EPA lacked
information and analysis on which it
could rely for such an independent step
3 analysis.
II. Background and Legal Authority
This section of the notification
discusses background and legal
authority relevant to this action
beginning with an overview of ozone
formation and interstate transport in
Section II.A. Section II.B of this
notification describes the key statutory
provisions under both CAA sections 126
and 110(a)(2)(D)(i)(I), including the
relationship between the good neighbor
provision and CAA section 126(b).
Section II.C summarizes the EPA’s
historical approach to addressing the
interstate transport of ozone under the
good neighbor provision to include a
description of the four-step interstate
transport framework and the EPA’s prior
regional rulemakings.
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
ppb.15 On October 1, 2015, the EPA
further revised the ground-level ozone
NAAQS to 70 ppb.16
15 See National Ambient Air Quality Standards
for Ozone, Final Rule, 73 FR 16436 (March 27,
2008).
16 See National Ambient Air Quality Standards
for Ozone, Final Rule, 80 FR 65292 (October 26,
2015).
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As discussed in Section III.A of the
proposal, ground-level ozone is not
emitted directly into the air but is a
secondary air pollutant created by
chemical reactions between ozone
precursors, chiefly NOX and nonmethane volatile organic compounds
(VOCs), in the presence of sunlight.
Emissions from mobile sources, EGUs,
industrial facilities, gasoline vapors, and
chemical solvents are some of the major
anthropogenic sources of ozone
precursors. These precursor emissions
can be transported downwind directly
or, after 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 United States. 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.17 For
further discussion of ozone-formation
chemistry and health effects, see the
National Ambient Air Quality Standards
for Ozone, Final Rule, 80 FR 65292
(October 26, 2015). For further
discussion of the regional nature of
interstate transport of ozone pollution
see the Determination Rule, 83 FR
65879–80 (December 21, 2018).
B. CAA Sections 110 and 126
CAA sections 126 and 110(a)(2)(D)(i)
provide the statutory authority for this
action. 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.18
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
17 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.
18 The text of CAA section 126 as codified in the
U.S. Code cross-references CAA section
110(a)(2)(D)(ii) instead of CAA section
110(a)(2)(D)(i). The courts have confirmed that this
is a scrivener’s error and that Congress instead
intended to cross-reference 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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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 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 II.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, the Determination Rule,
finalized a determination that the
existing CSAPR Update fully addresses
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 ensuring
compliance with the applicable
requirements of, inter alia, CAA section
126. Thus, where the EPA has made a
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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 EPA has historically
addressed the interstate transport of
ozone pursuant to the good neighbor
provision by promulgating rulemakings
that addressed significant contribution
and interference with maintenance
through regional trading programs to
reduce NOX emissions. Each of these
rulemakings followed a similar four-step
interstate transport framework to
evaluate and address 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,19 the EPA 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):
(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, referred to as
receptors, using air quality modeling
projections for a future analytic year
19 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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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 an air quality 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 for certain sources in the
state 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.20 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.
Using the four-step framework to
evaluate a particular interstate transport
problem allows the EPA to determine
whether upwind states actually
contribute to a downwind air quality
problem, whether and which sources
can be cost-effectively controlled to
address that downwind air quality
20 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 in its petition.
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problem, what level of emissions should
be eliminated to address the downwind
air quality problem (and thus should be
considered ‘‘significant’’), 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).21 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
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 upheld by the
U.S. Court of Appeals for the District of
21 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. 65 FR 56245 (September
18, 2000). The EPA recently finalized an action
rescinding the findings of good neighbor obligations
with respect to the 1997 ozone NAAQS as a basis
for the NOX SIP Call. 84 FR 8422 (March 8, 2019).
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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
precursor 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 resulted
in a judicial stay of the NOX SIP Call
and led the EPA to ‘‘de-link’’ the CAA
section 126(b) petition response from
the NOX SIP Call. 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.
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56063
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
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respects, and the rule was remanded in
July 2008 with the instruction that the
EPA replace the rule ‘‘from the ground
up.’’ North Carolina v. EPA, 531 F.3d
896, 929 (D.C. Cir.), modified on reh’g,
550 F.3d 1176 (D.C. Cir. 2008). 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
emissions from sources in 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.22 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
than necessary to address downwind air
quality problems, or ‘‘over-controlling’’
upwind state emissions. See EPA v.
EME Homer City Generation, L.P., 572
22 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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U.S. 489, 521–22 (2014) (EME Homer
City).23
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.24 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 upcoming 2017 ozone season, which
coincided with the (then) upcoming
2018 Moderate area attainment date.
The EPA 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. The CSAPR Update is subject to
pending legal challenges in the D.C.
Circuit. Wisconsin v. EPA, No. 16–1406
(D.C. Cir. argued October 3, 2018).
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 of 2017 air quality at that
time, the emissions reductions required
by the rule ‘‘may not be all that is
needed’’ to address transported
23 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.
24 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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emissions.25 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 1
percent threshold used at step 2 of the
EPA’s analysis. 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 nonEGU ozone season NOX reductions or
further EGU control strategies (i.e., the
implementation of new post-combustion
controls) that may be achievable on
timeframes extending beyond the 2017
analytic year used in the EPA’s analysis.
The Agency recognized that completing
such an analysis could extend the
timeframe for action and prioritized the
substantial short-term emissions
reductions achievable for the 2017
ozone season. See 81 FR 74521 for
additional details.
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, 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,
25 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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the ninth state named in New York’s
petition), 83 FR 33730 (July 17, 2018),
that relied on the same air quality
modeling used in the Determination
Rule. The Determination Rule is subject
to pending legal challenges in the D.C.
Circuit. New York v. EPA, No. 19–1019
(D.C. Cir.).
Most recently, the EPA acted on six
CAA section 126(b) petitions pertaining
to the 2008 and 2015 ozone NAAQS
submitted by the States of Connecticut,
Delaware, and Maryland regarding
various sources in five upwind states. 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 16064
(April 13, 2018) (Connecticut) 83 FR
50444 (October 5, 2018) (Delaware and
Maryland).26 The EPA found that the
downwind areas were not projected to
have problems attaining or maintaining
the NAAQS (step 1) and/or that the
petition failed to identify cost-effective
emissions reductions for the affected
sources (step 3), particularly where
enforceable emissions limits had
already been implemented for certain
sources in the form of state-wide
emissions budgets and, thus, the EPA
already had addressed their significant
contribution or interference with
maintenance for those sources.
III. The EPA’s Final Response to the
CAA Section 126(b) Petition From New
York
The EPA is finalizing a denial of the
CAA section 126(b) petition from New
York. Section III.A of this notification
describes the reasonableness of applying
the four-step interstate transport
framework as the standard of review in
evaluating New York’s CAA section
126(b) petition. Section III.B discusses
the EPA’s general standard of review of
CAA section 126(b) petitions. Section
III.C describes the EPA’s determination
that New York has not demonstrated
that the sources named in its petition
emit or would emit in violation of the
good neighbor provision such that they
will significantly contribute to
nonattainment or interfere with
maintenance of the 2008 or 2015 ozone
NAAQS in New York. Where the EPA
has currently available information to
inform an independent analysis of New
York’s petition, we also present this
26 The EPA’s denial of the Delaware and
Maryland petitions is subject to pending legal
challenges in the D.C. Circuit. Maryland v. EPA, No.
18–1285 (D.C. Cir. filed October 15, 2018).
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information in Section III.C. In Section
III, generally, and in the RTC document
included in the docket for this action,
the Agency explains the rationale
supporting its final action and provides
its response to significant public
comments on the proposed action.
A. Reasonableness of Applying the
Four-Step Interstate Transport
Framework for This Action
As discussed in Section II.C of this
notification, the EPA has consistently
analyzed ozone transport with the
understanding that nonattainment and
maintenance concerns result from the
cumulative air quality impacts of
contributions from numerous
anthropogenic sources across several
upwind states (as well as from within
the downwind state). Consistent with
this understanding, the EPA has
historically evaluated ozone transport
based, in part, on the relative
contribution of all anthropogenic
sources within a state, as measured
against a screening threshold, and then
identified particular source sectors and
units for regulatory consideration.27
This approach to evaluating ozone
transport is reasonable because the
statute’s use of ‘‘significantly’’ as a
modifier to ‘‘contribute’’ implies a
relationship (e.g., the impact a source or
collection of sources has relative to
other relevant sources of that pollutant).
Therefore, although CAA section 126(b)
allows downwind states to petition the
EPA regarding specific sources or
groups of sources that they believe are
contributing to the downwind air
quality problems, the EPA believes it is
reasonable and appropriate to evaluate
the emissions from sources named in a
CAA section 126(b) petition in the
context of all relevant anthropogenic
sources of that pollutant to determine
whether emissions from the named
sources violate the good neighbor
provision. In this way, the EPA can
evaluate whether the petitioner has
appropriately identified the source or
group of sources that should be
regulated.
The EPA notes that the four-step
framework provides a logical, consistent
and systematic approach for addressing
interstate transport for a variety of
criteria pollutants under a broad array of
national, regional and local scenarios.
Consequently, the EPA finds it
reasonable to apply the same four-step
27 The EPA has used cost as a factor in its multifactor approach for quantifying significant
contribution from multiple contributing states. Cost
is used in a relative (i.e., least-cost abatement)
approach that also requires examining individual
source impact and reduction potential in the
context of the larger universe of contributors.
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interstate transport framework used to
evaluate regional ozone transport under
the good neighbor provision in
considering a CAA section 126(b)
petition addressing the impacts of
individual sources on downwind
attainment and maintenance of the
ozone NAAQS. As the four-step
interstate transport framework is
applied to evaluate a particular
interstate transport problem, the EPA
can determine whether upwind sources
are actually contributing to a downwind
air quality problem; whether and which
sources can be cost effectively
controlled relative to 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 will vary based on the scope
of the air quality problem, the availably
and cost of controls at sources in
upwind states and the relative impact of
upwind emissions reductions on
downwind ozone concentrations.
The complexity of atmospheric
chemistry and nature of ozone transport
also demonstrate the appropriateness of
applying the four-step interstate
transport framework in considering a
CAA section 126(b) petition. As a result
of this complexity, including domestic
and international as well as
anthropogenic and background
contributions to ozone and its
precursors, it is less likely that a single
source is entirely responsible for
impacts to a downwind area. Thus, a
determination regarding whether this
impact is sufficient to significantly
contribute to nonattainment or interfere
with maintenance of the NAAQS—in
light of other anthropogenic emissions
sources impacting a downwind area—is
necessarily more complicated. The EPA
therefore evaluates within step 3 of the
framework whether upwind sources
have emissions that significantly
contribute to nonattainment or interfere
with maintenance of the ozone NAAQS
based on various control, cost and air
quality factors, including the magnitude
of emissions from upwind states, the
amount of potential emissions
reductions from upwind sources, the
cost of those potential emissions
reductions, and the potential air quality
impacts of emissions reductions.28 The
28 ‘‘We believe it is important to consider both
[cost and air quality] factors because circumstances
related to different downwind receptors can vary
and consideration of multiple factors can help EPA
appropriately identify each state’s significant
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EPA believes it is reasonable to consider
these factors whether evaluating ozone
transport in the context of a good
neighbor SIP under CAA section 110 or
a CAA section 126(b) petition.
For any analysis of a CAA section
126(b) petition regarding interstate
transport of ozone, a regional pollutant
with contribution from a variety of
sources, the EPA reviews whether the
particular sources identified by the
petitioner should be controlled in light
of the collective impact of emissions on
air quality in the area, including
emissions from other anthropogenic
sources. Thus, review of the named
sources in New York’s petition provides
a starting point for the EPA’s evaluation,
but does not—as the commenters
suggest—complete the evaluation to
determine whether the named sources
emit or would emit in violation of the
good neighbor provision.
Several commenters assert that the
EPA incorrectly applied the four-step
interstate transport framework used to
address CAA section 110(a)(2)(D)(i)(I) to
the separate provision under CAA
section 126(b). Specifically, one
commenter states that the four-step
interstate transport framework aligns
with the planning requirements under
CAA section 110(a)(2)(D)(i)(I) because it
allows contribution to be apportioned
by state boundaries particularly at step
2, which considers whether an upwind
state is linked to the downwind air
quality problem above an identified air
quality threshold. The commenter
explains that applying such a threshold
allows the collective ‘‘significant
contribution’’ from a group of sources
located in multiple upwind states to be
apportioned into ‘‘non-significant
contributions’’ according to state
boundaries. The commenter continues
by stating that the provisions in CAA
section 126 apply to source emissions
regardless of state boundaries, thereby
better reflecting the science of air
pollution transport and allowing a state
to petition for, were the EPA to grant the
contribution under different circumstances . . . .
Using both air quality and cost factors allows 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, considering cost takes into account the
extent to which existing plants are already
controlled as well as the potential for, and relative
difficulty of, additional emissions reductions.
Therefore, EPA believes that it is appropriate to
consider both cost and air quality metrics when
quantifying each state’s significant contribution.’’
Proposed Federal Implementation Plans To Reduce
Interstate Transport of Fine Particulate Matter and
Ozone, 75 FR 45210, 45271 (August 2, 2010)
(CSAPR proposal) (describing potential disparities
between upwind and downwind state contributions
to identified air quality problems and between
levels of controls between states).
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petition, the application of emissions
reductions requirements to a group of
stationary sources located in multiple
upwind states.
A second commenter notes that the
EPA’s use of the four-step interstate
transport within CAA section 126(b)
does not facilitate the application of the
CAA section 126(b) petition mechanism
as intended, which the commenter
articulates as including the use of such
petitions and the EPA’s action
thereupon as a precise tool to control
specific sources (e.g., EGUs), potentially
through the imposition of emissions
limits including shorter averaging times.
The commenter notes that the good
neighbor provision, as the EPA has
historically implemented it, relies on
regional trading programs and robust
emissions allowance pools, which do
not guarantee control of emissions from
nearby, upwind sources on high electric
demand days that are most conducive to
downwind ozone formulation.
The EPA disagrees with commenters
who assert that its application of the
four-step interstate transport framework
used to address requirements under the
good neighbor provision is not
appropriate to address CAA section
126(b) petitions. While either CAA
section 126(b) or CAA section
110(a)(2)(D)(i)(I) may be applied to
address interstate transport, as
discussed in Section III.B, the crossreference in CAA section 126(b) to the
prohibition in CAA section
110(a)(2)(D)(i) means that the same
substantive standard is used to
determine whether there is a violation
under either section and, therefore,
whether emissions should be prohibited
in either a good neighbor SIP or in a
finding under CAA section 126(b).
Moreover, the EPA also believes its use
of the four-step interstate transport
framework to evaluate a CAA section
126(b) petition continues to be
technically justified, especially as it
applies to New York’s petition
addressing the impacts of hundreds of
sources to alleged ozone nonattainment
downwind.
As discussed earlier, the EPA agrees
with commenters that ozone
nonattainment problems result from the
cumulative air quality impacts of
relatively smaller contributions from
numerous anthropogenic sources across
several upwind states (as well as from
within the downwind state). Thus,
evaluating which upwind states and
sources should be held responsible for
addressing downwind nonattainment
presents a ‘‘thorny causation problem.’’
EME Homer City, 572 U.S. at 514. This
is true whether the EPA is evaluating
the problem in the context of reviewing
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a SIP or promulgating a FIP under CAA
section 110(a)(2)(D)(i)(I) or in the
context of evaluating a petition targeting
individual sources under CAA section
126(b). The four-step interstate transport
framework provides a reasonable
approach to identifying which upwind
states and sources among many should
bear the responsibility for implementing
emissions reductions to benefit
downwind air quality.
Thus, the EPA disagrees with
commenters asserting that application of
a statewide air quality threshold at step
2 is inappropriate under CAA section
126(b). First, as discussed further in
Section III.C of this notification, while
the EPA is not taking a position
regarding what air quality threshold is
most appropriately applied with respect
to the 2015 ozone NAAQS, the EPA
agrees that its modeling shows that
upwind states named in the petition are
all linked to a projected air quality
problem in the NYMA using the 1
percent threshold that the EPA has used
in other recent rulemakings to evaluate
step 2 linkages. Accordingly, although
the EPA is not here deciding whether
the 1 percent threshold is the only
appropriate screening level that might
be applied for good neighbor analysis
for the 2015 ozone NAAQS in other
contexts (such as the EPA’s review of
SIP submissions 29 addressing 2015
ozone NAAQS good neighbor
obligations), the EPA has not proposed
to deny the petition on the basis of any
analysis at step 2, and the commenter’s
concern that the use of any statewide air
quality threshold is ill-suited to a CAA
section 126(b) petition is not raised in
this action.
The EPA further notes that both New
York’s petition and the commenters
conflate the EPA’s use of an air quality
threshold at step 2 with the full analysis
used under the four-step interstate
transport framework as a whole for
apportioning responsibility for
emissions reductions among upwind
states and sources. New York’s CAA
section 126(b) petition uses a 1 percent
threshold to identify states that are
linked to the downwind air quality
problems and asserts that all the
emissions from the named sources that
collectively exceed 1 percent are
deemed significant. However, this
29 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 2018) (providing
analysis to support potential use of a 1 ppb
threshold in the development of good neighbor SIPs
for the 2015 ozone NAAQS). Available at https://
www.epa.gov/sites/production/files/2018-09/
documents/contrib_thresholds_transport_sip_
subm_2015_ozone_memo_08_31_18.pdf.
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misunderstands the EPA’s use of the air
quality threshold in the context of the
four-step interstate transport framework.
If an upwind state’s air quality impact
to an identified downwind air quality
problem exceeds the threshold as
determined at step 2, the EPA then turns
to the evaluation of additional cost and
air quality factors at step 3 to determine
what amount of emissions, if any, from
an upwind state should be considered to
significantly contribute to the
downwind air quality problems. If the
collective air quality contribution does
not exceed the threshold, then
emissions from within the state are
considered not to significantly
contribute to the downwind air quality
problem. Thus, the EPA reasonably uses
an air quality threshold at step 2 of the
four-step interstate transport framework
as one aspect of the resolution of the
‘‘thorny causation’’ problem by
identifying which states’ collective
impact is sufficiently large to merit
further review of the emissions
reduction potential at sources within
the state. As the cumulative nature of
the ozone problem remains the same
whether evaluated under CAA section
110(a)(2)(D)(i)(I) or section 126(b), the
EPA believes that it is reasonable to
apply a statewide air quality threshold
in this case as in the four-step interstate
transport framework that it has
historically used to implement the good
neighbor provision.
The EPA also disagrees that its use of
the four-step interstate transport
framework precludes the targeted,
source-specific remedy provided for by
CAA section 126(c). Although the EPA
has used regional trading programs to
address good neighbor obligations in
past rulemakings under both CAA
section 110(a)(2)(D)(i)(I) and CAA
section 126(b), the application of the
framework does not dictate that the
remedy at step 4 necessarily be
implemented in a particular manner.
Thus, the four-step interstate transport
framework can be applied in the context
of CAA section 126(b) to determine
whether a source is operating in
violation of the good neighbor provision
with sufficient flexibility to permit the
application of an appropriately
demonstrated remedy under CAA
section 126(c), whether through a
regional trading program or sourcespecific emissions limits.
B. The EPA’s Standard of Review for
This CAA Section 126(b) Petition
Regarding the 2008 and 2015 8-Hour
Ozone NAAQS
As discussed in Section II.B of this
action, section 126(b) of the CAA
provides a mechanism for states and
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other political subdivisions to seek
abatement of pollution in other states
that may be affecting their air quality.
CAA 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 approach for evaluating a
CAA section 126(b) petition. 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).30 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, which is to mitigate
significant contribution to
nonattainment and interference with
maintenance of the NAAQS in
downwind states. 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, accordingly, both provisions are
reasonably interpreted to 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 the ambiguous terms
incorporated by the cross-reference to
CAA section 110(a)(2)(D)(i) (i.e.,
‘‘contribute significantly to
nonattainment’’ and ‘‘interfere with
maintenance’’) 31 consistent with the
EPA’s past approach to evaluating
interstate ozone pollution transport
30 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.
31 The Supreme Court confirmed that these terms
are ambiguous in EME Homer City and that the EPA
is therefore delegated the authority to reasonably
interpret the provisions. 572 U.S. at 514–15 n.18.
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56067
under the good neighbor provision, and
its interpretation and application of that
related provision of the statute. As
previously discussed, ozone is a
regional air pollutant and the EPA’s
previous analyses and regulatory actions
have evaluated the regional interstate
ozone transport problem using the fourstep interstate transport framework. The
EPA most recently applied this four-step
interstate transport 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.32 Given the specific crossreference 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 engaged in a regional
rulemaking action to apply the good
neighbor provision for the 2015 ozone
NAAQS. However, the EPA has released
technical information intended to
inform states’ development of SIPs to
address the 2015 ozone standard.33 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
32 The EPA similarly evaluated the impact of
Kentucky on New York’s air quality after
implementation of the CSAPR Update in approving
the former state’s SIP submission and concluded
Kentucky’s good neighbor obligations for the 2008
ozone NAAQS were fully addressed by the CSAPR
Update. 83 FR 33730 (July 17, 2018). No legal
challenges to the EPA’s determinations in that SIP
action were filed within the period for judicial
review.
33 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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Section III.C.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.34 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 approach 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 CAA section
126(b) petition consistent with the
EPA’s four-step 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 CAA sections
110(a)(2)(D)(i)(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)(i)(I). 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 (balancing
various cost and air quality factors)
34 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 final action and at
https://www.epa.gov/airmarkets/memo-andsupplemental-information-regarding-interstatetransport-sips-2015-ozone-naaqs.
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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). If the EPA makes a CAA section
126(b) finding based on its
determination that a source or sources
will significantly contribute to
nonattainment or interfere with
maintenance, then the EPA will
implement a remedy under CAA section
126(c) to ensure that the violation of the
good neighbor provision is addressed
through permanent and enforceable
measures (i.e., step 4).
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,
572 U.S. at 515 n.18, 521–22 (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 the EPA
approved a state’s SIP as adequately
meeting 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
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)
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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);
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) for a particular
NAAQS, the EPA will evaluate the CAA
section 126(b) petition to determine if
the submitted petition raises new
information that merits further
consideration.
Turning to the comments on the
EPA’s proposed standard of review,
several commenters took issue with the
EPA’s application of the four-step
interstate transport framework under
CAA section 126, arguing that in doing
so the EPA is ‘‘unlawfully eliminating
[CAA] section 126 as an independent
statutory tool for downwind states.’’
Commenters disagreed with the EPA’s
interpretation of the relationship
between the good neighbor provision
under CAA sections 110(a)(2)(D)(i)(I)
and 126(b), contending that Congress
intended CAA section 126(b) petitions
to be a legal tool to address interstate
problems separate and distinct from SIP
and FIP actions under CAA section 110.
Commenters cite to legislative history
and the Third Circuit’s opinion in
GenOn, 722 F.3d at 520–23, in support
of their assertions that CAA section 126
is intended to remedy interstate
transport problems notwithstanding the
existence of CAA section 110.
Commenters accordingly assert the EPA
is incorrect in determining that its fourstep interstate transport approach under
CAA section 110(a)(2)(D)(i)(I) is
appropriate for evaluating under CAA
section 126(b) whether an upwind
source or group of sources will
significantly contribute to
nonattainment or interfere with
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maintenance of the 2008 and the 2015
ozone NAAQS in a petitioning
downwind state.
The EPA has consistently
acknowledged in prior actions under
CAA section 126(b) that Congress
created the good neighbor provision and
CAA section 126 as two independent
statutory processes to address one
problem: Interstate pollution transport.
See, e.g., 83 FR 26666, 26675 (June 8,
2018) (proposal for this final action); 76
FR 69052, 69054 (November 7, 2011)
(proposed action for the EPA’s final
action on New Jersey’s CAA section
126(b) petition regarding SO2 emissions
from Portland Generating Station). As
the commenters point out, the Third
Circuit has upheld the EPA’s position
that CAA sections 110(a)(2)(D)(i) and
126 are two independent statutory
processes to address the same problem
of interstate transport. See GenOn, 722
F.3d at 520–23. However, the
commenters misread the court’s holding
regarding the EPA’s interpretation of the
interplay between the two provisions.
The Third Circuit spoke to the question
of the timing and sequence of these
processes—specifically, whether the
EPA could act on a CAA section 126(b)
petition in instances where the Agency
had not yet acted on a CAA section 110
SIP addressing interstate transport for
the same NAAQS. The Third Circuit
also cited to a similar holding by the
D.C. Circuit in Appalachian Power.
Appalachian Power, 249 F.3d at 1047.
Both courts upheld the EPA’s position
that it need not wait for the CAA section
110 process to conclude before acting on
a CAA section 126(b) petition, thus
affirming that both statutory provisions
are independent from one another from
a timing perspective. But neither court
held that the EPA was precluded from
applying the same analytical framework
to resolving CAA section 126(b)
petitions as it applies to analyze states’
good neighbor obligations. Here, the
Agency has not deferred action on New
York’s petition regarding the 2015 ozone
NAAQS, for which good neighbor SIPs
were due on October 1, 2018, until its
action on the good neighbor SIPs (for
the named upwind states) has
concluded. Therefore, by acting on New
York’s CAA section 126(b) petition
regarding the 2015 ozone NAAQS before
concluding action on CAA section 110
SIPs, the EPA believes it has given CAA
section 126(b) independent meaning as
intended by Congress and the courts.
Moreover, the D.C. Circuit’s opinion
in Appalachian Power further supports
the EPA’s interpretation taken in this
action: That while the Agency need not
wait for the CAA section 110 process to
conclude before acting on a CAA section
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126(b) petition, the EPA reasonably
imported the four-step interstate
transport framework under CAA section
110 to CAA section 126 by interpreting
the substantive requirements of the two
provisions to be closely linked. The
court in Appalachian Power specifically
considered whether it was appropriate
for the EPA to rely on findings made
under the good neighbor provision in
the NOX SIP Call rulemaking in granting
several CAA section 126(b) petitions
raising similar interstate transport
concerns with regards to the same
NAAQS. Petitioners in that case argued
that the EPA should instead make a
finding that ‘‘the specified stationary
sources within a given state
independently met [the statute’s]
threshold test for effect on downwind
nonattainment.’’ 249 F.3d at 1049. The
court found that by referring to
stationary sources that emit pollutants
‘‘in violation of the prohibition of [CAA
section 110(a)(2)(D)(i)],’’ Congress
‘‘clearly hinged the meaning of [CAA]
section 126 on that of section
110(a)(2)(D)(i).’’ Id. at 1050. The court,
therefore, concluded that given CAA
section 126’s silence on what it means
for a stationary source to violate CAA
section 110(a)(2)(D)(i), the EPA’s
approach of relying on findings under
CAA section 110(a)(2)(D)(i) was
reasonable and, therefore, entitled to
deference under Chevron, 467 U.S. at
843. See Appalachian Power, 249 F.3d
at 1050. The EPA’s approach to
addressing New York’s CAA section
126(b) petition through the application
of the four-step interstate transport
framework and consideration of
findings made in the CSAPR Update
and the Determination Rule is therefore
reasonable and consistent with prior
case law.
Several commenters assert that the
EPA cannot rely on recent regional
transport rulemakings because they did
not fully address good neighbor
obligations. Commenters assert that the
existence of the CSAPR Update does not
foreclose a state from seeking—or the
EPA from providing—redress under
CAA section 126(b) when the state finds
itself struggling to meet NAAQS due to
significant upwind contributions or
interference. When the EPA
promulgated the CSAPR Update it
explicitly noted that it only served as a
‘‘partial remedy’’ as to the 2008 ozone
NAAQS. Commenters argue that the fact
that New York is continuing to
experience challenges attaining the 2008
ozone NAAQS demonstrates that
significant interstate pollution and
associated attainment difficulties
remain after the implementation of the
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CSAPR Update. Commenters therefore
assert that the EPA’s reliance on the
Determination Rule as a complete
remedy with respect to the 2008 ozone
NAAQS is arbitrary and capricious
because the rule fails to eliminate
current and ongoing significant
contributions by upwind states and
sources.
The EPA agrees that the existence of
the CSAPR Update does not foreclose
redress under CAA section 126(b), but
the commenters misstate the EPA’s basis
for evaluating the petition in light of the
CSAPR Update. Although the EPA
explained in the proposal that the
Determination Rule concluded that the
emissions reductions required by the
CSAPR Update would fully address
covered states’ good neighbor
obligations for the 2008 ozone NAAQS,
the EPA did not rely on these rules (i.e.,
the CSAPR Update and the
Determination Rule) alone to propose
denial of the petition.35 Rather, as
described in more detail in Section III.C
below, the EPA has reviewed the
petition consistent with its
interpretation of CAA section 126(b)
and the good neighbor provision to see
if additional information that was not
previously considered by the EPA in
either the CSAPR Update or the
Determination Rule would justify
imposing the additional control
requirements that New York requested.
As described in Section III.C, the EPA
specifically considered the relevance of
current air quality in New York.
However, based on its evaluation of the
information provided in the petition,
the EPA has found that the petitioner
has not satisfied its burden to
demonstrate that the sources named in
the petition emit or would emit in
violation of the good neighbor provision
with respect to either the 2008 or 2015
ozone NAAQS.
C. The EPA’s Evaluation of Whether the
Petition Is Sufficient To Support a CAA
Section 126(b) Finding
This section discusses the approach
that the EPA used to review the
sufficiency of New York’s CAA section
126(b) petition and the EPA’s resulting
determination that New York has not
provided an adequate technical and
analytic basis for the EPA to make a
finding nor does the EPA have available
information to support such a finding.
Consistent with the EPA’s approach to
evaluating several prior CAA section
35 Similar to Kentucky, the EPA did not rely on
its approval of the State’s SIP alone to propose
denial as to the sources named in that state but
considered whether the petition raised new
information not previously considered in that
action.
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126(b) petitions, the EPA interprets
CAA section 126(b) as placing an
burden on the petitioner to establish a
technical and analytic 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 EGU facilities and
36 individual EGUs, respectively).36
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. 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
the 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.37 Consistent
with this position and as described
further in this section of the
notification, the EPA is using
supplemental information, when
currently available, as part of its
discretionary independent analysis of
New York’s CAA section 126(b)
petition. The results of the following
analysis support the EPA’s
determination that New York has not
provided an adequate technical and
analytic basis for the EPA to make a
finding, nor does the EPA’s analysis of
supplemental information available to it
outside of the basis that New York has
provided support such a finding.
36 The EPA’s response to the Maryland and
Delaware petition is currently subject to judicial
review in the D.C. Circuit. Maryland v. EPA, No.
18–1285 (D.C. Cir. filed October 15, 2018).
37 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
As discussed in Section IV.B.1 of the
proposal, 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 II.C of this
notification, the EPA typically focuses
its analysis regarding potential
downwind air quality problems on a
future analytic year given the forwardlooking 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.
Particularly relevant to this action, the
EPA also applied this interpretation of
‘‘will’’ in the 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
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achieve attainment and maintenance of
the NAAQS in all the downwind areas
to which that state is linked. See EME
Homer City, 572 U.S. at 521–22; 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
neither over- or under-control emissions
with respect to the EPA’s projections as
to downwind air quality at the time by
which that those controls could feasibly
be implemented.
In the Determination Rule, the EPA
established the appropriate future
analytic year for purposes of assessing
remaining interstate transport
obligations for the 2008 ozone NAAQS.
83 FR 65889–890. The EPA’s analysis
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.
In the Determination Rule, the EPA
then evaluated the timeframe necessary
to implement additional NOX control
strategies at various sources across the
region. 83 FR 65893–901. For EGUs, the
EPA explained that it was appropriate to
consider 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
can require up to 39 months for an
individual power plant installing
controls on more than one boiler,38 and
that a minimum of 48 months (4 years)
is a reasonable time-period needed to
complete all necessary steps of SCR
projects at EGUs on a regional scale,
considering the necessary stages of post38 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.
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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.39 The EPA, therefore,
concluded that it may reasonably take
up to 4 years to install the new
emissions controls regionwide for EGUs.
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. 83 FR 65901–04. 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. In addition,
these preliminary estimates for
implementing control technologies do
not include the time and resources
needed to install such technologies on
a sector- or region-wide basis.
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 nonEGU sources could also be 4 years or
more.
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
39 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 of implementation
timeframes for various control strategies is also
found 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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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. Moreover, the EPA noted
that 2023 was well in advance of the
subsequent attainment date for areas
classified as Severe. 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.
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
2023, based on updates provided to the
EPA from states and other stakeholders
on a January 6, 2017, Notice of Data
Availability (NODA).40 41 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).42 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,43 which recommends using
40 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.
41 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.
42 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.
43 ‘‘Draft Modeling Guidance for Demonstrating
Attainment of Air Quality Goals for Ozone, PM2.5,
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model predictions from the ‘‘3 x 3’’
array of grid cells surrounding the
location of the monitoring site.44
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).45 For
each individual monitoring site, the
base period 2009–2013 average and
maximum design values, and the 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 in PDF format at https://
www.epa.gov/airmarkets/memosupplemental-information-interstatetransport-sips-2008-ozone-naaqs.
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.46 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
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.
44 The EPA’s modeling uses 12km2 grid cells.
45 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-qualitymodeling-technical-support-document-updated2023-projected-ozone-design.)
46 See 81 FR 74530–74532 (October 26, 2016).
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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 EPA’s 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) in which the Agency
used 2023 as the future analytic year
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.47
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 the
2015 NAAQS in Moderate ozone
nonattainment areas, consistent with the
D.C. Circuit’s instruction in North
Carolina.48 As explained at proposal,
while the EPA is not in this action
reopening the analysis and findings
made in the Determination Rule with
respect to the 2008 ozone NAAQS, the
47 See n.1, supra, regarding the potential impact
on this final action of the September 13, 2019,
decision of the D.C. Circuit in Wisconsin v. EPA,
No. 16–1406.
48 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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EPA evaluated the petition, consistent
with the standard of review described in
Section III.B, 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 New York petition 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
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).49
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. 83 FR 65917. The
petition does not provide any new
information not already considered by
the EPA in the Determination Rule as to
these issues and therefore, the EPA has
no basis to reconsider its conclusions
finalized in that action.
The EPA received several comments
challenging the conclusion that it is
appropriate to evaluate air quality in a
future year to determine whether there
is a violation of the good neighbor
provision in evaluating New York’s
CAA section 126(b) petition. First, the
EPA received comments asserting that
the EPA’s reliance on the term ‘‘will’’ as
it appears in the good neighbor
provision to justify consideration of air
quality in a future year is inconsistent
with the plain language of the CAA.
Commenters contend that Congress
specified that implementation plans
under CAA section 110(a)(2)(D)(i) must
49 The EPA’s conclusions regarding the EGU
assumptions in the 2023 modeling are also the
subject of judicial review in the D.C. Circuit. New
York v. EPA, No. 19–1019 (D.C. Cir.).
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prohibit ‘‘any’’ pollution from ‘‘any’’
source that will contribute significantly
to nonattainment and interfere with
maintenance, and that this includes
pollution that will do so between now
and 2023.
The EPA does not agree that analysis
of air quality in a future year is
inconsistent with the statute. The EPA
reasonably interprets the word ‘‘will’’ in
the good neighbor provision 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 has
routinely evaluated whether upwind
states ‘‘will’’ significantly contribute to
nonattainment or interfere with
maintenance based on projections of air
quality in the future year in which any
emissions reductions would be expected
to go into effect. For the 1998 NOX SIP
Call, the EPA used an analytic year of
2007. For the 2005 CAIR, the Agency
used analytic years of 2009 and 2010 for
ozone and PM2.5, respectively. 63 FR
57450; 70 FR 25241. The EPA applied
the same approach in finalizing CSAPR
in 2011, the CSAPR Update in 2016, and
the Determination Rule in 2018 by
evaluating air quality in 2012, 2017 and
2023, respectively. 76 FR 48211; 81 FR
74537.
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 North Carolina
court affirmed the EPA’s interpretation,
explaining that ‘‘will’’ ‘‘can mean either
certainty or indicate the future tense’’
and held that it is reasonable for the
EPA to give effect to both potential
meanings of the word. Id. Thus,
although the court acknowledged that
the term ‘‘will’’ could refer to the
certainty of an upwind state’s impact on
a downwind state (i.e., based on current
measured nonattainment), the court also
clearly acknowledged the ambiguity of
this term and indicated this was not the
only reasonable interpretation. Given
this ambiguity, the D.C. Circuit affirmed
that the EPA’s approach is permissible
under the Act.
While the EPA agrees that the
references to ‘‘any’’ in CAA section
110(a)(2)(D)(i) mean that any source of
emissions of any air pollutant having
the requisite impact may be subject to
control under that provision, the
commenter does not explain how this
term limits the EPA’s discretion to
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evaluate of future air quality when
evaluating whether such emissions have
the requisite impact on downwind areas
and therefore whether such control is
necessary or authorized. Rather, as the
commenter fails to acknowledge, the
EPA is only authorized under the good
neighbor provision to require the
prohibition of such emissions in
‘‘amounts which will’’ improperly
impact another state with respect to the
NAAQS. The Supreme Court has held
that this language means that any
emissions reductions imposed under the
good neighbor provision be no greater
than necessary to address downwind
NAAQS, i.e., that the EPA avoid
unnecessary over-control of emissions
from upwind states. See EME Homer
City, 572 U.S. at 521–22. In interpreting
that decision, the D.C. Circuit declared
the EPA’s emissions reduction
requirements for certain states to be
invalid under the good neighbor
provision where the EPA had
information indicating that there will be
no downwind air quality problems by
the time the emissions reductions
would have been implemented. See
EME Homer City II, 795 F.3d at 130.
Thus, the EPA does not agree that it is
obligated to impose emissions
reductions if there will be no downwind
air quality issues to address by the time
such reductions could be in place.
Several commenters contend that, by
evaluating air quality in a future year
the EPA fails to give ‘‘emits’’ in the
phrase ‘‘emits or would emit’’ under
CAA section 126(b) independent
meaning, thereby unreasonably ignoring
existing air quality issues in evaluating
CAA section 126(b) petitions.
Commenters contend that the provision
is intended to provide relief for both
current and future attainment and
maintenance problems, with one
commenter noting that the ‘‘or’’
conjunction indicates that the criteria
for demonstrating a violation could be
fulfilled either through current or future
conditions. Thus, the commenters
conclude that it is inappropriate for the
EPA to rely on the word ‘‘will’’ in the
good neighbor provision to base its
analysis on future air quality without
considering current conditions.
One commenter further asserts that
the EPA’s forward-looking approach to
interpreting the requirements of CAA
section 126(b) is inconsistent with its
prior grant of a CAA section 126(b)
petition from New Jersey, which was
based on the named source’s current
and ongoing emissions.50 The
50 Final Response to Petition from New Jersey
Regarding SO2 Emissions From the Portland
Generating Station, 76 FR 69052 (November 7,
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commenter cites the Third Circuit’s
decision which upheld the EPA’s action
on the petition in GenOn, indicating
that the court noted, in construing the
timing provisions of CAA section 126
‘‘that a statute ought, upon the whole,
to be so construed that, if it can be
prevented, no clause, sentence, or word
shall be superfluous, void, or
insignificant.’’ 722 F.3d 513, 520–21 (3d
Cir. 2013) (quoting TRW Inc. v.
Andrews, 122 S. Ct. 441 (2001)).
The EPA agrees it must give meaning
to the statutory terms of CAA section
126(b) and has done so here. As an
initial matter, certain commenters
misconstrue the EPA’s forward-looking
evaluation of air quality impacts under
CAA section 126(b) as stemming from
the phrase ‘‘would emit’’ under this
provision. As described in this section,
the EPA looks to future air quality
impacts under CAA section 126(b)
because of the future-looking reference
in the word ‘‘will’’ under the good
neighbor provision, a violation of which
is the explicit condition precedent for
making the requested finding under
CAA section 126(b). As explained in the
EPA’s prior actions under CAA section
126(b), the EPA reasonably interprets
the terms ‘‘emits or would emit’’ as
referring to the named source or
sources’ operating conditions, not air
quality.51 The EPA interprets the term
‘‘emits’’ as referring to a source’s current
emissions levels and ‘‘would emit’’ as
referring to a source’s reasonably
anticipated future emissions levels.
Accordingly, the EPA has given ‘‘emits’’
meaning independent from ‘‘would
emit’’ by reasonably interpreting the
terms as referring to the current and
future operating conditions of the
source or sources named in a CAA
section 126(b) petition.
Contrary to the commenters’
contention, the ‘‘emits’’ language is not
in conflict with the incorporation of the
term ‘‘will’’ as the standard for
reviewing CAA section 126(b) petitions.
Consistent with prior actions under
CAA section 110(a)(2)(D)(i)(I), the EPA
evaluates at step 1 of its analysis
whether the downwind area in question
will have an air quality problem in a
relevant future year and at step 2
whether emissions from the upwind
state in which the named source is
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).
51 See Response to June 1, 2016 Clean Air Act
Section 126(b) Petition from Connecticut, Final
Action, 83 FR 16070 (April 13, 2018); Response to
Clean Air Act Section 126(b) Petitions from
Delaware and Maryland, Final Action, 83 FR 50453
(October 5, 2018).
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located will impact the downwind area
such that sources in the state should be
subject to further analysis in step 3. If
the EPA determines that the state will
be linked to a downwind air quality
problem in a relevant future year, it is
in step 3 that the EPA evaluates the
sources’ emissions and operating
conditions to determine whether the
source named in the petition can and
should be subject to control, and thus
found to significantly contribute to
nonattainment or interfere with
maintenance of the NAAQS downwind.
Thus, the EPA’s interpretation
reasonably gives meaning to both the
term ‘‘will’’ as incorporated into CAA
section 126(b) and the ‘‘emits or would
emit’’ clause in the context of the fourstep interstate transport framework.
Commenters’ interpretation reads ‘‘will’’
out of the good neighbor provision and
would require the EPA to interpret the
‘‘prohibition’’ of CAA section
110(a)(2)(D)(i)(I) in two contrary ways
depending on the statutory process—as
future-looking in a CAA section 110
analysis and limited to current
conditions in a CAA section 126
analysis—despite the fact that CAA
section 126(b) directly incorporates the
terms of the good neighbor provision.
The EPA does not agree that this would
be a reasonable interpretation of the
statutory provisions; at minimum, the
EPA believes its interpretation is
reasonable.
The EPA applied its same
interpretation in acting on New Jersey’s
CAA section 126(b) petition for the
Portland Generating Station, which was
addressed in the Third Circuit’s GenOn
decision and which commenters
incorrectly characterize as contrary to
the EPA’s interpretation here. In the
EPA’s proposed action on that petition,
the EPA stated that it ‘‘interprets the
term ‘emits or would emit’ as a
reference to the source’s current and
potential future emissions. . . . For the
emissions the source ‘would emit’ (i.e.,
its potential future emissions), it is
appropriate to consider the level at
which the source could emit given the
existing constraints on its
emissions. . . .’’ 76 FR 19671. The
EPA’s treatment of New Jersey’s petition
with respect to current nonattainment is
also not inconsistent with its forwardlooking evaluation of New York’s
petition under step 1. The EPA’s action
on New Jersey’s petition found that the
named source alone caused downwind
violations of the relevant SO2 NAAQS,
and that the modeled magnitudes of
those violations were seven times the
NAAQS. 76 FR 69057. Ambient SO2
concentrations mostly vary only
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depending on a specific source’s
operation, and to the extent a source is
consistently operating the same way
over time, the SO2 impacts from that
source are anticipated to remain the
same.52 There was no indication that the
future operation of the source named in
New Jersey’s petition would change in
the absence of emissions limits, so it
was unnecessary for the EPA to evaluate
the source’s expected downwind impact
on the SO2 NAAQS in New Jersey in a
future year as the result would have
likely been the same. The historic
variability of ozone is often influenced
by meteorology and other factors, which
can affect the magnitude of impact on
downwind air quality from year to year.
See CSAPR Update, 81 FR 74504,
74513–14 (October 26, 2016) (discussing
observational studies regarding the
nature of ozone transport). Moreover,
given the numerous sources impacting
downwind ozone concentrations and
the general trend in decreasing NOX
emissions, current air quality is often
not indicative of air quality in a future
year. Thus, current conditions do not
necessarily indicate whether there will
be an ozone transport problem in a
future year.
Several commenters assert that the
EPA may not rely on the 2023 modeling
to evaluate future air quality in
assessing New York’s petition because it
does not align with the appropriate
attainment dates, and in particular, the
2021 Serious area attainment date for
the 2008 ozone NAAQS applicable to
the NYMA. Commenters contend that
the D.C. Circuit has found that the
statute unambiguously requires
compliance with NAAQS attainment
deadlines, based on the statutory
requirement that implementing
provisions be ‘‘consistent’’ with Title I
of the CAA. North Carolina v. EPA, 531
F.3d 896, 911–12 (D.C. Cir. 2008).
Commenters therefore contend that the
timing of good neighbor obligations
must be directly tied to actual
attainment dates, not to a date that
merely ‘‘considers’’ such dates.
Commenters cite the D.C. Circuit
opinion in Natural Resources Defense
Council v. EPA, evaluating an attempt
by the EPA to extend 2008 ozone
NAAQS compliance deadlines for
several months, to include the 2018
ozone season. 777 F.3d 456, 458–59
(D.C. Cir. 2014) (NRDC). The court
rejected this delay as ‘‘untethered to
52 See, e.g., Data Requirements Rule for the 2010
SO2 NAAQS, 80 FR 51057 (explaining that peak
concentrations of SO2 are commonly because of one
or a few sources, peak concentrations are typically
near the source, and SO2 is not the result of
complex atmospheric chemical reactions unlike
ozone).
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Congress’ approach’’ and held that the
EPA was required to adhere to the 1997
ozone NAAQS attainment timeline set
by the 1990 Clean Air Act amendments,
plumbed to the date of attainment
designations. Id. at 469.
The EPA disagrees that it is
inappropriate to rely on the 2023
modeling because it does not align with
a particular attainment date. As an
initial matter, even assuming that a year
aligned with the Serious area attainment
date could be an appropriate analytic
year for the EPA to consider in
evaluating future air quality in New
York, the commenters have not
submitted any information that
indicates there will be an air quality
problem under the 2008 ozone NAAQS
in New York by the Serious area
attainment year of 2021, nor did the
petition provide any. As discussed in
Section III.C of this notification, the
petitioner bears the burden of
establishing a technical basis for the
specific finding requested and has not
done so here. The projected ozone
design values for 2023 represent the best
available data regarding expected air
quality in New York in any future year.
These data were developed over the
course of multiple years of analytic
work, reflecting extensive stakeholder
feedback and the latest emissions
inventory updates. The EPA assembled
an emissions inventory, performed air
quality analytics in 2016 and released
corresponding data and findings in the
January 2017 NODA. Subsequent to
stakeholder feedback on the NODA, the
EPA was able to further update its
emissions inventories and air quality
modeling and release results for the
2023 future analytic year in October
2017. The EPA has no comparable data
available for earlier analytic years
between 2017 and 2023 that have been
through an equally rigorous analytic and
stakeholder review process, and, thus,
the 2023 data are the best data currently
available for the EPA to evaluate New
York’s claims.
Moreover, to the extent the
commenters are challenging the EPA’s
basis for selecting 2023 as an analytic
year to assess good neighbor obligations
for the 2008 ozone NAAQS in prior
rulemaking actions, such claims are not
properly raised in this rulemaking
action. As noted earlier in this
discussion, the EPA solicited and
received public comments regarding the
bases for selecting the 2023 analytic
year in the Determination Rule,
including the EPA’s consideration of
attainment dates. That action is
currently subject to judicial review in
the D.C. Circuit, New York v. EPA, No.
19–1019 (D.C. Cir.). The EPA did not, in
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this action, reopen for public comment
the analyses and findings made in the
Determination Rule. Rather, the EPA
evaluated New York’s petition 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). Accordingly,
comments regarding the EPA’s decision
to analyze air quality in 2023 in the
Determination Rule are not within the
scope of this action.53
Nonetheless, the EPA does not agree
that either the text of the statute or the
court’s holding in North Carolina
dictates that a future analytic year
evaluated under the good neighbor
provision must be identical to the next
attainment deadline. The EPA selected
a 2023 analytic year for purposes of
evaluating remaining good neighbor
obligations for the 2008 ozone NAAQS
in the Determination Rule considering
both relevant future attainment dates
and the anticipated timeframe for
implementation of additional emissions
reductions across the fleet in the region
of states being analyzed. For the reasons
explained below, consideration of these
two factors is consistent with the
statute.
First, as to the statute, the good
neighbor provision does not set forth
any timeframe for the analysis of
downwind air quality or the
implementation of upwind emissions
reductions. On its face, the good
neighbor provision is therefore
ambiguous as to when the upwind
emissions reductions it calls for must be
in place. The EPA acknowledges that
the good neighbor provision does
indicate that the prohibition of upwind
state emissions must be ‘‘consistent
with the provisions of [title I],’’ and that
the D.C. Circuit held in its North
Carolina decision that the other
provisions with which the
implementation of the good neighbor
provision must be consistent include
the attainment dates in part D of title I
of the Act. However, the good neighbor
provision does not specify what it
means to be ‘‘consistent with’’ the other
provisions of the Act, and courts have
53 The EPA similarly solicited and received
public comment on the use of a 2023 analytic year
in acting on Kentucky’s SIP submission, which was
based on a similar evaluation as that used in the
Determination Rule. 83 FR 33730 (July 17, 2018).
No legal challenges to the EPA’s determinations in
that SIP action were filed within the period for
judicial review, and comments regarding the
appropriateness of selecting a 2023 analytic year in
that action are similarly outside the scope of this
rulemaking.
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routinely held that this phrase is
ambiguous. See, e.g., EDF v. EPA, 82
F.3d 451, 457 (D.C. Cir. 1996) (holding
the requirement that implementation of
transportation control measures be
‘‘consistent with’’ the applicable
implementation plan under section 176
of the CAA is ‘‘flexible statutory
language,’’ which does not require
‘‘exact correspondence . . . but only
congruity or compatibility,’’ thus
requiring a court to defer to reasonable
Agency determinations); Natural
Resources Defense Council v. Daley, 209
F.3d 747, 754 (D.C. Cir. 2000) (finding
that statute requiring fishing quotas be
‘‘consistent with’’ a fishery management
plan was ambiguous); NL Indus. v.
Kaplan, 792 F.2d 896, 898–99 (9th Cir.
1986) (statutory phrase ‘‘consistent with
the national contingency plan’’ in 42
U.S.C. 9607(a)(2)(B) ‘‘does not
necessitate strict compliance with
[national contingency plan’s]
provisions’’). Moreover, while CAA
section 181 identifies timeframes for
attaining ozone standards in downwind
states, it does not specify deadlines for
good neighbor emissions reductions in
upwind states.54 Therefore, Congress
has left a gap for the EPA to fill. See
Chevron, 467 U.S. at 843. In light of this
ambiguity, the good neighbor provision
cannot be read to require
implementation of upwind emissions
reductions on a specific timeframe, and
an analytic year used to evaluate
potential obligations under the good
neighbor provision should be
considered reasonable provided the EPA
has demonstrated that the selected
analytic year is chosen with
consideration paid to, and is not
inconsistent with, downwind
attainment dates and other relevant
attainment planning requirements in
title I of the Act.
Moreover, the statute does not impose
inflexible deadlines for attainment. The
general planning requirements that
apply to nonattainment areas under
subpart 1 of part D provide that the
Administrator may extend the default 5year attainment date by up to 10 years
‘‘considering the severity of
nonattainment and the availability and
feasibility of pollution control
measures.’’ CAA section 172(a)(2)(A). In
54 It is worth noting that the statutory text of CAA
section 181(a) does not itself establish the
attainment dates for the 2008 or 2015 ozone
NAAQS. Rather, the EPA undertakes rulemakings to
establish the appropriate deadlines after a new or
revised ozone NAAQS is promulgated. See, e.g.,
2008 Ozone NAAQS SIP Requirements Rule, 80 FR
12264, 12268 (March 6, 2015); 40 CFR 51.1103 and
Implementation of the 2015 National Ambient Air
Quality Standards for Ozone: Nonattainment Area
Classifications Approach, Final Rule, 83 FR 10380
(March 9, 2018); 40 CFR 51.1303.
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the case of the ozone NAAQS, this
provision is overridden by the more
specific attainment date provisions of
subpart 2. The general timeframes
provided for attainment in ozone
nonattainment areas in the CAA section
181(a)(1) table may be (and often are)
modified pursuant to other provisions
in CAA section 182, considering factors
such as measured ozone concentrations
and the feasibility of implementing
additional emissions reductions. For
example, the 6-year timeframe for
attainment of the 2008 ozone NAAQS in
Moderate areas (the July 2018
attainment date) could be extended
under certain circumstances to 2020,
pursuant to CAA section 181(a)(5). And
pursuant to CAA section 181(b)(2),
when downwind areas are unable to
implement sufficient reductions via
feasible control technologies by one
attainment date, those areas will be
reclassified, or ‘‘bumped up’’ in
classification, and given a new
attainment date with additional time to
attain. With reclassification, the date for
an area to attain the 2008 ozone NAAQS
could be extended to 2021, 2027 and
2032, for areas classified as Serious,
Severe and Extreme, respectively. Each
of these deadlines could be subject to
further extensions of up to 2 years
pursuant to CAA section 181(a)(5). Part
D further defines what control strategies
states must implement by sources in
nonattainment areas by each of the
applicable attainment dates,
incorporating considerations of
technological feasibility at each stage.
See, e.g., CAA section 172(c)(1), (2)
(requiring implementation of reasonably
available control measures and
reasonable further progress in
designated nonattainment areas); CAA
section 182(b)(1)(A), (c)(2)(B) (setting
explicit reasonable further progress
targets for ozone precursors, and
providing an exception when the SIP
includes ‘‘all measures that can feasibly
be implemented in the area, in light of
technological achievability’’).
Thus, while the statute indicates that
downwind areas should attain as
expeditiously as practicable, but no later
than the attainment dates specified in
CAA sections 172(a)(2) and 181(a)(1),
implementation provisions for
nonattainment planning lay out myriad
exceptions to those deadlines, including
for circumstances when attainment is
simply infeasible. See Whitman v. Am.
Trucking Ass’ns, Inc., 531 U.S. 457,
493–94 (2001) (Breyer, J., concurring)
(considerations of costs and
technological feasibility may affect
deadlines established for attainment in
specific areas). The EPA’s approach to
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evaluating upwind emissions reductions
based on technological feasibility is
consistent with the requirements
imposed on downwind nonattainment
areas required to implement certain
‘‘reasonable’’ controls within the
targeted timeframe.
The EPA further disagrees with the
comment asserting that the D.C.
Circuit’s North Carolina decision
requires the EPA to only use the next
relevant attainment date in selecting its
future analytic year. The North Carolina
decision faulted the EPA for not
considering upcoming attainment dates
in downwind states when setting
compliance deadlines for upwind
emissions reductions in CAIR, where
the EPA had evaluated only the
feasibility of implementing upwind
controls. 531 F.3d at 911–12. But the
court did not hold that the CAA requires
that compliance deadlines for good
neighbor emissions reductions (and
thus, the future analytic year) be
identical to a specific attainment date in
downwind areas, let alone the next
upcoming date. Nor did the court opine
that the EPA would never be justified in
setting compliance dates that fall after
the next upcoming downwind
attainment date or that are based, in
part, on the feasibility of implementing
upwind emissions reductions. Indeed,
in remanding the rule, the D.C. Circuit
acknowledged that upwind compliance
dates may, in some circumstances, come
after attainment dates. Id. at 930 (where
the attainment date relevant to the
discussion was 2010, instructing the
EPA to ‘‘decide what date, whether 2015
or earlier, is as expeditious as
practicable for states to eliminate their
significant contributions to downwind
nonattainment’’). Accordingly, the
EPA’s consideration of anticipated
compliance timeframes for
implementation of NOX control
strategies in selecting a future analytic
year is not inconsistent with North
Carolina.
Nor did the court speak to the
timeframe for either analysis or
compliance with respect to the
‘‘interfere with maintenance’’ clause of
the good neighbor provision. While the
D.C. Circuit held that the EPA must give
independent meaning to that clause, the
court made clear that this obligation
applies to the EPA’s identification of
downwind air quality problems that
must be addressed by upwind states.
531 F.3d at 909–11. The court did not
speak to the timeframe by which
upwind states should be required to
implement emissions reductions to
address such areas. On the contrary, the
ambiguity in the good neighbor
provision regarding the relationship of
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upwind state emissions reductions to
attainment dates is further heightened
with respect to downwind areas that the
EPA anticipates are likely to be in
attainment in a future year, some of
which may be currently attaining the
standard (or even designated
attainment) 55 but which may have
problems maintaining the standard in
the future. For example, in the EPA’s
2017 air quality modeling performed for
the CSAPR Update, the EPA identified
six nonattainment receptors and
thirteen maintenance receptors. 81 FR
74533. The maintenance receptors were
areas that the EPA expected were likely
to be in attainment based either on the
modeling projections or current
monitored data, but which the EPA
expected may have problems
maintaining attainment of the standard
under certain circumstances. While
many of the maintenance receptors were
in areas designated nonattainment, the
EPA’s analysis suggests that these areas
will be able to demonstrate (and in
many cases had in fact demonstrated)
attainment of the NAAQS by the
attainment date or otherwise receive a
clean data determination that relieves
the state of further planning
obligations.56 While the good neighbor
provision requires states to prohibit
emissions that will ‘‘interfere with
maintenance’’ of the NAAQS in these
areas, there is no deadline for
maintenance of the standard comparable
to an attainment date for downwind
areas that are designated as
nonattainment for a specific standard.
Likewise, the court’s decision in the
NRDC case raised by the commenter
addressed only the limitations on the
EPA’s authority to set attainment dates
for new or revised ozone NAAQS
applicable to designated nonattainment
areas. The court did not speak to the
requirements imposed under the good
neighbor provision or the applicability
of the attainment dates in subpart 2 to
any emissions reductions required
under that provision in upwind states.
Regarding the EPA’s selection of 2023
as the appropriate future analytic year
in the Determination Rule, one
commenter characterizes the EPA’s
determination that installing sector- or
region-wide controls on non-EGU
55 For example, in the CSAPR Update, two
maintenance receptors (in Allegan County,
Michigan, and Jefferson County, Kentucky) were
located in areas designated attainment for the 2008
ozone NAAQS. 40 CFR 81.318 (Kentucky), 81.323
(Michigan).
56 See, e.g., 80 FR 30941 (June 1, 2015)
(determination of attainment of Baltimore, MD
(Harford receptor)); 81 FR 26697 (May 4, 2016)
(determination of attainment by the attainment date
of Cincinnati-Hamilton OH-KY-IN (Hamilton
receptor)).
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sources could be 4 years or more to be
a ‘‘speculative and unsupported
assumption.’’ The commenter asserts
that the EPA could have, but did not,
examine the status of controls installed
at the identified non-EGU sources and
did not consider the specific timeframes
needed for the installation of any
additional controls, should they be
required.
The EPA disagrees with the
commenter’s assertions related to the
timeframe for the installation of controls
at non-EGU sources identified in New
York’s petition. First, as noted
previously, the EPA is relying on the
2023 modeling in this final action as the
best available future-year data in the
absence of any such data provided by
the petitioner. Commenters had an
opportunity to comment on the choice
of the EPA’s selected 2023 modeling
year in the Determination Rule, which
is already the subject of review in the
D.C. Circuit. Thus, any comments
regarding the bases for the EPA’s
selection of a 2023 analytic year in the
Determination Rule (or in the EPA’s
similar action on Kentucky’s SIP) are
outside the scope of this action.
Nonetheless, commenters here have not
explained their assertion that the EPA’s
conclusions regarding the installation
time for controls at non-EGUs are
unsupported or indicated the type of
information they believe is lacking to
support those conclusions; thus, their
allegation that the conclusions are
‘‘speculative’’ is conclusory and
unfounded. The EPA further disagrees
that it had any obligation to further
investigate the status of non-EGU
controls in acting on New York’s
petition. As discussed in Section III.C,
the petitioner bears the burden of
demonstrating that the finding sought in
the petition is technically and
analytically justified. The fact that the
EPA has chosen to consider modeling
data already available to further
evaluate New York’s petition does not
shift the burden to the EPA to conduct
yet further analysis where it was not
provided by the petition.
Moreover, the commenters fail to
acknowledge that the EPA’s preliminary
estimates of installation times did not
capture all factors influencing the time
needed to full implement controls at
non-EGUs. As noted earlier in this
section, 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. Further, the
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EPA’s preliminary estimates for
implementing control technologies at
non-EGU facilities do not account for
the time and resources needed to install
such technologies on a sector- or regionwide basis. Thus, the EPA has no reason
to reconsider the installation timeframe
for controls at non-EGUs identified in
the Determination Rule, much less
shorten that timeframe as suggested by
the commenters.
Commenters further claim that the
EPA’s reliance on 2023, a date 4 years
in the future, is inconsistent with the
maximum 3-year period for remedies
permitted under CAA section 126(c).
Commenters point to the EPA’s own
statements in a prior CAA section 126
action that CAA section 126(c)
establishes a maximum 3-year period for
implementation of controls regardless of
‘‘the timing of attainment needs
downwind.’’ 64 FR at 28279.
The EPA disagrees with commenters’
contention that the 3-year deadline for
implementing a remedy under CAA
section 126(c) suggests that the
consideration of modeling data from a
2023 analytic year for purposes of
evaluating New York’s CAA section
126(b) petitions is inappropriate. As
noted earlier, the EPA is considering the
2023 modeling data as the best available
data regarding expected air quality in
New York in any future year, in the
absence of any analysis of future air
quality for any other year provided by
either the petition or commenters. Thus,
although 2023 is beyond the 3 years
provided for implementation of
emissions limits under CAA section
126(c), the data help inform whether
there may be an air quality problem
relative to either the 2008 or 2015 ozone
NAAQS going forward.
Moreover, the choice of 2023 as an
analytic year does not preclude the
implementation of a remedy in an
earlier year, including within the 3-year
deadline specified under CAA section
126(c), if the EPA identifies a future air
quality problem and the necessary
finding is made as to any sources named
in New York’s petition. However while
CAA section 126 contemplates that a
source or group of sources may be found
to have interstate transport impacts, it
cannot be determined whether such
source or sources are in violation of the
good neighbor provision and whether
controls are justified without analyzing
emissions from a range of sources
influencing regional-scale ozone
transport, including sources not named
in the petitions. Analysis of a future
year thus ensures that any emissions
reductions the EPA may require under
that provision are not in excess of what
would be necessary to address
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downwind nonattainment and
maintenance problems as they exist by
the time any emissions limitations
would be implemented. Thus, although
the 2023 modeling does not necessarily
align with the year in which emissions
limitations might be implemented under
CAA section 126(c), were the EPA to
make a CAA section 126(b) finding, it
represents the best available data
regarding future ozone concentrations in
New York. Therefore, the EPA’s
reasonable choice to rely on its existing
2023 air quality modeling for evaluating
air quality does not conflict with CAA
section 126(c), nor does it preclude
implementation of a remedy at an
earlier date if the requisite air quality
impact is found.
Several commenters assert that the
EPA cannot rely on the 2023 modeling
to evaluate good neighbor obligations
because it relies on unenforceable
assumptions about sources’ voluntary
behavior. One commenter notes, for
example, that the EPA relies on plant
retirements and fuel switches to natural
gas electricity generation, without any
permit requirements or other emissions
limits in place to ensure such changes
remain in place in 2023. Commenters
explain that SIPs are required to
demonstrate compliance with a federal
standard consistent with the attainment
deadline and contain adopted control
measures with enforceable emissions
limits. By using projected emissions
reductions that are not bound by
enforceable measures in its step 1
analysis, the EPA holds itself to a
different standard, allowing projected
emissions reductions to stand in for
actual enforceable reductions.
The EPA does not agree that its
reliance on the 2023 modeling data is
inappropriate or unreliable, even if it
includes assumptions regarding likely
future operating conditions at the
sources. Rather, as explained below, the
modeling provides a reasonable and
likely conservative estimate of
emissions and ozone concentrations in
2023, and thus it is both reasonable and
consistent with the statute for the EPA
to rely on the modeling in evaluating
the claims in New York’s petition.
The EPA disagrees that reliance on
the 2023 modeling is inconsistent with
the statutory requirements of the good
neighbor provision because the
modeling reflects emissions reductions
that may not be subject to enforceable
measures. The good neighbor provision
instructs the EPA and states to apply its
requirements ‘‘consistent with the
provisions of’’ title I of the CAA. The
EPA has therefore interpreted the
requirements of the good neighbor
provision, and the elements of its four-
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step interstate transport framework, to
apply in a manner consistent with the
designation and planning requirements
in title I that apply in downwind states.
See North Carolina, 531 F.3d at 912
(holding that the good neighbor
provision’s reference to title I requires
consideration of both procedural and
substantive provisions in title I). The
EPA notes that this consistency
instruction follows the requirement in
the good neighbor provision that plans
‘‘contain adequate provisions
prohibiting’’ certain emissions. The
following paragraphs will therefore
explain the EPA’s interpretation of the
circumstances under which the good
neighbor provision requires that plans
‘‘prohibit’’ emissions through
enforceable measures and show that this
interpretation is consistent with the
circumstances under which downwind
states are required to implement
emissions control measures in
nonattainment areas.
For purposes of this analysis, the EPA
notes specific aspects of the title I
designations process and attainment
planning requirements for the ozone
NAAQS that provide relevant context
for evaluating the consistency of the
EPA’s approach to implementing the
good neighbor provision in upwind
states. This discussion is not intended
to suggest that the specific requirements
of designations and attainment planning
for downwind states apply to upwind
states pursuant to the good neighbor
provision, but rather to explain why the
EPA’s approach to interpreting the good
neighbor provision is reasonable in light
of relevant, analogous provisions found
elsewhere in title I. Cf. EDF v. EPA, 82
F.3d 451, 457 (D.C. Cir. 1996) (per
curiam) (describing the phrase
‘‘consistent with’’ as ‘‘flexible statutory
language’’ which does not require
‘‘exact correspondence . . . but only
congruity or compatibility,’’ thus
requiring a court to defer to reasonable
Agency determinations), amended by 92
F.3d 1209 (D.C. Cir. 1996). These
provisions demonstrate that the EPA’s
good neighbor approach is consistent
with other relevant provisions of title I
with respect to what data are considered
in the EPA’s analysis and when states
are required to implement enforceable
measures.
First, areas are initially designated
attainment or nonattainment for the
ozone NAAQS based on actual
measured ozone concentrations. See
CAA section 107(d), 42 U.S.C. 7407(d)
(noting that an area shall be designated
attainment where it ‘‘meets’’ the
NAAQS and nonattainment where it
‘‘does not meet’’ the NAAQS (including
certain ‘‘nearby’’ areas, as explained
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below)). If an area measures a violation
of the relevant ozone NAAQS, then the
area is generally designated
nonattainment, regardless of what
specific factors have influenced the
measured ozone concentrations or
whether such levels are due to
enforceable emissions limits. In such
cases where the an ozone nonattainment
area is classified as Moderate or higher,
the state is then required to develop an
attainment plan, which generally
includes the application of various
enforceable control measures to sources
of emissions located in the
nonattainment area, consistent with the
requirements in Part D of title I of the
Act.57 See generally CAA section 182, 42
U.S.C. 7511a. If, however, an area
measures compliance with the ozone
NAAQS, the area is designated
attainment (unless it is included in the
boundaries of a nearby nonattainment
area due to its contribution to that area’s
nonattainment, as discussed below), and
sources in that area generally are not
subject to any new enforceable control
measures under Part D.58
In determining the boundaries of an
ozone nonattainment area, the CAA
requires the EPA to consider whether
‘‘nearby’’ areas ‘‘contribute’’ to ambient
air quality in the area that does not meet
the NAAQS. 42 U.S.C. 7407(d). For each
monitor or group of monitors indicating
a violation of the ozone NAAQS, the
EPA assesses information related to
various factors, including current
emissions and emissions-related data
from the areas near the monitor(s), for
the purpose of establishing the
appropriate geographic boundaries for
the designated ozone nonattainment
areas. A nearby area may be included
within the boundary of the ozone
nonattainment area only after assessing
area-specific information, including an
assessment of whether current
emissions from that area contribute to
the air quality problem identified at the
violating monitor.59 If such a
57 Areas classified as Marginal nonattainment
areas are required to submit emissions inventories
and implement a nonattainment new source review
permitting program but are not generally required
to implement controls at existing sources. See CAA
section 182(a), 42 U.S.C. 7511a(a).
58 CAA section 184 contains the exception to this
general rule: States that are part of the Ozone
Transport Region are required to provide SIPs that
include specific enforceable control measures,
similar to those for nonattainment areas, that apply
to the whole state, even for areas designated
attainment for the ozone NAAQS. See generally 42
U.S.C. 7511c.
59 See Attachment 2 to Area Designations for the
2008 Ozone National Ambient Air Quality
Standards. Memorandum from Robert J. Meyers,
Principal Deputy Assistant Administrator, U.S. EPA
to Regional Administrators. December 4, 2008.
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determination is made, sources in the
nearby area are also subject to the
applicable Part D control requirements.
However, if the EPA determines that the
nearby area does not contribute to the
measured nonattainment problem, then
the nearby area is not part of the
designated nonattainment area and
sources in that area are not subject to
such control requirements.
The EPA’s historical approach to
addressing the good neighbor provision
via the four-step interstate transport
framework, and the approach the EPA
continues to apply here, is consistent
with title I requirements. That is, in
steps 1 and 2 of the framework, the EPA
(at step 1) evaluates whether there is a
downwind air quality problem (either
nonattainment or maintenance), and (at
step 2) whether an upwind state impacts
the downwind area such that it
contributes to and is therefore ‘‘linked’’
to the downwind area. A determination
by the EPA at step 1 of the good
neighbor analysis (that it has not
identified any downwind air quality
problems to which an upwind state
could contribute) is analogous to the
EPA’s determination in the designation
analysis that an area should be
designated attainment. Similarly, a
determination at step 2 of the good
neighbor analysis (that, although there
are downwind air quality problems, an
upwind state does not sufficiently
impact the downwind area such that the
state contributes to that area’s air quality
problems and is therefore linked to that
area) is analogous to the EPA’s
determination in the designation
analysis that a nearby area does not
contribute to a NAAQS violation in
another area. Under the good neighbor
provision, the EPA can determine at
either step 1 or 2, as appropriate, that
the upwind state will not contribute to
air quality problems in downwind areas
and, thus, that the upwind state does
not significantly contribute to
nonattainment or interfere with
maintenance of the NAAQS in other
states. See, e.g., CSAPR Update, 81 FR
74506 (determining that emissions from
14 states do not significantly contribute
to nonattainment or interfere with
maintenance of the 2008 ozone
NAAQS); CSAPR, 76 FR 48236 (finding
that states whose impacts on downwind
Available at https://archive.epa.gov/
ozonedesignations/web/pdf/area_designations_for_
the_2008_revised_ozone_naaqs.pdf and Attachment
3 to Area Designations for the 2015 Ozone National
Ambient Air Quality Standards. Memorandum from
Janet G. McCabe, Acting Assistant Administrator,
U.S. EPA to Regional Administrators. February 25,
2016. Available at https://www.epa.gov/sites/
production/files/2016-02/documents/ozonedesignations-guidance-2015.pdf.
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receptors are below the air quality
threshold do not significantly contribute
to nonattainment or interfere with
maintenance of the relevant NAAQS).
Under such circumstances, sources in
the upwind state are not required to
implement any control measures under
the good neighbor provision, which is
analogous to the fact that under the
designation and attainment regime,
sources located in areas that are
designated attainment (because the area
is attaining the NAAQS and not
contributing to any nearby
nonattainment areas) generally are not
required to implement the control
measures found in Part D of the Act. Cf.
EME Homer City II, 795 F.3d at 130
(determining that CSAPR ozone-season
NOX budgets for 10 states were invalid
based on determination that modeling
showed no future air quality problems);
CSAPR Update, 81 FR 74523–24
(removing three states from CSAPR
ozone season NOX program based on
determination that states are not linked
to any remaining air quality problems
for the 1997 ozone NAAQS).
The EPA acknowledges one
distinction between the good neighbor
and designation analyses: The good
neighbor analysis relies on future-year
projections of emissions to calculate
ozone concentrations and upwind state
contributions, compared to the use of
current measured data in the
designations analysis. As described in
more detail in Section III.C, this
approach is a reasonable interpretation
of the term ‘‘will’’ in the good neighbor
provision, see North Carolina, 531 F.3d
at 913–14, and interpreting language
specific to that provision does not create
an impermissible inconsistency with
other provisions of title I. Moreover, the
EPA’s approach to conducting futureyear modeling in the good neighbor
analysis to identify downwind air
quality problems and linked states is
consistent with its use of current
measured data in the designations
process. The EPA’s future-year air
quality projections consider a variety of
factors, including current emissions
data, anticipated future control
measures, economic market influences,
and meteorology. Some of these factors
(e.g., emissions data, and meteorology)
can affect the NOX emissions levels and
consequent measured ozone
concentrations that inform the
designations process. Like the factors
that affect measured ozone
concentrations used in the designations
process, not all of the factors
influencing the EPA’s modeling
projections are or can be subject to
enforceable limitations on emissions or
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ozone concentrations. However, the
EPA believes that considering these
factors contributes to a reasonable
estimate of anticipated future ozone
concentrations. See EME Homer City II,
795 F.3d at 135 (declining to invalidate
the EPA’s modeling projections ‘‘solely
because there might be discrepancies
between those predictions and the real
world’’); Chemical Manufacturers
Association v. EPA, 28 F.3d 1259, 1264
(D.C. Cir. 1994) (‘‘a model is meant to
simplify reality in order to make it
tractable’’). Thus, the EPA’s
consideration of these factors in its
future-year modeling projections used at
steps 1 and 2 of the four-step interstate
transport framework is reasonable and
consistent with the use of measured
data in the designation analysis.60
The EPA notes that there is a further
distinction between the CAA section
107(d) designations provision and the
CAA section 110(a)(2)(D)(i) good
neighbor provision in that the latter
provision uses different terms to
describe the threshold for determining
whether emissions in an upwind state
should be regulated (‘‘contribute
significantly’’) as compared to the
standard within the designations
process for evaluating whether an area
‘‘contributes’’ to a violation in a nearby
area. Thus, at step 3 of the good
neighbor analysis the EPA evaluates
additional factors, including cost and air
quality considerations, to determine
whether emissions from a linked
upwind state would violate the good
neighbor provision. Only if the EPA at
step 3 determines that the upwind
state’s emissions would violate the good
neighbor provision will it proceed to
step 4 to require control of emissions in
the upwind state to address the
identified violation. This approach to
steps 3 and 4 is analogous to the trigger
for the application of Part D control
requirements to sources upon
designation of an area to nonattainment.
Thus, the EPA reasonably interprets the
good neighbor provision to not require
it or the upwind state to proceed to step
4 and implement any enforceable
measures to ‘‘prohibit’’ emissions unless
it identifies a violation of the provision
at step 3. See, e.g., 76 FR 48262 (finding
at step 3 that the District of Columbia is
not violating the good neighbor
60 The EPA notes that the consideration of
projected actual emissions in the future analytic
year—as opposed to allowable levels—is also
consistent with the statute’s instruction that states
in their SIPs (or the EPA when promulgating a FIP)
prohibit emissions that ‘‘will’’ impermissibly
impact downwind air quality. This term is
reasonably interpreted to mean that the EPA should
evaluate anticipated actual emissions (based on
what sources will emit) rather than potential
emissions (based on what sources could emit).
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provision, and therefore will not at step
4 be subject to any control requirements
in CSAPR, because no cost-effective
emissions reduction opportunities were
identified in the District).
The EPA further disagrees with the
commenters’ assertion that the
incorporation of announced retirements
and fuel switches into the 2023
projections makes the modeling data
unreliable. Rather with respect to EGU
NOX emissions, the EPA’s 2023
projections likely reflect a more
conservative (i.e., higher) NOX
emissions estimate than comparable
alternative methods for projecting future
EGU emissions. The EPA’s 2023 EGU
emissions projections used reported
2016 data, adjusting that data based
only on currently known changes in the
power sector and a change in emissions
rate to reflect implementation of the
CSAPR Update after 2017. As such, the
EPA’s approach does not account for
changes that would be estimated to
occur due to economic and other
environmental policy factors. Trends in
historic emissions data and emissions
projections using a variety of methods
and models suggest that inclusion of
these factors would likely further reduce
future NOX emissions projections.
Several commenters further assert
that, because the EPA is actively
working to undo several major rules that
underpin the 2023 modeling results
(e.g., the Glider Rule (82 FR 53442
(November 16, 2017)) and the Corporate
Average Fuel Economy (CAFE)
Standards (83 FR 42986 (August 24,
2018))), the assumptions that underpin
the EPA’s 2023 modeling are inaccurate.
One commenter specifically notes that,
even in the absence of a rule change, the
EPA announced formal policy to not
enforce the existing Glider Rule.
The EPA disagrees that its 2023
projections are unreliable because of
potential changes to other regulations.
The EPA first notes that the Agency has
not finalized any potential regulatory
changes to the Glider Rule, the CAFE
Standards for light duty vehicles, or the
oil and gas Control Technique
Guidelines (CTG). In general, the mobile
source and non-EGU emissions
inventories do not reflect rulemakings
finalized in calendar year 2016 or later,
nor do they reflect any rules proposed
but not yet finalized since 2016, as only
finalized rules are reflected in modeling
inventories. The EPA’s normal practice
is to only include changes in emissions
from final regulatory actions in its
modeling because, until such rules are
finalized, any potential changes in NOX
or VOC emissions are speculative.
In addition, even if emissions were to
change as a result of any such final
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rules, commenters have not indicated
how these additional emissions would
affect downwind ozone concentrations
Regarding one commenter’s assertion
about the EPA’s formal policy to not
enforce the existing Glider Rule, the
EPA notes that its conditional no action
assurance of non-enforcement of the
existing rule was withdrawn by the
Agency on July 26, 2018.61 The
withdrawal notice removes any question
that current requirements are
enforceable and enforcement actions
may be undertaken on a case-by-case
basis in the Agency’s discretion.
Therefore, assumptions relating to the
Glider Rule as part of the 2023 modeling
remain reasonable.
The next two sections discuss the
EPA’s evaluation of and conclusions
regarding the petition’s step 1 analysis
for Chautauqua County and the NYMA
with respect to both the 2008 and 2015
ozone NAAQS.
Chautauqua County
First, with respect to the 2008 and
2015 ozone NAAQS in Chautauqua
County, the EPA is finalizing its
conclusion that New York’s petition
does not provide sufficient information
to indicate that there is a current or
expected future air quality problem
(with respect to either nonattainment or
maintenance) in the county 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 area attained the
2008 ozone NAAQS by the relevant
attainment date.62 In addition, the
county was designated attainment for
the more stringent 2015 standard.63 The
petition did not demonstrate that there
is either a present air quality problem or
that there will be a future nonattainment
or maintenance problem in that area for
either NAAQS that must be addressed
under the good neighbor provision.
61 ‘‘Withdrawal of Conditional No Action
Assurance Regarding Small Manufacturers of Glider
Vehicles,’’ Andrew R. Wheeler, Acting
Administrator, July 26, 2018. Available at https://
www.epa.gov/sites/production/files/2018-07/
documents/memo_re_withdrawal_of_conditional_
naa_regarding_small_manufacturers_of_glider_
vehicles_07-26-2018.pdf.
62 See Air Quality Designations for the 2008
Ozone National Ambient Air Quality Standards,
Final Rule, 77 FR 30137 (May 21, 2012); 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).
63 See Air Quality Designations for the 2015
Ozone National Ambient Air Quality Standards,
Final Rule, 82 FR 54264 (November 16, 2017).
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56079
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.64 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 air quality
concentrations for a future analytic year
that considers the relevant attainment
deadlines for the NAAQS and the
anticipated compliance timeframe for
potential control strategies.65 New
York’s CAA section 126(b) petition does
not include analyses or air quality
projections indicating that Chautauqua
County may be violating or have
difficulty maintaining the 2008 or 2015
ozone NAAQS either currently or in a
relevant future analytic year. In fact, the
petition acknowledges that this area
attained the 2008 ozone NAAQS by the
relevant attainment date. 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.
While the EPA finds that New York’s
petition does not on its own merit
adequately establish the presence of a
current or future nonattainment or
maintenance problem in Chautauqua
County, the EPA also used currently
available air quality data to 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, both the 2015–2017 and
the 2016–2018 design values in
Chautauqua County are 68 ppb, which
is below the levels of both the 2008 and
64 The EPA has consistently taken the position
that CAA section 110(a)(2)(D)(i)(I) 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 (August 8,
2011); Final Response to Petition from New Jersey
Regarding SO2 Emissions From the Portland
Generating Station, 76 FR 69052 (November 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).
65 81 FR 74517.
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2015 ozone NAAQS of 75 ppb and 70
ppb, respectively.66
Additionally, the EPA’s recent air
quality modeling described previously
indicates that the monitor in
Chautauqua County is expected to
continue to both attain and maintain
both standards in 2023, with an average
2023 design value of 58.5 ppb and a
maximum 2023 design value of 60.7
ppb.67 Accordingly, the EPA has no
basis to conclude that any of the sources
named in the New York petition are
linked to a downwind air quality
problem in Chautauqua County with
regard to the 2008 or the 2015 ozone
NAAQS. In the absence of a downwind
air quality problem, the EPA has no
authority to regulate upwind sources to
address air quality in Chautauqua
County with respect to the 2008 or the
2015 ozone NAAQS.
One commenter asserts that New York
demonstrated, by providing current,
sometimes violating air quality data,
that Chautauqua County is not attaining
the 2008 or 2015 ozone standards.
Specifically, the commenter notes that
New York provided evidence
demonstrating that the air quality
monitor in Dunkirk, New York, located
in Chautauqua County, sometimes
exceeds the 2008 and the 2015 ozone
standard with design values sometimes
reaching 82 ppb.
The EPA disagrees that the example
cited by the commenter provides
evidence of either a current or future
nonattainment or maintenance problem
in Chautauqua County. As previously
indicated, the EPA evaluates downwind
ozone air quality problems using
observed and modeled future air quality
concentrations. The individual
exceedances identified by the
commenter do not indicate that the area
is currently in violation of the NAAQS.
Appendices P and U to 40 CFR part 50
specify the methodologies for
calculating the ozone design values for
the 2008 and 2015 ozone NAAQS,
respectively, and both are calculated as
the 3-year average of the annual fourthhighest daily maximum 8-hour ozone
concentration. As noted above, both the
2015–2017 and the 2016–2018 design
values in Chautauqua County, which are
calculated consistent with these
methodologies, demonstrate compliance
66 The 2015–2017 and 2016–2018 design value for
Chautauqua County in the ‘‘Jamestown-DunkirkFredonia, NY CBSA’’ at AQS site 360130006 is 68
ppb. Available at https://www.epa.gov/sites/
production/files/2019-07/ozone_designvalues_
20162018_final_06_28_19.xlsx.
67 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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with both the 2008 and 2015 ozone
NAAQS. While an individual monitor
(e.g., the Dunkirk monitor) may record
individual exceedances of the NAAQS,
such as the 82 ppb value cited by the
commenter, an individual exceedance
does not constitute a violating ‘‘design
value,’’ which is the value used for
identifying violations and determining
attainment status for regulatory
purposes.
New York Metropolitan Area
Second, with respect to the 2008
ozone NAAQS in the NYMA, the EPA
is finalizing its conclusion that 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. As described
in Section I.B of this notification, 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 (and commenters point to
more current final 2015–2017 design
values available after New York
submitted its petition) indicating that
some monitoring sites in the NYMA are
above the 2008 NAAQS. The EPA notes
in this regard that the 2016–2018 design
values for the NYMA monitoring sites
located in New York (and those in New
Jersey) are attaining the 2008 NAAQS.
Although some of the NYMA monitors
located in Connecticut are above the
2008 NAAQS,68 the EPA has interpreted
CAA section 126(b)’s petition authority
as limited to states and political
subdivisions seeking to address
interstate transport of pollution
impacting downwind receptors within
their geographical borders. See 83 FR
50460.
As noted in the proposal, an area’s
current attainment status alone is
insufficient 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.
Rather, as discussed in Section IV.B of
the proposal, 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
68 See 2016–2018 ozone design value report
available at https://www.epa.gov/sites/production/
files/2019-07/ozone_designvalues_20162018_final_
06_28_19.xlsx.
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concentrations for a relevant future
analytic year. 84 FR 22799.
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 II.C.2 of this
notification, in the Determination Rule,
the EPA determined based on this data
that the CSAPR Update fully addresses
the good neighbor provision
requirements for the 2008 ozone
NAAQS for all 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 finalizing its
decision 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. As such, the EPA has no
authority to regulate upwind sources to
address air quality in the NYMA with
respect to the 2008 ozone NAAQS.
Regarding the 2015 ozone NAAQS,
based on the EPA’s 2023 air quality
modeling, the EPA has identified a
relevant downwind air quality problem
in the NYMA. 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
2023.69 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
69 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. Therefore,
the EPA’s determination as to the 2015 ozone
NAAQS with respect to step 1 of the framework is
only pertinent as to the New York monitoring sites.
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indicates that the NYMA is projected to
have a downwind air quality problem
relative to the 2015 NAAQS. Thus, the
EPA is not denying this portion of the
petition with respect to step 1 (but is
denying the petition for other reasons
described elsewhere).
One commenter asserts that New York
demonstrated that the NYMA is not
attaining the 2008 or 2015 ozone
standards. Specifically, the commenter
notes that certified monitoring data
through 2016 and data from 2017
indicate that the NYMA did not attain
the Moderate attainment deadline of
July 20, 2018, for the 2008 standard. The
commenter also identifies data from the
2017 Design Value Report, which
demonstrates that the NYMA registered
a 2015–2017 design value of 83 ppb,
which significantly exceeds both the
2008 ozone standard of 75 ppb and the
2015 ozone standard of 70 ppb. The
commenter further notes that the EPA
has designated the NYMA as a Moderate
nonattainment area for the 2015 ozone
standard. The commenter further cites
the 2015 Ozone NAAQS Interstate
Transport Assessment Design Values
and Contributions Report, which
projects that a monitor in New York
County will exceed the 2015 ozone
standard of 70 ppb with an average
design value of 74.4 ppb and a
maximum design value of 75.5 ppb in
2023. The report also projects that a
monitor in Queens County will have a
maximum design value of 72.0 ppb in
2023, which exceeds the 2015 ozone
standard of 70 ppb.
The EPA disagrees with the
commenter’s assertions regarding the
status of New York monitors relative to
the 2008 ozone NAAQS. As discussed
earlier in this notification, regarding
current air quality, the 2016–2018
design values for the NYMA monitoring
sites located in New York (and those in
New Jersey) are attaining the 2008
NAAQS. The design value of 83 ppb
cited by the commenter reflects
inclusion of the Connecticut monitors,
but the EPA does not agree that such
information is relevant to a petition
submitted by New York.70 The specific
70 As noted earlier in this notification, the design
value is the 3-year average of the annual fourthhighest daily maximum 8-hour ozone
concentration. To be comparable to the 2008 ozone
NAAQS, the design value must be valid according
to Appendix P to 40 CFR part 50, which specifies
minimum data completeness criteria. The design
value listed for each area is the highest among
monitors with valid design values. For the NYMA,
the highest reading monitor is in Connecticut, not
New York. 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.
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language of CAA section 126(b) does not
say that a state may petition the EPA for
a finding that emissions from a source,
or group of sources, is impacting
downwind receptors in a state other
than the petitioning state. Rather, the
legislative history for this provision
suggests the provision was meant to
address adverse air impacts only in the
petitioning state.71 Given the broader
context of CAA section 126, the EPA
reasonably 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.
Further, 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. Accordingly, regardless of the
current measured data, the EPA does
not have a basis to conclude that the
NYMA will have an air quality problem
with respect to the 2008 ozone NAAQS
in a relevant future year that would
justify a finding under CAA section
126(b).
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 and
determined that 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.
For these reasons, the EPA has no basis
to proceed to consider whether there is
a linkage at step 2 of the four-step
interstate transport framework between
the named upwind states and these
Therefore, the Connecticut monitoring site is
excluded from the scope of this petition.
71 When section 126 was added to the CAA, the
Senate’s amendment implementing the basic
prohibition on interstate pollution stated that: ‘‘Any
State or political subdivision may petition the
Administrator for a finding that a major stationary
source in another state emits pollutants which
would adversely affect the air quality in the
petitioning State.’’ (emphasis added). Clean Air Act
Amendments of 1977, H.R. 95–564, 95th Cong. at
526 (1977). The House concurred with the Senate’s
amendment to CAA section 126, with changes to
other portions of the amendment, but did not
indicate changes to this sentence. Id. The lack of
stated changes to this component of the Senate’s
original amendment suggest that Congress did not
intend for the scope of the petitioning authority to
be expanded to parties other than a state or political
division in which downwind air quality is
adversely affected.
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56081
downwind areas regarding the
respective NAAQS.
As previously noted, regarding the
2015 ozone NAAQS, the EPA has
identified a relevant downwind air
quality problem in the NYMA. The
EPA’s recent 2023 air quality modeling
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 significantly
contribute or interfere with maintenance
of the NAAQS in the downwind area at
step 2. The EPA has therefore
previously determined, without
conducting any additional analysis at
step 3, that such states do not
significantly contribute to
nonattainment or interfere with
maintenance of the NAAQS under the
good neighbor provision. Upwind states
that the EPA finds under the step 2
analysis impact a downwind receptor at
or above the threshold are identified as
contributing to a projected downwind
air quality problem (i.e., they are said to
be ‘‘linked’’ to that downwind receptor)
and require additional analysis to
determine if the contribution is
‘‘significant’’ or ‘‘interferes with
maintenance.’’ The EPA then proceeds
to the multi-factor step 3 analysis to
determine what, if any, of the emissions
from the linked upwind state
significantly contribute to
nonattainment or interfere with
maintenance of the NAAQS at the
downwind receptor(s).72
In previous federal actions,73 the
EPA’s analysis of the sum of
contributions from all linked upwind
states (i.e., collective contribution)
72 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.
73 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).
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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 an analysis of collective
contribution for the 2015 ozone
NAAQS 74 using data drawn from the
results of the EPA’s updated 2023
modeling.75 This analysis, which
considered the same factors as the
thresholds analyses conducted in both
the CSAPR and CSAPR Update
rulemakings,76 77 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
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
emissions from six (i.e., Maryland,
Michigan, Ohio, Pennsylvania, Virginia
and West Virginia) of the nine states
named in New York’s petition are
74 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).
75 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.
76 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.
77 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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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.
Some commenters disagree with the
EPA’s guidance suggesting that states
may use a 1 ppb threshold instead of a
threshold equivalent to 1 percent of the
NAAQS as the threshold to show a
linkage between emissions from upwind
states on air quality in downwind states.
As explained in the proposal, the EPA’s
August 31, 2018, memorandum to states
conveying the results of our analysis of
collective contribution for the 2015
ozone NAAQS is guidance and not a
regulation. It does not change or replace
any legal requirements in the CAA or
implementing regulations. At this time,
the EPA has not engaged in a good
neighbor rulemaking action for the 2015
ozone NAAQS that determines which of
the potential thresholds (e.g., 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 or
for any other purposes. Additionally, as
previously described, the EPA is also
not here deciding an appropriate
screening level that might be applied for
future good neighbor analyses for the
2015 ozone NAAQS. The EPA is
therefore not basing its denial of New
York’s petition on use of any particular
threshold at step 2. Rather, 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
proceeds assuming, without deciding,
that the named states are linked at step
2 and, as discussed in more detail in
Section III.C.3 of this notification, the
EPA has evaluated the sufficiency of the
petition’s demonstration with respect to
step 3.
3. The EPA’s Evaluation of New York’s
Petition Considering Step 3
As described in Section II.C.1 of this
notification, 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).78 In the proposal at step 3,
78 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
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the EPA proposed to find that material
elements in New York’s analyses are
technically deficient, 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. Although the EPA
already proposed to deny 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 interstate transport framework,
the EPA also proposed to rely on our
assessment of step 3 as an additional
and independent basis for denial as to
the petition’s claims for these areas with
respect to both NAAQS. For the reasons
discussed in this section, the EPA is
finalizing its conclusion with respect to
the adequacy of New York’s petition at
step 3.
Applying Step 3 of the Four-Step
Interstate Transport Framework
As discussed in Section III.A of this
notification, the EPA maintains that the
four-step framework provides a logical,
consistent and systematic approach for
addressing interstate transport for a
variety of criteria pollutants under a
broad array of national, regional and
local scenarios. The complexity of
atmospheric chemistry and the nature of
ozone transport also demonstrate the
appropriateness of the four-step
interstate transport framework
particularly within step 3, where
upwind sources are evaluated to
determine whether they have emissions
that significantly contribute to
nonattainment or interfere with
maintenance of the ozone NAAQS.
As discussed in Section II.C.1 of this
notification, within step 3 of the fourstep 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 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, 572 U.S. at 501–
03 (noting upwind states are only obliged to
eliminate emissions meeting both the step 2 and 3
inquiries).
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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 CSAPR,
Final Rule, 76 FR 48248–49 and 48254–
55; CSAPR Update, Final Rule, 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
emissions (if any) from each upwind
state that contribute significantly to
nonattainment or interfere with
maintenance in a downwind area.79 The
quantity of emissions identified in step
3 are then controlled through permanent
and enforceable measures in step 4 of
the four-step interstate transport
framework. In these prior rules, the EPA
has selected the level of control
stringency deemed cost-effective,
compared to other levels of control
stringency considered in the analysis,
when these factors are balanced
together. Assessing multiple factors
allows the EPA to consider the full
range of circumstances and statespecific 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 difficulty of, achieving
79 For example, in the CSAPR Update, 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 8hour peak ozone concentrations during the ozone
season. 81 FR 74505. 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.
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additional emissions reductions.
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 under
these circumstances 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, 572 U.S. at
519. As discussed extensively in this
action, the good neighbor provision and
CAA section 126(b) petitions are closely
textually and analytically linked to one
another, supporting the EPA’s view that
the considerations set forth above are
appropriate for the EPA’s analysis of
such petitions.
Several commenters assert that it is
inappropriate for the EPA to consider
cost-effectiveness in evaluating CAA
section 126(b) petitions, because they
contend the statute does not
contemplate consideration of costeffectiveness in making findings.
The EPA disagrees that is
inappropriate for the EPA to consider
cost-effectiveness in evaluating CAA
section 126(b) petitions. As further
described in Section II.B, the EPA
believes it is appropriate to interpret
‘‘contribute significantly to
nonattainment’’ and ‘‘interfere with
maintenance’’ as meaning the same
thing under both CAA sections
110(a)(2)(D)(i)(I) and 126(b) because,
while these two provisions provide
independent regulatory processes, they
are also closely linked in that they both
address the interstate transport of
emissions that significantly contribute
to nonattainment or interfere with
maintenance of a NAAQS. Importantly,
CAA section 126(b) provides no
independent standard for determining
whether violations exist, but instead
directly incorporates the CAA section
110(a)(2)(D)(i)(I) standard. Accordingly,
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
four-step interstate transport framework
used to interpret CAA section 110,
further described in Section II.C.1,
which includes consideration of costeffectiveness under step 3 to determine
whether, and if so in what ‘‘amounts’’
under the terms of the statute, upwind
sources will significantly contribute to
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56083
nonattainment or interfere with
maintenance of the NAAQS. Given the
complexities of evaluating ozone
transport, applying the four-step
interstate transport framework is a
logical approach, and has been used by
the EPA in numerous rulemakings,
including in actions on CAA section
126(b) petitions.80
The EPA has repeatedly found that
ozone transport problems are the result
of individually small impacts from
numerous sources that can have
collectively large impacts on downwind
ozone concentrations. Considering this
‘‘thorny causation problem,’’ EME
Homer City, 572 U.S. at 514, the EPA
must determine how to apportion
responsibility for emissions reductions
across many sources in many states. The
EPA has considered cost within its step
3 analysis in each of its regional ozone
transport rulemaking and the Supreme
Court has endorsed the use of cost in
this manner as an ‘‘efficient and
equitable’’ solution to the problem of
apportioning upwind emissions
reduction responsibility. Id. at 519.
Thus, in evaluating a CAA section
126(b) petition, it is reasonable for the
EPA to similarly evaluate whether the
petition has demonstrated that the
sources identified can be cost-effectively
controlled in determining whether the
petition demonstrates that the sources
are in violation of CAA section
110(a)(2)(D)(i)(I). This is particularly
true for New York’s petition, where the
EPA is tasked with determining whether
approximately 350 facilities (many of
which have multiple individual
emitting units 81) in nine upwind states
are operating in violation of the good
neighbor provision as alleged in the
petition.
80 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 for the
2008 Ozone NAAQS (CSAPR Update) Final Rule,
81 FR 74504 (October 26, 2016); Determination
Regarding Good Neighbor Obligations for the 2008
Ozone National Ambient Air Quality Standard (the
Determination Rule), Final Rule, 83 FR 65878
(December 21, 2018); Response to June 1, 2016
Clean Air Act Section 126(b) Petition from
Connecticut, Final Action, 83 FR 16070 (April 13,
2018) and Response to Clean Air Act Section 126(b)
Petitions from Delaware and Maryland, Final
Action, 83 FR 50453 (October 5, 2018).
81 For example, while the list of facilities in the
nine named states in New York’s petition includes
121 EGU facilities, the number of individual EGUs
currently in operation at those 121 facilities is more
than double that number.
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Responsibility for Step 3 Analyses
Supporting a CAA Section 126(b)
Finding
As discussed earlier, the EPA
interprets CAA section 126(b) as placing
a burden on the petitioner to
demonstrate that a finding under the
provision is justified. The EPA’s
interpretation of the statute is
reasonable given that Congress allotted
the EPA 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 to require the
EPA to undertake extensive fact-finding
or independent analysis as part of its
action on a petition and instead placed
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); cf. 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
505(b)(2) given the parallel 60-day
deadline for the EPA to respond to a
title V petition). In New York, the D.C.
Circuit evaluated the EPA’s obligation
in acting on a CAA section 126(b)
petition, determining 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 finding 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 regarding the petitioner’s
burden. 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). The EPA does not
believe it was the intent of Congress to
require sources to shut down entirely
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absent a sufficient demonstration 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.
The EPA does not believe it is
reasonable to think that Congress could
have envisioned that hundreds of
stationary sources would be required to
shut down within 3 months without
petitioners providing a complete and
compelling justification for such drastic
consequences.82 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.
The breadth of New York’s petition
demonstrates why the EPA’s
interpretation is particularly reasonable.
The petition named approximately 350
facilities from several different source
sectors (both EGU facilities and nonEGU facilities) 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 already available because the EPA
completed this modeling effort for
separate rulemaking actions and not
solely for use in evaluating this petition.
In contrast, the EPA has not already
developed the type of multifactor test,
collected the needed data for the
relevant factors, or conducted the
analysis that it would normally use in
step 3 to determine whether the named
group of upwind sources (or any other
sources) emits or would emit in
violation of the good neighbor
provision. The EPA also does not
currently have sufficient information
available that would be necessary to
independently conduct such an
analysis. As noted in the Determination
82 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 within that 3month period, this too is a detailed analytic task
that requires time and resources to develop. As
discussed later in this section, the EPA concedes
that the Agency bears the burden of developing any
emissions limitations appropriate under CAA
section 126(c) once a finding under CAA section
126(b) is made, but this does not also shift the
burden of justifying the finding itself onto the EPA.
Rather, this further supports the EPA’s conclusion
that the petitioner must bear the burden of
providing sufficient justification for a CAA section
126(b) finding given that the EPA may also need to
develop a CAA section 126(c) remedy within the
short timeframe provided for the EPA’s action on
a petition.
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Rule (81 FR 65878), the EPA currently
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 and likely to
undertake such data collection efforts
under a formal information collection
request.83 As discussed in more detail in
this section, 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 to demonstrate that the
statutory threshold has been met.
The EPA received several comments
generally conceding the petitioner bears
some burden under CAA section 126(b),
but asserting that nothing in CAA
section 126, including the plain
language of this provision, contemplates
a burden on petitioner to provide
information about the factors relevant to
step 3 or to conduct such an analysis of
the named sources, as the information
regarding the sources that would be
necessary for the analysis is outside of
the petitioning state’s control.
Commenters take issue with the EPA
requiring an analysis by petitioner
describing the downwind air quality
impacts of controlling the named
sources ‘‘relative to other sources,’’
asserting that the federal government is
responsible for managing the petition
process in a swift manner and bears the
burden for conducting intensive
analyses on groups of sources presented
by petitioners. Commenters also
contend that by placing the burden on
petitioners to provide information and
analyses related to step 3, the EPA is
83 An information collection request (ICR) is a set
of documents that describes reporting,
recordkeeping, survey, or other information
collection requirements imposed on the public by
a federal agency. The Paperwork Reduction Act
stipulates that every federal agency must obtain
approval from the Office of Management and
Budget (OMB) before collecting the same or similar
information from 10 or more members of the public.
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inconsistently placing such burden on
petitioners in comparison with its prior
actions on Connecticut’s, Delaware’s,
and Maryland’s CAA section 126(b)
petitions.
The EPA disagrees with these
comments. As an initial matter, the
plain language of CAA section 126 does
not speak to whether the burden is on
petitioner or the EPA to substantiate the
requested finding. By contrast, other
CAA statutory provisions that provide
for a petition process clearly speak to
the placement of burden for making the
requisite demonstration for a successful
petition. See e.g., CAA sections 111(g),
505(b)(2). Accordingly, in the absence of
such plain language, CAA section 126 is
ambiguous as to this issue and the EPA
may reasonably interpret CAA section
126 in determining the placement of
burden in the context of acting on a
state’s petition. As described at proposal
and consistent with the EPA’s historical
approach to evaluating CAA section 126
petitions, the EPA reasonably interprets
the statute to place the burden on
petitioner to establish a technical basis
for the specific finding requested given
the short statutory deadline for acting
on CAA section 126 petitions. 84 FR
22797. As the commenter
acknowledges, the D.C. Circuit
determined in reviewing a prior EPA
action on a CAA section 126(b) petition
that, based on the 60-deadline for action
on such a petition, it is reasonable to
conclude that petitioners bear the
burden to make any necessary technical
demonstration to support a finding. New
York, 852 F.2d at 578. What
commenters do not acknowledge is that
the court in that case further concluded
that Congress did not intend the EPA to
be required to perform a litany of tasks
‘‘in such a short period of time in the
absence of the clearest expression.’’ Id.
at 578.84 For these reasons, the EPA
believes not only that such a ‘‘clearest
expression’’ is absent from CAA section
126(b) but also that in such absence, it
is at least reasonable to interpret
Congressional intent as being to the
contrary.
Further by way of analogy, CAA
section 505(b)(2) gives the EPA 60 days
84 In determining that the 60-day deadline under
CAA section 126(b) is reasonably read to not require
the EPA to undertake certain tasks, the court
acknowledged the 6-month extension available
under CAA section 307(d)(10) as part of its analysis.
New York, 852 F.2d at 578 n.2. While the statute
separately permits the EPA up to 6 additional
months to complete the rulemaking processes
required by CAA section 307(d) when acting on a
CAA section 126(b) petition, this provision applies
to any statutory deadline which requires
promulgation of an action less than 6 months after
a proposal is issued. Thus, it cannot be read to
independently create an obligation for the EPA to
conduct detailed technical analyses.
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to act on a petition requesting the
Agency to make an objection to a title
V permit. While CAA section 505(b)(2)
contains an explicit demonstration
burden on the petitioner, the EPA has
interpreted the demonstration burden as
crucial in part based on the limited
nature of the 60-day deadline. The EPA
has previously described that it relies on
the petitioner’s demonstration in
determining whether to make the
petitioner’s requested objection because
the 60-day window is reasonably read as
not requiring the Agency to engage in
extensive fact-finding or investigation.
See In the Matter of Consolidated
Environmental Management, Inc.—
Nucor Steel Louisiana, Partial Order
Responding to Petitioners’ May 3, 2011
& October 3, 2012 Requests that the
Administrator Object to the Issuance of
Title V Operating Permits, 4–6 (June 19,
2013), available at https://www.epa.gov/
sites/production/files/2015-08/
documents/nucor_steel_
partialresponse2011.pdf. In Citizens
Against Ruining the Environment v.
EPA, the Seventh Circuit substantiated
this interpretation by noting that,
because of the limited timeframe
Congress gave the EPA to decide
whether to object to a permit, ‘‘it is
reasonable in this context for the EPA to
refrain from extensive fact-finding.’’
Citizens Against Ruining the
Environment, 535 F.3d at 678. Given the
parallel 60-day deadline under CAA
section 126(b), the EPA believes it
equally reasonable to construe that
under CAA section 126(b), in the
absence of a petition containing
adequate technical information or
justification necessary for the EPA to
determine whether the requested
finding is warranted, the EPA is not
required to undertake its own extensive
fact-finding or investigation and may
deny the petition.85
The EPA also disagrees with
commenters who suggest that, while
New York as the petitioning state has
the burden to demonstrate the named
85 The EPA notes while there is a parallel 60-day
deadline under both petition provisions, there is no
analogous mechanism for the EPA to grant itself an
extension for acting on a petition submitted under
CAA section 505(b)(2) as there is under CAA
307(d)(10) for CAA section 126(b) petitions.
However, unlike CAA section 505(b)(2), the Act
places additional requirements on the EPA to hold
a public hearing, pursuant to CAA section 126(b),
and to engage in a formal rulemaking process under
CAA section 307(d), including issuance of a
proposed action, provision of a public comment
period and the obligation to formally respond to
significant adverse comments. Therefore, while an
extension is available to the EPA for acting on a
CAA section 126(b) petition, there are additional
procedural requirements that the EPA must satisfy
during this time period that petitions submitted
under CAA section 505(b)(2) do not need to
address.
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56085
sources are located in upwind states
that are linked to downwind impacts on
New York under steps 1 and 2,
petitioning states do not have the
burden to provide a step 3 analysis, but
rather, that it is the EPA’s burden.
These comments are based on a
fundamental misunderstanding of the
purpose of steps 2 and 3 of the four-step
interstate transport framework.
Identification of a linkage between an
upwind state and a downwind receptor
at step 2 of the inquiry does not
conclude the determination regarding
whether sources in the upwind state
will significantly contribute to
nonattainment or interfere with
maintenance of the NAAQS. Rather, the
conclusion that a state’s emissions met
or exceeded the threshold only
indicated that further analysis,
conducted in step 3, is appropriate to
determine whether any of the upwind
state’s emissions met the statutory
criteria under the good neighbor
provision and if so, in what amounts.
The EPA does not draw any conclusions
regarding whether sources in upwind
states are emitting in violation of the
prohibition of the good neighbor
provision until the step 3 analysis is
concluded. See EME Homer City, 572
U.S. at 501–03 (noting upwind states are
only obliged to eliminate emissions
meeting both the step 2 and 3 inquiries).
Thus, as the EPA has interpreted CAA
section 126(b) as imposing on the
petitioner the burden to demonstrate
that a finding is warranted, the
petitioner only fulfills that burden if
both a step 2 and step 3 analysis are
provided with the petition.
An interpretation of CAA section
126(b) placing any burden regarding a
step 3 cost-effectiveness analysis on the
EPA, particularly for a petition that
names approximately 350 facilities with
an even larger number of individual
emitting units, is unreasonable in light
of the statutory 60-day deadline and
contravenes the D.C. Circuit’s
conclusion in New York that Congress
did not intend such a task to fall on the
EPA. Such a task is infeasible within the
statutory deadline, and thus the EPA
believes a much more reasonable
interpretation of CAA section 126(b) is
to place the demonstration burden on
the petitioner. Contrary to commenter’s
assertion, the placement of burden to
perform a step 3 analysis is consistent
with the EPA’s historical practice in
reviewing CAA section 126(b)
petitions.86 While the EPA has, at times,
86 Response to June 1, 2016 Clean Air Act Section
126(b) Petition from Connecticut, Final Action, 83
FR 16070 (April 13, 2018) and Response to Clean
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performed an independent step 3
analysis in evaluating a CAA section
126(b) petition, it has chosen to do so
where it has had existing information
and analyses available or where the
petition identified a single source that
would require less time to evaluate.87
The EPA’s consideration of existing
information and analyses in such
circumstances does not, however, shift
the burden to the EPA to engage in fresh
fact-finding or analyses in all future
petitions.
The interpretation that the petitioner
bears the burden under CAA section
126(b) to conduct the step 3 analysis is
especially reasonable when considering
what would otherwise occur if CAA
section 126(b) were understood to
require the EPA to undertake the
required technical analysis for
determining whether a petition’s
requested finding should be made.
Notably, New York’s petition names
numerous sources, including more than
220 non-EGU facilities, for which the
EPA does not have all of the information
necessary to conduct a full step 3
analysis (e.g., the current operating
status of each named facility, the
magnitude of emissions from each
emitting unit within each named
facility, the existing controls on each of
these emissions units, additional control
options on each emissions unit, the cost
of each potential control option, the
emissions reductions potential resulting
from the installation of controls, and
potential air quality impacts of
emissions reductions).
Because the EPA does not
independently have sufficient
information about these sources to
perform an analysis under the four-step
interstate transport framework that it
can use to supplement or stand in for
New York’s analysis, the EPA has not
done so here. For a petition that names
numerous sources, as New York’s
petition does, an alternative
interpretation of burden under CAA
section 126(b) would require the EPA to
conduct a time- and resource-intensive
analysis of whether all of this multitude
of sources have cost-effective emissions
reductions available under step 3, in
addition to the mandatory notice-andcomment process, all within 60 days (or
Air Act Section 126(b) Petitions from Delaware and
Maryland, Final Action, 83 FR 50453 (October 5,
2018).
87 Response to June 1, 2016 Clean Air Act Section
126(b) Petition from Connecticut, Final Action, 83
FR 16070 (April 13, 2018) and Response to Clean
Air Act Section 126(b) Petitions from Delaware and
Maryland, Final Action, 83 FR 50453 (October 5,
2018) and Final Response to Petition from New
Jersey Regarding SO2 Emissions From the Portland
Generating Station, 76 FR 69052 (November 7,
2011).
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up to an additional 6 months, invoking
the extension provision in CAA section
307(d)(10)) to meet its statutory
deadline to take action on the petition.88
If the EPA had insufficient time to
conduct such an independent analysis,
the commenters contention would have
severe consequences. Essentially, the
commenters suggest that the EPA is, in
the absence of its own step 3 analysis,
nonetheless required to make the
requested finding simply because the
States in which the named sources are
located are linked to a downwind air
quality problem at step 2. This would
further mean that all of the named
sources would be required to shut down
within 3 months of the finding—a result
the petitioner has not requested.
Moreover, this means that a CAA
section 126(b) petitioner could choose
to target any source in any linked
upwind state—regardless of its
particular size, source characteristics, or
downwind impacts—and demand that
the EPA require the source to shut down
simply because it is located in the
linked state. As discussed in in this
section, such results could not have
been intended by Congress in
promulgating the petition process in
CAA section 126.
The burden on New York to perform
a step 3 analysis may appear to be high
in this case, but CAA section 126 does
not place any deadline on petitioners for
submitting such a petition and thus
provides time for petitioners to perform
such an analysis, contrary to the
deadline placed on the EPA in acting on
it. Moreover, the apparent weight of the
burden in this case is the natural result
of the petitioner’s decision to name
approximately 350 facilities (each,
potentially with multiple emissions
units) from 9 states, which essentially
amounts to seeking a regional action.
Certain commenters further suggest
that their approach, which would
require the EPA to bear the burden for
conducting extensive analyses on
groups of sources presented by
petitioners, is supported by legislative
history cited by the Third Circuit in its
GenOn decision, wherein the court
noted that the federal government is the
entity that ‘‘can and must provide the
technical information and enforcement
assistance that States and localities
need.’’ 722 F.3d at 523 (quoting S.Rep.
88 The EPA also notes that as a matter of
administrative law in the context of when an
agency declines to undertake rulemaking, the
Supreme Court has found that ‘‘an agency has broad
discretion to choose how best to marshal its limited
resources and personnel to carry out its delegated
responsibilities.’’ Massachusetts v. EPA, 549 U.S.
497, 527 (2007). This principle is especially salient
when an agency has limited time statutorily for
determining whether rulemaking is necessary.
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No. 95–127, at 10 (1977), reprinted in 3
1977 Legislative History of the Clean Air
Act Amendments of 1977, at 1450)). The
EPA disagrees with commenters’
characterization of both this legislative
history and the court’s opinion in
GenOn. The legislative history quoted is
part of a section titled ‘‘General
Statement’’ providing an overview of
initiatives and issues informing the
Senate Committee’s report on the 1977
Clean Air Act Amendments as a whole
and is not specific to CAA section 126.
Though the EPA agrees it has a
fundamental and important role in
providing technical information and
enforcement assistance as part of
implementing the Act, the legislative
history does not speak to this role
specifically in the context of CAA
section 126.
Additionally, to the extent the
commenter is suggesting that the Third
Circuit in GenOn cited to this legislative
history to support the interpretation that
an investigative burden lies with the
EPA in acting on a CAA section 126(b)
petition, the EPA disagrees. The court in
that case addressed the question of
whether the EPA could act on a CAA
section 126(b) petition in instances
where the Agency had not yet acted on
a CAA section 110 SIP addressing
interstate transport for the same
NAAQS. In this context of determining
the appropriate timing of acting on a
CAA section 126(b) petition, the court
cited this legislative history in pointing
out that the EPA, as the federal
regulator, was intended to intervene
when states failed to adhere to the air
pollution control process, and thus the
EPA is not obligated to wait for the
states to address and resolve interstate
transport of pollution through the SIP
process before acting on a CAA section
126(b) petition. The court did not speak
to who has the burden of substantiating
a requested finding, particularly when
the EPA does not have sufficient
information regarding sources named in
the petition. Notably, as the Third
Circuit discussed, the obligation to act
quickly under CAA section 126(b)
‘‘petition process is intended to
expedite, not delay, resolution of
interstate pollution conflicts.’’ GenOn,
722 F.3d at 523 (quoting H.R.Rep. No.
95–294, at 331 (1977), reprinted in 4
1977 Legislative History of the Clean Air
Act Amendments of 1977, at 2797). The
swiftness Congress intended in acting
on a CAA section 126(b) petition
conflicts with requiring the EPA to
acquire and develop new information as
part of taking such swift action.
Therefore, the legislative history
supports the EPA’s reasonable
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interpretation of CAA section 126(b) as
placing the burden for substantiating the
requested finding on petitioner.
Several commenters also assert that
New York met its burden under CAA
section 126(b) and that considerations
regarding the cost-effectiveness of
controls at step 3 are only appropriate
under CAA section 126(c), under which
the EPA bears the burden to develop a
remedy for a finding made under CAA
section 126(b). Commenters characterize
the EPA’s reliance on the D.C. Circuit’s
decision New York as placing the
burden on petitioning states to support
both findings under CAA section 126(b)
and the remedy under CAA section
126(c). According to commenters, the
court did not hold that the EPA had no
burden to undertake any tasks or
analysis within the limited timeframe
for action on a CAA section 126(b)
petition. Rather, according to
commenter, the court only found that
the EPA had no affirmative duty to
review all existing state implementation
plans for a relevant NAAQS and
determine if they contained adequate
provisions for compliance with each
upwind state’s good neighbor provision
obligations. Commenters additionally
state the EPA’s prior action on New
Jersey’s CAA section 126 petition to
control emissions from the Portland
Generating Station contradicts the EPA’s
position that it is New York’s
responsibility as petitioner to analyze
and define the remedy.
The EPA disagrees that, by requiring
the petitioner under CAA section 126(b)
to provide an analysis of step 3 under
CAA section 126(b), it is shifting the
burden to petitioners to develop the
remedy under CAA section 126(c). As
described in Section II.C.1, in
examining petitions filed under CAA
section 126(b), the EPA has reasonably
applied the four-step interstate transport
framework used for analyzing whether
there is significant contribution to
nonattainment, or interference of
maintenance of the ozone NAAQS
under CAA section 110(a)(2)(D)(i)
because those same terms are
incorporated into CAA section 126(b).
The four-step interstate transport
framework includes a multi-factor
analysis of the availability of costeffective controls under step 3. As
discussed earlier, this step 3 analysis is
an essential part of making the
determination of whether sources
significantly contribute to
nonattainment or interfere with
maintenance under the good neighbor
provision, and thus whether a finding is
justified under CAA section 126(b).
While the result of a step 3 analysis can
be a quantification of the amount of
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emissions that constitute the state’s
significant contribution (or interference
with maintenance) under the good
neighbor provision, the imposition of a
federally enforceable emissions
limitation to reduce that amount of
emissions does not occur at step 3, but
rather occurs under step 4. Thus, the
analysis of cost-effective emissions
reductions at step 3 is an essential part
of making the significant contribution or
interference of maintenance finding
required under CAA section 126(b).
Accordingly, the EPA treats the
conclusions drawn at step 3 as distinct
from the remedy imposed at step 4
under CAA section 110(a)(2)(D)(i)(I),
and similarly acknowledges and treats
CAA section 126(b) and 126(c) as
separate provisions, contrary to
commenters suggesting otherwise. In the
EPA’s regional rulemakings for ozone
transport pursuant to CAA section 110,
if through the first three steps under the
four-step interstate transport framework
the EPA has determined there are costeffective controls available at sources
located in upwind states impacting
downwind states above a certain
threshold, then the EPA has determined
that there is significant contribution to
nonattainment or interference with
maintenance, at which point the Agency
imposed federally enforceable emissions
limitations on those sources under step
4. For example, at step 3 in the CSAPR
Update, the EPA evaluated available
NOX emissions reductions by applying
uniform levels of control stringency,
represented by cost, in order to quantify
the amount of emissions that
constituted each upwind state’s
significant contribution to
nonattainment or interference with
maintenance and then established NOX
emissions budgets necessary to prohibit
that level of emissions. At step 4 in the
CSAPR Update, the EPA promulgated
federally enforceable allowance trading
programs to implement the NOX
emissions budgets calculated under step
3. 81 FR 74504, 74519–21. Notably in
the CSAPR Update, by contrast, where
the EPA has found a state has no costeffective controls at step 3, even if the
state is linked to downwind impacts
under steps 1 and 2, the EPA has not
imposed emissions limits at step 4. Id.
at 74553.89 Therefore, to the extent a
CAA section 126(b) petition (and the
EPA’s independent analysis to the
extent there is such analysis) applies
steps 1, 2, and 3 of the four-step
89 See also 76 FR 48262 (finding no limits
necessary in the District of Columbia to satisfy good
neighbor requirements for the 1997 ozone, 1997
PM2.5, or 2006 PM2.5 NAAQS because the EPA
identified no available cost-effective emissions
reductions).
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56087
interstate transport framework to
successfully show an upwind source, or
group of sources, is having downwind
impacts in violation of the good
neighbor provision, then the EPA would
make such a finding under CAA section
126(b) and fulfill its duty under CAA
section 126(c) either by imposing the
prescribed remedy under subsection
(c)(1) (e.g., an existing source must cease
operation within 3 months) or by
promulgating federally enforceable
emissions limitations under subsection
(c)(2) to bring the upwind source(s) into
compliance with the good neighbor
provision. The fulfillment of this
obligation by the EPA under CAA
section 126(c) is consistent with step 4
of the four-step interstate transport
framework, and therefore the EPA is not
improperly shifting its burden of
developing a remedy to the petitioner
under CAA section 126(b). Rather,
because the EPA finds that New York as
petitioner did not meet its burden under
CAA section 126(b) of showing
significant contribution to
nonattainment or interference with
maintenance through application of
steps 1 through 3, the EPA did not make
the requested finding and,
consequently, did not trigger its
obligation to impose emissions
limitations under CAA section 126(c).
Furthermore, contrary to commenters’
assertions, the EPA has not interpreted
the D.C. Circuit’s holding in New York
as placing the burden on petitioning
states to fully develop the remedy under
CAA section 126(c). The EPA
acknowledges that the imposition of
federally enforceable emissions
limitations (analogous to step 4 of the
four-step interstate transport framework)
is its own obligation under CAA section
126(c). Therefore, the EPA is not relying
on the New York decision to support a
proposition it does not hold. However,
the EPA further disagrees with
commenter’s narrow reading of New
York as simply finding that the EPA had
no affirmative duty to review all
existing state implementation plans for
a relevant NAAQS and determine if they
contained adequate provisions for
compliance with each upwind state’s
obligations under the good neighbor
provision. While the specific argument
the petitioners in New York advanced
was that a CAA section 126(b) petition
triggered an obligation for the EPA to
investigate whether the good neighbor
SIPs for all of the States named in the
petition are in compliance with CAA
section 110(a)(2)(D)(i)(I), the court’s
logic in addressing this argument
applies to the broader question of the
EPA’s obligation in reviewing a CAA
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section 126(b) petition. Specifically, the
court in New York held that it is
reasonable to conclude Congress did not
intend for the EPA to undertake a series
of procedural and substantive actions to
evaluate CAA section 110 SIPs in order
to act on a CAA section 126(b) petition,
premised on the short 60 day-deadline.
852 F.2d at 578 (holding Congress did
not intend for the EPA to be required to
perform ‘‘an entire array of investigative
duties’’ in reviewing a CAA section
126(b) petition). Gathering sourcespecific information about
approximately 350 sources and then
conducting a regional cost-effectiveness
analysis of them is likely more (or at
least as) burdensome than the review of
existing SIPs that the New York court
said the EPA does not have to do in
reviewing a CAA section 126(b)
petition. Therefore, the EPA’s
interpretation of the burden in CAA
section 126(b) in this case, as it applies
to the time and resources required to
conduct a step 3 analysis, is consistent
with the interpretation endorsed by the
New York court.
The EPA also disagrees with
commenters’ contention that its prior
action on a CAA section 126(b) petition
from New Jersey regarding SO2
emissions from the Portland Generating
Station in Pennsylvania contradicts the
EPA’s position in the present action that
the burden lies with petitioner to
analyze step 3. Rather, as the EPA
clearly stated in its proposed response
to New Jersey’s petition, the EPA first
looks to see if the petition identifies or
contains a sufficient basis to make the
requested finding. The EPA went on to
state that, nonetheless, it may decide to
conduct independent technical analyses
when such analyses are helpful in
evaluating the basis for a potential CAA
section 126(b) finding or developing a
remedy if a finding is made. The EPA
invoked this discretion to perform an
independent analysis in acting on New
Jersey’s petition. However, the
invocation of such discretion in acting
on New Jersey’s petition does not
contradict the EPA’s position that the
burden is on the petitioner to provide an
analysis under step 3. The EPA
concluded in the New Jersey action, as
it does again here, that the discretionary
independent analysis is not compelled
by statute. 76 FR 19662, 19666 (April 7,
2011).
Additionally, the EPA disagrees with
commenters’ assertions that the EPA’s
past action on New Jersey’s CAA section
126(b) petition shows it is now
incorrectly conflating CAA section
110(a)(2)(D)(i) with CAA section 126. In
analyzing New Jersey’s CAA section
126(b) petition and the technical
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analysis the State submitted in support
of the requested finding, the EPA in fact
imported similar factors as those
outlined in the four-step interstate
transport framework used under CAA
section 110 to evaluate the petition’s
analysis contending the identified
source was emitting in violation of the
good neighbor provision. Furthermore,
in acting on New Jersey’s petition, the
EPA treated step 3 as distinct from step
4. Similar to step 1, the EPA first
concluded that based on the petition’s
technical analysis, the petitioning
downwind state had an air quality
problem for the 2010 SO2 NAAQS.
Similar to step 2, the Agency
determined that, based on the petition’s
analysis, emissions from the named
source in the upwind state alone were
sufficient not just to contribute to, but
to cause a violation of the NAAQS in
the petitioning state. As such, the EPA’s
analysis of the petition’s technical
showing functionally comprised a step
3 analysis by determining under CAA
section 126(b) that the facility should be
regulated because of the magnitude of
its contribution and the relative lack of
other contributing sources. Because the
EPA determined that the petition made
demonstrations equivalent to steps 1
through 3 and established that the
named source was emitting in violation
of the good neighbor provision, the EPA
essentially reached step 4 by imposing
federally enforceable source-specific
rate limits pursuant to CAA section
126(c) to eliminate the source’s
significant contribution. See Final
Response to Petition From New Jersey
Regarding SO2 Emissions from the
Portland Generating Station, 76 FR
69052 (November 7, 2011).
Information and Analyses Considered
Within Step 3
As 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), it is reasonable for the
EPA to consider the same type of factors
whether evaluating ozone transport in
the context of a good neighbor SIP
under CAA section 110 or a section
126(b) petition. Thus, based on the
EPA’s interpretation of CAA section
126(b) as placing the burden on
petitioner, the EPA reviewed New
York’s petition to determine whether it
has provided sufficient information to
support a determination based on some
type of analysis of cost and air quality
factors, either the same as or similar to,
those that the EPA evaluated in past
rulemakings addressing regional ozone
transport under the good neighbor
provision. The EPA notes that it
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considered these factors in the NOX SIP
Call, CAIR, CSAPR, and the CSAPR
Update, so it was clear that the EPA
considers such an analysis to be
necessary to determine, under CAA
section 126(b), whether upwind sources
will significantly contribute to
nonattainment or interfere with
maintenance of the ozone NAAQS in
New York. For example, in the CSAPR
update, the EPA 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 factors that the EPA
has generally relied on in step 3; has not
described and conducted any sort of
multifactor analysis to determine
whether cost-effective controls are
available at the named sources
considering these factors; 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 its conclusion 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. The petition
simply applies a uniform approach
beginning with a review of the entire
anthropogenic emissions inventory and
then identifying facilities that appear to
have larger emissions than other
facilities (at least 400 tons of NOX per
year) without supporting why the
named facilities either can or should
make certain reductions. As the EPA
indicated in the proposal, 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
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most recent emissions inventory
continue to emit NOX at the same rate
or continue to operate; (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 this or
any such similar 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 to weigh these
relevant cost and air quality factors to
determine an appropriate level of
control for the named sources. Instead,
the petition simply asserts 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 regarding costs of
controls in the downwind area may be
useful when evaluating upwind
emissions reduction potential, such
information is not determinative of the
appropriate level of upwind control. As
the EPA explained at proposal, 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 most
areas designated nonattainment, 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 good neighbor
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, 572 U.S. at 489.90 The
90 EME Homer City also held that the EPA is
precluded from requiring more emissions
reductions than necessary to address downwind
nonattainment and maintenance issues. 572 U.S. at
521–22. The petition also fails to demonstrate that
the imposition of RACT-level controls on all named
upwind sources will not result in the type of over-
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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 considering 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 may provide 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
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 issuing 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
control forbidden by the Supreme Court under the
good neighbor provision.
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56089
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). Thus, the
EPA has now determined through this
set of actions that the emissions
reductions required under the CSAPR
Update fully address the good neighbor
requirements with respect to the 2008
ozone NAAQS for all 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.
Several commenters contend that it is
unreasonable to have expected New
York to address many of the step 3
considerations that the EPA outlined in
the proposal. One commenter claims
that the EPA’s position that New York’s
petition needed to provide analyses
describing the downwind air quality
impacts of controlling the named
sources ‘‘relative to other sources’’ is an
unreasonable requirement for a CAA
section 126(b) petition. The commenter
asserts that the need for a comparative
demonstration is particularly
unreasonable here because the petition
already encompasses all large upwind
stationary sources collectively linked to
New York’s downwind nonattainment
and/or maintenance problems. The
commenter further states that New York
has no ability to obtain more specific
cost figures for the sources named in the
petition. The commenter asserts that the
EPA either has such information or can
obtain it when developing the remedy
under CAA section 126(c).
Another commenter states that the
EPA undertook comprehensive EGU and
non-EGU control analyses in 2016 as
part of its CSAPR Update efforts, which
resulted in two detailed TSDs that
considered availability of controls,
associated costs, and installation times.
The EPA further noted in the non-EGU
TSD that ‘‘the EPA continues to assess
the role of NOX emissions from non-
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EGU sources to downwind
nonattainment problems.’’ The
commenter asserts that given its
authority to gather data, its existing
research on both EGU and non-EGU
NOX control technologies, and the 8
months afforded it by the CAA to act on
a petition, the EPA has had adequate
time to conduct the analysis and define
emissions limits for petitioned units
that would effectuate the remedy
requested by the petition.
The EPA disagrees with the
commenters’ assertions. As discussed in
Section II.C of this notification, the EPA
has repeatedly found that ozone
transport problems are the result of
individually small impacts from
numerous sources in upwind states that
can have collectively large impacts on
downwind ozone concentrations.
Apportioning responsibility for
emissions reductions across many
sources in many states is a key outcome
of applying the four-step interstate
transport framework, which,
considering various cost and air quality
factors under step 3, identifies a rational
basis for determining that emissions
reductions should be required under the
good neighbor provision from certain
sources rather than others. This source
comparison necessarily involves
identifying the current operating status
of each named facility, the magnitude of
emissions from each emitting unit
within each named facility, the existing
controls on each of these emissions
units, additional control options on
each emissions unit, the cost of each
potential control option, the emissions
reductions potential resulting from the
installation of controls, and potential air
quality impacts of emissions reductions.
Without this information, the EPA
cannot determine whether the sources
named in the New York petition have
available or cost-effective emissions
reductions either as compared to one
another or as compared to other,
unnamed sources in the same upwind
states or in other states. Moreover, the
EPA cannot determine whether it would
be appropriate to regulate any of the
hundreds of sources named in New
York’s petition without such
information.
While the EPA initiated analyses of
emissions reduction potential available
at EGUs and non-EGUs conducted in
support of the CSAPR Update, the
analyses were limited in scope, as
described in Section II.C. Since
finalizing that rule, the EPA has not
gathered significant additional
information or completed additional
analyses regarding the availability of
additional controls beyond that which is
included in the EGU and non-EGU TSDs
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identified by the commenter because the
EPA has not needed this information to
support any current EPA-initiated
federal ozone rulemakings. The EPA
maintains that the petitioner bears the
burden of establishing a technical basis
for the specific finding requested and
has not done so here.
On the contrary, commenters
supporting the petition had the
opportunity to, but did not, provide
such analyses during the public
comment period on the proposed action.
Rather, multiple different commenters
supporting denial of the petition
provided corrections or supplemental
information indicating that the
operational status and/or emissions
information provided in the New York
petition were incorrect, further
suggesting that granting the petition as
to certain units would be unjustified on
the facts before the Agency. Generally,
commenters opposing the denial did not
provide information regarding the
installation or cost of controls or the
potential emissions reductions
available. In the absence of such
analyses and information, 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 pursuant to CAA
section 126(b). The existence of two
EPA technical support documents on
controls for EGUs and non-EGUs
mentioned by commenters does not
contradict this conclusion.
Several commenters contend that the
petition adequately met the step 3
requirements because New York
demonstrated that there are available,
cost-effective emissions reductions from
the named upwind sources.
Commenters assert that New York has
done so by showing that certain named
upwind sources that have average
emissions rates over 0.15 lb/mmBtu, the
emissions rate that is consistent with
New York’s RACT requirement, and that
setting an enforceable NOX emissions
limit equivalent to New York’s NOX
RACT requirements at a cost of $5,000/
ton of NOX reduced could be met in
many cases by operating existing
controls. Commenters further assert that
the EPA has failed to explain why it
would not be cost effective to
implement NOX controls at the group of
sources identified in the petition.
Commenters point to the legislative
history of CAA section 126(b) as
demonstrating an important part of the
impetus to add CAA section 126(b) was
to help equalize control costs between
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upwind and downwind states,91 and
state that New York is only seeking to
require upwind sources to comply with
requirements it already imposes on its
own in-state sources.
The EPA disagrees that the petition’s
proposal that New York’s RACT
standard be applied to the identified
sources provides enough information for
the EPA to conclude, at step 3, that each
of the sources will significantly
contribute to nonattainment or interfere
with maintenance in the NYMA. While
New York proposes a uniform level of
cost and control (at $5,000/ton and 0.15
lb/mmBtu), neither New York nor the
commenters provide an explanation for
why that is an appropriate level of
control to use to define significant
contribution under the good neighbor
provision and CAA section 126(b). As
discussed earlier, the fact that the
sources have a collective impact over an
air quality threshold at step 2 does not
address whether the sources have costeffective emissions reductions at step 3.
For example, the petition provides no
information demonstrating that the 0.15
lb/mmBtu rate is achievable at all
sources, whether at $5,000 or at other
costs. While the commenter suggests
that some sources might meet that limit
through operation of existing controls,
neither the commenter nor the petition
demonstrates that all of the
approximately 350 sources could meet
that proposed rate at the proposed
$5,000/ton threshold. Thus, the EPA
cannot conclude that the proposed rate
is cost-effective for the suite of sources.
Moreover, the petition does not identify
which sources have existing controls
that can be operated to meet that rate,
meaning the EPA could not even grant
the petition as to certain sources
without identifying or generating
additional information. Furthermore,
commenters assert that some of the
sources are already meeting the rate,
suggesting that even under the petition’s
own approach that these sources are not
significantly contributing to any air
quality problems in New York. It is
therefore left to the EPA to determine
not only which sources have the
emissions that constitute the alleged
significant contribution, but also which
91 Specifically, commenters quote the following,
‘‘In the absence of interstate abatement procedures,
those plants in States with more stringent control
requirements are at a distinct economic and
competitive disadvantage. [CAA section 126(b)] is
intended to equalize the positions of the States with
respect to interstate pollution by making a source
at least as responsible for polluting another State as
it would be for polluting its own State.’’ S.Rep. No.
95–127, at 42 (1977), reprinted in 3 1977 Legislative
History of the Clean Air Act Amendments of 1977,
at 42).
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sources the petition even correctly
names.
Moreover, a conclusion that the
emissions rate proposed by New York is
cost-effective at $5,000 per ton of NOX
removed ignores the critical question of
what relevant ozone improvements
would be achieved at the downwind
area at that cost threshold or
considering any other potential control
strategies. Determinations about what
constitutes reasonably available control
technology ‘‘evaluat[e] whether
implementation of certain controls
within a nonattainment area will be
effective at addressing a local air quality
problem relative to the cost of such
controls.’’ 83 FR at 50470. What controls
are required locally in nonattainment
areas is a different question from
whether emissions from upwind states,
which travel longer distances and have
different downwind impacts,
‘‘significantly contribute’’ to downwind
nonattainment under the good neighbor
provision. As the D.C. Circuit held in
North Carolina, the good neighbor
provision does not permit the EPA to
simply ‘‘pick a cost for a region and
deem ‘significant’ any emissions that
sources can eliminate more cheaply.’’
531 F.3d at 918. Rather, the EPA must
‘‘achieve something measurable toward
the goal of prohibiting sources ‘within
the State’ from contributing significantly
to downwind nonattainment’’ and
‘‘explain how the objectives in section
110(a)(2)(D)(i)(I) relate to its choice of
. . . emissions caps.’’ In the context of
a section 126(b) petition, this is the
petitioner’s burden in the first instance.
The EPA further disagrees that the
cited legislative history supports the
petition’s and commenters’ conclusion
that the upwind states should impose
controls commensurate with New
York’s RACT. Although indicating that
CAA section 126 was intended to
increase the equity between the States
with respect to taking responsibility for
impacts on air quality problems,
nowhere did Congress indicate that
upwind states were required to impose
the same level of control as downwind
states in all cases. If Congress had
intended this result, the statute could
have been written in this manner.
Instead, Congress referenced CAA
section 110(a)(2)(D)(i), which also fails
to include a specific control level and
instead uses the ambiguous terms
‘‘significant contribution’’ and
‘‘interference with maintenance’’ to
describe the amount of emissions
upwind states are required to control,
and CAA section 126(b) simply
incorporated that standard.
Moreover, the concept of ‘‘equity’’ is
particularly difficult to define in the
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context of ozone transport, given that
downwind ozone concentrations are
affected by individually small impacts
from emissions of hundreds and
thousands of sources. First, as to the
number of sources potentially impacted,
states with nonattainment areas are
generally required to implement RACT
at major sources located only within the
boundaries of the nonattainment area or
within the Ozone Transport Region
(OTR). However, the petition’s and
commenters’ argument suggests that the
same controls should be imposed on all
major sources throughout upwind states
so long as the state has a linkage at or
above the step 2 threshold 92—a much
higher burden than the statute imposes
on local emissions within the home
state of a nonattainment area.93 Second,
there is no uniform threshold for
determining what rate and cost
represent RACT. The process for
identifying RACT considers a variety of
factors and can vary from nonattainment
area to nonattainment area, from state to
state, and indeed from source to source.
Thus, it is not necessarily ‘‘equitable’’ to
rely on a single state’s conclusion as to
what constitutes RACT for its mix of
sources in order to define ‘‘significant
contribution’’ for a suite of different
sources in numerous distant upwind
states. Rather, as the Supreme Court
concluded, the EPA’s use of cost to
evaluate different types of control
strategies and select a level of control
for a region is itself ‘‘equitable,’’ and
achieves the intention reflected in the
legislative history, because it ‘‘subjects
to stricter regulation those States that
have done relatively less in the past to
control their pollution.’’ EME Homer
City, 572 U.S. at 519.
One commenter asserts that data
indicate that certain facilities named in
New York’s CAA section 126(b) petition
92 Notably, the factors used to identify areas
contributing to a measured violation in the
designation process are more complex than the
simple air quality threshold used in the EPA’s fourstep interstate transport framework. In-state sources
are not necessarily subject to RACT based solely on
a similarly low air quality impact.
93 The EPA recognizes that states like New York
are required, as members of OTR, to impose RACT
at major sources statewide, but commenters have
not argued that the good neighbor provision
requires incorporation of OTR level controls in any
state impacting a downwind air quality problem;
nor could they. The statute provides a separate
provision at CAA section 176A for determining
whether it is appropriate to add additional states to
the OTR and thus subject them to the additional
requirements applicable to such states. The EPA
already considered and rejected a petition
submitted under this provision to expand the OTR
and subject more states to these requirements,
which the D.C. Circuit affirmed. New York v. EPA,
921 F.3d 257 (D.C. Cir. 2019). Congress’s decision
to include only certain states in the OTR was an
acknowledgement that there might be inequities.
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56091
could be controlled. Specifically, the
commenter notes that the Brunner
Island Power Plant completed
installation of a natural gas line in 2017,
but that 2018 emissions data reveal the
facility fired coal on approximately 32
days in the ozone season, of which nine
were days when the ozone standard was
exceeded in New York State. The
commenter further notes that the EPA
found in denying Maryland and
Delaware’s CAA section 126(b) petitions
that the CSAPR Update was controlling
emissions from the EGUs named in the
petition and from EGUs collectively in
the named upwind states that impact
ozone concentrations in Maryland and
Delaware. But 2018 ozone season
emissions data from those sources (also
named in New York’s petition) reveal
that NOX emissions continue to exceed
the levels that would have resulted if
existing controls were operated as the
EPA assumed in the modeling for the
Determination Rule (at a 0.10 lb/mmBtu
rate). The commenter provides data for
the units named in the Maryland and
Delaware petitions intended to
demonstrate that they could have
reduced NOX emissions over the course
of the ozone season using the 0.15 lb/
mmBtu rate requested in New York’s
petition, while also noting that several
units already meet or approach that
limit.
The commenter asserts that additional
facilities in New York’s petition have
similarly been operating with 2018
ozone season NOX emissions rates
higher than the requested 0.15 lb/
mmBtu rate, even though ‘‘state-of-theart’’ emissions controls are widely
available and assumed by the EPA to be
installed in its 2023 modeling. The
comment provides a table with data for
six individual sources, intended to
provide a representative sample of the
unoptimized facilities across the region,
and then cites to the CSAPR Update
where the EPA said that ‘‘state-of-the-art
combustion controls such as low-NOX
burners and over-fire air can be installed
quickly’’ and at an estimated cost of
installation of only $500 to $1,200 per
ton of NOX removed. The commenter
asserts that an analysis of emissions
data reveals that if facilities were to
operate at a 0.15 lb/mmBtu NOX rate,
they would have each reduced their
NOX emissions by over 100 tons,
considering only the days during the
2018 ozone season in which New York
monitors exceeded the NAAQS.
The EPA disagrees with the
commenter’s assertion that there is
sufficient information to grant the
petition as to the sources identified in
New York’s petition. As an initial
matter, simply providing data regarding
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how individual units operated in 2018,
including those units named in the prior
Delaware and Maryland CAA section
126(b) petitions, does not demonstrate
either that the units are able to achieve
the 0.15 lb/mmBtu rate proposed by the
New York petition or, to the extent this
is technically achievable, that the
measures necessary for the sources to
operate at that rate would be costeffective considering the types of factors
the EPA typically evaluates in step 3 of
the four-step interstate transport
framework. In fact, the commenter
concedes that certain units for which it
provides data already meet the proposed
limit, which further undermines any
conclusion that these units should be
further controlled under CAA section
126(b).
The EPA further notes, as it did in its
denial of the Delaware and Maryland
petitions, that the EPA has already taken
regulatory action to control emissions
from the sources noted in the
comment.94 As described in the CSAPR
Update (81 FR 74540–41), control
strategies involving turning on and fully
operating existing SCR control
equipment and installing state-of-the-art
combustion controls were accounted for
in setting state budgets to address the
good neighbor requirements for the 2008
ozone NAAQS for states in the eastern
U.S.95 Recent measured emissions data
suggest that those emissions reductions
were either successfully achieved at the
particular units, or commensurate
reductions were achieved from other
units within the state, as demonstrated
by all states meeting the state budgets
(accounting for the year-to-year
variability associated with the assurance
levels) and relatively low emissions
rates seen at large numbers of units
across the region (see Excel documents
titled, ‘‘2017_csapr_budgets_emissions_
and_assurance_levels_11-1-18_3.xlsx’’,
‘‘2018_csapr_assurance_provision_
0.xlsx’’, and ‘‘2017 NOX Rates for 274
coal units’’ in the docket for this action
for additional details).96
The EPA notes that the petitioner and
commenters have provided some unitlevel emissions data for a few units (see
comment available at EPA–HQ–OAR–
2018–0170–0084, Tables 1 and 2)
showing some daily emissions rates
exceeding the commenter’s proposed
0.15 lb/mmBtu rate. However, the fact
94 See
83 FR 50464–70.
the CSAPR Update technical support
document, EGU NOX Mitigation Strategies Final
Rule TSD for additional details.
96 2017 CSAPR Budgets Emissions and Assurance
Levels Spreadsheet and 2017 CSAPR Budgets
Emissions and Assurance Levels Spreadsheet
available in the docket and at https://www.epa.gov/
csapr/csapr-assurance-provision.
95 See
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17:39 Oct 17, 2019
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that a source may have higher emissions
on a particular day is not determinative
of whether a unit is not fully operating
its control equipment and can achieve a
lower rate, as there are many reasons
why lower rates may not always be
achievable on every day (e.g., at low
hourly utilization rates there are
engineering limitations for flow and
temperature for an SCR to operate, see
Short-Term Emissions Limits Document
in the docket for this action for
additional details). Similarly, based on
unit configuration, technical
engineering design efficiency, and the
exact nature of the fuel utilized, not all
combustion control or post-combustion
control equipment is technically
capable of achieving a best emissions
rate, or fleet-average best rate, under all
operating conditions.97
As noted by the commenter, the EPA
has explained that certain combustion
controls (e.g., low-NOX burners (LNB)
and over-fire air) can be installed
quickly and at costs of $500 to $1,200
tons on average, neither the petition nor
the commenter has demonstrated that
there are emissions reductions
achievable from these strategies at all
the units named in the petition. Rather,
as shown in the CSAPR Update Rule
EGU NOX Mitigation Strategies TSD,
there is limited EGU reduction potential
in the CSAPR Update region (including
all states named in the petition) as most
sources have already installed state of
the art combustion controls.98
Moreover, these controls may, or may
not, be able to achieve the rate
identified by the commenter of 0.15 lb/
mmBtu, and even for those that can the
unit-specific cost may not match the
fleetwide average cost discussed earlier.
The commenter’s calculations of alleged
emissions reduction potential from
meeting the proposed rate ignore unitspecific technical considerations and
corresponding cost by assuming that all
facilities could have lowered emissions
to a 0.15 lb/mmBtu NOX emissions rate
through combustion control upgrade or
post-combustion control optimization.
The commenter does not present
complete engineering and cost analysis
that speaks to whether these units can,
and cost-effectively, operate at the
proposed level. Moreover, they do not
explain how any potential reductions
identified at these sources are more
cost-effective than mitigation efforts at
other upwind sources.
Commenters also misconstrue the
EPA’s use of 0.10 lb/mmBtu as a rate
97 See National Electric Energy Data System excel
document in the docket.
98 See EGU NO Mitigation Strategies Final Rule
X
Technical Support Document, August 2016.
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Fmt 4701
Sfmt 4700
ceiling rather than a fleet-average when
discussing the assumptions underlying
the modeling used in the Determination
Rule. The EPA specifically noted that
0.10 lb/mmBtu was representative of a
fleet-average for units that were not
already operating their controls prior to
the implementation of the CSAPR
Update. It did not reflect a unit-level
rate ceiling or cut-off for SCR operation
at all units. In the CSAPR Update, the
EPA determined that, based on an
aggregation of unit-level emissions rates,
an average fleet-wide emissions rate of
0.10 lb/mmBtu would represent the
optimized operation of SCR controls
that were not already being operated
and optimized, and set statewide
emissions budgets based on this
assumption. 81 FR 74543. In concluding
that this rate would be appropriate for
calculating emissions reduction
potential from implementation of this
control strategy, the EPA recognized
that some units would have optimized
rates above that level and some below
that level. 81 FR 74543. Thus, the fact
that some units are operating above 0.10
lb/mmBtu is not indicative that the
sources have additional cost-effective
emissions reductions available.
Thus, although the petition and the
commenter have identified certain
sources operating at rates higher than
that proposed by New York in its
petition, this is not sufficient
information to demonstrate that the
sources can or should be further
controlled, and thus does not support a
finding that such sources significantly
contribute to nonattainment or interfere
with maintenance of either the 2008 or
2015 ozone NAAQS in New York.
Conclusion
For the reasons described in this
section, the EPA is finalizing a
determination 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
finalizing its denial of 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. Although the EPA
already has identified a sufficient basis
to deny the petition as to Chautauqua
County (for the 2008 and 2015 ozone
NAAQS) and NYMA (for the 2008 ozone
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NAAQS) at step 1 of the four-step
interstate transport framework, the EPA
is also relying on our assessment of step
3 as an additional and independent
basis for denial as to the petition’s
claims for these areas.
4. Group of Stationary Sources
The EPA does not need, in this final
action, to make any finding or
determination for New York’s CAA
section 126(b) petition with respect to
the scope of ‘‘group of stationary
sources.’’ In the proposal, the EPA
solicited comment on whether to deny
New York’s petition based on the
petition’s insufficient justification that
such a large, undifferentiated number of
sources located in numerous upwind
states constituted a ‘‘group of stationary
sources’’ within the context of CAA
section 126(b). The proposal offered that
a ‘‘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.
The EPA received comments both
supporting and opposing a petition
denial based on whether the petition
adequately demonstrated that the
sources identified in the petition
constitute a ‘‘group of stationary
sources.’’ Based on the other bases for
denial, the EPA does not need to reach
the question of whether the petitioners’
failed to sufficiently justify its
interpretation of a ‘‘group of stationary
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17:39 Oct 17, 2019
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sources’’ but notes that the absence of
supporting information for such a
determination makes the Agency
unlikely to side with petitioners on the
information provided.
IV. Determinations Under CAA Section
307(b)(1) and (d)
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
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 has found that this action is
based on a determination of
‘‘nationwide scope and effect’’ within
the meaning of CAA section 307(b)(1).
This action addresses emissions impacts
from sources located in nine states,
located in multiple EPA Regions and
federal judicial circuits. This final
action is also based on a common core
of factual findings and analyses
concerning the transport of pollutants
between the different states.
PO 00000
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56093
For these reasons, to the extent a court
finds this action to be locally or
regionally applicable, the Administrator
has determined that this final action is
based on a determination of nationwide
scope and effect for purposes of CAA
section 307(b)(1).Thus, pursuant to CAA
section 307(b), any petitions for review
of this final action 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.
In addition, pursuant to sections
307(d)(1)(N) and 307(d)(1)(V) of the
CAA, the Administrator has determined
that this action is subject to the
provisions of CAA section 307(d). CAA
section 307(d)(1)(N) provides that
section 307(d) applies to, among other
things, ‘‘action of the Administrator
under CAA section 126 of this title
(relating to interstate pollution
abatement).’’ 42 U.S.C. 7407(d)(1)(N).
Under CAA section 307(d)(1)(V), the
provisions of CAA section 307(d) also
apply to ‘‘such other actions as the
Administrator may determine.’’ 42
U.S.C. 7407(d)(1)(V). The Agency has
complied with procedural requirements
of CAA section 307(d) through this
rulemaking effort.
V. Statutory Authority
42 U.S.C. 7410, 7426, 7601.
Dated: September 20, 2019.
Andrew R. Wheeler,
Administrator.
[FR Doc. 2019–21207 Filed 10–17–19; 8:45 am]
BILLING CODE 6560–50–P
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Agencies
[Federal Register Volume 84, Number 202 (Friday, October 18, 2019)]
[Rules and Regulations]
[Pages 56058-56093]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-21207]
[[Page 56057]]
Vol. 84
Friday,
No. 202
October 18, 2019
Part III
Environmental Protection Agency
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40 CFR Part 52
Response to Clean Air Act Section 126(b) Petition From New York; Final
Rule
Federal Register / Vol. 84 , No. 202 / Friday, October 18, 2019 /
Rules and Regulations
[[Page 56058]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-HQ-OAR-2018-0170; FRL-10000-58-OAR]
RIN 2060-AU04
Response to Clean Air Act Section 126(b) Petition From New York
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notification of final action on petition.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is denying a Clean
Air Act (CAA or Act) petition submitted by the State of New York on
March 12, 2018. The petition requested 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 Metropolitan Area (NYMA) in violation of the good neighbor
provision. The EPA is denying the petition because the petitioner, New
York, has not demonstrated, and the EPA did not independently find,
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: This final action is effective on October 18, 2019.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OAR-2018-0170. All documents in the docket are
listed and publicly available at https://www.regulations.gov. Publicly
available docket materials are also available 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.
FOR FURTHER INFORMATION CONTACT: Please direct questions concerning
this final action to 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].
SUPPLEMENTARY INFORMATION: The information in this document is
organized as follows:
I. General Information
A. Executive Summary of the EPA's Decision on the CAA Section
126(b) Petition From New York
B. The CAA Section 126(b) Petition From New York
C. Summary of the EPA's May 6, 2019, Proposal
II. 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
III. The EPA's Final Response to the CAA Section 126(b) Petition
From New York
A. Reasonableness of Applying the Four-Step Interstate Transport
Framework for This Action
B. The EPA's Standard of Review for This CAA Section 126(b)
Petition Regarding the 2008 and 2015 8-Hour Ozone NAAQS
C. The EPA's Evaluation of Whether the Petition Is Sufficient To
Support a CAA Section 126(b) Finding
IV. Determinations Under CAA Section 307(b)(1) and (d)
V. Statutory Authority
I. General Information
A. Executive Summary of the EPA's 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 approximately 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. On May 6, 2019, the EPA issued a proposal to deny the CAA
section 126(b) petition from New York. 84 FR 22787 (May 20, 2019). The
Agency solicited comments on the proposal and hosted a public hearing
on June 11, 2019, during which four speakers testified. The EPA also
received 44 written comments submitted to the docket on the proposed
denial. This Federal Register notification addresses certain
significant comments the Agency received. The EPA addressed the
remaining comments in the separate Response to Comments (RTC) document
available in the docket for this action.
As described in further detail in this notification, the EPA is
finalizing the denial of the CAA section 126(b) petition submitted by
the State of New York. Generally, the New York petition (and comments
supportive of the EPA granting this petition) suggests that residents
of New York are exposed to unhealthy levels of ground-level ozone
pollution. The petition identifies approximately 350 electric
generating unit (EGU) facilities and non-EGU facilities emitting, or
projected to emit, 400 tons per year or more of nitrogen oxides
(NOX) in nine upwind states and requests that the EPA
establish permanent and enforceable emissions limitations for the named
major NOX sources at levels designed to prevent them from
significantly contributing to nonattainment or interfering with
maintenance of the 2008 and 2015 ozone NAAQS in New York State. In
crafting this final action, the EPA has considered public comments on
its May 6, 2019, proposal to deny this petition.
Consistent with the EPA's proposal and based on the best data and
information available to the Agency at this time, the Agency is
finalizing its denial of this petition. This denial is based on New
York's failure to meet 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 with respect to either Chautauqua County or the New York-Northern
New Jersey-Long Island, New York-New Jersey-Connecticut area
(hereafter, the New York metropolitan area or NYMA).
As indicated in the EPA's proposal, the EPA evaluated New York's
CAA section 126(b) 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's 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 denying 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 does not provide
sufficient information to indicate that Chautauqua County should be
considered a nonattainment or maintenance receptor pursuant to the good
neighbor provision. With respect to the 2008 ozone NAAQS in the NYMA,
the EPA is also denying the petition at step 1 of the framework based
on the conclusion that the
[[Page 56059]]
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 in 2023, an air quality
problem with respect to either NAAQS in Chautauqua County, and that in
2023 there is not projected to be any further air quality problem with
respect to the 2008 ozone NAAQS in the NYMA.\1\ Thus, for these areas
and NAAQS, the EPA has found that the petition has not met its burden
at step 1 of the four-step interstate transport framework to
demonstrate that the group of identified sources either emits or would
emit pollution in violation of the good neighbor provision. With
respect to the 2015 ozone NAAQS in the NYMA, the Agency's 2023 modeling
shows a relevant downwind air quality problem, and, thus, the EPA is
not denying this portion of the petition with respect to step 1.
---------------------------------------------------------------------------
\1\ The EPA notes that on September 13, 2019, the D.C. Circuit
issued an opinion remanding the Cross State Air Pollution Rule
Update (CSAPR Update, 81 FR 74504 (October 26, 2016)) in Wisconsin
v. EPA, No. 16-1406. The court held that the rule is inconsistent
with the CAA because it does not fully address upwind states'
obligations under the good neighbor provision by the relevant
attainment date for downwind areas. Nonetheless, the EPA is subject
to a court-ordered deadline to take final action on New York's CAA
section 126(b) petition by September 20, 2019. As explained in this
notification, the EPA is finalizing its denial of New York's CAA
section 126(b) petition, in part, because the petitioner did not
meet its burden to demonstrate both that there is a relevant
downwind air quality under the good neighbor provision in a relevant
future year in either Chautauqua County or the NYMA, and that there
are cost-effective emissions reductions available at the named
sources. This basis for denial based on Petitioner's failure to meet
its burden is independent and severable from any portion of the
denial based on the EPA's discretionary evaluation of downwind air
quality in New York using the Agency's 2023 modeling data. The EPA
may make any necessary or appropriate modifications to this final
action subsequently to reflect its understanding of the court's
holding in Wisconsin.
---------------------------------------------------------------------------
The EPA is additionally denying the petition as to all areas for
the 2008 and 2015 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 has found 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 did not
meet 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.\2\
---------------------------------------------------------------------------
\2\ The EPA solicited comment on whether to also deny the
petition because the petitioner did not sufficiently justify that
its 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). Based
on the other bases for denial, the EPA does not need to reach the
question of whether the petitioners' failed to sufficiently justify
its interpretation of a ``group of stationary sources'' but notes
that the absence of supporting information for such a determination
makes the Agency unlikely to side with petitioners on the
information provided.
---------------------------------------------------------------------------
In making this final decision, the EPA reviewed the petition from
New York, the public comments received, the relevant statutory
authorities and other relevant materials. Accordingly, the EPA denies
the CAA section 126(b) petition from New York.
The remainder of this notification is organized as follows: The
General Information part of this notification (Section I) continues
with a summary of the relevant issues raised in New York's CAA section
126(b) petition and a summary of the EPA's May 6, 2019, proposed
action. Section II of this notification provides background material
and 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). Section III of this notification discusses the EPA's standard
of review for this action and details the bases for the EPA's final
action to deny this petition, including responses to significant
comments received on the proposal.
B. The CAA Section 126(b) Petition From New York
On March 12, 2018, the State of New York, through 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 the NYMA and in Chautauqua County in western
New York.
The petition contends that, although the Chautauqua County area
(i.e., the area in and around Jamestown, New York) was at the time of
petition submittal (and is currently) attaining both the 2008 and the
2015 ozone NAAQS, the area may have difficulty maintaining its
attainment status in the future. The petition also explains that the
NYMA is currently designated nonattainment for the 2008 ozone NAAQS
and, at the time New York submitted the petition, the area would likely
be designated nonattainment for the 2015 ozone NAAQS.\3\ The petition
further asserts that all three states in the multistate 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 parts per billion (ppb).
---------------------------------------------------------------------------
\3\ 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 (NYMA) as a
Moderate nonattainment area for the 2015 ozone NAAQS. 83 FR 25776
(June 4, 2018).
---------------------------------------------------------------------------
The New York petition alleges that emissions from numerous, named
upwind sources significantly contribute to nonattainment and interfere
with maintenance of the 2008 and 2015 8-hour ozone NAAQS in New York
based on two arguments. First, the petition alleges that the EPA's 2017
contribution modeling conducted in support of the EPA's Cross-State Air
Pollution Rule (CSAPR) Update \4\ shows that the nine states in which
these sources are located contribute 1 percent or more of the 2008 8-
hour ozone NAAQS (or 0.75 ppb or more) to ozone concentrations in New
York. Second, 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.\5\
---------------------------------------------------------------------------
\4\ 81 FR 74504 (October 26, 2016).
\5\ 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 4
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).
---------------------------------------------------------------------------
When identifying what constitutes significant ozone contributions,
the petition considers the highest emitting facilities (i.e., EGU and
non-EGU facilities emitting, or projected to emit, 400 tons per year or
more of NOX) from the named states and asserts that these
facilities are expected to have the
[[Page 56060]]
greatest impact on the ability of the NYMA and Chautauqua County to
attain and maintain the 2008 and 2015 NAAQS.\6\ The petition uses NY
DEC generated air quality modeling data to show single-day, 8-hour
average impacts from the group of 400 ton-per-year sources identified
in any individual state of up to 6.34 ppb in Chautauqua County and 4.97
ppb in the New York portion of the NYMA nonattainment area.\7\ The
petition asserts that instances in which the maximum impact from an
individual state's total combined 400 ton-per-year sources exceeds 0.75
ppb at a particular monitor indicate significant contribution to
nonattainment or interference with maintenance of the 2008 ozone NAAQS.
The petition further asserts that impacts above 0.70 ppb indicate
significant contribution to nonattainment or interference with
maintenance of the 2015 ozone NAAQS. NY DEC used its own independent
modeling to support the assertions in their CAA section 126(b) petition
because the State ``has significant concerns'' about the assumptions
and results of the EPA's recently released 2023 air quality modeling
and its applicability to the CAA section 126(b) petition process.\8\
The petition takes particular issue with the EPA's expectation that
uncontrolled EGUs will greatly reduce their emissions rates in the
absence of unit-level enforceable limits and expresses the additional
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 state implementation plans (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.
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\6\ 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. The petition also
identifies non-EGU sources emitting greater than 400 tons of
NOX in the 2014 National Emissions Inventory.
\7\ 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 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 1-percent-of-the-NAAQS
threshold.
\8\ 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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After asserting that the identified sources within the named upwind
states significantly contribute to nonattainment or interfere with
maintenance of the 2008 and 2015 ozone NAAQS in New York, the petition
further asserts that these named sources can reasonably be retrofitted
with control equipment or can operate existing controls more frequently
to reduce NOX emissions. The petition requests that the EPA
establish permanent and enforceable emissions limitations for the named
sources at levels designed to prevent them from significantly
contributing to nonattainment or interfering with maintenance in New
York State. 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. The petition acknowledges
that some of the facilities identified in the petition may already
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. Section III.D of the proposal
provides more detail regarding the content of the New York CAA section
126(b) petition.
After receiving New York's CAA section 126(b) petition in March of
2018, and 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 act on the petition. On May 11, 2018, the
EPA published a document extending the deadline for acting on New
York's CAA section 126(b) petition to November 9, 2018.\9\ That
document is in the docket for this rulemaking.
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\9\ 83 FR 21909 (May 11, 2018).
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C. Summary of the EPA's May 6, 2019, Proposal
In Section IV of the proposal, the EPA explained its basis for
proposing to deny the CAA section 126(b) petition from New York. Given
that ozone is a regional pollutant and that the EPA had recently
evaluated regional ozone pollution in two recent rulemakings--the CSAPR
Update \10\ and the Determination Regarding Good Neighbor Obligations
for the 2008 Ozone National Ambient Air Quality Standard \11\ (the
Determination Rule)--the EPA proposed to evaluate New York's CAA
section 126(b) petition consistent with the same four-step interstate
transport framework (see Section II.C.1 of this action) that the EPA
has used in previous regulatory actions to evaluate regional ozone
transport problems.
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\10\ 81 FR 74504 (October 26, 2016).
\11\ 83 FR 65878 (December 21, 2018).
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The EPA identified multiple bases for the proposed denial. The EPA
noted that the Agency's historical approach to evaluating CAA section
126(b) petitions first looks at whether a petition independently
identifies or establishes a technical basis for the requested CAA
section 126(b) finding. 84 FR 22797. In this regard, the Agency
proposed to find that several aspects of New York's analyses are
insufficient to support New York's conclusion that the sources named in
the petitions emit or would emit in violation of the good neighbor
provision. First, considering step 1 of the four-step interstate
transport framework, the EPA proposed to find that New York's petition
does not provide sufficient information to demonstrate that there is a
current or expected future downwind nonattainment or maintenance
problem in Chautauqua County with respect to either the 2008 or the
2015 ozone NAAQS. Id. at 22800. Similarly, with respect to the NYMA,
the EPA proposed to find, at step 1, that the New York 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. Id. at 22800-01. Second, considering step 3 of the four-
step interstate transport framework, the EPA proposed to find that
material
[[Page 56061]]
elements in New York's analyses are technically deficient, 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. Id. at 22802.
The EPA further proposed to rely on its own independent analysis to
evaluate the requested CAA section 126(b) findings at step 1
considering available air quality monitoring and modeling data. Id. at
22800. The EPA proposed to find that its independent analysis provides
no basis to conclude that Chautauqua County will have an air quality
problem relative to either the 2008 or the 2015 ozone NAAQS. The EPA
explained that the 2015-2017 design value in Chautauqua County is 68
ppb, which is below the level of both the 2008 and 2015 ozone
NAAQS.\12\ Furthermore, the EPA indicated that it had recently
finalized a determination that the Jamestown, New York Marginal
nonattainment area (Chautauqua County) has attained the 2008 ozone
NAAQS.\13\ Additionally, Section IV.B of the proposal explained that
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 the 2008 ozone NAAQS. The EPA's air quality modeling supporting the
Determination Rule also indicates that the monitor in Chautauqua County
is expected to continue to both attain and maintain the 2015 ozone
NAAQS standard in 2023, with an average 2023 design value of 58.5 ppb
and a maximum 2023 design value of 60.7 ppb.\14\
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\12\ 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.
\13\ 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).
\14\ 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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The EPA also proposed to find that its independent analysis,
conducted to support the Determination Rule, provides no basis to
conclude that the NYMA will have a future air quality problem relative
to the 2008 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.
As noted previously, considering step 3 of the four-step interstate
transport framework, the EPA proposed to find that material elements in
New York's analyses are technically deficient, 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. As discussed in Section IV.B of the proposal, the EPA
did not independently conduct a regional step 3 analysis for any
sources with respect to the 2015 ozone NAAQS because the EPA interprets
CAA section 126(b) as placing the burden on the petitioner to establish
a technical basis for the specific finding requested, and, unlike the
step 1 analysis, the EPA lacked information and analysis on which it
could rely for such an independent step 3 analysis.
II. Background and Legal Authority
This section of the notification discusses background and legal
authority relevant to this action beginning with an overview of ozone
formation and interstate transport in Section II.A. Section II.B of
this notification describes the key statutory provisions under both CAA
sections 126 and 110(a)(2)(D)(i)(I), including the relationship between
the good neighbor provision and CAA section 126(b). Section II.C
summarizes the EPA's historical approach to addressing the interstate
transport of ozone under the good neighbor provision to include a
description of the four-step interstate transport framework and the
EPA's prior regional rulemakings.
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 ppb.\15\ On October 1, 2015, the EPA further revised the ground-
level ozone NAAQS to 70 ppb.\16\
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\15\ See National Ambient Air Quality Standards for Ozone, Final
Rule, 73 FR 16436 (March 27, 2008).
\16\ See National Ambient Air Quality Standards for Ozone, Final
Rule, 80 FR 65292 (October 26, 2015).
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As discussed in Section III.A of the proposal, ground-level ozone
is not emitted directly into the air but is a secondary air pollutant
created by chemical reactions between ozone precursors, chiefly
NOX and non-methane volatile organic compounds (VOCs), in
the presence of sunlight. Emissions from mobile sources, EGUs,
industrial facilities, gasoline vapors, and chemical solvents are some
of the major anthropogenic sources of ozone precursors. These precursor
emissions can be transported downwind directly or, after 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 United
States. 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.\17\ For further discussion of ozone-
formation chemistry and health effects, see the National Ambient Air
Quality Standards for Ozone, Final Rule, 80 FR 65292 (October 26,
2015). For further discussion of the regional nature of interstate
transport of ozone pollution see the Determination Rule, 83 FR 65879-80
(December 21, 2018).
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\17\ 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.
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B. CAA Sections 110 and 126
CAA sections 126 and 110(a)(2)(D)(i) provide the statutory
authority for this action. 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.\18\ 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
[[Page 56062]]
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.
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\18\ The text of CAA section 126 as codified in the U.S. Code
cross-references CAA section 110(a)(2)(D)(ii) instead of CAA section
110(a)(2)(D)(i). The courts have confirmed that this is a
scrivener's error and that Congress instead intended to cross-
reference 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 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 II.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, the Determination Rule, finalized a determination that the
existing CSAPR Update fully addresses 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 ensuring 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 EPA has historically addressed the
interstate transport of ozone pursuant to the good neighbor provision
by promulgating rulemakings that addressed significant contribution and
interference with maintenance through regional trading programs to
reduce NOX emissions. Each of these rulemakings followed a
similar four-step interstate transport framework to evaluate and
address 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,\19\ the EPA 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):
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\19\ 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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(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, referred to as 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 an air quality 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 for certain sources in the state 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.\20\ 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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\20\ 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 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 states
actually contribute to a downwind air quality problem, whether and
which sources can be cost-effectively controlled to address that
downwind air quality
[[Page 56063]]
problem, what level of emissions should be eliminated to address the
downwind air quality problem (and thus should be considered
``significant''), 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).\21\ 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 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 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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\21\ 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. 65 FR 56245 (September 18, 2000). The EPA
recently finalized an action rescinding the findings of good
neighbor obligations with respect to 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 precursor 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 resulted in a
judicial stay of the NOX SIP Call and led the EPA to ``de-
link'' the CAA section 126(b) petition response from the NOX
SIP Call. 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
[[Page 56064]]
respects, and the rule was remanded in July 2008 with the instruction
that the EPA replace the rule ``from the ground up.'' North Carolina v.
EPA, 531 F.3d 896, 929 (D.C. Cir.), modified on reh'g, 550 F.3d 1176
(D.C. Cir. 2008). 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 emissions from sources in
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.\22\ 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 than
necessary to address downwind air quality problems, or ``over-
controlling'' upwind state emissions. See EPA v. EME Homer City
Generation, L.P., 572 U.S. 489, 521-22 (2014) (EME Homer City).\23\
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\22\ 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.
\23\ 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.\24\ 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 upcoming 2017 ozone season,
which coincided with the (then) upcoming 2018 Moderate area attainment
date. The EPA 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. The CSAPR Update is subject to pending legal challenges in the
D.C. Circuit. Wisconsin v. EPA, No. 16-1406 (D.C. Cir. argued October
3, 2018).
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\24\ 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 of 2017 air quality at that time, the emissions
reductions required by the rule ``may not be all that is needed'' to
address transported emissions.\25\ 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 1 percent threshold used at step 2 of the
EPA's analysis. 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 or further EGU control
strategies (i.e., the implementation of new post-combustion controls)
that may be achievable on timeframes extending beyond the 2017 analytic
year used in the EPA's analysis. The Agency recognized that completing
such an analysis could extend the timeframe for action and prioritized
the substantial short-term emissions reductions achievable for the 2017
ozone season. See 81 FR 74521 for additional details.
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\25\ 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, 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,
[[Page 56065]]
the ninth state named in New York's petition), 83 FR 33730 (July 17,
2018), that relied on the same air quality modeling used in the
Determination Rule. The Determination Rule is subject to pending legal
challenges in the D.C. Circuit. New York v. EPA, No. 19-1019 (D.C.
Cir.).
Most recently, the EPA acted on six CAA section 126(b) petitions
pertaining to the 2008 and 2015 ozone NAAQS submitted by the States of
Connecticut, Delaware, and Maryland regarding various sources in five
upwind states. 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 16064 (April 13, 2018) (Connecticut) 83 FR
50444 (October 5, 2018) (Delaware and Maryland).\26\ The EPA found that
the downwind areas were not projected to have problems attaining or
maintaining the NAAQS (step 1) and/or that the petition failed to
identify cost-effective emissions reductions for the affected sources
(step 3), particularly where enforceable emissions limits had already
been implemented for certain sources in the form of state-wide
emissions budgets and, thus, the EPA already had addressed their
significant contribution or interference with maintenance for those
sources.
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\26\ The EPA's denial of the Delaware and Maryland petitions is
subject to pending legal challenges in the D.C. Circuit. Maryland v.
EPA, No. 18-1285 (D.C. Cir. filed October 15, 2018).
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III. The EPA's Final Response to the CAA Section 126(b) Petition From
New York
The EPA is finalizing a denial of the CAA section 126(b) petition
from New York. Section III.A of this notification describes the
reasonableness of applying the four-step interstate transport framework
as the standard of review in evaluating New York's CAA section 126(b)
petition. Section III.B discusses the EPA's general standard of review
of CAA section 126(b) petitions. Section III.C describes the EPA's
determination that New York has not demonstrated that the sources named
in its petition emit or would emit in violation of the good neighbor
provision such that they will significantly contribute to nonattainment
or interfere with maintenance of the 2008 or 2015 ozone NAAQS in New
York. Where the EPA has currently available information to inform an
independent analysis of New York's petition, we also present this
information in Section III.C. In Section III, generally, and in the RTC
document included in the docket for this action, the Agency explains
the rationale supporting its final action and provides its response to
significant public comments on the proposed action.
A. Reasonableness of Applying the Four-Step Interstate Transport
Framework for This Action
As discussed in Section II.C of this notification, the EPA has
consistently analyzed ozone transport with the understanding that
nonattainment and maintenance concerns result from the cumulative air
quality impacts of contributions from numerous anthropogenic sources
across several upwind states (as well as from within the downwind
state). Consistent with this understanding, the EPA has historically
evaluated ozone transport based, in part, on the relative contribution
of all anthropogenic sources within a state, as measured against a
screening threshold, and then identified particular source sectors and
units for regulatory consideration.\27\ This approach to evaluating
ozone transport is reasonable because the statute's use of
``significantly'' as a modifier to ``contribute'' implies a
relationship (e.g., the impact a source or collection of sources has
relative to other relevant sources of that pollutant). Therefore,
although CAA section 126(b) allows downwind states to petition the EPA
regarding specific sources or groups of sources that they believe are
contributing to the downwind air quality problems, the EPA believes it
is reasonable and appropriate to evaluate the emissions from sources
named in a CAA section 126(b) petition in the context of all relevant
anthropogenic sources of that pollutant to determine whether emissions
from the named sources violate the good neighbor provision. In this
way, the EPA can evaluate whether the petitioner has appropriately
identified the source or group of sources that should be regulated.
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\27\ The EPA has used cost as a factor in its multi-factor
approach for quantifying significant contribution from multiple
contributing states. Cost is used in a relative (i.e., least-cost
abatement) approach that also requires examining individual source
impact and reduction potential in the context of the larger universe
of contributors.
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The EPA notes that the four-step framework provides a logical,
consistent and systematic approach for addressing interstate transport
for a variety of criteria pollutants under a broad array of national,
regional and local scenarios. Consequently, the EPA finds it reasonable
to apply the same four-step interstate transport framework used to
evaluate regional ozone transport under the good neighbor provision in
considering a CAA section 126(b) petition addressing the impacts of
individual sources on downwind attainment and maintenance of the ozone
NAAQS. As the four-step interstate transport framework is applied to
evaluate a particular interstate transport problem, the EPA can
determine whether upwind sources are actually contributing to a
downwind air quality problem; whether and which sources can be cost
effectively controlled relative to 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 will vary based on the scope of the air quality
problem, the availably and cost of controls at sources in upwind states
and the relative impact of upwind emissions reductions on downwind
ozone concentrations.
The complexity of atmospheric chemistry and nature of ozone
transport also demonstrate the appropriateness of applying the four-
step interstate transport framework in considering a CAA section 126(b)
petition. As a result of this complexity, including domestic and
international as well as anthropogenic and background contributions to
ozone and its precursors, it is less likely that a single source is
entirely responsible for impacts to a downwind area. Thus, a
determination regarding whether this impact is sufficient to
significantly contribute to nonattainment or interfere with maintenance
of the NAAQS--in light of other anthropogenic emissions sources
impacting a downwind area--is necessarily more complicated. The EPA
therefore evaluates within step 3 of the framework whether upwind
sources have emissions that significantly contribute to nonattainment
or interfere with maintenance of the ozone NAAQS based on various
control, cost and air quality factors, including the magnitude of
emissions from upwind states, the amount of potential emissions
reductions from upwind sources, the cost of those potential emissions
reductions, and the potential air quality impacts of emissions
reductions.\28\ The
[[Page 56066]]
EPA believes it is reasonable to consider these factors whether
evaluating ozone transport in the context of a good neighbor SIP under
CAA section 110 or a CAA section 126(b) petition.
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\28\ ``We believe it is important to consider both [cost and air
quality] factors because circumstances related to different downwind
receptors can vary and consideration of multiple factors can help
EPA appropriately identify each state's significant contribution
under different circumstances . . . . Using both air quality and
cost factors allows 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, considering cost takes into account the
extent to which existing plants are already controlled as well as
the potential for, and relative difficulty of, additional emissions
reductions. Therefore, EPA believes that it is appropriate to
consider both cost and air quality metrics when quantifying each
state's significant contribution.'' Proposed Federal Implementation
Plans To Reduce Interstate Transport of Fine Particulate Matter and
Ozone, 75 FR 45210, 45271 (August 2, 2010) (CSAPR proposal)
(describing potential disparities between upwind and downwind state
contributions to identified air quality problems and between levels
of controls between states).
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For any analysis of a CAA section 126(b) petition regarding
interstate transport of ozone, a regional pollutant with contribution
from a variety of sources, the EPA reviews whether the particular
sources identified by the petitioner should be controlled in light of
the collective impact of emissions on air quality in the area,
including emissions from other anthropogenic sources. Thus, review of
the named sources in New York's petition provides a starting point for
the EPA's evaluation, but does not--as the commenters suggest--complete
the evaluation to determine whether the named sources emit or would
emit in violation of the good neighbor provision.
Several commenters assert that the EPA incorrectly applied the
four-step interstate transport framework used to address CAA section
110(a)(2)(D)(i)(I) to the separate provision under CAA section 126(b).
Specifically, one commenter states that the four-step interstate
transport framework aligns with the planning requirements under CAA
section 110(a)(2)(D)(i)(I) because it allows contribution to be
apportioned by state boundaries particularly at step 2, which considers
whether an upwind state is linked to the downwind air quality problem
above an identified air quality threshold. The commenter explains that
applying such a threshold allows the collective ``significant
contribution'' from a group of sources located in multiple upwind
states to be apportioned into ``non-significant contributions''
according to state boundaries. The commenter continues by stating that
the provisions in CAA section 126 apply to source emissions regardless
of state boundaries, thereby better reflecting the science of air
pollution transport and allowing a state to petition for, were the EPA
to grant the petition, the application of emissions reductions
requirements to a group of stationary sources located in multiple
upwind states.
A second commenter notes that the EPA's use of the four-step
interstate transport within CAA section 126(b) does not facilitate the
application of the CAA section 126(b) petition mechanism as intended,
which the commenter articulates as including the use of such petitions
and the EPA's action thereupon as a precise tool to control specific
sources (e.g., EGUs), potentially through the imposition of emissions
limits including shorter averaging times. The commenter notes that the
good neighbor provision, as the EPA has historically implemented it,
relies on regional trading programs and robust emissions allowance
pools, which do not guarantee control of emissions from nearby, upwind
sources on high electric demand days that are most conducive to
downwind ozone formulation.
The EPA disagrees with commenters who assert that its application
of the four-step interstate transport framework used to address
requirements under the good neighbor provision is not appropriate to
address CAA section 126(b) petitions. While either CAA section 126(b)
or CAA section 110(a)(2)(D)(i)(I) may be applied to address interstate
transport, as discussed in Section III.B, the cross-reference in CAA
section 126(b) to the prohibition in CAA section 110(a)(2)(D)(i) means
that the same substantive standard is used to determine whether there
is a violation under either section and, therefore, whether emissions
should be prohibited in either a good neighbor SIP or in a finding
under CAA section 126(b). Moreover, the EPA also believes its use of
the four-step interstate transport framework to evaluate a CAA section
126(b) petition continues to be technically justified, especially as it
applies to New York's petition addressing the impacts of hundreds of
sources to alleged ozone nonattainment downwind.
As discussed earlier, the EPA agrees with commenters that ozone
nonattainment problems result from the cumulative air quality impacts
of relatively smaller contributions from numerous anthropogenic sources
across several upwind states (as well as from within the downwind
state). Thus, evaluating which upwind states and sources should be held
responsible for addressing downwind nonattainment presents a ``thorny
causation problem.'' EME Homer City, 572 U.S. at 514. This is true
whether the EPA is evaluating the problem in the context of reviewing a
SIP or promulgating a FIP under CAA section 110(a)(2)(D)(i)(I) or in
the context of evaluating a petition targeting individual sources under
CAA section 126(b). The four-step interstate transport framework
provides a reasonable approach to identifying which upwind states and
sources among many should bear the responsibility for implementing
emissions reductions to benefit downwind air quality.
Thus, the EPA disagrees with commenters asserting that application
of a statewide air quality threshold at step 2 is inappropriate under
CAA section 126(b). First, as discussed further in Section III.C of
this notification, while the EPA is not taking a position regarding
what air quality threshold is most appropriately applied with respect
to the 2015 ozone NAAQS, the EPA agrees that its modeling shows that
upwind states named in the petition are all linked to a projected air
quality problem in the NYMA using the 1 percent threshold that the EPA
has used in other recent rulemakings to evaluate step 2 linkages.
Accordingly, although the EPA is not here deciding whether the 1
percent threshold is the only appropriate screening level that might be
applied for good neighbor analysis for the 2015 ozone NAAQS in other
contexts (such as the EPA's review of SIP submissions \29\ addressing
2015 ozone NAAQS good neighbor obligations), the EPA has not proposed
to deny the petition on the basis of any analysis at step 2, and the
commenter's concern that the use of any statewide air quality threshold
is ill-suited to a CAA section 126(b) petition is not raised in this
action.
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\29\ 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 2018) (providing analysis to support
potential use of a 1 ppb threshold in the development of good
neighbor SIPs for the 2015 ozone NAAQS). Available at https://www.epa.gov/sites/production/files/2018-09/documents/contrib_thresholds_transport_sip_subm_2015_ozone_memo_08_31_18.pdf.
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The EPA further notes that both New York's petition and the
commenters conflate the EPA's use of an air quality threshold at step 2
with the full analysis used under the four-step interstate transport
framework as a whole for apportioning responsibility for emissions
reductions among upwind states and sources. New York's CAA section
126(b) petition uses a 1 percent threshold to identify states that are
linked to the downwind air quality problems and asserts that all the
emissions from the named sources that collectively exceed 1 percent are
deemed significant. However, this
[[Page 56067]]
misunderstands the EPA's use of the air quality threshold in the
context of the four-step interstate transport framework. If an upwind
state's air quality impact to an identified downwind air quality
problem exceeds the threshold as determined at step 2, the EPA then
turns to the evaluation of additional cost and air quality factors at
step 3 to determine what amount of emissions, if any, from an upwind
state should be considered to significantly contribute to the downwind
air quality problems. If the collective air quality contribution does
not exceed the threshold, then emissions from within the state are
considered not to significantly contribute to the downwind air quality
problem. Thus, the EPA reasonably uses an air quality threshold at step
2 of the four-step interstate transport framework as one aspect of the
resolution of the ``thorny causation'' problem by identifying which
states' collective impact is sufficiently large to merit further review
of the emissions reduction potential at sources within the state. As
the cumulative nature of the ozone problem remains the same whether
evaluated under CAA section 110(a)(2)(D)(i)(I) or section 126(b), the
EPA believes that it is reasonable to apply a statewide air quality
threshold in this case as in the four-step interstate transport
framework that it has historically used to implement the good neighbor
provision.
The EPA also disagrees that its use of the four-step interstate
transport framework precludes the targeted, source-specific remedy
provided for by CAA section 126(c). Although the EPA has used regional
trading programs to address good neighbor obligations in past
rulemakings under both CAA section 110(a)(2)(D)(i)(I) and CAA section
126(b), the application of the framework does not dictate that the
remedy at step 4 necessarily be implemented in a particular manner.
Thus, the four-step interstate transport framework can be applied in
the context of CAA section 126(b) to determine whether a source is
operating in violation of the good neighbor provision with sufficient
flexibility to permit the application of an appropriately demonstrated
remedy under CAA section 126(c), whether through a regional trading
program or source-specific emissions limits.
B. The EPA's Standard of Review for This CAA Section 126(b) Petition
Regarding the 2008 and 2015 8-Hour Ozone NAAQS
As discussed in Section II.B of this action, 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. CAA 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 approach for evaluating a CAA section 126(b) petition. 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).\30\ 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, which is to mitigate significant
contribution to nonattainment and interference with maintenance of the
NAAQS in downwind states. 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,
accordingly, both provisions are reasonably interpreted to 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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\30\ 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 the
ambiguous terms incorporated by the cross-reference to CAA section
110(a)(2)(D)(i) (i.e., ``contribute significantly to nonattainment''
and ``interfere with maintenance'') \31\ consistent with the EPA's past
approach to evaluating interstate ozone pollution transport under the
good neighbor provision, and its interpretation and application of that
related provision of the statute. As previously discussed, ozone is a
regional air pollutant and the EPA's previous analyses and regulatory
actions have evaluated the regional interstate ozone transport problem
using the four-step interstate transport framework. The EPA most
recently applied this four-step interstate transport 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.\32\ 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.
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\31\ The Supreme Court confirmed that these terms are ambiguous
in EME Homer City and that the EPA is therefore delegated the
authority to reasonably interpret the provisions. 572 U.S. at 514-15
n.18.
\32\ The EPA similarly evaluated the impact of Kentucky on New
York's air quality after implementation of the CSAPR Update in
approving the former state's SIP submission and concluded Kentucky's
good neighbor obligations for the 2008 ozone NAAQS were fully
addressed by the CSAPR Update. 83 FR 33730 (July 17, 2018). No legal
challenges to the EPA's determinations in that SIP action were filed
within the period for judicial review.
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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
engaged in a regional rulemaking action to apply the good neighbor
provision for the 2015 ozone NAAQS. However, the EPA has released
technical information intended to inform states' development of SIPs to
address the 2015 ozone standard.\33\ 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
[[Page 56068]]
Section III.C.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.\34\ 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 approach 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 CAA section 126(b) petition consistent with
the EPA's four-step interstate transport framework used to evaluate
other ozone NAAQS.
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\33\ 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).
\34\ 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 final 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 CAA sections 110(a)(2)(D)(i)(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)(i)(I). 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 (balancing
various cost and air quality factors) 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). If the EPA makes a CAA section 126(b) finding based on
its determination that a source or sources will significantly
contribute to nonattainment or interfere with maintenance, then the EPA
will implement a remedy under CAA section 126(c) to ensure that the
violation of the good neighbor provision is addressed through permanent
and enforceable measures (i.e., step 4).
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, 572
U.S. at 515 n.18, 521-22 (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 the EPA approved a state's SIP as
adequately meeting 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 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); 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) for a particular NAAQS, the EPA will evaluate the
CAA section 126(b) petition to determine if the submitted petition
raises new information that merits further consideration.
Turning to the comments on the EPA's proposed standard of review,
several commenters took issue with the EPA's application of the four-
step interstate transport framework under CAA section 126, arguing that
in doing so the EPA is ``unlawfully eliminating [CAA] section 126 as an
independent statutory tool for downwind states.'' Commenters disagreed
with the EPA's interpretation of the relationship between the good
neighbor provision under CAA sections 110(a)(2)(D)(i)(I) and 126(b),
contending that Congress intended CAA section 126(b) petitions to be a
legal tool to address interstate problems separate and distinct from
SIP and FIP actions under CAA section 110. Commenters cite to
legislative history and the Third Circuit's opinion in GenOn, 722 F.3d
at 520-23, in support of their assertions that CAA section 126 is
intended to remedy interstate transport problems notwithstanding the
existence of CAA section 110. Commenters accordingly assert the EPA is
incorrect in determining that its four-step interstate transport
approach under CAA section 110(a)(2)(D)(i)(I) is appropriate for
evaluating under CAA section 126(b) whether an upwind source or group
of sources will significantly contribute to nonattainment or interfere
with
[[Page 56069]]
maintenance of the 2008 and the 2015 ozone NAAQS in a petitioning
downwind state.
The EPA has consistently acknowledged in prior actions under CAA
section 126(b) that Congress created the good neighbor provision and
CAA section 126 as two independent statutory processes to address one
problem: Interstate pollution transport. See, e.g., 83 FR 26666, 26675
(June 8, 2018) (proposal for this final action); 76 FR 69052, 69054
(November 7, 2011) (proposed action for the EPA's final action on New
Jersey's CAA section 126(b) petition regarding SO2 emissions
from Portland Generating Station). As the commenters point out, the
Third Circuit has upheld the EPA's position that CAA sections
110(a)(2)(D)(i) and 126 are two independent statutory processes to
address the same problem of interstate transport. See GenOn, 722 F.3d
at 520-23. However, the commenters misread the court's holding
regarding the EPA's interpretation of the interplay between the two
provisions. The Third Circuit spoke to the question of the timing and
sequence of these processes--specifically, whether the EPA could act on
a CAA section 126(b) petition in instances where the Agency had not yet
acted on a CAA section 110 SIP addressing interstate transport for the
same NAAQS. The Third Circuit also cited to a similar holding by the
D.C. Circuit in Appalachian Power. Appalachian Power, 249 F.3d at 1047.
Both courts upheld the EPA's position that it need not wait for the CAA
section 110 process to conclude before acting on a CAA section 126(b)
petition, thus affirming that both statutory provisions are independent
from one another from a timing perspective. But neither court held that
the EPA was precluded from applying the same analytical framework to
resolving CAA section 126(b) petitions as it applies to analyze states'
good neighbor obligations. Here, the Agency has not deferred action on
New York's petition regarding the 2015 ozone NAAQS, for which good
neighbor SIPs were due on October 1, 2018, until its action on the good
neighbor SIPs (for the named upwind states) has concluded. Therefore,
by acting on New York's CAA section 126(b) petition regarding the 2015
ozone NAAQS before concluding action on CAA section 110 SIPs, the EPA
believes it has given CAA section 126(b) independent meaning as
intended by Congress and the courts.
Moreover, the D.C. Circuit's opinion in Appalachian Power further
supports the EPA's interpretation taken in this action: That while the
Agency need not wait for the CAA section 110 process to conclude before
acting on a CAA section 126(b) petition, the EPA reasonably imported
the four-step interstate transport framework under CAA section 110 to
CAA section 126 by interpreting the substantive requirements of the two
provisions to be closely linked. The court in Appalachian Power
specifically considered whether it was appropriate for the EPA to rely
on findings made under the good neighbor provision in the
NOX SIP Call rulemaking in granting several CAA section
126(b) petitions raising similar interstate transport concerns with
regards to the same NAAQS. Petitioners in that case argued that the EPA
should instead make a finding that ``the specified stationary sources
within a given state independently met [the statute's] threshold test
for effect on downwind nonattainment.'' 249 F.3d at 1049. The court
found that by referring to stationary sources that emit pollutants ``in
violation of the prohibition of [CAA section 110(a)(2)(D)(i)],''
Congress ``clearly hinged the meaning of [CAA] section 126 on that of
section 110(a)(2)(D)(i).'' Id. at 1050. The court, therefore, concluded
that given CAA section 126's silence on what it means for a stationary
source to violate CAA section 110(a)(2)(D)(i), the EPA's approach of
relying on findings under CAA section 110(a)(2)(D)(i) was reasonable
and, therefore, entitled to deference under Chevron, 467 U.S. at 843.
See Appalachian Power, 249 F.3d at 1050. The EPA's approach to
addressing New York's CAA section 126(b) petition through the
application of the four-step interstate transport framework and
consideration of findings made in the CSAPR Update and the
Determination Rule is therefore reasonable and consistent with prior
case law.
Several commenters assert that the EPA cannot rely on recent
regional transport rulemakings because they did not fully address good
neighbor obligations. Commenters assert that the existence of the CSAPR
Update does not foreclose a state from seeking--or the EPA from
providing--redress under CAA section 126(b) when the state finds itself
struggling to meet NAAQS due to significant upwind contributions or
interference. When the EPA promulgated the CSAPR Update it explicitly
noted that it only served as a ``partial remedy'' as to the 2008 ozone
NAAQS. Commenters argue that the fact that New York is continuing to
experience challenges attaining the 2008 ozone NAAQS demonstrates that
significant interstate pollution and associated attainment difficulties
remain after the implementation of the CSAPR Update. Commenters
therefore assert that the EPA's reliance on the Determination Rule as a
complete remedy with respect to the 2008 ozone NAAQS is arbitrary and
capricious because the rule fails to eliminate current and ongoing
significant contributions by upwind states and sources.
The EPA agrees that the existence of the CSAPR Update does not
foreclose redress under CAA section 126(b), but the commenters misstate
the EPA's basis for evaluating the petition in light of the CSAPR
Update. Although the EPA explained in the proposal that the
Determination Rule concluded that the emissions reductions required by
the CSAPR Update would fully address covered states' good neighbor
obligations for the 2008 ozone NAAQS, the EPA did not rely on these
rules (i.e., the CSAPR Update and the Determination Rule) alone to
propose denial of the petition.\35\ Rather, as described in more detail
in Section III.C below, the EPA has reviewed the petition consistent
with its interpretation of CAA section 126(b) and the good neighbor
provision to see if additional information that was not previously
considered by the EPA in either the CSAPR Update or the Determination
Rule would justify imposing the additional control requirements that
New York requested. As described in Section III.C, the EPA specifically
considered the relevance of current air quality in New York. However,
based on its evaluation of the information provided in the petition,
the EPA has found that the petitioner has not satisfied its burden to
demonstrate that the sources named in the petition emit or would emit
in violation of the good neighbor provision with respect to either the
2008 or 2015 ozone NAAQS.
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\35\ Similar to Kentucky, the EPA did not rely on its approval
of the State's SIP alone to propose denial as to the sources named
in that state but considered whether the petition raised new
information not previously considered in that action.
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C. The EPA's Evaluation of Whether the Petition Is Sufficient To
Support a CAA Section 126(b) Finding
This section discusses the approach that the EPA used to review the
sufficiency of New York's CAA section 126(b) petition and the EPA's
resulting determination that New York has not provided an adequate
technical and analytic basis for the EPA to make a finding nor does the
EPA have available information to support such a finding.
Consistent with the EPA's approach to evaluating several prior CAA
section
[[Page 56070]]
126(b) petitions, the EPA interprets CAA section 126(b) as placing an
burden on the petitioner to establish a technical and analytic 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 EGU
facilities and 36 individual EGUs, respectively).\36\
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\36\ The EPA's response to the Maryland and Delaware petition is
currently subject to judicial review in the D.C. Circuit. Maryland
v. EPA, No. 18-1285 (D.C. Cir. filed October 15, 2018).
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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. 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 the 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.\37\ Consistent with
this position and as described further in this section of the
notification, the EPA is using supplemental information, when currently
available, as part of its discretionary independent analysis of New
York's CAA section 126(b) petition. The results of the following
analysis support the EPA's determination that New York has not provided
an adequate technical and analytic basis for the EPA to make a finding,
nor does the EPA's analysis of supplemental information available to it
outside of the basis that New York has provided support such a finding.
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\37\ 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
As discussed in Section IV.B.1 of the proposal, 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 II.C of this notification, 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.
Particularly relevant to this action, the EPA also applied this
interpretation of ``will'' in the 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, 572 U.S. at 521-22; 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 neither over- or under-control emissions with respect to the
EPA's projections as to downwind air quality at the time by which that
those controls could feasibly be implemented.
In the Determination Rule, the EPA established the appropriate
future analytic year for purposes of assessing remaining interstate
transport obligations for the 2008 ozone NAAQS. 83 FR 65889-890. The
EPA's analysis 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.
In the Determination Rule, the EPA then evaluated the timeframe
necessary to implement additional NOX control strategies at
various sources across the region. 83 FR 65893-901. For EGUs, the EPA
explained that it was appropriate to consider 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 can require up
to 39 months for an individual power plant installing controls on more
than one boiler,\38\ and that a minimum of 48 months (4 years) is a
reasonable time-period needed to complete all necessary steps of SCR
projects at EGUs on a regional scale, considering the necessary stages
of post-
[[Page 56071]]
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.\39\ The EPA, therefore,
concluded that it may reasonably take up to 4 years to install the new
emissions controls regionwide for EGUs.
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\38\ 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.
\39\ 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
of implementation timeframes for various control strategies is also
found 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. 83 FR 65901-04. 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. In addition, these preliminary estimates for implementing
control technologies do not include the time and resources needed to
install such technologies on a sector- or region-wide basis.
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.
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. Moreover, the EPA noted that 2023 was well in advance of
the subsequent attainment date for areas classified as Severe.
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. 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 2023, based on updates provided to the EPA from
states and other stakeholders on a January 6, 2017, Notice of Data
Availability (NODA).40 41 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).\42\ 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,\43\ which recommends using model predictions from the ``3 x
3'' array of grid cells surrounding the location of the monitoring
site.\44\ 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).\45\ For each individual monitoring site, the base period
2009-2013 average and maximum design values, and the 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 in PDF format at https://www.epa.gov/airmarkets/memo-supplemental-information-interstate-transport-sips-2008-ozone-naaqs.
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\40\ 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.
\41\ 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.
\42\ 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.
\43\ ``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.
\44\ The EPA's modeling uses 12km\2\ grid cells.
\45\ 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.\46\ 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
[[Page 56072]]
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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\46\ 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 EPA's 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) in which the Agency used 2023 as the future analytic
year 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.\47\ 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 the 2015 NAAQS in Moderate ozone nonattainment
areas, consistent with the D.C. Circuit's instruction in North
Carolina.\48\ As explained at proposal, while the EPA is not in this
action reopening the analysis and findings made in the Determination
Rule with respect to the 2008 ozone NAAQS, the EPA evaluated the
petition, consistent with the standard of review described in Section
III.B, 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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\47\ See n.1, supra, regarding the potential impact on this
final action of the September 13, 2019, decision of the D.C. Circuit
in Wisconsin v. EPA, No. 16-1406.
\48\ 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 New York petition 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 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).\49\
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\49\ The EPA's conclusions regarding the EGU assumptions in the
2023 modeling are also the subject of judicial review in the D.C.
Circuit. New York v. EPA, No. 19-1019 (D.C. Cir.).
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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. 83 FR 65917. The petition does not provide
any new information not already considered by the EPA in the
Determination Rule as to these issues and therefore, the EPA has no
basis to reconsider its conclusions finalized in that action.
The EPA received several comments challenging the conclusion that
it is appropriate to evaluate air quality in a future year to determine
whether there is a violation of the good neighbor provision in
evaluating New York's CAA section 126(b) petition. First, the EPA
received comments asserting that the EPA's reliance on the term
``will'' as it appears in the good neighbor provision to justify
consideration of air quality in a future year is inconsistent with the
plain language of the CAA. Commenters contend that Congress specified
that implementation plans under CAA section 110(a)(2)(D)(i) must
prohibit ``any'' pollution from ``any'' source that will contribute
significantly to nonattainment and interfere with maintenance, and that
this includes pollution that will do so between now and 2023.
The EPA does not agree that analysis of air quality in a future
year is inconsistent with the statute. The EPA reasonably interprets
the word ``will'' in the good neighbor provision 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 has routinely evaluated whether
upwind states ``will'' significantly contribute to nonattainment or
interfere with maintenance based on projections of air quality in the
future year in which any emissions reductions would be expected to go
into effect. For the 1998 NOX SIP Call, the EPA used an
analytic year of 2007. For the 2005 CAIR, the Agency used analytic
years of 2009 and 2010 for ozone and PM2.5, respectively. 63
FR 57450; 70 FR 25241. The EPA applied the same approach in finalizing
CSAPR in 2011, the CSAPR Update in 2016, and the Determination Rule in
2018 by evaluating air quality in 2012, 2017 and 2023, respectively. 76
FR 48211; 81 FR 74537.
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 North Carolina court affirmed the EPA's interpretation,
explaining that ``will'' ``can mean either certainty or indicate the
future tense'' and held that it is reasonable for the EPA to give
effect to both potential meanings of the word. Id. Thus, although the
court acknowledged that the term ``will'' could refer to the certainty
of an upwind state's impact on a downwind state (i.e., based on current
measured nonattainment), the court also clearly acknowledged the
ambiguity of this term and indicated this was not the only reasonable
interpretation. Given this ambiguity, the D.C. Circuit affirmed that
the EPA's approach is permissible under the Act.
While the EPA agrees that the references to ``any'' in CAA section
110(a)(2)(D)(i) mean that any source of emissions of any air pollutant
having the requisite impact may be subject to control under that
provision, the commenter does not explain how this term limits the
EPA's discretion to
[[Page 56073]]
evaluate of future air quality when evaluating whether such emissions
have the requisite impact on downwind areas and therefore whether such
control is necessary or authorized. Rather, as the commenter fails to
acknowledge, the EPA is only authorized under the good neighbor
provision to require the prohibition of such emissions in ``amounts
which will'' improperly impact another state with respect to the NAAQS.
The Supreme Court has held that this language means that any emissions
reductions imposed under the good neighbor provision be no greater than
necessary to address downwind NAAQS, i.e., that the EPA avoid
unnecessary over-control of emissions from upwind states. See EME Homer
City, 572 U.S. at 521-22. In interpreting that decision, the D.C.
Circuit declared the EPA's emissions reduction requirements for certain
states to be invalid under the good neighbor provision where the EPA
had information indicating that there will be no downwind air quality
problems by the time the emissions reductions would have been
implemented. See EME Homer City II, 795 F.3d at 130. Thus, the EPA does
not agree that it is obligated to impose emissions reductions if there
will be no downwind air quality issues to address by the time such
reductions could be in place.
Several commenters contend that, by evaluating air quality in a
future year the EPA fails to give ``emits'' in the phrase ``emits or
would emit'' under CAA section 126(b) independent meaning, thereby
unreasonably ignoring existing air quality issues in evaluating CAA
section 126(b) petitions. Commenters contend that the provision is
intended to provide relief for both current and future attainment and
maintenance problems, with one commenter noting that the ``or''
conjunction indicates that the criteria for demonstrating a violation
could be fulfilled either through current or future conditions. Thus,
the commenters conclude that it is inappropriate for the EPA to rely on
the word ``will'' in the good neighbor provision to base its analysis
on future air quality without considering current conditions.
One commenter further asserts that the EPA's forward-looking
approach to interpreting the requirements of CAA section 126(b) is
inconsistent with its prior grant of a CAA section 126(b) petition from
New Jersey, which was based on the named source's current and ongoing
emissions.\50\ The commenter cites the Third Circuit's decision which
upheld the EPA's action on the petition in GenOn, indicating that the
court noted, in construing the timing provisions of CAA section 126
``that a statute ought, upon the whole, to be so construed that, if it
can be prevented, no clause, sentence, or word shall be superfluous,
void, or insignificant.'' 722 F.3d 513, 520-21 (3d Cir. 2013) (quoting
TRW Inc. v. Andrews, 122 S. Ct. 441 (2001)).
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\50\ Final Response to Petition from New Jersey Regarding
SO2 Emissions From the Portland Generating Station, 76 FR
69052 (November 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).
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The EPA agrees it must give meaning to the statutory terms of CAA
section 126(b) and has done so here. As an initial matter, certain
commenters misconstrue the EPA's forward-looking evaluation of air
quality impacts under CAA section 126(b) as stemming from the phrase
``would emit'' under this provision. As described in this section, the
EPA looks to future air quality impacts under CAA section 126(b)
because of the future-looking reference in the word ``will'' under the
good neighbor provision, a violation of which is the explicit condition
precedent for making the requested finding under CAA section 126(b). As
explained in the EPA's prior actions under CAA section 126(b), the EPA
reasonably interprets the terms ``emits or would emit'' as referring to
the named source or sources' operating conditions, not air quality.\51\
The EPA interprets the term ``emits'' as referring to a source's
current emissions levels and ``would emit'' as referring to a source's
reasonably anticipated future emissions levels. Accordingly, the EPA
has given ``emits'' meaning independent from ``would emit'' by
reasonably interpreting the terms as referring to the current and
future operating conditions of the source or sources named in a CAA
section 126(b) petition.
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\51\ See Response to June 1, 2016 Clean Air Act Section 126(b)
Petition from Connecticut, Final Action, 83 FR 16070 (April 13,
2018); Response to Clean Air Act Section 126(b) Petitions from
Delaware and Maryland, Final Action, 83 FR 50453 (October 5, 2018).
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Contrary to the commenters' contention, the ``emits'' language is
not in conflict with the incorporation of the term ``will'' as the
standard for reviewing CAA section 126(b) petitions. Consistent with
prior actions under CAA section 110(a)(2)(D)(i)(I), the EPA evaluates
at step 1 of its analysis whether the downwind area in question will
have an air quality problem in a relevant future year and at step 2
whether emissions from the upwind state in which the named source is
located will impact the downwind area such that sources in the state
should be subject to further analysis in step 3. If the EPA determines
that the state will be linked to a downwind air quality problem in a
relevant future year, it is in step 3 that the EPA evaluates the
sources' emissions and operating conditions to determine whether the
source named in the petition can and should be subject to control, and
thus found to significantly contribute to nonattainment or interfere
with maintenance of the NAAQS downwind. Thus, the EPA's interpretation
reasonably gives meaning to both the term ``will'' as incorporated into
CAA section 126(b) and the ``emits or would emit'' clause in the
context of the four-step interstate transport framework. Commenters'
interpretation reads ``will'' out of the good neighbor provision and
would require the EPA to interpret the ``prohibition'' of CAA section
110(a)(2)(D)(i)(I) in two contrary ways depending on the statutory
process--as future-looking in a CAA section 110 analysis and limited to
current conditions in a CAA section 126 analysis--despite the fact that
CAA section 126(b) directly incorporates the terms of the good neighbor
provision. The EPA does not agree that this would be a reasonable
interpretation of the statutory provisions; at minimum, the EPA
believes its interpretation is reasonable.
The EPA applied its same interpretation in acting on New Jersey's
CAA section 126(b) petition for the Portland Generating Station, which
was addressed in the Third Circuit's GenOn decision and which
commenters incorrectly characterize as contrary to the EPA's
interpretation here. In the EPA's proposed action on that petition, the
EPA stated that it ``interprets the term `emits or would emit' as a
reference to the source's current and potential future emissions. . . .
For the emissions the source `would emit' (i.e., its potential future
emissions), it is appropriate to consider the level at which the source
could emit given the existing constraints on its emissions. . . .'' 76
FR 19671. The EPA's treatment of New Jersey's petition with respect to
current nonattainment is also not inconsistent with its forward-looking
evaluation of New York's petition under step 1. The EPA's action on New
Jersey's petition found that the named source alone caused downwind
violations of the relevant SO2 NAAQS, and that the modeled
magnitudes of those violations were seven times the NAAQS. 76 FR 69057.
Ambient SO2 concentrations mostly vary only
[[Page 56074]]
depending on a specific source's operation, and to the extent a source
is consistently operating the same way over time, the SO2
impacts from that source are anticipated to remain the same.\52\ There
was no indication that the future operation of the source named in New
Jersey's petition would change in the absence of emissions limits, so
it was unnecessary for the EPA to evaluate the source's expected
downwind impact on the SO2 NAAQS in New Jersey in a future
year as the result would have likely been the same. The historic
variability of ozone is often influenced by meteorology and other
factors, which can affect the magnitude of impact on downwind air
quality from year to year. See CSAPR Update, 81 FR 74504, 74513-14
(October 26, 2016) (discussing observational studies regarding the
nature of ozone transport). Moreover, given the numerous sources
impacting downwind ozone concentrations and the general trend in
decreasing NOX emissions, current air quality is often not
indicative of air quality in a future year. Thus, current conditions do
not necessarily indicate whether there will be an ozone transport
problem in a future year.
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\52\ See, e.g., Data Requirements Rule for the 2010
SO2 NAAQS, 80 FR 51057 (explaining that peak
concentrations of SO2 are commonly because of one or a
few sources, peak concentrations are typically near the source, and
SO2 is not the result of complex atmospheric chemical
reactions unlike ozone).
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Several commenters assert that the EPA may not rely on the 2023
modeling to evaluate future air quality in assessing New York's
petition because it does not align with the appropriate attainment
dates, and in particular, the 2021 Serious area attainment date for the
2008 ozone NAAQS applicable to the NYMA. Commenters contend that the
D.C. Circuit has found that the statute unambiguously requires
compliance with NAAQS attainment deadlines, based on the statutory
requirement that implementing provisions be ``consistent'' with Title I
of the CAA. North Carolina v. EPA, 531 F.3d 896, 911-12 (D.C. Cir.
2008). Commenters therefore contend that the timing of good neighbor
obligations must be directly tied to actual attainment dates, not to a
date that merely ``considers'' such dates. Commenters cite the D.C.
Circuit opinion in Natural Resources Defense Council v. EPA, evaluating
an attempt by the EPA to extend 2008 ozone NAAQS compliance deadlines
for several months, to include the 2018 ozone season. 777 F.3d 456,
458-59 (D.C. Cir. 2014) (NRDC). The court rejected this delay as
``untethered to Congress' approach'' and held that the EPA was required
to adhere to the 1997 ozone NAAQS attainment timeline set by the 1990
Clean Air Act amendments, plumbed to the date of attainment
designations. Id. at 469.
The EPA disagrees that it is inappropriate to rely on the 2023
modeling because it does not align with a particular attainment date.
As an initial matter, even assuming that a year aligned with the
Serious area attainment date could be an appropriate analytic year for
the EPA to consider in evaluating future air quality in New York, the
commenters have not submitted any information that indicates there will
be an air quality problem under the 2008 ozone NAAQS in New York by the
Serious area attainment year of 2021, nor did the petition provide any.
As discussed in Section III.C of this notification, the petitioner
bears the burden of establishing a technical basis for the specific
finding requested and has not done so here. The projected ozone design
values for 2023 represent the best available data regarding expected
air quality in New York in any future year. These data were developed
over the course of multiple years of analytic work, reflecting
extensive stakeholder feedback and the latest emissions inventory
updates. The EPA assembled an emissions inventory, performed air
quality analytics in 2016 and released corresponding data and findings
in the January 2017 NODA. Subsequent to stakeholder feedback on the
NODA, the EPA was able to further update its emissions inventories and
air quality modeling and release results for the 2023 future analytic
year in October 2017. The EPA has no comparable data available for
earlier analytic years between 2017 and 2023 that have been through an
equally rigorous analytic and stakeholder review process, and, thus,
the 2023 data are the best data currently available for the EPA to
evaluate New York's claims.
Moreover, to the extent the commenters are challenging the EPA's
basis for selecting 2023 as an analytic year to assess good neighbor
obligations for the 2008 ozone NAAQS in prior rulemaking actions, such
claims are not properly raised in this rulemaking action. As noted
earlier in this discussion, the EPA solicited and received public
comments regarding the bases for selecting the 2023 analytic year in
the Determination Rule, including the EPA's consideration of attainment
dates. That action is currently subject to judicial review in the D.C.
Circuit, New York v. EPA, No. 19-1019 (D.C. Cir.). The EPA did not, in
this action, reopen for public comment the analyses and findings made
in the Determination Rule. Rather, the EPA evaluated New York's
petition 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).
Accordingly, comments regarding the EPA's decision to analyze air
quality in 2023 in the Determination Rule are not within the scope of
this action.\53\
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\53\ The EPA similarly solicited and received public comment on
the use of a 2023 analytic year in acting on Kentucky's SIP
submission, which was based on a similar evaluation as that used in
the Determination Rule. 83 FR 33730 (July 17, 2018). No legal
challenges to the EPA's determinations in that SIP action were filed
within the period for judicial review, and comments regarding the
appropriateness of selecting a 2023 analytic year in that action are
similarly outside the scope of this rulemaking.
---------------------------------------------------------------------------
Nonetheless, the EPA does not agree that either the text of the
statute or the court's holding in North Carolina dictates that a future
analytic year evaluated under the good neighbor provision must be
identical to the next attainment deadline. The EPA selected a 2023
analytic year for purposes of evaluating remaining good neighbor
obligations for the 2008 ozone NAAQS in the Determination Rule
considering both relevant future attainment dates and the anticipated
timeframe for implementation of additional emissions reductions across
the fleet in the region of states being analyzed. For the reasons
explained below, consideration of these two factors is consistent with
the statute.
First, as to the statute, the good neighbor provision does not set
forth any timeframe for the analysis of downwind air quality or the
implementation of upwind emissions reductions. On its face, the good
neighbor provision is therefore ambiguous as to when the upwind
emissions reductions it calls for must be in place. The EPA
acknowledges that the good neighbor provision does indicate that the
prohibition of upwind state emissions must be ``consistent with the
provisions of [title I],'' and that the D.C. Circuit held in its North
Carolina decision that the other provisions with which the
implementation of the good neighbor provision must be consistent
include the attainment dates in part D of title I of the Act. However,
the good neighbor provision does not specify what it means to be
``consistent with'' the other provisions of the Act, and courts have
[[Page 56075]]
routinely held that this phrase is ambiguous. See, e.g., EDF v. EPA, 82
F.3d 451, 457 (D.C. Cir. 1996) (holding the requirement that
implementation of transportation control measures be ``consistent
with'' the applicable implementation plan under section 176 of the CAA
is ``flexible statutory language,'' which does not require ``exact
correspondence . . . but only congruity or compatibility,'' thus
requiring a court to defer to reasonable Agency determinations);
Natural Resources Defense Council v. Daley, 209 F.3d 747, 754 (D.C.
Cir. 2000) (finding that statute requiring fishing quotas be
``consistent with'' a fishery management plan was ambiguous); NL Indus.
v. Kaplan, 792 F.2d 896, 898-99 (9th Cir. 1986) (statutory phrase
``consistent with the national contingency plan'' in 42 U.S.C.
9607(a)(2)(B) ``does not necessitate strict compliance with [national
contingency plan's] provisions''). Moreover, while CAA section 181
identifies timeframes for attaining ozone standards in downwind states,
it does not specify deadlines for good neighbor emissions reductions in
upwind states.\54\ Therefore, Congress has left a gap for the EPA to
fill. See Chevron, 467 U.S. at 843. In light of this ambiguity, the
good neighbor provision cannot be read to require implementation of
upwind emissions reductions on a specific timeframe, and an analytic
year used to evaluate potential obligations under the good neighbor
provision should be considered reasonable provided the EPA has
demonstrated that the selected analytic year is chosen with
consideration paid to, and is not inconsistent with, downwind
attainment dates and other relevant attainment planning requirements in
title I of the Act.
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\54\ It is worth noting that the statutory text of CAA section
181(a) does not itself establish the attainment dates for the 2008
or 2015 ozone NAAQS. Rather, the EPA undertakes rulemakings to
establish the appropriate deadlines after a new or revised ozone
NAAQS is promulgated. See, e.g., 2008 Ozone NAAQS SIP Requirements
Rule, 80 FR 12264, 12268 (March 6, 2015); 40 CFR 51.1103 and
Implementation of the 2015 National Ambient Air Quality Standards
for Ozone: Nonattainment Area Classifications Approach, Final Rule,
83 FR 10380 (March 9, 2018); 40 CFR 51.1303.
---------------------------------------------------------------------------
Moreover, the statute does not impose inflexible deadlines for
attainment. The general planning requirements that apply to
nonattainment areas under subpart 1 of part D provide that the
Administrator may extend the default 5-year attainment date by up to 10
years ``considering the severity of nonattainment and the availability
and feasibility of pollution control measures.'' CAA section
172(a)(2)(A). In the case of the ozone NAAQS, this provision is
overridden by the more specific attainment date provisions of subpart
2. The general timeframes provided for attainment in ozone
nonattainment areas in the CAA section 181(a)(1) table may be (and
often are) modified pursuant to other provisions in CAA section 182,
considering factors such as measured ozone concentrations and the
feasibility of implementing additional emissions reductions. For
example, the 6-year timeframe for attainment of the 2008 ozone NAAQS in
Moderate areas (the July 2018 attainment date) could be extended under
certain circumstances to 2020, pursuant to CAA section 181(a)(5). And
pursuant to CAA section 181(b)(2), when downwind areas are unable to
implement sufficient reductions via feasible control technologies by
one attainment date, those areas will be reclassified, or ``bumped up''
in classification, and given a new attainment date with additional time
to attain. With reclassification, the date for an area to attain the
2008 ozone NAAQS could be extended to 2021, 2027 and 2032, for areas
classified as Serious, Severe and Extreme, respectively. Each of these
deadlines could be subject to further extensions of up to 2 years
pursuant to CAA section 181(a)(5). Part D further defines what control
strategies states must implement by sources in nonattainment areas by
each of the applicable attainment dates, incorporating considerations
of technological feasibility at each stage. See, e.g., CAA section
172(c)(1), (2) (requiring implementation of reasonably available
control measures and reasonable further progress in designated
nonattainment areas); CAA section 182(b)(1)(A), (c)(2)(B) (setting
explicit reasonable further progress targets for ozone precursors, and
providing an exception when the SIP includes ``all measures that can
feasibly be implemented in the area, in light of technological
achievability'').
Thus, while the statute indicates that downwind areas should attain
as expeditiously as practicable, but no later than the attainment dates
specified in CAA sections 172(a)(2) and 181(a)(1), implementation
provisions for nonattainment planning lay out myriad exceptions to
those deadlines, including for circumstances when attainment is simply
infeasible. See Whitman v. Am. Trucking Ass'ns, Inc., 531 U.S. 457,
493-94 (2001) (Breyer, J., concurring) (considerations of costs and
technological feasibility may affect deadlines established for
attainment in specific areas). The EPA's approach to evaluating upwind
emissions reductions based on technological feasibility is consistent
with the requirements imposed on downwind nonattainment areas required
to implement certain ``reasonable'' controls within the targeted
timeframe.
The EPA further disagrees with the comment asserting that the D.C.
Circuit's North Carolina decision requires the EPA to only use the next
relevant attainment date in selecting its future analytic year. The
North Carolina decision faulted the EPA for not considering upcoming
attainment dates in downwind states when setting compliance deadlines
for upwind emissions reductions in CAIR, where the EPA had evaluated
only the feasibility of implementing upwind controls. 531 F.3d at 911-
12. But the court did not hold that the CAA requires that compliance
deadlines for good neighbor emissions reductions (and thus, the future
analytic year) be identical to a specific attainment date in downwind
areas, let alone the next upcoming date. Nor did the court opine that
the EPA would never be justified in setting compliance dates that fall
after the next upcoming downwind attainment date or that are based, in
part, on the feasibility of implementing upwind emissions reductions.
Indeed, in remanding the rule, the D.C. Circuit acknowledged that
upwind compliance dates may, in some circumstances, come after
attainment dates. Id. at 930 (where the attainment date relevant to the
discussion was 2010, instructing the EPA to ``decide what date, whether
2015 or earlier, is as expeditious as practicable for states to
eliminate their significant contributions to downwind nonattainment'').
Accordingly, the EPA's consideration of anticipated compliance
timeframes for implementation of NOX control strategies in
selecting a future analytic year is not inconsistent with North
Carolina.
Nor did the court speak to the timeframe for either analysis or
compliance with respect to the ``interfere with maintenance'' clause of
the good neighbor provision. While the D.C. Circuit held that the EPA
must give independent meaning to that clause, the court made clear that
this obligation applies to the EPA's identification of downwind air
quality problems that must be addressed by upwind states. 531 F.3d at
909-11. The court did not speak to the timeframe by which upwind states
should be required to implement emissions reductions to address such
areas. On the contrary, the ambiguity in the good neighbor provision
regarding the relationship of
[[Page 56076]]
upwind state emissions reductions to attainment dates is further
heightened with respect to downwind areas that the EPA anticipates are
likely to be in attainment in a future year, some of which may be
currently attaining the standard (or even designated attainment) \55\
but which may have problems maintaining the standard in the future. For
example, in the EPA's 2017 air quality modeling performed for the CSAPR
Update, the EPA identified six nonattainment receptors and thirteen
maintenance receptors. 81 FR 74533. The maintenance receptors were
areas that the EPA expected were likely to be in attainment based
either on the modeling projections or current monitored data, but which
the EPA expected may have problems maintaining attainment of the
standard under certain circumstances. While many of the maintenance
receptors were in areas designated nonattainment, the EPA's analysis
suggests that these areas will be able to demonstrate (and in many
cases had in fact demonstrated) attainment of the NAAQS by the
attainment date or otherwise receive a clean data determination that
relieves the state of further planning obligations.\56\ While the good
neighbor provision requires states to prohibit emissions that will
``interfere with maintenance'' of the NAAQS in these areas, there is no
deadline for maintenance of the standard comparable to an attainment
date for downwind areas that are designated as nonattainment for a
specific standard.
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\55\ For example, in the CSAPR Update, two maintenance receptors
(in Allegan County, Michigan, and Jefferson County, Kentucky) were
located in areas designated attainment for the 2008 ozone NAAQS. 40
CFR 81.318 (Kentucky), 81.323 (Michigan).
\56\ See, e.g., 80 FR 30941 (June 1, 2015) (determination of
attainment of Baltimore, MD (Harford receptor)); 81 FR 26697 (May 4,
2016) (determination of attainment by the attainment date of
Cincinnati-Hamilton OH-KY-IN (Hamilton receptor)).
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Likewise, the court's decision in the NRDC case raised by the
commenter addressed only the limitations on the EPA's authority to set
attainment dates for new or revised ozone NAAQS applicable to
designated nonattainment areas. The court did not speak to the
requirements imposed under the good neighbor provision or the
applicability of the attainment dates in subpart 2 to any emissions
reductions required under that provision in upwind states.
Regarding the EPA's selection of 2023 as the appropriate future
analytic year in the Determination Rule, one commenter characterizes
the EPA's determination that installing sector- or region-wide controls
on non-EGU sources could be 4 years or more to be a ``speculative and
unsupported assumption.'' The commenter asserts that the EPA could
have, but did not, examine the status of controls installed at the
identified non-EGU sources and did not consider the specific timeframes
needed for the installation of any additional controls, should they be
required.
The EPA disagrees with the commenter's assertions related to the
timeframe for the installation of controls at non-EGU sources
identified in New York's petition. First, as noted previously, the EPA
is relying on the 2023 modeling in this final action as the best
available future-year data in the absence of any such data provided by
the petitioner. Commenters had an opportunity to comment on the choice
of the EPA's selected 2023 modeling year in the Determination Rule,
which is already the subject of review in the D.C. Circuit. Thus, any
comments regarding the bases for the EPA's selection of a 2023 analytic
year in the Determination Rule (or in the EPA's similar action on
Kentucky's SIP) are outside the scope of this action. Nonetheless,
commenters here have not explained their assertion that the EPA's
conclusions regarding the installation time for controls at non-EGUs
are unsupported or indicated the type of information they believe is
lacking to support those conclusions; thus, their allegation that the
conclusions are ``speculative'' is conclusory and unfounded. The EPA
further disagrees that it had any obligation to further investigate the
status of non-EGU controls in acting on New York's petition. As
discussed in Section III.C, the petitioner bears the burden of
demonstrating that the finding sought in the petition is technically
and analytically justified. The fact that the EPA has chosen to
consider modeling data already available to further evaluate New York's
petition does not shift the burden to the EPA to conduct yet further
analysis where it was not provided by the petition.
Moreover, the commenters fail to acknowledge that the EPA's
preliminary estimates of installation times did not capture all factors
influencing the time needed to full implement controls at non-EGUs. As
noted earlier in this section, 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. Further,
the EPA's preliminary estimates for implementing control technologies
at non-EGU facilities do not account for the time and resources needed
to install such technologies on a sector- or region-wide basis. Thus,
the EPA has no reason to reconsider the installation timeframe for
controls at non-EGUs identified in the Determination Rule, much less
shorten that timeframe as suggested by the commenters.
Commenters further claim that the EPA's reliance on 2023, a date 4
years in the future, is inconsistent with the maximum 3-year period for
remedies permitted under CAA section 126(c). Commenters point to the
EPA's own statements in a prior CAA section 126 action that CAA section
126(c) establishes a maximum 3-year period for implementation of
controls regardless of ``the timing of attainment needs downwind.'' 64
FR at 28279.
The EPA disagrees with commenters' contention that the 3-year
deadline for implementing a remedy under CAA section 126(c) suggests
that the consideration of modeling data from a 2023 analytic year for
purposes of evaluating New York's CAA section 126(b) petitions is
inappropriate. As noted earlier, the EPA is considering the 2023
modeling data as the best available data regarding expected air quality
in New York in any future year, in the absence of any analysis of
future air quality for any other year provided by either the petition
or commenters. Thus, although 2023 is beyond the 3 years provided for
implementation of emissions limits under CAA section 126(c), the data
help inform whether there may be an air quality problem relative to
either the 2008 or 2015 ozone NAAQS going forward.
Moreover, the choice of 2023 as an analytic year does not preclude
the implementation of a remedy in an earlier year, including within the
3-year deadline specified under CAA section 126(c), if the EPA
identifies a future air quality problem and the necessary finding is
made as to any sources named in New York's petition. However while CAA
section 126 contemplates that a source or group of sources may be found
to have interstate transport impacts, it cannot be determined whether
such source or sources are in violation of the good neighbor provision
and whether controls are justified without analyzing emissions from a
range of sources influencing regional-scale ozone transport, including
sources not named in the petitions. Analysis of a future year thus
ensures that any emissions reductions the EPA may require under that
provision are not in excess of what would be necessary to address
[[Page 56077]]
downwind nonattainment and maintenance problems as they exist by the
time any emissions limitations would be implemented. Thus, although the
2023 modeling does not necessarily align with the year in which
emissions limitations might be implemented under CAA section 126(c),
were the EPA to make a CAA section 126(b) finding, it represents the
best available data regarding future ozone concentrations in New York.
Therefore, the EPA's reasonable choice to rely on its existing 2023 air
quality modeling for evaluating air quality does not conflict with CAA
section 126(c), nor does it preclude implementation of a remedy at an
earlier date if the requisite air quality impact is found.
Several commenters assert that the EPA cannot rely on the 2023
modeling to evaluate good neighbor obligations because it relies on
unenforceable assumptions about sources' voluntary behavior. One
commenter notes, for example, that the EPA relies on plant retirements
and fuel switches to natural gas electricity generation, without any
permit requirements or other emissions limits in place to ensure such
changes remain in place in 2023. Commenters explain that SIPs are
required to demonstrate compliance with a federal standard consistent
with the attainment deadline and contain adopted control measures with
enforceable emissions limits. By using projected emissions reductions
that are not bound by enforceable measures in its step 1 analysis, the
EPA holds itself to a different standard, allowing projected emissions
reductions to stand in for actual enforceable reductions.
The EPA does not agree that its reliance on the 2023 modeling data
is inappropriate or unreliable, even if it includes assumptions
regarding likely future operating conditions at the sources. Rather, as
explained below, the modeling provides a reasonable and likely
conservative estimate of emissions and ozone concentrations in 2023,
and thus it is both reasonable and consistent with the statute for the
EPA to rely on the modeling in evaluating the claims in New York's
petition.
The EPA disagrees that reliance on the 2023 modeling is
inconsistent with the statutory requirements of the good neighbor
provision because the modeling reflects emissions reductions that may
not be subject to enforceable measures. The good neighbor provision
instructs the EPA and states to apply its requirements ``consistent
with the provisions of'' title I of the CAA. The EPA has therefore
interpreted the requirements of the good neighbor provision, and the
elements of its four-step interstate transport framework, to apply in a
manner consistent with the designation and planning requirements in
title I that apply in downwind states. See North Carolina, 531 F.3d at
912 (holding that the good neighbor provision's reference to title I
requires consideration of both procedural and substantive provisions in
title I). The EPA notes that this consistency instruction follows the
requirement in the good neighbor provision that plans ``contain
adequate provisions prohibiting'' certain emissions. The following
paragraphs will therefore explain the EPA's interpretation of the
circumstances under which the good neighbor provision requires that
plans ``prohibit'' emissions through enforceable measures and show that
this interpretation is consistent with the circumstances under which
downwind states are required to implement emissions control measures in
nonattainment areas.
For purposes of this analysis, the EPA notes specific aspects of
the title I designations process and attainment planning requirements
for the ozone NAAQS that provide relevant context for evaluating the
consistency of the EPA's approach to implementing the good neighbor
provision in upwind states. This discussion is not intended to suggest
that the specific requirements of designations and attainment planning
for downwind states apply to upwind states pursuant to the good
neighbor provision, but rather to explain why the EPA's approach to
interpreting the good neighbor provision is reasonable in light of
relevant, analogous provisions found elsewhere in title I. Cf. EDF v.
EPA, 82 F.3d 451, 457 (D.C. Cir. 1996) (per curiam) (describing the
phrase ``consistent with'' as ``flexible statutory language'' which
does not require ``exact correspondence . . . but only congruity or
compatibility,'' thus requiring a court to defer to reasonable Agency
determinations), amended by 92 F.3d 1209 (D.C. Cir. 1996). These
provisions demonstrate that the EPA's good neighbor approach is
consistent with other relevant provisions of title I with respect to
what data are considered in the EPA's analysis and when states are
required to implement enforceable measures.
First, areas are initially designated attainment or nonattainment
for the ozone NAAQS based on actual measured ozone concentrations. See
CAA section 107(d), 42 U.S.C. 7407(d) (noting that an area shall be
designated attainment where it ``meets'' the NAAQS and nonattainment
where it ``does not meet'' the NAAQS (including certain ``nearby''
areas, as explained below)). If an area measures a violation of the
relevant ozone NAAQS, then the area is generally designated
nonattainment, regardless of what specific factors have influenced the
measured ozone concentrations or whether such levels are due to
enforceable emissions limits. In such cases where the an ozone
nonattainment area is classified as Moderate or higher, the state is
then required to develop an attainment plan, which generally includes
the application of various enforceable control measures to sources of
emissions located in the nonattainment area, consistent with the
requirements in Part D of title I of the Act.\57\ See generally CAA
section 182, 42 U.S.C. 7511a. If, however, an area measures compliance
with the ozone NAAQS, the area is designated attainment (unless it is
included in the boundaries of a nearby nonattainment area due to its
contribution to that area's nonattainment, as discussed below), and
sources in that area generally are not subject to any new enforceable
control measures under Part D.\58\
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\57\ Areas classified as Marginal nonattainment areas are
required to submit emissions inventories and implement a
nonattainment new source review permitting program but are not
generally required to implement controls at existing sources. See
CAA section 182(a), 42 U.S.C. 7511a(a).
\58\ CAA section 184 contains the exception to this general
rule: States that are part of the Ozone Transport Region are
required to provide SIPs that include specific enforceable control
measures, similar to those for nonattainment areas, that apply to
the whole state, even for areas designated attainment for the ozone
NAAQS. See generally 42 U.S.C. 7511c.
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In determining the boundaries of an ozone nonattainment area, the
CAA requires the EPA to consider whether ``nearby'' areas
``contribute'' to ambient air quality in the area that does not meet
the NAAQS. 42 U.S.C. 7407(d). For each monitor or group of monitors
indicating a violation of the ozone NAAQS, the EPA assesses information
related to various factors, including current emissions and emissions-
related data from the areas near the monitor(s), for the purpose of
establishing the appropriate geographic boundaries for the designated
ozone nonattainment areas. A nearby area may be included within the
boundary of the ozone nonattainment area only after assessing area-
specific information, including an assessment of whether current
emissions from that area contribute to the air quality problem
identified at the violating monitor.\59\ If such a
[[Page 56078]]
determination is made, sources in the nearby area are also subject to
the applicable Part D control requirements. However, if the EPA
determines that the nearby area does not contribute to the measured
nonattainment problem, then the nearby area is not part of the
designated nonattainment area and sources in that area are not subject
to such control requirements.
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\59\ See Attachment 2 to Area Designations for the 2008 Ozone
National Ambient Air Quality Standards. Memorandum from Robert J.
Meyers, Principal Deputy Assistant Administrator, U.S. EPA to
Regional Administrators. December 4, 2008. Available at https://archive.epa.gov/ozonedesignations/web/pdf/area_designations_for_the_2008_revised_ozone_naaqs.pdf and
Attachment 3 to Area Designations for the 2015 Ozone National
Ambient Air Quality Standards. Memorandum from Janet G. McCabe,
Acting Assistant Administrator, U.S. EPA to Regional Administrators.
February 25, 2016. Available at https://www.epa.gov/sites/production/files/2016-02/documents/ozone-designations-guidance-2015.pdf.
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The EPA's historical approach to addressing the good neighbor
provision via the four-step interstate transport framework, and the
approach the EPA continues to apply here, is consistent with title I
requirements. That is, in steps 1 and 2 of the framework, the EPA (at
step 1) evaluates whether there is a downwind air quality problem
(either nonattainment or maintenance), and (at step 2) whether an
upwind state impacts the downwind area such that it contributes to and
is therefore ``linked'' to the downwind area. A determination by the
EPA at step 1 of the good neighbor analysis (that it has not identified
any downwind air quality problems to which an upwind state could
contribute) is analogous to the EPA's determination in the designation
analysis that an area should be designated attainment. Similarly, a
determination at step 2 of the good neighbor analysis (that, although
there are downwind air quality problems, an upwind state does not
sufficiently impact the downwind area such that the state contributes
to that area's air quality problems and is therefore linked to that
area) is analogous to the EPA's determination in the designation
analysis that a nearby area does not contribute to a NAAQS violation in
another area. Under the good neighbor provision, the EPA can determine
at either step 1 or 2, as appropriate, that the upwind state will not
contribute to air quality problems in downwind areas and, thus, that
the upwind state does not significantly contribute to nonattainment or
interfere with maintenance of the NAAQS in other states. See, e.g.,
CSAPR Update, 81 FR 74506 (determining that emissions from 14 states do
not significantly contribute to nonattainment or interfere with
maintenance of the 2008 ozone NAAQS); CSAPR, 76 FR 48236 (finding that
states whose impacts on downwind receptors are below the air quality
threshold do not significantly contribute to nonattainment or interfere
with maintenance of the relevant NAAQS). Under such circumstances,
sources in the upwind state are not required to implement any control
measures under the good neighbor provision, which is analogous to the
fact that under the designation and attainment regime, sources located
in areas that are designated attainment (because the area is attaining
the NAAQS and not contributing to any nearby nonattainment areas)
generally are not required to implement the control measures found in
Part D of the Act. Cf. EME Homer City II, 795 F.3d at 130 (determining
that CSAPR ozone-season NOX budgets for 10 states were
invalid based on determination that modeling showed no future air
quality problems); CSAPR Update, 81 FR 74523-24 (removing three states
from CSAPR ozone season NOX program based on determination
that states are not linked to any remaining air quality problems for
the 1997 ozone NAAQS).
The EPA acknowledges one distinction between the good neighbor and
designation analyses: The good neighbor analysis relies on future-year
projections of emissions to calculate ozone concentrations and upwind
state contributions, compared to the use of current measured data in
the designations analysis. As described in more detail in Section
III.C, this approach is a reasonable interpretation of the term
``will'' in the good neighbor provision, see North Carolina, 531 F.3d
at 913-14, and interpreting language specific to that provision does
not create an impermissible inconsistency with other provisions of
title I. Moreover, the EPA's approach to conducting future-year
modeling in the good neighbor analysis to identify downwind air quality
problems and linked states is consistent with its use of current
measured data in the designations process. The EPA's future-year air
quality projections consider a variety of factors, including current
emissions data, anticipated future control measures, economic market
influences, and meteorology. Some of these factors (e.g., emissions
data, and meteorology) can affect the NOX emissions levels
and consequent measured ozone concentrations that inform the
designations process. Like the factors that affect measured ozone
concentrations used in the designations process, not all of the factors
influencing the EPA's modeling projections are or can be subject to
enforceable limitations on emissions or ozone concentrations. However,
the EPA believes that considering these factors contributes to a
reasonable estimate of anticipated future ozone concentrations. See EME
Homer City II, 795 F.3d at 135 (declining to invalidate the EPA's
modeling projections ``solely because there might be discrepancies
between those predictions and the real world''); Chemical Manufacturers
Association v. EPA, 28 F.3d 1259, 1264 (D.C. Cir. 1994) (``a model is
meant to simplify reality in order to make it tractable''). Thus, the
EPA's consideration of these factors in its future-year modeling
projections used at steps 1 and 2 of the four-step interstate transport
framework is reasonable and consistent with the use of measured data in
the designation analysis.\60\
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\60\ The EPA notes that the consideration of projected actual
emissions in the future analytic year--as opposed to allowable
levels--is also consistent with the statute's instruction that
states in their SIPs (or the EPA when promulgating a FIP) prohibit
emissions that ``will'' impermissibly impact downwind air quality.
This term is reasonably interpreted to mean that the EPA should
evaluate anticipated actual emissions (based on what sources will
emit) rather than potential emissions (based on what sources could
emit).
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The EPA notes that there is a further distinction between the CAA
section 107(d) designations provision and the CAA section
110(a)(2)(D)(i) good neighbor provision in that the latter provision
uses different terms to describe the threshold for determining whether
emissions in an upwind state should be regulated (``contribute
significantly'') as compared to the standard within the designations
process for evaluating whether an area ``contributes'' to a violation
in a nearby area. Thus, at step 3 of the good neighbor analysis the EPA
evaluates additional factors, including cost and air quality
considerations, to determine whether emissions from a linked upwind
state would violate the good neighbor provision. Only if the EPA at
step 3 determines that the upwind state's emissions would violate the
good neighbor provision will it proceed to step 4 to require control of
emissions in the upwind state to address the identified violation. This
approach to steps 3 and 4 is analogous to the trigger for the
application of Part D control requirements to sources upon designation
of an area to nonattainment. Thus, the EPA reasonably interprets the
good neighbor provision to not require it or the upwind state to
proceed to step 4 and implement any enforceable measures to
``prohibit'' emissions unless it identifies a violation of the
provision at step 3. See, e.g., 76 FR 48262 (finding at step 3 that the
District of Columbia is not violating the good neighbor
[[Page 56079]]
provision, and therefore will not at step 4 be subject to any control
requirements in CSAPR, because no cost-effective emissions reduction
opportunities were identified in the District).
The EPA further disagrees with the commenters' assertion that the
incorporation of announced retirements and fuel switches into the 2023
projections makes the modeling data unreliable. Rather with respect to
EGU NOX emissions, the EPA's 2023 projections likely reflect
a more conservative (i.e., higher) NOX emissions estimate
than comparable alternative methods for projecting future EGU
emissions. The EPA's 2023 EGU emissions projections used reported 2016
data, adjusting that data based only on currently known changes in the
power sector and a change in emissions rate to reflect implementation
of the CSAPR Update after 2017. As such, the EPA's approach does not
account for changes that would be estimated to occur due to economic
and other environmental policy factors. Trends in historic emissions
data and emissions projections using a variety of methods and models
suggest that inclusion of these factors would likely further reduce
future NOX emissions projections.
Several commenters further assert that, because the EPA is actively
working to undo several major rules that underpin the 2023 modeling
results (e.g., the Glider Rule (82 FR 53442 (November 16, 2017)) and
the Corporate Average Fuel Economy (CAFE) Standards (83 FR 42986
(August 24, 2018))), the assumptions that underpin the EPA's 2023
modeling are inaccurate. One commenter specifically notes that, even in
the absence of a rule change, the EPA announced formal policy to not
enforce the existing Glider Rule.
The EPA disagrees that its 2023 projections are unreliable because
of potential changes to other regulations. The EPA first notes that the
Agency has not finalized any potential regulatory changes to the Glider
Rule, the CAFE Standards for light duty vehicles, or the oil and gas
Control Technique Guidelines (CTG). In general, the mobile source and
non-EGU emissions inventories do not reflect rulemakings finalized in
calendar year 2016 or later, nor do they reflect any rules proposed but
not yet finalized since 2016, as only finalized rules are reflected in
modeling inventories. The EPA's normal practice is to only include
changes in emissions from final regulatory actions in its modeling
because, until such rules are finalized, any potential changes in
NOX or VOC emissions are speculative.
In addition, even if emissions were to change as a result of any
such final rules, commenters have not indicated how these additional
emissions would affect downwind ozone concentrations Regarding one
commenter's assertion about the EPA's formal policy to not enforce the
existing Glider Rule, the EPA notes that its conditional no action
assurance of non-enforcement of the existing rule was withdrawn by the
Agency on July 26, 2018.\61\ The withdrawal notice removes any question
that current requirements are enforceable and enforcement actions may
be undertaken on a case-by-case basis in the Agency's discretion.
Therefore, assumptions relating to the Glider Rule as part of the 2023
modeling remain reasonable.
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\61\ ``Withdrawal of Conditional No Action Assurance Regarding
Small Manufacturers of Glider Vehicles,'' Andrew R. Wheeler, Acting
Administrator, July 26, 2018. Available at https://www.epa.gov/sites/production/files/2018-07/documents/memo_re_withdrawal_of_conditional_naa_regarding_small_manufacturers_of_glider_vehicles_07-26-2018.pdf.
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The next two sections discuss the EPA's evaluation of and
conclusions regarding the petition's step 1 analysis for Chautauqua
County and the NYMA with respect to both the 2008 and 2015 ozone NAAQS.
Chautauqua County
First, with respect to the 2008 and 2015 ozone NAAQS in Chautauqua
County, the EPA is finalizing its conclusion that New York's petition
does not provide sufficient information to indicate that there is a
current or expected future air quality problem (with respect to either
nonattainment or maintenance) in the county 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 area attained the 2008
ozone NAAQS by the relevant attainment date.\62\ In addition, the
county was designated attainment for the more stringent 2015
standard.\63\ The petition did not demonstrate that there is either a
present air quality problem or that there will be a future
nonattainment or maintenance problem in that area for either 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.\64\ 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 air quality concentrations for a
future analytic year that considers the relevant attainment deadlines
for the NAAQS and the anticipated compliance timeframe for potential
control strategies.\65\ New York's CAA section 126(b) petition does not
include analyses or air quality projections indicating that Chautauqua
County may be violating or have difficulty maintaining the 2008 or 2015
ozone NAAQS either currently or in a relevant future analytic year. In
fact, the petition acknowledges that this area attained the 2008 ozone
NAAQS by the relevant attainment date. 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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\62\ See Air Quality Designations for the 2008 Ozone National
Ambient Air Quality Standards, Final Rule, 77 FR 30137 (May 21,
2012); 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).
\63\ See Air Quality Designations for the 2015 Ozone National
Ambient Air Quality Standards, Final Rule, 82 FR 54264 (November 16,
2017).
\64\ The EPA has consistently taken the position that CAA
section 110(a)(2)(D)(i)(I) 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
(August 8, 2011); Final Response to Petition from New Jersey
Regarding SO2 Emissions From the Portland Generating
Station, 76 FR 69052 (November 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).
\65\ 81 FR 74517.
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While the EPA finds that New York's petition does not on its own
merit adequately establish the presence of a current or future
nonattainment or maintenance problem in Chautauqua County, the EPA also
used currently available air quality data to 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, both the
2015-2017 and the 2016-2018 design values in Chautauqua County are 68
ppb, which is below the levels of both the 2008 and
[[Page 56080]]
2015 ozone NAAQS of 75 ppb and 70 ppb, respectively.\66\
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\66\ The 2015-2017 and 2016-2018 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/2019-07/ozone_designvalues_20162018_final_06_28_19.xlsx.
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Additionally, the EPA's recent air quality modeling described
previously indicates that the monitor in Chautauqua County is expected
to continue to both attain and maintain both standards in 2023, with an
average 2023 design value of 58.5 ppb and a maximum 2023 design value
of 60.7 ppb.\67\ Accordingly, the EPA has no basis to conclude that any
of the sources named in the New York petition are linked to a downwind
air quality problem in Chautauqua County with regard to the 2008 or the
2015 ozone NAAQS. In the absence of a downwind air quality problem, the
EPA has no authority to regulate upwind sources to address air quality
in Chautauqua County with respect to the 2008 or the 2015 ozone NAAQS.
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\67\ 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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One commenter asserts that New York demonstrated, by providing
current, sometimes violating air quality data, that Chautauqua County
is not attaining the 2008 or 2015 ozone standards. Specifically, the
commenter notes that New York provided evidence demonstrating that the
air quality monitor in Dunkirk, New York, located in Chautauqua County,
sometimes exceeds the 2008 and the 2015 ozone standard with design
values sometimes reaching 82 ppb.
The EPA disagrees that the example cited by the commenter provides
evidence of either a current or future nonattainment or maintenance
problem in Chautauqua County. As previously indicated, the EPA
evaluates downwind ozone air quality problems using observed and
modeled future air quality concentrations. The individual exceedances
identified by the commenter do not indicate that the area is currently
in violation of the NAAQS. Appendices P and U to 40 CFR part 50 specify
the methodologies for calculating the ozone design values for the 2008
and 2015 ozone NAAQS, respectively, and both are calculated as the 3-
year average of the annual fourth-highest daily maximum 8-hour ozone
concentration. As noted above, both the 2015-2017 and the 2016-2018
design values in Chautauqua County, which are calculated consistent
with these methodologies, demonstrate compliance with both the 2008 and
2015 ozone NAAQS. While an individual monitor (e.g., the Dunkirk
monitor) may record individual exceedances of the NAAQS, such as the 82
ppb value cited by the commenter, an individual exceedance does not
constitute a violating ``design value,'' which is the value used for
identifying violations and determining attainment status for regulatory
purposes.
New York Metropolitan Area
Second, with respect to the 2008 ozone NAAQS in the NYMA, the EPA
is finalizing its conclusion that 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. As described in Section I.B of this notification, 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 (and commenters point to more current final
2015-2017 design values available after New York submitted its
petition) indicating that some monitoring sites in the NYMA are above
the 2008 NAAQS. The EPA notes in this regard that the 2016-2018 design
values for the NYMA monitoring sites located in New York (and those in
New Jersey) are attaining the 2008 NAAQS. Although some of the NYMA
monitors located in Connecticut are above the 2008 NAAQS,\68\ the EPA
has interpreted CAA section 126(b)'s petition authority as 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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\68\ See 2016-2018 ozone design value report available at
https://www.epa.gov/sites/production/files/2019-07/ozone_designvalues_20162018_final_06_28_19.xlsx.
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As noted in the proposal, an area's current attainment status alone
is insufficient 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. Rather, as
discussed in Section IV.B of the proposal, 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. 84 FR
22799.
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
II.C.2 of this notification, in the Determination Rule, the EPA
determined based on this data that the CSAPR Update fully addresses the
good neighbor provision requirements for the 2008 ozone NAAQS for all
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 finalizing its decision 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. As such, the EPA has no authority to regulate upwind sources to
address air quality in the NYMA with respect to the 2008 ozone NAAQS.
Regarding the 2015 ozone NAAQS, based on the EPA's 2023 air quality
modeling, the EPA has identified a relevant downwind air quality
problem in the NYMA. 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.\69\ 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
[[Page 56081]]
indicates that the NYMA is projected to have a downwind air quality
problem relative to the 2015 NAAQS. Thus, the EPA is not denying this
portion of the petition with respect to step 1 (but is denying the
petition for other reasons described elsewhere).
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\69\ 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. Therefore, the EPA's determination as to the 2015 ozone NAAQS
with respect to step 1 of the framework is only pertinent as to the
New York monitoring sites.
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One commenter asserts that New York demonstrated that the NYMA is
not attaining the 2008 or 2015 ozone standards. Specifically, the
commenter notes that certified monitoring data through 2016 and data
from 2017 indicate that the NYMA did not attain the Moderate attainment
deadline of July 20, 2018, for the 2008 standard. The commenter also
identifies data from the 2017 Design Value Report, which demonstrates
that the NYMA registered a 2015-2017 design value of 83 ppb, which
significantly exceeds both the 2008 ozone standard of 75 ppb and the
2015 ozone standard of 70 ppb. The commenter further notes that the EPA
has designated the NYMA as a Moderate nonattainment area for the 2015
ozone standard. The commenter further cites the 2015 Ozone NAAQS
Interstate Transport Assessment Design Values and Contributions Report,
which projects that a monitor in New York County will exceed the 2015
ozone standard of 70 ppb with an average design value of 74.4 ppb and a
maximum design value of 75.5 ppb in 2023. The report also projects that
a monitor in Queens County will have a maximum design value of 72.0 ppb
in 2023, which exceeds the 2015 ozone standard of 70 ppb.
The EPA disagrees with the commenter's assertions regarding the
status of New York monitors relative to the 2008 ozone NAAQS. As
discussed earlier in this notification, regarding current air quality,
the 2016-2018 design values for the NYMA monitoring sites located in
New York (and those in New Jersey) are attaining the 2008 NAAQS. The
design value of 83 ppb cited by the commenter reflects inclusion of the
Connecticut monitors, but the EPA does not agree that such information
is relevant to a petition submitted by New York.\70\ The specific
language of CAA section 126(b) does not say that a state may petition
the EPA for a finding that emissions from a source, or group of
sources, is impacting downwind receptors in a state other than the
petitioning state. Rather, the legislative history for this provision
suggests the provision was meant to address adverse air impacts only in
the petitioning state.\71\ Given the broader context of CAA section
126, the EPA reasonably 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.
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\70\ As noted earlier in this notification, the design value is
the 3-year average of the annual fourth-highest daily maximum 8-hour
ozone concentration. To be comparable to the 2008 ozone NAAQS, the
design value must be valid according to Appendix P to 40 CFR part
50, which specifies minimum data completeness criteria. The design
value listed for each area is the highest among monitors with valid
design values. For the NYMA, the highest reading monitor is in
Connecticut, not New York. 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.
Therefore, the Connecticut monitoring site is excluded from the
scope of this petition.
\71\ When section 126 was added to the CAA, the Senate's
amendment implementing the basic prohibition on interstate pollution
stated that: ``Any State or political subdivision may petition the
Administrator for a finding that a major stationary source in
another state emits pollutants which would adversely affect the air
quality in the petitioning State.'' (emphasis added). Clean Air Act
Amendments of 1977, H.R. 95-564, 95th Cong. at 526 (1977). The House
concurred with the Senate's amendment to CAA section 126, with
changes to other portions of the amendment, but did not indicate
changes to this sentence. Id. The lack of stated changes to this
component of the Senate's original amendment suggest that Congress
did not intend for the scope of the petitioning authority to be
expanded to parties other than a state or political division in
which downwind air quality is adversely affected.
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Further, 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. Accordingly, regardless of the current measured data, the EPA
does not have a basis to conclude that the NYMA will have an air
quality problem with respect to the 2008 ozone NAAQS in a relevant
future year that would justify a finding under CAA section 126(b).
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 and determined that
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.
For these reasons, the EPA has no basis to proceed to consider whether
there is a linkage at step 2 of the four-step interstate transport
framework between the named upwind states and these downwind areas
regarding the respective NAAQS.
As previously noted, regarding the 2015 ozone NAAQS, the EPA has
identified a relevant downwind air quality problem in the NYMA. The
EPA's recent 2023 air quality modeling 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 significantly
contribute or interfere with maintenance of the NAAQS in the downwind
area at step 2. The EPA has therefore previously determined, without
conducting any additional analysis at step 3, that such states do not
significantly contribute to nonattainment or interfere with maintenance
of the NAAQS under the good neighbor provision. Upwind states that the
EPA finds under the step 2 analysis impact a downwind receptor at or
above the threshold are identified as contributing to a projected
downwind air quality problem (i.e., they are said to be ``linked'' to
that downwind receptor) and require additional analysis to determine if
the contribution is ``significant'' or ``interferes with maintenance.''
The EPA then proceeds to the multi-factor step 3 analysis to determine
what, if any, of the emissions from the linked upwind state
significantly contribute to nonattainment or interfere with maintenance
of the NAAQS at the downwind receptor(s).\72\
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\72\ 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,\73\ the EPA's analysis of the sum of
contributions from all linked upwind states (i.e., collective
contribution)
[[Page 56082]]
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 an analysis of
collective contribution for the 2015 ozone NAAQS \74\ using data drawn
from the results of the EPA's updated 2023 modeling.\75\ This analysis,
which considered the same factors as the thresholds analyses conducted
in both the CSAPR and CSAPR Update rulemakings,76 77
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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\73\ 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).
\74\ 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).
\75\ 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.
\76\ 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.
\77\ 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 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 emissions from 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.
Some commenters disagree with the EPA's guidance suggesting that
states may use a 1 ppb threshold instead of a threshold equivalent to 1
percent of the NAAQS as the threshold to show a linkage between
emissions from upwind states on air quality in downwind states. As
explained in the proposal, the EPA's August 31, 2018, memorandum to
states conveying the results of our analysis of collective contribution
for the 2015 ozone NAAQS is guidance and not a regulation. It does not
change or replace any legal requirements in the CAA or implementing
regulations. At this time, the EPA has not engaged in a good neighbor
rulemaking action for the 2015 ozone NAAQS that determines which of the
potential thresholds (e.g., 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 or for any other
purposes. Additionally, as previously described, the EPA is also not
here deciding an appropriate screening level that might be applied for
future good neighbor analyses for the 2015 ozone NAAQS. The EPA is
therefore not basing its denial of New York's petition on use of any
particular threshold at step 2. Rather, 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 proceeds assuming, without deciding, that the named
states are linked at step 2 and, as discussed in more detail in Section
III.C.3 of this notification, the EPA has evaluated the sufficiency of
the petition's demonstration with respect to step 3.
3. The EPA's Evaluation of New York's Petition Considering Step 3
As described in Section II.C.1 of this notification, 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).\78\ In the
proposal at step 3, the EPA proposed to find that material elements in
New York's analyses are technically deficient, 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. Although the EPA already proposed to deny 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
interstate transport framework, the EPA also proposed to rely on our
assessment of step 3 as an additional and independent basis for denial
as to the petition's claims for these areas with respect to both NAAQS.
For the reasons discussed in this section, the EPA is finalizing its
conclusion with respect to the adequacy of New York's petition at step
3.
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\78\ 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, 572
U.S. at 501-03 (noting upwind states are only obliged to eliminate
emissions meeting both the step 2 and 3 inquiries).
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Applying Step 3 of the Four-Step Interstate Transport Framework
As discussed in Section III.A of this notification, the EPA
maintains that the four-step framework provides a logical, consistent
and systematic approach for addressing interstate transport for a
variety of criteria pollutants under a broad array of national,
regional and local scenarios. The complexity of atmospheric chemistry
and the nature of ozone transport also demonstrate the appropriateness
of the four-step interstate transport framework particularly within
step 3, where upwind sources are evaluated to determine whether they
have emissions that significantly contribute to nonattainment or
interfere with maintenance of the ozone NAAQS.
As discussed in Section II.C.1 of this notification, 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
[[Page 56083]]
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 CSAPR, Final Rule, 76 FR 48248-49 and 48254-55; CSAPR Update, Final
Rule, 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 emissions (if any) from each upwind
state that contribute significantly to nonattainment or interfere with
maintenance in a downwind area.\79\ The quantity of emissions
identified in step 3 are then controlled through permanent and
enforceable measures in step 4 of the four-step interstate transport
framework. In these prior rules, the EPA has selected the level of
control stringency deemed cost-effective, compared to other levels of
control stringency considered in the analysis, 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 difficulty of, achieving additional emissions reductions.
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 under these circumstances 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, 572 U.S. at 519. As discussed extensively in this
action, the good neighbor provision and CAA section 126(b) petitions
are closely textually and analytically linked to one another,
supporting the EPA's view that the considerations set forth above are
appropriate for the EPA's analysis of such petitions.
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\79\ For example, in the CSAPR Update, 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.
81 FR 74505. 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.
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Several commenters assert that it is inappropriate for the EPA to
consider cost-effectiveness in evaluating CAA section 126(b) petitions,
because they contend the statute does not contemplate consideration of
cost-effectiveness in making findings.
The EPA disagrees that is inappropriate for the EPA to consider
cost-effectiveness in evaluating CAA section 126(b) petitions. As
further described in Section II.B, the EPA believes it is appropriate
to interpret ``contribute significantly to nonattainment'' and
``interfere with maintenance'' as meaning the same thing under both CAA
sections 110(a)(2)(D)(i)(I) and 126(b) because, while these two
provisions provide independent regulatory processes, they are also
closely linked in that they both address the interstate transport of
emissions that significantly contribute to nonattainment or interfere
with maintenance of a NAAQS. Importantly, CAA section 126(b) provides
no independent standard for determining whether violations exist, but
instead directly incorporates the CAA section 110(a)(2)(D)(i)(I)
standard. Accordingly, 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 four-step interstate transport
framework used to interpret CAA section 110, further described in
Section II.C.1, which includes consideration of cost-effectiveness
under step 3 to determine whether, and if so in what ``amounts'' under
the terms of the statute, upwind sources will significantly contribute
to nonattainment or interfere with maintenance of the NAAQS. Given the
complexities of evaluating ozone transport, applying the four-step
interstate transport framework is a logical approach, and has been used
by the EPA in numerous rulemakings, including in actions on CAA section
126(b) petitions.\80\
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\80\ 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 for the 2008
Ozone NAAQS (CSAPR Update) Final Rule, 81 FR 74504 (October 26,
2016); Determination Regarding Good Neighbor Obligations for the
2008 Ozone National Ambient Air Quality Standard (the Determination
Rule), Final Rule, 83 FR 65878 (December 21, 2018); Response to June
1, 2016 Clean Air Act Section 126(b) Petition from Connecticut,
Final Action, 83 FR 16070 (April 13, 2018) and Response to Clean Air
Act Section 126(b) Petitions from Delaware and Maryland, Final
Action, 83 FR 50453 (October 5, 2018).
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The EPA has repeatedly found that ozone transport problems are the
result of individually small impacts from numerous sources that can
have collectively large impacts on downwind ozone concentrations.
Considering this ``thorny causation problem,'' EME Homer City, 572 U.S.
at 514, the EPA must determine how to apportion responsibility for
emissions reductions across many sources in many states. The EPA has
considered cost within its step 3 analysis in each of its regional
ozone transport rulemaking and the Supreme Court has endorsed the use
of cost in this manner as an ``efficient and equitable'' solution to
the problem of apportioning upwind emissions reduction responsibility.
Id. at 519. Thus, in evaluating a CAA section 126(b) petition, it is
reasonable for the EPA to similarly evaluate whether the petition has
demonstrated that the sources identified can be cost-effectively
controlled in determining whether the petition demonstrates that the
sources are in violation of CAA section 110(a)(2)(D)(i)(I). This is
particularly true for New York's petition, where the EPA is tasked with
determining whether approximately 350 facilities (many of which have
multiple individual emitting units \81\) in nine upwind states are
operating in violation of the good neighbor provision as alleged in the
petition.
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\81\ For example, while the list of facilities in the nine named
states in New York's petition includes 121 EGU facilities, the
number of individual EGUs currently in operation at those 121
facilities is more than double that number.
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[[Page 56084]]
Responsibility for Step 3 Analyses Supporting a CAA Section 126(b)
Finding
As discussed earlier, the EPA interprets CAA section 126(b) as
placing a burden on the petitioner to demonstrate that a finding under
the provision is justified. The EPA's interpretation of the statute is
reasonable given that Congress allotted the EPA 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 to require the EPA to
undertake extensive fact-finding or independent analysis as part of its
action on a petition and instead placed 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); cf. 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 505(b)(2)
given the parallel 60-day deadline for the EPA to respond to a title V
petition). In New York, the D.C. Circuit evaluated the EPA's obligation
in acting on a CAA section 126(b) petition, determining 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 finding
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 regarding the petitioner's
burden. 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). The EPA does not believe it was the intent of
Congress to require sources to shut down entirely absent a sufficient
demonstration 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. The EPA does not believe it is
reasonable to think that Congress could have envisioned that hundreds
of stationary sources would be required to shut down within 3 months
without petitioners providing a complete and compelling justification
for such drastic consequences.\82\ 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.
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\82\ 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 within that 3-
month period, this too is a detailed analytic task that requires
time and resources to develop. As discussed later in this section,
the EPA concedes that the Agency bears the burden of developing any
emissions limitations appropriate under CAA section 126(c) once a
finding under CAA section 126(b) is made, but this does not also
shift the burden of justifying the finding itself onto the EPA.
Rather, this further supports the EPA's conclusion that the
petitioner must bear the burden of providing sufficient
justification for a CAA section 126(b) finding given that the EPA
may also need to develop a CAA section 126(c) remedy within the
short timeframe provided for the EPA's action on a petition.
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The breadth of New York's petition demonstrates why the EPA's
interpretation is particularly reasonable. The petition named
approximately 350 facilities from several different source sectors
(both EGU facilities and non-EGU facilities) 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 already available because the EPA completed
this modeling effort for separate rulemaking actions and not solely for
use in evaluating this petition. In contrast, the EPA has not already
developed the type of multifactor test, collected the needed data for
the relevant factors, or conducted the analysis that it would normally
use in step 3 to determine whether the named group of upwind sources
(or any other sources) emits or would emit in violation of the good
neighbor provision. The EPA also does not currently have sufficient
information available that would be necessary to independently conduct
such an analysis. As noted in the Determination Rule (81 FR 65878), the
EPA currently 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 and likely to undertake such data collection efforts
under a formal information collection request.\83\ As discussed in more
detail in this section, 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 to demonstrate that the statutory
threshold has been met.
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\83\ An information collection request (ICR) is a set of
documents that describes reporting, recordkeeping, survey, or other
information collection requirements imposed on the public by a
federal agency. The Paperwork Reduction Act stipulates that every
federal agency must obtain approval from the Office of Management
and Budget (OMB) before collecting the same or similar information
from 10 or more members of the public.
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The EPA received several comments generally conceding the
petitioner bears some burden under CAA section 126(b), but asserting
that nothing in CAA section 126, including the plain language of this
provision, contemplates a burden on petitioner to provide information
about the factors relevant to step 3 or to conduct such an analysis of
the named sources, as the information regarding the sources that would
be necessary for the analysis is outside of the petitioning state's
control. Commenters take issue with the EPA requiring an analysis by
petitioner describing the downwind air quality impacts of controlling
the named sources ``relative to other sources,'' asserting that the
federal government is responsible for managing the petition process in
a swift manner and bears the burden for conducting intensive analyses
on groups of sources presented by petitioners. Commenters also contend
that by placing the burden on petitioners to provide information and
analyses related to step 3, the EPA is
[[Page 56085]]
inconsistently placing such burden on petitioners in comparison with
its prior actions on Connecticut's, Delaware's, and Maryland's CAA
section 126(b) petitions.
The EPA disagrees with these comments. As an initial matter, the
plain language of CAA section 126 does not speak to whether the burden
is on petitioner or the EPA to substantiate the requested finding. By
contrast, other CAA statutory provisions that provide for a petition
process clearly speak to the placement of burden for making the
requisite demonstration for a successful petition. See e.g., CAA
sections 111(g), 505(b)(2). Accordingly, in the absence of such plain
language, CAA section 126 is ambiguous as to this issue and the EPA may
reasonably interpret CAA section 126 in determining the placement of
burden in the context of acting on a state's petition. As described at
proposal and consistent with the EPA's historical approach to
evaluating CAA section 126 petitions, the EPA reasonably interprets the
statute to place the burden on petitioner to establish a technical
basis for the specific finding requested given the short statutory
deadline for acting on CAA section 126 petitions. 84 FR 22797. As the
commenter acknowledges, the D.C. Circuit determined in reviewing a
prior EPA action on a CAA section 126(b) petition that, based on the
60-deadline for action on such a petition, it is reasonable to conclude
that petitioners bear the burden to make any necessary technical
demonstration to support a finding. New York, 852 F.2d at 578. What
commenters do not acknowledge is that the court in that case further
concluded that Congress did not intend the EPA to be required to
perform a litany of tasks ``in such a short period of time in the
absence of the clearest expression.'' Id. at 578.\84\ For these
reasons, the EPA believes not only that such a ``clearest expression''
is absent from CAA section 126(b) but also that in such absence, it is
at least reasonable to interpret Congressional intent as being to the
contrary.
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\84\ In determining that the 60-day deadline under CAA section
126(b) is reasonably read to not require the EPA to undertake
certain tasks, the court acknowledged the 6-month extension
available under CAA section 307(d)(10) as part of its analysis. New
York, 852 F.2d at 578 n.2. While the statute separately permits the
EPA up to 6 additional months to complete the rulemaking processes
required by CAA section 307(d) when acting on a CAA section 126(b)
petition, this provision applies to any statutory deadline which
requires promulgation of an action less than 6 months after a
proposal is issued. Thus, it cannot be read to independently create
an obligation for the EPA to conduct detailed technical analyses.
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Further by way of analogy, CAA section 505(b)(2) gives the EPA 60
days to act on a petition requesting the Agency to make an objection to
a title V permit. While CAA section 505(b)(2) contains an explicit
demonstration burden on the petitioner, the EPA has interpreted the
demonstration burden as crucial in part based on the limited nature of
the 60-day deadline. The EPA has previously described that it relies on
the petitioner's demonstration in determining whether to make the
petitioner's requested objection because the 60-day window is
reasonably read as not requiring the Agency to engage in extensive
fact-finding or investigation. See In the Matter of Consolidated
Environmental Management, Inc.--Nucor Steel Louisiana, Partial Order
Responding to Petitioners' May 3, 2011 & October 3, 2012 Requests that
the Administrator Object to the Issuance of Title V Operating Permits,
4-6 (June 19, 2013), available at https://www.epa.gov/sites/production/files/2015-08/documents/nucor_steel_partialresponse2011.pdf. In
Citizens Against Ruining the Environment v. EPA, the Seventh Circuit
substantiated this interpretation by noting that, because of the
limited timeframe Congress gave the EPA to decide whether to object to
a permit, ``it is reasonable in this context for the EPA to refrain
from extensive fact-finding.'' Citizens Against Ruining the
Environment, 535 F.3d at 678. Given the parallel 60-day deadline under
CAA section 126(b), the EPA believes it equally reasonable to construe
that under CAA section 126(b), in the absence of a petition containing
adequate technical information or justification necessary for the EPA
to determine whether the requested finding is warranted, the EPA is not
required to undertake its own extensive fact-finding or investigation
and may deny the petition.\85\
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\85\ The EPA notes while there is a parallel 60-day deadline
under both petition provisions, there is no analogous mechanism for
the EPA to grant itself an extension for acting on a petition
submitted under CAA section 505(b)(2) as there is under CAA
307(d)(10) for CAA section 126(b) petitions. However, unlike CAA
section 505(b)(2), the Act places additional requirements on the EPA
to hold a public hearing, pursuant to CAA section 126(b), and to
engage in a formal rulemaking process under CAA section 307(d),
including issuance of a proposed action, provision of a public
comment period and the obligation to formally respond to significant
adverse comments. Therefore, while an extension is available to the
EPA for acting on a CAA section 126(b) petition, there are
additional procedural requirements that the EPA must satisfy during
this time period that petitions submitted under CAA section
505(b)(2) do not need to address.
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The EPA also disagrees with commenters who suggest that, while New
York as the petitioning state has the burden to demonstrate the named
sources are located in upwind states that are linked to downwind
impacts on New York under steps 1 and 2, petitioning states do not have
the burden to provide a step 3 analysis, but rather, that it is the
EPA's burden.
These comments are based on a fundamental misunderstanding of the
purpose of steps 2 and 3 of the four-step interstate transport
framework. Identification of a linkage between an upwind state and a
downwind receptor at step 2 of the inquiry does not conclude the
determination regarding whether sources in the upwind state will
significantly contribute to nonattainment or interfere with maintenance
of the NAAQS. Rather, the conclusion that a state's emissions met or
exceeded the threshold only indicated that further analysis, conducted
in step 3, is appropriate to determine whether any of the upwind
state's emissions met the statutory criteria under the good neighbor
provision and if so, in what amounts. The EPA does not draw any
conclusions regarding whether sources in upwind states are emitting in
violation of the prohibition of the good neighbor provision until the
step 3 analysis is concluded. See EME Homer City, 572 U.S. at 501-03
(noting upwind states are only obliged to eliminate emissions meeting
both the step 2 and 3 inquiries). Thus, as the EPA has interpreted CAA
section 126(b) as imposing on the petitioner the burden to demonstrate
that a finding is warranted, the petitioner only fulfills that burden
if both a step 2 and step 3 analysis are provided with the petition.
An interpretation of CAA section 126(b) placing any burden
regarding a step 3 cost-effectiveness analysis on the EPA, particularly
for a petition that names approximately 350 facilities with an even
larger number of individual emitting units, is unreasonable in light of
the statutory 60-day deadline and contravenes the D.C. Circuit's
conclusion in New York that Congress did not intend such a task to fall
on the EPA. Such a task is infeasible within the statutory deadline,
and thus the EPA believes a much more reasonable interpretation of CAA
section 126(b) is to place the demonstration burden on the petitioner.
Contrary to commenter's assertion, the placement of burden to perform a
step 3 analysis is consistent with the EPA's historical practice in
reviewing CAA section 126(b) petitions.\86\ While the EPA has, at
times,
[[Page 56086]]
performed an independent step 3 analysis in evaluating a CAA section
126(b) petition, it has chosen to do so where it has had existing
information and analyses available or where the petition identified a
single source that would require less time to evaluate.\87\ The EPA's
consideration of existing information and analyses in such
circumstances does not, however, shift the burden to the EPA to engage
in fresh fact-finding or analyses in all future petitions.
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\86\ Response to June 1, 2016 Clean Air Act Section 126(b)
Petition from Connecticut, Final Action, 83 FR 16070 (April 13,
2018) and Response to Clean Air Act Section 126(b) Petitions from
Delaware and Maryland, Final Action, 83 FR 50453 (October 5, 2018).
\87\ Response to June 1, 2016 Clean Air Act Section 126(b)
Petition from Connecticut, Final Action, 83 FR 16070 (April 13,
2018) and Response to Clean Air Act Section 126(b) Petitions from
Delaware and Maryland, Final Action, 83 FR 50453 (October 5, 2018)
and Final Response to Petition from New Jersey Regarding
SO2 Emissions From the Portland Generating Station, 76 FR
69052 (November 7, 2011).
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The interpretation that the petitioner bears the burden under CAA
section 126(b) to conduct the step 3 analysis is especially reasonable
when considering what would otherwise occur if CAA section 126(b) were
understood to require the EPA to undertake the required technical
analysis for determining whether a petition's requested finding should
be made. Notably, New York's petition names numerous sources, including
more than 220 non-EGU facilities, for which the EPA does not have all
of the information necessary to conduct a full step 3 analysis (e.g.,
the current operating status of each named facility, the magnitude of
emissions from each emitting unit within each named facility, the
existing controls on each of these emissions units, additional control
options on each emissions unit, the cost of each potential control
option, the emissions reductions potential resulting from the
installation of controls, and potential air quality impacts of
emissions reductions).
Because the EPA does not independently have sufficient information
about these sources to perform an analysis under the four-step
interstate transport framework that it can use to supplement or stand
in for New York's analysis, the EPA has not done so here. For a
petition that names numerous sources, as New York's petition does, an
alternative interpretation of burden under CAA section 126(b) would
require the EPA to conduct a time- and resource-intensive analysis of
whether all of this multitude of sources have cost-effective emissions
reductions available under step 3, in addition to the mandatory notice-
and-comment process, all within 60 days (or up to an additional 6
months, invoking the extension provision in CAA section 307(d)(10)) to
meet its statutory deadline to take action on the petition.\88\ If the
EPA had insufficient time to conduct such an independent analysis, the
commenters contention would have severe consequences. Essentially, the
commenters suggest that the EPA is, in the absence of its own step 3
analysis, nonetheless required to make the requested finding simply
because the States in which the named sources are located are linked to
a downwind air quality problem at step 2. This would further mean that
all of the named sources would be required to shut down within 3 months
of the finding--a result the petitioner has not requested. Moreover,
this means that a CAA section 126(b) petitioner could choose to target
any source in any linked upwind state--regardless of its particular
size, source characteristics, or downwind impacts--and demand that the
EPA require the source to shut down simply because it is located in the
linked state. As discussed in in this section, such results could not
have been intended by Congress in promulgating the petition process in
CAA section 126.
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\88\ The EPA also notes that as a matter of administrative law
in the context of when an agency declines to undertake rulemaking,
the Supreme Court has found that ``an agency has broad discretion to
choose how best to marshal its limited resources and personnel to
carry out its delegated responsibilities.'' Massachusetts v. EPA,
549 U.S. 497, 527 (2007). This principle is especially salient when
an agency has limited time statutorily for determining whether
rulemaking is necessary.
---------------------------------------------------------------------------
The burden on New York to perform a step 3 analysis may appear to
be high in this case, but CAA section 126 does not place any deadline
on petitioners for submitting such a petition and thus provides time
for petitioners to perform such an analysis, contrary to the deadline
placed on the EPA in acting on it. Moreover, the apparent weight of the
burden in this case is the natural result of the petitioner's decision
to name approximately 350 facilities (each, potentially with multiple
emissions units) from 9 states, which essentially amounts to seeking a
regional action.
Certain commenters further suggest that their approach, which would
require the EPA to bear the burden for conducting extensive analyses on
groups of sources presented by petitioners, is supported by legislative
history cited by the Third Circuit in its GenOn decision, wherein the
court noted that the federal government is the entity that ``can and
must provide the technical information and enforcement assistance that
States and localities need.'' 722 F.3d at 523 (quoting S.Rep. No. 95-
127, at 10 (1977), reprinted in 3 1977 Legislative History of the Clean
Air Act Amendments of 1977, at 1450)). The EPA disagrees with
commenters' characterization of both this legislative history and the
court's opinion in GenOn. The legislative history quoted is part of a
section titled ``General Statement'' providing an overview of
initiatives and issues informing the Senate Committee's report on the
1977 Clean Air Act Amendments as a whole and is not specific to CAA
section 126. Though the EPA agrees it has a fundamental and important
role in providing technical information and enforcement assistance as
part of implementing the Act, the legislative history does not speak to
this role specifically in the context of CAA section 126.
Additionally, to the extent the commenter is suggesting that the
Third Circuit in GenOn cited to this legislative history to support the
interpretation that an investigative burden lies with the EPA in acting
on a CAA section 126(b) petition, the EPA disagrees. The court in that
case addressed the question of whether the EPA could act on a CAA
section 126(b) petition in instances where the Agency had not yet acted
on a CAA section 110 SIP addressing interstate transport for the same
NAAQS. In this context of determining the appropriate timing of acting
on a CAA section 126(b) petition, the court cited this legislative
history in pointing out that the EPA, as the federal regulator, was
intended to intervene when states failed to adhere to the air pollution
control process, and thus the EPA is not obligated to wait for the
states to address and resolve interstate transport of pollution through
the SIP process before acting on a CAA section 126(b) petition. The
court did not speak to who has the burden of substantiating a requested
finding, particularly when the EPA does not have sufficient information
regarding sources named in the petition. Notably, as the Third Circuit
discussed, the obligation to act quickly under CAA section 126(b)
``petition process is intended to expedite, not delay, resolution of
interstate pollution conflicts.'' GenOn, 722 F.3d at 523 (quoting
H.R.Rep. No. 95-294, at 331 (1977), reprinted in 4 1977 Legislative
History of the Clean Air Act Amendments of 1977, at 2797). The
swiftness Congress intended in acting on a CAA section 126(b) petition
conflicts with requiring the EPA to acquire and develop new information
as part of taking such swift action. Therefore, the legislative history
supports the EPA's reasonable
[[Page 56087]]
interpretation of CAA section 126(b) as placing the burden for
substantiating the requested finding on petitioner.
Several commenters also assert that New York met its burden under
CAA section 126(b) and that considerations regarding the cost-
effectiveness of controls at step 3 are only appropriate under CAA
section 126(c), under which the EPA bears the burden to develop a
remedy for a finding made under CAA section 126(b). Commenters
characterize the EPA's reliance on the D.C. Circuit's decision New York
as placing the burden on petitioning states to support both findings
under CAA section 126(b) and the remedy under CAA section 126(c).
According to commenters, the court did not hold that the EPA had no
burden to undertake any tasks or analysis within the limited timeframe
for action on a CAA section 126(b) petition. Rather, according to
commenter, the court only found that the EPA had no affirmative duty to
review all existing state implementation plans for a relevant NAAQS and
determine if they contained adequate provisions for compliance with
each upwind state's good neighbor provision obligations. Commenters
additionally state the EPA's prior action on New Jersey's CAA section
126 petition to control emissions from the Portland Generating Station
contradicts the EPA's position that it is New York's responsibility as
petitioner to analyze and define the remedy.
The EPA disagrees that, by requiring the petitioner under CAA
section 126(b) to provide an analysis of step 3 under CAA section
126(b), it is shifting the burden to petitioners to develop the remedy
under CAA section 126(c). As described in Section II.C.1, in examining
petitions filed under CAA section 126(b), the EPA has reasonably
applied the four-step interstate transport framework used for analyzing
whether there is significant contribution to nonattainment, or
interference of maintenance of the ozone NAAQS under CAA section
110(a)(2)(D)(i) because those same terms are incorporated into CAA
section 126(b). The four-step interstate transport framework includes a
multi-factor analysis of the availability of cost-effective controls
under step 3. As discussed earlier, this step 3 analysis is an
essential part of making the determination of whether sources
significantly contribute to nonattainment or interfere with maintenance
under the good neighbor provision, and thus whether a finding is
justified under CAA section 126(b). While the result of a step 3
analysis can be a quantification of the amount of emissions that
constitute the state's significant contribution (or interference with
maintenance) under the good neighbor provision, the imposition of a
federally enforceable emissions limitation to reduce that amount of
emissions does not occur at step 3, but rather occurs under step 4.
Thus, the analysis of cost-effective emissions reductions at step 3 is
an essential part of making the significant contribution or
interference of maintenance finding required under CAA section 126(b).
Accordingly, the EPA treats the conclusions drawn at step 3 as
distinct from the remedy imposed at step 4 under CAA section
110(a)(2)(D)(i)(I), and similarly acknowledges and treats CAA section
126(b) and 126(c) as separate provisions, contrary to commenters
suggesting otherwise. In the EPA's regional rulemakings for ozone
transport pursuant to CAA section 110, if through the first three steps
under the four-step interstate transport framework the EPA has
determined there are cost-effective controls available at sources
located in upwind states impacting downwind states above a certain
threshold, then the EPA has determined that there is significant
contribution to nonattainment or interference with maintenance, at
which point the Agency imposed federally enforceable emissions
limitations on those sources under step 4. For example, at step 3 in
the CSAPR Update, the EPA evaluated available NOX emissions
reductions by applying uniform levels of control stringency,
represented by cost, in order to quantify the amount of emissions that
constituted each upwind state's significant contribution to
nonattainment or interference with maintenance and then established
NOX emissions budgets necessary to prohibit that level of
emissions. At step 4 in the CSAPR Update, the EPA promulgated federally
enforceable allowance trading programs to implement the NOX
emissions budgets calculated under step 3. 81 FR 74504, 74519-21.
Notably in the CSAPR Update, by contrast, where the EPA has found a
state has no cost-effective controls at step 3, even if the state is
linked to downwind impacts under steps 1 and 2, the EPA has not imposed
emissions limits at step 4. Id. at 74553.\89\ Therefore, to the extent
a CAA section 126(b) petition (and the EPA's independent analysis to
the extent there is such analysis) applies steps 1, 2, and 3 of the
four-step interstate transport framework to successfully show an upwind
source, or group of sources, is having downwind impacts in violation of
the good neighbor provision, then the EPA would make such a finding
under CAA section 126(b) and fulfill its duty under CAA section 126(c)
either by imposing the prescribed remedy under subsection (c)(1) (e.g.,
an existing source must cease operation within 3 months) or by
promulgating federally enforceable emissions limitations under
subsection (c)(2) to bring the upwind source(s) into compliance with
the good neighbor provision. The fulfillment of this obligation by the
EPA under CAA section 126(c) is consistent with step 4 of the four-step
interstate transport framework, and therefore the EPA is not improperly
shifting its burden of developing a remedy to the petitioner under CAA
section 126(b). Rather, because the EPA finds that New York as
petitioner did not meet its burden under CAA section 126(b) of showing
significant contribution to nonattainment or interference with
maintenance through application of steps 1 through 3, the EPA did not
make the requested finding and, consequently, did not trigger its
obligation to impose emissions limitations under CAA section 126(c).
---------------------------------------------------------------------------
\89\ See also 76 FR 48262 (finding no limits necessary in the
District of Columbia to satisfy good neighbor requirements for the
1997 ozone, 1997 PM2.5, or 2006 PM2.5 NAAQS
because the EPA identified no available cost-effective emissions
reductions).
---------------------------------------------------------------------------
Furthermore, contrary to commenters' assertions, the EPA has not
interpreted the D.C. Circuit's holding in New York as placing the
burden on petitioning states to fully develop the remedy under CAA
section 126(c). The EPA acknowledges that the imposition of federally
enforceable emissions limitations (analogous to step 4 of the four-step
interstate transport framework) is its own obligation under CAA section
126(c). Therefore, the EPA is not relying on the New York decision to
support a proposition it does not hold. However, the EPA further
disagrees with commenter's narrow reading of New York as simply finding
that the EPA had no affirmative duty to review all existing state
implementation plans for a relevant NAAQS and determine if they
contained adequate provisions for compliance with each upwind state's
obligations under the good neighbor provision. While the specific
argument the petitioners in New York advanced was that a CAA section
126(b) petition triggered an obligation for the EPA to investigate
whether the good neighbor SIPs for all of the States named in the
petition are in compliance with CAA section 110(a)(2)(D)(i)(I), the
court's logic in addressing this argument applies to the broader
question of the EPA's obligation in reviewing a CAA
[[Page 56088]]
section 126(b) petition. Specifically, the court in New York held that
it is reasonable to conclude Congress did not intend for the EPA to
undertake a series of procedural and substantive actions to evaluate
CAA section 110 SIPs in order to act on a CAA section 126(b) petition,
premised on the short 60 day-deadline. 852 F.2d at 578 (holding
Congress did not intend for the EPA to be required to perform ``an
entire array of investigative duties'' in reviewing a CAA section
126(b) petition). Gathering source-specific information about
approximately 350 sources and then conducting a regional cost-
effectiveness analysis of them is likely more (or at least as)
burdensome than the review of existing SIPs that the New York court
said the EPA does not have to do in reviewing a CAA section 126(b)
petition. Therefore, the EPA's interpretation of the burden in CAA
section 126(b) in this case, as it applies to the time and resources
required to conduct a step 3 analysis, is consistent with the
interpretation endorsed by the New York court.
The EPA also disagrees with commenters' contention that its prior
action on a CAA section 126(b) petition from New Jersey regarding
SO2 emissions from the Portland Generating Station in
Pennsylvania contradicts the EPA's position in the present action that
the burden lies with petitioner to analyze step 3. Rather, as the EPA
clearly stated in its proposed response to New Jersey's petition, the
EPA first looks to see if the petition identifies or contains a
sufficient basis to make the requested finding. The EPA went on to
state that, nonetheless, it may decide to conduct independent technical
analyses when such analyses are helpful in evaluating the basis for a
potential CAA section 126(b) finding or developing a remedy if a
finding is made. The EPA invoked this discretion to perform an
independent analysis in acting on New Jersey's petition. However, the
invocation of such discretion in acting on New Jersey's petition does
not contradict the EPA's position that the burden is on the petitioner
to provide an analysis under step 3. The EPA concluded in the New
Jersey action, as it does again here, that the discretionary
independent analysis is not compelled by statute. 76 FR 19662, 19666
(April 7, 2011).
Additionally, the EPA disagrees with commenters' assertions that
the EPA's past action on New Jersey's CAA section 126(b) petition shows
it is now incorrectly conflating CAA section 110(a)(2)(D)(i) with CAA
section 126. In analyzing New Jersey's CAA section 126(b) petition and
the technical analysis the State submitted in support of the requested
finding, the EPA in fact imported similar factors as those outlined in
the four-step interstate transport framework used under CAA section 110
to evaluate the petition's analysis contending the identified source
was emitting in violation of the good neighbor provision. Furthermore,
in acting on New Jersey's petition, the EPA treated step 3 as distinct
from step 4. Similar to step 1, the EPA first concluded that based on
the petition's technical analysis, the petitioning downwind state had
an air quality problem for the 2010 SO2 NAAQS. Similar to
step 2, the Agency determined that, based on the petition's analysis,
emissions from the named source in the upwind state alone were
sufficient not just to contribute to, but to cause a violation of the
NAAQS in the petitioning state. As such, the EPA's analysis of the
petition's technical showing functionally comprised a step 3 analysis
by determining under CAA section 126(b) that the facility should be
regulated because of the magnitude of its contribution and the relative
lack of other contributing sources. Because the EPA determined that the
petition made demonstrations equivalent to steps 1 through 3 and
established that the named source was emitting in violation of the good
neighbor provision, the EPA essentially reached step 4 by imposing
federally enforceable source-specific rate limits pursuant to CAA
section 126(c) to eliminate the source's significant contribution. See
Final Response to Petition From New Jersey Regarding SO2
Emissions from the Portland Generating Station, 76 FR 69052 (November
7, 2011).
Information and Analyses Considered Within Step 3
As 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), it is reasonable for the EPA
to consider the same type of factors whether evaluating ozone transport
in the context of a good neighbor SIP under CAA section 110 or a
section 126(b) petition. Thus, based on the EPA's interpretation of CAA
section 126(b) as placing the burden on petitioner, the EPA reviewed
New York's petition to determine whether it has provided sufficient
information to support a determination based on some type of analysis
of cost and air quality factors, either the same as or similar to,
those 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 NOX SIP Call, CAIR,
CSAPR, and the CSAPR Update, so it was clear that the EPA considers
such an analysis to be necessary to determine, under CAA section
126(b), whether upwind sources will significantly contribute to
nonattainment or interfere with maintenance of the ozone NAAQS in New
York. For example, in the CSAPR update, the EPA 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 factors
that the EPA has generally relied on in step 3; has not described and
conducted any sort of multifactor analysis to determine whether cost-
effective controls are available at the named sources considering these
factors; 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 its
conclusion 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. The petition simply applies a uniform
approach beginning with a review of the entire anthropogenic emissions
inventory and then identifying facilities that appear to have larger
emissions than other facilities (at least 400 tons of NOX
per year) without supporting why the named facilities either can or
should make certain reductions. As the EPA indicated in the proposal,
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
[[Page 56089]]
most recent emissions inventory continue to emit NOX at the
same rate or continue to operate; (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 this or any such
similar 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 to weigh these relevant
cost and air quality factors to determine an appropriate level of
control for the named sources. Instead, the petition simply asserts
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 regarding costs of controls in the downwind area may be
useful when evaluating upwind emissions reduction potential, such
information is not determinative of the appropriate level of upwind
control. As the EPA explained at proposal, 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 most areas
designated nonattainment, 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 good
neighbor 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,
572 U.S. at 489.\90\ 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 considering 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 may provide 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.
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\90\ EME Homer City also held that the EPA is precluded from
requiring more emissions reductions than necessary to address
downwind nonattainment and maintenance issues. 572 U.S. at 521-22.
The petition also fails to demonstrate that the imposition of RACT-
level controls on all named upwind sources will not result in the
type of over-control forbidden by the Supreme Court under the good
neighbor provision.
---------------------------------------------------------------------------
The petition also suggests that upwind sources should be subject to
a comparable level of control as sources 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 issuing 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). Thus,
the EPA has now determined through this set of actions that the
emissions reductions required under the CSAPR Update fully address the
good neighbor requirements with respect to the 2008 ozone NAAQS for all
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.
Several commenters contend that it is unreasonable to have expected
New York to address many of the step 3 considerations that the EPA
outlined in the proposal. One commenter claims that the EPA's position
that New York's petition needed to provide analyses describing the
downwind air quality impacts of controlling the named sources
``relative to other sources'' is an unreasonable requirement for a CAA
section 126(b) petition. The commenter asserts that the need for a
comparative demonstration is particularly unreasonable here because the
petition already encompasses all large upwind stationary sources
collectively linked to New York's downwind nonattainment and/or
maintenance problems. The commenter further states that New York has no
ability to obtain more specific cost figures for the sources named in
the petition. The commenter asserts that the EPA either has such
information or can obtain it when developing the remedy under CAA
section 126(c).
Another commenter states that the EPA undertook comprehensive EGU
and non-EGU control analyses in 2016 as part of its CSAPR Update
efforts, which resulted in two detailed TSDs that considered
availability of controls, associated costs, and installation times. The
EPA further noted in the non-EGU TSD that ``the EPA continues to assess
the role of NOX emissions from non-
[[Page 56090]]
EGU sources to downwind nonattainment problems.'' The commenter asserts
that given its authority to gather data, its existing research on both
EGU and non-EGU NOX control technologies, and the 8 months
afforded it by the CAA to act on a petition, the EPA has had adequate
time to conduct the analysis and define emissions limits for petitioned
units that would effectuate the remedy requested by the petition.
The EPA disagrees with the commenters' assertions. As discussed in
Section II.C of this notification, the EPA has repeatedly found that
ozone transport problems are the result of individually small impacts
from numerous sources in upwind states that can have collectively large
impacts on downwind ozone concentrations. Apportioning responsibility
for emissions reductions across many sources in many states is a key
outcome of applying the four-step interstate transport framework,
which, considering various cost and air quality factors under step 3,
identifies a rational basis for determining that emissions reductions
should be required under the good neighbor provision from certain
sources rather than others. This source comparison necessarily involves
identifying the current operating status of each named facility, the
magnitude of emissions from each emitting unit within each named
facility, the existing controls on each of these emissions units,
additional control options on each emissions unit, the cost of each
potential control option, the emissions reductions potential resulting
from the installation of controls, and potential air quality impacts of
emissions reductions. Without this information, the EPA cannot
determine whether the sources named in the New York petition have
available or cost-effective emissions reductions either as compared to
one another or as compared to other, unnamed sources in the same upwind
states or in other states. Moreover, the EPA cannot determine whether
it would be appropriate to regulate any of the hundreds of sources
named in New York's petition without such information.
While the EPA initiated analyses of emissions reduction potential
available at EGUs and non-EGUs conducted in support of the CSAPR
Update, the analyses were limited in scope, as described in Section
II.C. Since finalizing that rule, the EPA has not gathered significant
additional information or completed additional analyses regarding the
availability of additional controls beyond that which is included in
the EGU and non-EGU TSDs identified by the commenter because the EPA
has not needed this information to support any current EPA-initiated
federal ozone rulemakings. The EPA maintains that the petitioner bears
the burden of establishing a technical basis for the specific finding
requested and has not done so here.
On the contrary, commenters supporting the petition had the
opportunity to, but did not, provide such analyses during the public
comment period on the proposed action. Rather, multiple different
commenters supporting denial of the petition provided corrections or
supplemental information indicating that the operational status and/or
emissions information provided in the New York petition were incorrect,
further suggesting that granting the petition as to certain units would
be unjustified on the facts before the Agency. Generally, commenters
opposing the denial did not provide information regarding the
installation or cost of controls or the potential emissions reductions
available. In the absence of such analyses and information, 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 pursuant to CAA section 126(b). The
existence of two EPA technical support documents on controls for EGUs
and non-EGUs mentioned by commenters does not contradict this
conclusion.
Several commenters contend that the petition adequately met the
step 3 requirements because New York demonstrated that there are
available, cost-effective emissions reductions from the named upwind
sources. Commenters assert that New York has done so by showing that
certain named upwind sources that have average emissions rates over
0.15 lb/mmBtu, the emissions rate that is consistent with New York's
RACT requirement, and that setting an enforceable NOX
emissions limit equivalent to New York's NOX RACT
requirements at a cost of $5,000/ton of NOX reduced could be
met in many cases by operating existing controls. Commenters further
assert that the EPA has failed to explain why it would not be cost
effective to implement NOX controls at the group of sources
identified in the petition. Commenters point to the legislative history
of CAA section 126(b) as demonstrating an important part of the impetus
to add CAA section 126(b) was to help equalize control costs between
upwind and downwind states,\91\ and state that New York is only seeking
to require upwind sources to comply with requirements it already
imposes on its own in-state sources.
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\91\ Specifically, commenters quote the following, ``In the
absence of interstate abatement procedures, those plants in States
with more stringent control requirements are at a distinct economic
and competitive disadvantage. [CAA section 126(b)] is intended to
equalize the positions of the States with respect to interstate
pollution by making a source at least as responsible for polluting
another State as it would be for polluting its own State.'' S.Rep.
No. 95-127, at 42 (1977), reprinted in 3 1977 Legislative History of
the Clean Air Act Amendments of 1977, at 42).
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The EPA disagrees that the petition's proposal that New York's RACT
standard be applied to the identified sources provides enough
information for the EPA to conclude, at step 3, that each of the
sources will significantly contribute to nonattainment or interfere
with maintenance in the NYMA. While New York proposes a uniform level
of cost and control (at $5,000/ton and 0.15 lb/mmBtu), neither New York
nor the commenters provide an explanation for why that is an
appropriate level of control to use to define significant contribution
under the good neighbor provision and CAA section 126(b). As discussed
earlier, the fact that the sources have a collective impact over an air
quality threshold at step 2 does not address whether the sources have
cost-effective emissions reductions at step 3.
For example, the petition provides no information demonstrating
that the 0.15 lb/mmBtu rate is achievable at all sources, whether at
$5,000 or at other costs. While the commenter suggests that some
sources might meet that limit through operation of existing controls,
neither the commenter nor the petition demonstrates that all of the
approximately 350 sources could meet that proposed rate at the proposed
$5,000/ton threshold. Thus, the EPA cannot conclude that the proposed
rate is cost-effective for the suite of sources. Moreover, the petition
does not identify which sources have existing controls that can be
operated to meet that rate, meaning the EPA could not even grant the
petition as to certain sources without identifying or generating
additional information. Furthermore, commenters assert that some of the
sources are already meeting the rate, suggesting that even under the
petition's own approach that these sources are not significantly
contributing to any air quality problems in New York. It is therefore
left to the EPA to determine not only which sources have the emissions
that constitute the alleged significant contribution, but also which
[[Page 56091]]
sources the petition even correctly names.
Moreover, a conclusion that the emissions rate proposed by New York
is cost-effective at $5,000 per ton of NOX removed ignores
the critical question of what relevant ozone improvements would be
achieved at the downwind area at that cost threshold or considering any
other potential control strategies. Determinations about what
constitutes reasonably available control technology ``evaluat[e]
whether implementation of certain controls within a nonattainment area
will be effective at addressing a local air quality problem relative to
the cost of such controls.'' 83 FR at 50470. What controls are required
locally in nonattainment areas is a different question from whether
emissions from upwind states, which travel longer distances and have
different downwind impacts, ``significantly contribute'' to downwind
nonattainment under the good neighbor provision. As the D.C. Circuit
held in North Carolina, the good neighbor provision does not permit the
EPA to simply ``pick a cost for a region and deem `significant' any
emissions that sources can eliminate more cheaply.'' 531 F.3d at 918.
Rather, the EPA must ``achieve something measurable toward the goal of
prohibiting sources `within the State' from contributing significantly
to downwind nonattainment'' and ``explain how the objectives in section
110(a)(2)(D)(i)(I) relate to its choice of . . . emissions caps.'' In
the context of a section 126(b) petition, this is the petitioner's
burden in the first instance.
The EPA further disagrees that the cited legislative history
supports the petition's and commenters' conclusion that the upwind
states should impose controls commensurate with New York's RACT.
Although indicating that CAA section 126 was intended to increase the
equity between the States with respect to taking responsibility for
impacts on air quality problems, nowhere did Congress indicate that
upwind states were required to impose the same level of control as
downwind states in all cases. If Congress had intended this result, the
statute could have been written in this manner. Instead, Congress
referenced CAA section 110(a)(2)(D)(i), which also fails to include a
specific control level and instead uses the ambiguous terms
``significant contribution'' and ``interference with maintenance'' to
describe the amount of emissions upwind states are required to control,
and CAA section 126(b) simply incorporated that standard.
Moreover, the concept of ``equity'' is particularly difficult to
define in the context of ozone transport, given that downwind ozone
concentrations are affected by individually small impacts from
emissions of hundreds and thousands of sources. First, as to the number
of sources potentially impacted, states with nonattainment areas are
generally required to implement RACT at major sources located only
within the boundaries of the nonattainment area or within the Ozone
Transport Region (OTR). However, the petition's and commenters'
argument suggests that the same controls should be imposed on all major
sources throughout upwind states so long as the state has a linkage at
or above the step 2 threshold \92\--a much higher burden than the
statute imposes on local emissions within the home state of a
nonattainment area.\93\ Second, there is no uniform threshold for
determining what rate and cost represent RACT. The process for
identifying RACT considers a variety of factors and can vary from
nonattainment area to nonattainment area, from state to state, and
indeed from source to source. Thus, it is not necessarily ``equitable''
to rely on a single state's conclusion as to what constitutes RACT for
its mix of sources in order to define ``significant contribution'' for
a suite of different sources in numerous distant upwind states. Rather,
as the Supreme Court concluded, the EPA's use of cost to evaluate
different types of control strategies and select a level of control for
a region is itself ``equitable,'' and achieves the intention reflected
in the legislative history, because it ``subjects to stricter
regulation those States that have done relatively less in the past to
control their pollution.'' EME Homer City, 572 U.S. at 519.
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\92\ Notably, the factors used to identify areas contributing to
a measured violation in the designation process are more complex
than the simple air quality threshold used in the EPA's four-step
interstate transport framework. In-state sources are not necessarily
subject to RACT based solely on a similarly low air quality impact.
\93\ The EPA recognizes that states like New York are required,
as members of OTR, to impose RACT at major sources statewide, but
commenters have not argued that the good neighbor provision requires
incorporation of OTR level controls in any state impacting a
downwind air quality problem; nor could they. The statute provides a
separate provision at CAA section 176A for determining whether it is
appropriate to add additional states to the OTR and thus subject
them to the additional requirements applicable to such states. The
EPA already considered and rejected a petition submitted under this
provision to expand the OTR and subject more states to these
requirements, which the D.C. Circuit affirmed. New York v. EPA, 921
F.3d 257 (D.C. Cir. 2019). Congress's decision to include only
certain states in the OTR was an acknowledgement that there might be
inequities.
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One commenter asserts that data indicate that certain facilities
named in New York's CAA section 126(b) petition could be controlled.
Specifically, the commenter notes that the Brunner Island Power Plant
completed installation of a natural gas line in 2017, but that 2018
emissions data reveal the facility fired coal on approximately 32 days
in the ozone season, of which nine were days when the ozone standard
was exceeded in New York State. The commenter further notes that the
EPA found in denying Maryland and Delaware's CAA section 126(b)
petitions that the CSAPR Update was controlling emissions from the EGUs
named in the petition and from EGUs collectively in the named upwind
states that impact ozone concentrations in Maryland and Delaware. But
2018 ozone season emissions data from those sources (also named in New
York's petition) reveal that NOX emissions continue to
exceed the levels that would have resulted if existing controls were
operated as the EPA assumed in the modeling for the Determination Rule
(at a 0.10 lb/mmBtu rate). The commenter provides data for the units
named in the Maryland and Delaware petitions intended to demonstrate
that they could have reduced NOX emissions over the course
of the ozone season using the 0.15 lb/mmBtu rate requested in New
York's petition, while also noting that several units already meet or
approach that limit.
The commenter asserts that additional facilities in New York's
petition have similarly been operating with 2018 ozone season
NOX emissions rates higher than the requested 0.15 lb/mmBtu
rate, even though ``state-of-the-art'' emissions controls are widely
available and assumed by the EPA to be installed in its 2023 modeling.
The comment provides a table with data for six individual sources,
intended to provide a representative sample of the unoptimized
facilities across the region, and then cites to the CSAPR Update where
the EPA said that ``state-of-the-art combustion controls such as low-
NOX burners and over-fire air can be installed quickly'' and
at an estimated cost of installation of only $500 to $1,200 per ton of
NOX removed. The commenter asserts that an analysis of
emissions data reveals that if facilities were to operate at a 0.15 lb/
mmBtu NOX rate, they would have each reduced their
NOX emissions by over 100 tons, considering only the days
during the 2018 ozone season in which New York monitors exceeded the
NAAQS.
The EPA disagrees with the commenter's assertion that there is
sufficient information to grant the petition as to the sources
identified in New York's petition. As an initial matter, simply
providing data regarding
[[Page 56092]]
how individual units operated in 2018, including those units named in
the prior Delaware and Maryland CAA section 126(b) petitions, does not
demonstrate either that the units are able to achieve the 0.15 lb/mmBtu
rate proposed by the New York petition or, to the extent this is
technically achievable, that the measures necessary for the sources to
operate at that rate would be cost-effective considering the types of
factors the EPA typically evaluates in step 3 of the four-step
interstate transport framework. In fact, the commenter concedes that
certain units for which it provides data already meet the proposed
limit, which further undermines any conclusion that these units should
be further controlled under CAA section 126(b).
The EPA further notes, as it did in its denial of the Delaware and
Maryland petitions, that the EPA has already taken regulatory action to
control emissions from the sources noted in the comment.\94\ As
described in the CSAPR Update (81 FR 74540-41), control strategies
involving turning on and fully operating existing SCR control equipment
and installing state-of-the-art combustion controls were accounted for
in setting state budgets to address the good neighbor requirements for
the 2008 ozone NAAQS for states in the eastern U.S.\95\ Recent measured
emissions data suggest that those emissions reductions were either
successfully achieved at the particular units, or commensurate
reductions were achieved from other units within the state, as
demonstrated by all states meeting the state budgets (accounting for
the year-to-year variability associated with the assurance levels) and
relatively low emissions rates seen at large numbers of units across
the region (see Excel documents titled,
``2017_csapr_budgets_emissions_and_assurance_levels_11-1-18_3.xlsx'',
``2018_csapr_assurance_provision_0.xlsx'', and ``2017 NOX
Rates for 274 coal units'' in the docket for this action for additional
details).\96\
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\94\ See 83 FR 50464-70.
\95\ See the CSAPR Update technical support document, EGU
NOX Mitigation Strategies Final Rule TSD for additional
details.
\96\ 2017 CSAPR Budgets Emissions and Assurance Levels
Spreadsheet and 2017 CSAPR Budgets Emissions and Assurance Levels
Spreadsheet available in the docket and at https://www.epa.gov/csapr/csapr-assurance-provision.
---------------------------------------------------------------------------
The EPA notes that the petitioner and commenters have provided some
unit-level emissions data for a few units (see comment available at
EPA-HQ-OAR-2018-0170-0084, Tables 1 and 2) showing some daily emissions
rates exceeding the commenter's proposed 0.15 lb/mmBtu rate. However,
the fact that a source may have higher emissions on a particular day is
not determinative of whether a unit is not fully operating its control
equipment and can achieve a lower rate, as there are many reasons why
lower rates may not always be achievable on every day (e.g., at low
hourly utilization rates there are engineering limitations for flow and
temperature for an SCR to operate, see Short-Term Emissions Limits
Document in the docket for this action for additional details).
Similarly, based on unit configuration, technical engineering design
efficiency, and the exact nature of the fuel utilized, not all
combustion control or post-combustion control equipment is technically
capable of achieving a best emissions rate, or fleet-average best rate,
under all operating conditions.\97\
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\97\ See National Electric Energy Data System excel document in
the docket.
---------------------------------------------------------------------------
As noted by the commenter, the EPA has explained that certain
combustion controls (e.g., low-NOX burners (LNB) and over-
fire air) can be installed quickly and at costs of $500 to $1,200 tons
on average, neither the petition nor the commenter has demonstrated
that there are emissions reductions achievable from these strategies at
all the units named in the petition. Rather, as shown in the CSAPR
Update Rule EGU NOX Mitigation Strategies TSD, there is
limited EGU reduction potential in the CSAPR Update region (including
all states named in the petition) as most sources have already
installed state of the art combustion controls.\98\ Moreover, these
controls may, or may not, be able to achieve the rate identified by the
commenter of 0.15 lb/mmBtu, and even for those that can the unit-
specific cost may not match the fleetwide average cost discussed
earlier. The commenter's calculations of alleged emissions reduction
potential from meeting the proposed rate ignore unit-specific technical
considerations and corresponding cost by assuming that all facilities
could have lowered emissions to a 0.15 lb/mmBtu NOX
emissions rate through combustion control upgrade or post-combustion
control optimization. The commenter does not present complete
engineering and cost analysis that speaks to whether these units can,
and cost-effectively, operate at the proposed level. Moreover, they do
not explain how any potential reductions identified at these sources
are more cost-effective than mitigation efforts at other upwind
sources.
---------------------------------------------------------------------------
\98\ See EGU NOX Mitigation Strategies Final Rule
Technical Support Document, August 2016.
---------------------------------------------------------------------------
Commenters also misconstrue the EPA's use of 0.10 lb/mmBtu as a
rate ceiling rather than a fleet-average when discussing the
assumptions underlying the modeling used in the Determination Rule. The
EPA specifically noted that 0.10 lb/mmBtu was representative of a
fleet-average for units that were not already operating their controls
prior to the implementation of the CSAPR Update. It did not reflect a
unit-level rate ceiling or cut-off for SCR operation at all units. In
the CSAPR Update, the EPA determined that, based on an aggregation of
unit-level emissions rates, an average fleet-wide emissions rate of
0.10 lb/mmBtu would represent the optimized operation of SCR controls
that were not already being operated and optimized, and set statewide
emissions budgets based on this assumption. 81 FR 74543. In concluding
that this rate would be appropriate for calculating emissions reduction
potential from implementation of this control strategy, the EPA
recognized that some units would have optimized rates above that level
and some below that level. 81 FR 74543. Thus, the fact that some units
are operating above 0.10 lb/mmBtu is not indicative that the sources
have additional cost-effective emissions reductions available.
Thus, although the petition and the commenter have identified
certain sources operating at rates higher than that proposed by New
York in its petition, this is not sufficient information to demonstrate
that the sources can or should be further controlled, and thus does not
support a finding that such sources significantly contribute to
nonattainment or interfere with maintenance of either the 2008 or 2015
ozone NAAQS in New York.
Conclusion
For the reasons described in this section, the EPA is finalizing a
determination 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 finalizing its denial of 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. Although the EPA already has identified a sufficient basis to
deny the petition as to Chautauqua County (for the 2008 and 2015 ozone
NAAQS) and NYMA (for the 2008 ozone
[[Page 56093]]
NAAQS) at step 1 of the four-step interstate transport framework, the
EPA is also relying on our assessment of step 3 as an additional and
independent basis for denial as to the petition's claims for these
areas.
4. Group of Stationary Sources
The EPA does not need, in this final action, to make any finding or
determination for New York's CAA section 126(b) petition with respect
to the scope of ``group of stationary sources.'' In the proposal, the
EPA solicited comment on whether to deny New York's petition based on
the petition's insufficient justification that such a large,
undifferentiated number of sources located in numerous upwind states
constituted a ``group of stationary sources'' within the context of CAA
section 126(b). The proposal offered that a ``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. The EPA
received comments both supporting and opposing a petition denial based
on whether the petition adequately demonstrated that the sources
identified in the petition constitute a ``group of stationary
sources.'' Based on the other bases for denial, the EPA does not need
to reach the question of whether the petitioners' failed to
sufficiently justify its interpretation of a ``group of stationary
sources'' but notes that the absence of supporting information for such
a determination makes the Agency unlikely to side with petitioners on
the information provided.
IV. Determinations Under CAA Section 307(b)(1) and (d)
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 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 has found that this action is based on a
determination of ``nationwide scope and effect'' within the meaning of
CAA section 307(b)(1). This action addresses emissions impacts from
sources located in nine states, located in multiple EPA Regions and
federal judicial circuits. This final 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 has determined that
this final action is based on a determination of nationwide scope and
effect for purposes of CAA section 307(b)(1).Thus, pursuant to CAA
section 307(b), any petitions for review of this final action 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.
In addition, pursuant to sections 307(d)(1)(N) and 307(d)(1)(V) of
the CAA, the Administrator has determined that this action is subject
to the provisions of CAA section 307(d). CAA section 307(d)(1)(N)
provides that section 307(d) applies to, among other things, ``action
of the Administrator under CAA section 126 of this title (relating to
interstate pollution abatement).'' 42 U.S.C. 7407(d)(1)(N). Under CAA
section 307(d)(1)(V), the provisions of CAA section 307(d) also apply
to ``such other actions as the Administrator may determine.'' 42 U.S.C.
7407(d)(1)(V). The Agency has complied with procedural requirements of
CAA section 307(d) through this rulemaking effort.
V. Statutory Authority
42 U.S.C. 7410, 7426, 7601.
Dated: September 20, 2019.
Andrew R. Wheeler,
Administrator.
[FR Doc. 2019-21207 Filed 10-17-19; 8:45 am]
BILLING CODE 6560-50-P