[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.
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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 http://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: http://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.
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\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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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\
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\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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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).
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\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).
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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\
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\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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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
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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\
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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
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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.
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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 http://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.
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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.
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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.
---------------------------------------------------------------------------
\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.
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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).
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\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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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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
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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.
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\98\ See EGU NOX Mitigation Strategies Final Rule
Technical Support Document, August 2016.
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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