[Federal Register Volume 83, Number 245 (Friday, December 21, 2018)]
[Rules and Regulations]
[Pages 65878-65924]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-27160]
[[Page 65877]]
Vol. 83
Friday,
No. 245
December 21, 2018
Part III
Environmental Protection Agency
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40 CFR Part 52
Determination Regarding Good Neighbor Obligations for the 2008 Ozone
National Ambient Air Quality Standard; Final Rule
Federal Register / Vol. 83 , No. 245 / Friday, December 21, 2018 /
Rules and Regulations
[[Page 65878]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-HQ-OAR-2018-0225; FRL-9987-86-OAR]
RIN 2060-AT92
Determination Regarding Good Neighbor Obligations for the 2008
Ozone National Ambient Air Quality Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: This action finalizes the Environmental Protection Agency's
(EPA) determination that the existing Cross-State Air Pollution Rule
Update for the 2008 Ozone National Ambient Air Quality Standards
(NAAQS) (CSAPR Update) fully addresses certain states' obligations
under the good neighbor provision of the Clean Air Act (CAA) regarding
interstate pollution transport for the 2008 ozone NAAQS. The CSAPR
Update, published on October 26, 2016, promulgated Federal
Implementation Plans (FIPs) for 22 states in the eastern U.S. In the
final CSAPR Update, based on information available at that time, the
EPA could not conclude that the rule fully addressed these CAA section
obligations for 21 of the 22 CSAPR Update states. As a result, the EPA
has an outstanding obligation to fully address the requirements of this
Clean Air Act provision for these states. Based on information and
analysis that became available after the CSAPR Update was finalized,
this action finalizes a determination that the existing CSAPR Update
fully addresses the CAA's good neighbor provision for the 2008 ozone
NAAQS for all remaining CSAPR Update states. Specifically, EPA is
finalizing a determination that 2023 is an appropriate future analytic
year to evaluate remaining good neighbor obligations and that, for the
purposes of addressing good neighbor obligations, there will be no
remaining nonattainment or maintenance receptors with respect to the
2008 ozone NAAQS in the eastern U.S. in that year. Therefore, with the
CSAPR Update fully implemented, these remaining CSAPR Update states are
not expected to contribute significantly to nonattainment in, or
interfere with maintenance of, any other state with regard to the 2008
ozone NAAQS. In accord with this finding, the EPA has no outstanding,
unfulfilled obligation to establish additional requirements for
emission sources in these states to further reduce transported ozone
pollution under the good neighbor provision for the 2008 ozone NAAQS.
As a result of this finding, this action finalizes minor revisions to
the existing CSAPR Update regulations to reflect that the CSAPR Update
FIPs fully address this CAA provision. This determination applies to
states currently subject to CSAPR Update FIPs as well as any states for
which EPA has approved replacement of CSAPR Update FIPs with CSAPR
Update state implementation plans (SIPs).
DATES: This final rule is effective on February 19, 2019.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OAR-2018-0225. All documents in the docket are
listed on the www.regulations.gov website. Although listed in the
index, some information may not be publicly available, e.g., CBI or
other information whose disclosure is restricted by statute. Certain
other material, such as copyrighted material, is not placed on the
internet and will be publicly available only in hard copy form.
Publicly available docket materials are available either electronically
through www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: David Risley, Clean Air Markets
Division, Office of Atmospheric Programs, U.S. Environmental Protection
Agency, MC 6204M, 1200 Pennsylvania Avenue NW, Washington, DC 20460;
telephone number: (202) 343-9177; email address: [email protected].
SUPPLEMENTARY INFORMATION:
Regulated Entities. Entities regulated under the CSAPR Update are
fossil fuel-fired boilers and stationary combustion turbines that serve
generators producing electricity for sale, including combined cycle
units and units operating as part of systems that cogenerate
electricity and other useful energy output. Regulated categories and
entities include:
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NAICS* Examples of potentially
Category code regulated industries
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Industry..................... 221112 Fossil fuel-fired electric
power generation
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* North American Industry Classification System.
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated. To
determine whether your facility is affected by this action, you should
carefully examine the applicability provisions in 40 CFR 97.804. If you
have questions regarding the applicability of the CSAPR Update to a
particular entity, consult the person listed in the FOR FURTHER
INFORMATION CONTACT section above.
Outline. The following outline is provided to aid in locating
information in this preamble.
I. General Information
A. Summary of Proposal in Relation to the Final Determination
B. States Covered by This Action
II. Background and Legal Authority
A. Ground-level Ozone Pollution and Public Health
B. The EPA's Statutory Authority for This Final Action
C. Good Neighbor Obligations for the 2008 Ozone NAAQS
D. Summary of the CSAPR Update
III. Final Determination Regarding Good Neighbor Obligations for the
2008 Ozone NAAQS
A. Analytic Approach
B. Selection of a Future Analytic Year
1. Attainment Dates for the 2008 Ozone NAAQS
2. Feasibility of Control Strategies to Further Reduce Ozone
Season NOX Emissions
3. Focusing on 2023 for Analysis
C. Air Quality Analysis
1. Overview of Air Quality Modeling Platform
2. Emission Inventories
3. Definition of Nonattainment and Maintenance Receptors
4. Air Quality Modeling to Identify Nonattainment and
Maintenance Receptors
5. Pollutant Transport from Upwind States
D. Final Determination
IV. Statutory Authority and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review, and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
C. Paperwork Reduction Act
D. Regulatory Flexibility Act
E. Unfunded Mandates Reform Act
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
H. Executive Order 13045: Protection of Children from
Environmental Health and Safety Risks
I. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
J. National Technology Transfer Advancement Act
K. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
L. Congressional Review Act
M. Determinations Under CAA Section 307(b)(1) and (d)
[[Page 65879]]
I. General Information
Within this document ``we,'' ``us,'' or ``our'' should be
interpreted to mean the U.S. EPA.
Where can I get a copy of this document and other related
information?
The EPA has established a docket for this action under Docket ID
No. EPA-HQ-OAR-2018-0225 (available at http://www.regulations.gov).
Information related to this final action is available at the website:
https://www.epa.gov/airtransport.
A. Summary of Proposal in Relation to the Final Determination
On July 10, 2018, the EPA issued its proposed Determination
Regarding Good Neighbor Obligations for the 2008 Ozone National Ambient
Air Quality Standard. 83 FR 31915 (July 10, 2018). In that action, the
agency proposed to determine that the existing CSAPR Update fully
addressed certain states' obligations under CAA section
110(a)(2)(D)(i)(I) with respect to the 2008 ozone NAAQS. The proposed
determination was based upon a finding that 2023 was a reasonable
future analytic year in which to further evaluate air quality with
respect to remaining good neighbor obligations, considering relevant
attainment dates for the 2008 ozone NAAQS and the time necessary to
further mitigate nitrogen oxide (NOX) emissions through
regional assessment of state-of-the-art post-combustion controls within
the CSAPR Update region. The agency's analysis of projected 2023 ozone
concentrations indicated that there would be no remaining monitors
expected to have difficulty attaining or maintaining the 2008 ozone
NAAQS, and the EPA therefore proposed to determine that the existing
regulation--the CSAPR Update--fully addressed states' obligations under
this Clean Air Act provision for this NAAQS. The agency solicited
comment on that proposal with the comment period ending on August 31,
2018. The agency also held a public hearing on August 1, 2018. This
final action was developed considering comments received on the
proposal. Generally, the agency's final action herein remains
consistent with the proposal with respect to its determination
regarding good neighbor obligations for the 2008 ozone NAAQS and its
underlying rationale.
B. States Covered by This Action
In the CSAPR Update, 81 FR 74504 (Oct. 26, 2016), the EPA
promulgated FIPs affecting 22 eastern states that at least partially
addressed obligations under CAA section 110(a)(2)(D)(i)(I), also known
as the ``good neighbor provision,'' with respect to the 2008 ozone
NAAQS. The good neighbor provision requires upwind states to control
their emissions that significantly contribute to air quality problems
in downwind states. Based on information available when the CSAPR
Update was finalized, the EPA was unable to determine at that time that
the FIPs fully addressed good neighbor obligations under this NAAQS for
21 of the 22 states.\1\ The EPA has subsequently finalized approval of
a SIP that fully addresses the good neighbor obligation for one of
these states--Kentucky. 83 FR 33730 (July 17, 2018). Consistent with
the EPA's July 2018 proposed determination, in this action, the EPA
finalizes a determination that with CSAPR Update implementation the 20
remaining states' good neighbor obligations for the 2008 ozone NAAQS
are fully addressed. In accord with this determination, the EPA has no
further obligation under CAA section 110(c) to establish requirements
for power plants or any other emission sources in these states to
further reduce transported ozone pollution under CAA section
110(a)(2)(D)(i)(I) with regard to this NAAQS. See Table I.A-1 for a
list of states covered by this final action.
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\1\ The EPA determined in the final CSAPR Update that
implementation of the emissions budget for Tennessee would fully
eliminate the state's significant contribution to downwind
nonattainment and interference with maintenance of the 2008 ozone
NAAQS because the downwind air quality problems to which the state
was linked were projected to be resolved after implementation of the
CSAPR Update. 81 FR 74540.
Table I.A-1--States Covered by This Final Determination Regarding Good
Neighbor Obligations for the 2008 Ozone NAAQS
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State
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Alabama Missouri
Arkansas New Jersey
Illinois New York
Indiana Ohio
Iowa Oklahoma
Kansas Pennsylvania
Louisiana Texas
Maryland Virginia
Michigan West Virginia
Mississippi Wisconsin
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II. Background and Legal Authority
A. Ground-level Ozone Pollution and Public Health
Ground-level ozone causes a variety of negative effects on human
health, vegetation, and ecosystems. In humans, acute and chronic
exposure to ozone is associated with premature mortality and a number
of morbidity effects, such as asthma exacerbation. In ecosystems, ozone
exposure causes visible foliar injury in some plants, decreases growth
in some plants, and affects ecosystem community composition.\2\
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\2\ For more information on the human health and welfare and
ecosystem effects associated with ambient ozone exposure, see the
EPA's October 2015 Regulatory Impact Analysis of the Final Revisions
to the National Ambient Air Quality Standards for Ground-Level Ozone
(EPA-452/R-15-007) in the docket for this action and also found in
the docket for the 2015 ozone NAAQS, Docket No. EPA-HQ-OAR-2013-
0169-0057.
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In this final action, consistent with EPA's proposal and with
previous rulemakings described in section II.B, the EPA relies on
analysis that reflects the regional nature of transported ground-level
ozone pollution. Ground-level ozone is not emitted directly into the
air, but is a secondary air pollutant created by chemical reactions
between NOX, carbon monoxide (CO), methane (CH4),
and non-methane volatile organic compounds (VOCs) in the presence of
sunlight. Emissions from mobile sources, electric generating units
(EGUs), industrial facilities, gasoline vapors, and chemical solvents
are some of the major anthropogenic sources of ozone precursors. The
potential for ground-level ozone formation increases during periods
with warmer temperatures and stagnant air masses. Therefore, ozone
levels are generally higher during the summer months.\3 4\ Ground-level
ozone concentrations and temperature are highly correlated in the
eastern U.S., with observed ozone increases of 2-3 parts per billion
(ppb) per degree Celsius reported.\5\
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\3\ Rasmussen, D.J. et al. (2011). Ground-level ozone-
temperature relationships in the eastern US: A monthly climatology
for evaluating chemistry-climate models. Atmospheric Environment 47:
142-153.
\4\ High ozone concentrations have also been observed in cold
months, where a few areas in the western U.S. have experienced high
levels of local VOC and NOX emissions that have formed
ozone when snow is on the ground and temperatures are near or below
freezing.
\5\ Bloomer, B.J., J.W. Stehr, C.A. Piety, R.J. Salawitch, and
R.R. Dickerson (2009). Observed relationships of ozone air pollution
with temperature and emissions, Geophys. Res. Lett., 36, L09803.
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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 occur on a
regional scale (i.e., hundreds of miles) over much of the eastern U.S.
As a result of ozone transport, in any given location, ozone pollution
levels are affected by a combination of local emissions and
[[Page 65880]]
emissions from upwind sources. Numerous observational studies have
demonstrated the transport of ozone and its precursors and the impact
of upwind emissions on high concentrations of ozone pollution. \6\
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\6\ For example, Bergin, M.S. et al. (2007). Regional air
quality: local and interstate impacts of NOX and
SO2 emissions on ozone and fine particulate matter in the
eastern United States. Environmental Sci & Tech. 41: 4677-4689.
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The EPA concluded in several previous rulemakings (summarized in
section II.B) that interstate ozone transport can be an important
component of peak ozone concentrations during the summer ozone season
and that NOX control strategies are effective for reducing
regional-scale ozone transport. Model assessments have looked at
impacts on peak ozone concentrations after potential emission reduction
scenarios for NOX and VOCs for NOX-limited and
VOC-limited areas. For example, Jiang and Fast concluded that
NOX emission reduction strategies are effective in lowering
ozone mixing ratios in urban areas and Liao et al. showed that
NOX reductions result in lower peak ozone concentrations in
non-attainment areas in the Mid-Atlantic.\7 8\ Assessments of ozone
conducted for the October 2015 Regulatory Impact Analysis of the Final
Revisions to the National Ambient Air Quality Standards for Ground-
Level Ozone (EPA-452/R-15-007) also show the importance of
NOX emissions on ozone formation. This analysis is in the
docket for this action and also can be found in the docket for the 2015
ozone NAAQS regulatory impact analysis, Docket No. EPA-HQ-OAR-2013-0169
(document ID EPA-HQ-OAR-2013-0169-0057).
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\7\ Jiang, G.; Fast, J.D. (2004). Modeling the effects of VOC
and NOX emission sources on ozone formation in Houston
during the TexAQS 2000 field campaign. Atmospheric Environment 38:
5071-5085.
\8\ Liao, K. et al. (2013) Impacts of interstate transport of
pollutants on high ozone events over the Mid-Atlantic United States.
Atmospheric Environment 84, 100-112.
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Studies have found that NOX emission reductions can be
effective in reducing ozone pollution as quantified by the form of the
2008 ozone standard, 8-hour peak concentrations. Specifically, studies
have found that NOX emission reductions from EGUs, mobile
sources, and other source categories can be effective in reducing the
upper-end of the cumulative ozone distribution in the summer on a
regional scale.\9\ Analysis of air quality monitoring data trends shows
reductions in summertime ozone concurrent with implementation of
NOX reduction programs.\10\ Gilliland et al. examined the
NOX SIP Call, discussed in more detail later, and presented
reductions in observed versus modeled ozone concentrations in the
eastern U.S. downwind from major NOX sources.\11\ The
results showed significant reductions in ozone concentrations (10-25
percent) from observed measurements (CASTNET and AQS) \12\ between 2002
and 2005, linking reductions in EGU NOX emissions from
upwind states with ozone reductions downwind of the major source
areas.\13\ Additionally, G[eacute]go et al. showed that ground-level
ozone concentrations were significantly reduced after implementation of
the NOX SIP Call.\14\ Thus, these studies support the EPA's
continued focus on regional and seasonal NOx control strategies to
address regional interstate ozone pollution transport.
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\9\ Hidy, G.M. and Blanchard C.L. (2015). Precursor reductions
and ground-level ozone in the Continental United States. J. of Air &
Waste Management Assn. 65, 10.
\10\ Simon, H. et al. (2015). Ozone trends across the United
States over a period of decreasing NOX and VOC emissions.
Environmental Science & Technology 49, 186-195.
\11\ Gilliland, A.B. et al. (2008). Dynamic evaluation of
regional air quality models: Assessing changes in O3
stemming from changes in emissions and meteorology. Atmospheric
Environment 42: 5110-5123.
\12\ CASTNET is the EPA's Clean Air Status and Trends Network.
AQS is the EPA's Air Quality System.
\13\ Hou, Strickland & Liao. ``Contributions of regional air
pollutant emissions to ozone and fine particulate matter-related
mortalities in eastern U.S. urban areas''. Environmental Research,
Feb. 2015. Available at https://ac.els-cdn.com/S0013935114004113/1-s2.0-S0013935114004113-main.pdf?_tid=78c88101-fa6e-4e75-a65c-f56746905e7d&acdnat=1525175812_0e62553b83c9ffa1105aa306a478e8bb.
\14\ G[eacute]go et al. (2007). Observation-based assessment of
the impact of nitrogen oxides emission reductions on O3
air quality over the eastern United States. J. of Applied
Meteorology and Climatology 46: 994-1008.
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B. The EPA's Statutory Authority for This Final Action
The statutory authority for this final action is provided by the
CAA as amended (42 U.S.C. 7401 et seq.). Specifically, sections 110 and
301 of the CAA provide the primary statutory underpinnings for this
action. The most relevant portions of section 110 are subsections
110(a)(1), 110(a)(2) (including 110(a)(2)(D)(i)(I)), and 110(c)(1).
Section 110(a)(1) provides that states must make SIP submissions
``within 3 years (or such shorter period as the Administrator may
prescribe) after the promulgation of a national primary ambient air
quality standard (or any revision thereof),'' and that these SIP
submissions are to provide for the ``implementation, maintenance, and
enforcement'' of such NAAQS.\15\ The statute directly imposes on states
the duty to make these SIP submissions, and the requirement to make the
submissions is not conditioned upon the EPA taking any action other
than promulgating a new or revised NAAQS.\16\
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\15\ 42 U.S.C. 7410(a)(1).
\16\ See EPA v. EME Homer City Generation, L.P., 134 S. Ct.
1584, 1601 (2014).
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The EPA has historically referred to SIP submissions made for the
purpose of satisfying the applicable requirements of CAA sections
110(a)(1) and 110(a)(2) as ``infrastructure SIP'' submissions. Section
110(a)(1) addresses the timing and general requirements for
infrastructure SIP submissions, and section 110(a)(2) provides more
details concerning the required content of these submissions. It
includes a list of specific elements that ``[e]ach such plan''
submission must address.\17\ All states, regardless of whether the
state includes areas designated as nonattainment for the relevant
NAAQS, must have SIPs that meet the applicable requirements of section
110(a)(2), including provisions of section 110(a)(2)(D)(i)(I),
described later, that are the focus of this action.
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\17\ The EPA's general approach to infrastructure SIP
submissions is explained in greater detail in individual notices
acting or proposing to act on state infrastructure SIP submissions
and in guidance. See, e.g., Memorandum from Stephen D. Page on
Guidance on Infrastructure State Implementation Plan (SIP) Elements
under Clean Air Act Sections 110(a)(1) and 110(a)(2) (Sept. 13,
2013).
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Section 110(c)(1) requires the Administrator to promulgate a FIP at
any time within two years after the Administrator: (1) Finds that a
state has failed to make a required SIP submission; (2) finds a SIP
submission to be incomplete pursuant to CAA section 110(k)(1)(C); or
(3) disapproves a SIP submission. This obligation applies unless the
state corrects the deficiency through a SIP revision that the
Administrator approves before the FIP is promulgated.\18\
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\18\ 42 U.S.C. 7410(c)(1).
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Section 110(a)(2)(D)(i)(I), also known as the ``good neighbor
provision,'' provides the primary basis for this action. It requires
that each state SIP include provisions sufficient to ``prohibit[ ],
consistent with the provisions of this subchapter, any source or other
type of emissions activity within the State from emitting any air
pollutant in amounts which will--(I) contribute significantly to
nonattainment in, or interfere with maintenance by, any other State
with respect to any [NAAQS].'' \19\ The EPA
[[Page 65881]]
often refers to the emission reduction requirements under this
provision as ``good neighbor obligations'' and submissions addressing
these requirements as ``good neighbor SIPs.''
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\19\ 42 U.S.C. 7410(a)(2)(D)(i)(I).
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The EPA has previously issued four rules interpreting and
clarifying the requirements of section 110(a)(2)(D)(i)(I) for states in
the eastern United States. These rules, and the associated court
decisions addressing these rules, summarized here, provide important
direction regarding the requirements of section 110(a)(2)(D)(i)(I).
The NOX SIP Call, promulgated in 1998, addressed the
good neighbor provision for the 1979 1-hour ozone NAAQS.\20\ The rule
required 22 states and the District of Columbia to amend their SIPs to
reduce NOX emissions that contribute to ozone nonattainment
in downwind states. The EPA set ozone season NOX budgets for
each state, and the states were given the option to participate in a
regional allowance trading program, known as the NOX Budget
Trading Program (NBP), to achieve all or most of the required emission
reductions.\21\ The United States Court of Appeals for the District of
Columbia Circuit (D.C. Circuit) largely upheld the NOX SIP
Call in Michigan v. EPA, 213 F.3d 663 (D.C. cir. 2000), cert. denied,
532 U.S. 904 (2001).
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\20\ 63 FR 57356 (Oct. 27, 1998). As originally promulgated, the
NOX SIP Call also addressed good neighbor obligations
under the 1997 8-hour ozone NAAQS, but the EPA subsequently stayed
the rule's provisions with respect to that standard. 40 CFR
51.121(q).
\21\ ``Allowance Trading'' sometimes referred to as ``cap and
trade'' is an approach to reducing pollution that has been used
successfully to protect human health and the environment. Allowance
trading programs have two key components: Emissions budgets (the sum
of which provide a cap on emissions), and tradable allowances equal
to the budgets that authorize allowance holders to emit a specific
quantity (e.g., one ton) of the pollutant. This approach ensures
that the environmental goal is met while the tradable allowances
provide flexibility for individual participants to establish and
follow their own compliance path. Because allowances can be bought
and sold in an allowance market, these programs are often referred
to as ``market-based.''
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The EPA's next rule addressing the good neighbor provision, the
Clean Air Interstate Rule (CAIR), was promulgated in 2005 and addressed
both the 1997 fine particulate matter (PM2.5) NAAQS and 1997
ozone NAAQS.\22\ CAIR required SIP revisions in 28 states and the
District of Columbia to reduce emissions of sulfur dioxide
(SO2) and/or NOX--important precursors of
regionally transported PM2.5 (SO2 and annual
NOX) and ozone (summer-time NOX). As in the
NOX SIP Call, states were given the option to participate in
regional allowance trading programs to achieve the reductions. When the
EPA promulgated the final CAIR in 2005, the EPA also issued findings
that states nationwide had failed to submit SIPs to address the
requirements of CAA section 110(a)(2)(D)(i) with respect to the 1997
PM2.5 and 1997 ozone NAAQS.\23\ The states were required by
the CAA to have submitted good neighbor SIPs for those standards by
July 2000 (i.e., three years after the standards were finalized).\24\
These findings of failure to submit triggered a two-year clock for the
EPA to issue FIPs to address interstate transport,\25\ and on March 15,
2006, the EPA promulgated FIPs to implement the emission reductions
required by CAIR.\26\ CAIR was remanded to the EPA by the D.C. Circuit
in North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008), modified on
reh'g, 550 F.3d 1176. For more information on the legal issues
underlying CAIR and the D.C. Circuit's holding in North Carolina, refer
to the preamble of the original CSAPR.\27\
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\22\ 70 FR 25162 (May 12, 2005).
\23\ 70 FR 21147 (April 25, 2005).
\24\ See n.14 and main text, supra.
\25\ See n.17 and main text, supra.
\26\ 71 FR 25328 (April 28, 2006).
\27\ 76 FR 48208, 48217 (Aug. 8, 2011).
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In 2011, the EPA promulgated the original CSAPR to address the
issues raised by the remand of CAIR. CSAPR addressed the two NAAQS at
issue in CAIR and additionally addressed the good neighbor provision
for the 2006 PM2.5 NAAQS.\28\ CSAPR, as revised, required 28
states to reduce SO2 emissions, annual NOX
emissions, and/or ozone season NOX emissions that
significantly contribute to other states' nonattainment or interfere
with other states' abilities to maintain these air quality
standards.\29\ To align implementation with the applicable attainment
deadlines, the EPA promulgated FIPs for each of the 28 states covered
by CSAPR. The FIPs implement regional allowance trading programs to
achieve the necessary emission reductions. Each state can submit a good
neighbor SIP at any time that, if approved by the EPA, would replace
the CSAPR FIP for that state.\30\ CSAPR was the subject of an adverse
decision by the D.C. Circuit in August 2012.\31\ However, this decision
was reversed in April 2014 by the Supreme Court,\32\ which largely
upheld the rule, including EPA's approach to addressing interstate
transport in CSAPR. The rule was remanded to the D.C. Circuit to
consider other claims not addressed by the Supreme Court. EPA v. EME
Homer City Generation, L.P., 134 S. Ct. 1584 (2014) (EME Homer City).
In July 2015 the D.C. Circuit affirmed the EPA's interpretation of
various statutory provisions and the EPA's technical decisions. EME
Homer City Generation, L.P. v. EPA, 795 F.3d 118 (2015) (EME Homer City
II). However, the court also remanded the rule without vacatur for
reconsideration of the EPA's emissions budgets for certain states,
which the court found may over-control those states' emissions with
respect to the downwind air quality problems to which the states were
linked. Id. at 129-30, 138. For more information on the legal
considerations of CSAPR and the court's decisions in the EME Homer City
litigation, refer to the preamble of the CSAPR Update.\33\
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\28\ 76 FR 48208.
\29\ CSAPR was revised by several rulemakings after its initial
promulgation in order to revise certain states' budgets and to
promulgate FIPs for five additional states addressing the good
neighbor obligation for the 1997 ozone NAAQS. 76 FR 80760 (Dec. 27,
2011); 77 FR 10324 (Feb. 21, 2012); 77 FR 34830 (June 12, 2012).
\30\ The EPA has already approved SIPs fully replacing the
original CSAPR FIPs for Alabama, 81 FR 59869 (Aug. 31, 2016);
Georgia, 82 FR 47930 (Oct. 13, 2017); South Carolina, 82 FR 47936
(Oct. 13, 2017); and Indiana (signed Nov. 27, 2018; publication in
the Federal Register forthcoming).
\31\ On August 21, 2012, the D.C. Circuit issued a decision in
EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012)
(EME Homer City I), vacating CSAPR. The EPA sought review with the
D.C. Circuit en banc and the D.C. Circuit declined to consider the
EPA's appeal en banc. EME Homer City Generation, L.P. v. EPA, No.
11-1302 (D.C. Cir. January 24, 2013), ECF No. 1417012 (denying the
EPA's motion for rehearing en banc).
\32\ On January 23, 2013, the Supreme Court granted the EPA's
petition for certiorari. EPA v. EME Homer City Generation, L.P., 133
S. Ct. 2857 (2013) (granting the EPA's and other parties' petitions
for certiorari).
\33\ 81 FR 74511.
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In 2016, the EPA promulgated the CSAPR Update to address interstate
transport of ozone pollution with respect to the 2008 ozone NAAQS.\34\
The final rule generally updated the CSAPR ozone season NOX
emissions budgets for 22 states to achieve cost-effective and
immediately feasible NOX emission reductions from EGUs
within those states.\35\ To align implementation with relevant
attainment dates, the CSAPR Update implemented these budgets through
FIPs requiring sources to participate in a revised CSAPR ozone season
NOX allowance trading program beginning with the 2017 ozone
season. As discussed in more detail later in this preamble, the 2017
deadline was intended to ensure that the emission reductions from the
rule would be made prior to the July 20, 2018 moderate attainment
deadline. As under the
[[Page 65882]]
original CSAPR, each state can submit a good neighbor SIP at any time
that, if approved by the EPA, would replace the CSAPR Update FIP for
that state.\36\ The final CSAPR Update also addressed the remand by the
D.C. Circuit of certain states' original CSAPR phase 2 ozone season
NOX emissions budgets in EME Homer City II. The CSAPR Update
is subject to pending legal challenges in the D.C. Circuit. Wisconsin
v. EPA, No. 16-1406 (D.C. Cir. argued Oct. 3, 2018). Further
information about the CSAPR Update can be found in section II.D of this
notice.
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\34\ 81 FR 74504.
\35\ One state, Kansas, was made newly subject to a CSAPR ozone
season NOX requirement by the CSAPR Update. All other
CSAPR Update states were already subject to ozone season
NOX requirements under the original CSAPR.
\36\ EPA has already approved SIPs fully replacing the CSAPR
Update FIPs for Alabama, 82 FR 46674 (Oct. 6, 2017), and Indiana
(signed Nov. 27, 2018; publication in the Federal Register
forthcoming).
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Section 301(a)(1) of the CAA also gives the Administrator the
general authority to prescribe such regulations as are necessary to
carry out functions under the Act.\37\ Pursuant to this section, the
EPA has authority to clarify the applicability of CAA requirements. In
this action, among other things, the EPA is clarifying the
applicability of section 110(a)(2)(D)(i)(I) with respect to the 2008
ozone NAAQS. In particular, the EPA is using its authority under
sections 110 and 301 to make a determination that no further
enforceable reductions in emissions of NOX are required
under this provision with respect to the 2008 ozone NAAQS for the
states covered by this rule. The EPA is making minor revisions to the
existing state-specific sections of the CSAPR Update regulations for
all states covered by this action.
---------------------------------------------------------------------------
\37\ 42 U.S.C. 7601(a)(1).
---------------------------------------------------------------------------
C. Good Neighbor Obligations for the 2008 Ozone NAAQS
On March 12, 2008, the EPA promulgated a revision to the NAAQS,
lowering both the primary and secondary standards to 75 ppb. See
National Ambient Air Quality Standards for Ozone, Final Rule, 73 FR
16436 (March 27, 2008). Specifically, the standards require that an
area may not exceed 0.075 ppm (75 ppb) using the 3-year average of the
fourth highest 24-hour maximum 8-hour rolling average ozone
concentration. These revisions of the NAAQS, in turn, triggered a 3-
year deadline for states to submit SIP revisions addressing
infrastructure requirements under CAA sections 110(a)(1) and 110(a)(2),
including the good neighbor provision. Several events affected the
timely application of the good neighbor provision for the 2008 ozone
NAAQS, including reconsideration of the 2008 ozone NAAQS and legal
developments pertaining to the EPA's original CSAPR, which created
uncertainty surrounding the EPA's statutory interpretation and
implementation of the good neighbor provision.\38\ Notwithstanding
these events, the EPA ultimately affirmed that states' good neighbor
SIPs were due on March 12, 2011.
---------------------------------------------------------------------------
\38\ These events are described in detail in section IV.A.2 of
the CSAPR Update. 81 FR 74515.
---------------------------------------------------------------------------
The EPA subsequently took several actions that triggered the EPA's
obligation under CAA section 110(c) to promulgate FIPs addressing the
good neighbor provision for several states.\39\ First, on July 13,
2015, the EPA published a rule finding that 24 states failed to make
complete submissions that address the requirements of section
110(a)(2)(D)(i)(I) related to the interstate transport of pollution as
to the 2008 ozone NAAQS. See 80 FR 39961 (effective August 12, 2015).
This finding triggered a two-year deadline for the EPA to issue FIPs to
address the good neighbor provision for these states by August 12,
2017. The CSAPR Update finalized FIPs for 13 of these states (Alabama,
Arkansas, Illinois, Iowa, Kansas, Michigan, Mississippi, Missouri,
Oklahoma, Pennsylvania, Tennessee, Virginia, and West Virginia),
requiring their participation in a NOX emission trading
program. The EPA also determined in the CSAPR Update that the agency
had no further FIP obligation as to nine additional states identified
in the finding of failure to submit because these states did not
contribute significantly to nonattainment in, or interfere with
maintenance by, any other state with respect to the 2008 ozone NAAQS.
81 FR 74506.\40 41\ On June 15, 2016, and July 20, 2016, the EPA
published additional rules finding that New Jersey and Maryland,
respectively, also failed to submit transport SIPs for the 2008 ozone
NAAQS. See 81 FR 38963 (June 15, 2016) (New Jersey, effective July 15,
2016); 81 FR 47040 (July 20, 2016) (Maryland, effective August 19,
2016). The finding actions triggered two-year deadlines for the EPA to
issue FIPs to address the good neighbor provision for Maryland by
August 19, 2018, and for New Jersey by July 15, 2018. The CSAPR Update
also finalized FIPs for these two states.
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\39\ This section of the preamble focuses on SIP and FIP actions
for those states addressed in the CSAPR Update. The EPA has also
acted on SIPs for other states not mentioned in this action. The
memorandum, ``Final Action, Status of 110(a)(2)(D)(i)(I) SIPs for
the 2008 Ozone NAAQS,'' more fully describes the good neighbor SIP
status for the 2008 ozone NAAQS and is available in the docket for
this action.
\40\ The nine states were Florida, Georgia, Maine,
Massachusetts, Minnesota, New Hampshire, North Carolina, South
Carolina, and Vermont.
\41\ The two remaining states addressed in the findings of
failure to submit (California and New Mexico) were not part of the
CSAPR Update analysis and are not addressed in this action.
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In addition to these findings, the EPA finalized disapproval or
partial disapproval actions for good neighbor SIPs submitted by
Indiana, Kentucky, Louisiana, New York, Ohio, Texas, and Wisconsin.\42\
These disapprovals triggered the EPA's obligation to promulgate FIPs to
implement the requirements of the good neighbor provision for those
states within two years of the effective date of each disapproval. The
EPA promulgated CSAPR Update FIPs for each of these states.
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\42\ See the following actions: Indiana (81 FR 38957, June 15,
2016); Kentucky (78 FR 14681, March 7, 2013); Louisiana (81 FR
53308, August 12, 2016); New York (81 FR 58849, August 26, 2016);
Ohio (81 FR 38957, June 15, 2016); Texas (81 FR 53284, August 12,
2016); and Wisconsin (81 FR 53309, August 12, 2016).
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As discussed in more detail in the next section, in issuing the
CSAPR Update, the EPA did not determine that it had entirely addressed
the EPA's outstanding CAA obligations to implement the good neighbor
provision with respect to the 2008 ozone NAAQS for 21 of 22 states
covered by that rule. Accordingly, the CSAPR Update did not fully
satisfy the EPA's obligation under section 110(c) to address the good
neighbor provision requirements for those states by approving SIPs,
issuing FIPs, or some combination of those two actions. The EPA found
that the CSAPR Update FIP fully addressed the good neighbor provision
for the 2008 ozone NAAQS only with respect to Tennessee.
The EPA notes that it has separately finalized an action to fully
address Kentucky's good neighbor obligation for the 2008 ozone NAAQS.
On May 23, 2017, the U.S. District Court for the Northern District of
California issued an order requiring the EPA to take a final action
fully addressing the good neighbor obligation for the 2008 ozone NAAQS
for Kentucky by June 30, 2018. See Order, Sierra Club v. Pruitt, No.
3:15-cv-04328 (N.D. Cal.), ECF No. 73. On May 10, 2018, Kentucky
submitted a final SIP to EPA, which the agency finalized approval of
consistent with the court-ordered deadline. 83 FR 33730 (July 17,
2018).
Subsequent to the promulgation of the CSAPR Update, the EPA
approved SIPs fully replacing the CSAPR Update FIPs for Alabama, 82 FR
46674 (October 6, 2017), and Indiana (signed November 27, 2018;
publication in the Federal Register forthcoming). In those SIP
approvals and consistent with the conclusions of the CSAPR Update, the
EPA found that the SIPs partially satisfy
[[Page 65883]]
Alabama's and Indiana's good neighbor obligations for the 2008 ozone
NAAQS. Thus, the EPA continues to have an obligation to fully address
the good neighbor provision requirements for the 2008 NAAQS with
respect to Alabama, stemming from the July 13, 2015 findings notice,
and Indiana, due to the June 15, 2016 disapproval of the state's good
neighbor SIP. Other states have also submitted SIPs, some of which the
EPA has approved and some of which still remain pending. However, these
states are not the subject of this rulemaking and these actions are
therefore not described in detail in this section.
Table II.C-1 summarizes the statutory deadline for the EPA to
address its FIP obligation under CAA section 110(c) and the event that
activated the EPA's obligation for each of the 20 CSAPR Update states
that are the subject of this final action. For more information
regarding the actions triggering the EPA's FIP obligation and the EPA's
action on SIPs addressing the good neighbor provision for the 2008
ozone NAAQS, see the memorandum, ``Final Action, Status of
110(a)(2)(D)(i)(I) SIPs for the 2008 Ozone NAAQS,'' in the docket for
this action.
Table II.C-1--Actions That Activated EPA's Statutory FIP Deadlines
----------------------------------------------------------------------------------------------------------------
Type of action (Federal Register citation, Statutory FIP
State publication date) deadline 43
----------------------------------------------------------------------------------------------------------------
Alabama...................................... Finding of Failure to Submit (80 FR 39961, 7/ 8/12/2017
13/2015).
Arkansas..................................... Finding of Failure to Submit (80 FR 39961, 7/ 8/12/2017
13/2015).
Illinois..................................... Finding of Failure to Submit (80 FR 39961, 7/ 8/12/2017
13/2015).
Indiana...................................... SIP disapproval (81 FR 38957, 6/15/2016)...... 7/15/2018
Iowa......................................... Finding of Failure to Submit (80 FR 39961, 7/ 8/12/2017
13/2015).
Kansas....................................... Finding of Failure to Submit (80 FR 39961, 7/ 8/12/2017
13/2015).
Louisiana.................................... SIP disapproval (81 FR 53308, 8/12/2016)...... 9/12/2018
Maryland..................................... Finding of Failure to Submit (81 FR 47040, 7/ 8/19/2018
20/2016).
Michigan..................................... Finding of Failure to Submit (80 FR 39961, 7/ 8/12/2017
13/2015).
Mississippi.................................. Finding of Failure to Submit (80 FR 39961, 7/ 8/12/2017
13/2015).
Missouri..................................... Finding of Failure to Submit (80 FR 39961, 7/ 8/12/2017
13/2015).
New Jersey................................... Finding of Failure to Submit (81 FR 38963, 6/ 7/15/2018
15/2016).
New York..................................... SIP disapproval (81 FR 58849, 8/26/2016)...... 9/26/2018
Ohio......................................... SIP disapproval (81 FR 38957, 6/15/2016)...... 7/15/2018
Oklahoma..................................... Finding of Failure to Submit (80 FR 39961, 7/ 8/12/2017
13/2015).
Pennsylvania................................. Finding of Failure to Submit (80 FR 39961, 7/ 8/12/2017
13/2015).
Texas........................................ SIP disapproval (81 FR 53284, 8/12/2016)...... 9/12/2018
Virginia..................................... Finding of Failure to Submit (80 FR 39961, 7/ 8/12/2017
13/2015).
West Virginia................................ Finding of Failure to Submit (80 FR 39961, 7/ 8/12/2017
13/2015).
Wisconsin.................................... Partial SIP disapproval as to prong 2 (81 FR 9/12/2018
53309, 8/12/2016).
----------------------------------------------------------------------------------------------------------------
An August 12, 2017 statutory deadline has passed for the EPA to act
with respect to good neighbor obligations under the 2008 ozone NAAQS
for 12 CSAPR Update states. The EPA is subject to a court-ordered
deadline to promulgate a final action fully addressing the good
neighbor obligations under the 2008 ozone NAAQS for five of these
states by no later than December 6, 2018.\44\ The statutory deadlines
for the EPA to act with respect to good neighbor obligations under the
2008 ozone NAAQS for eight other CSAPR Update states passed between
July 15, 2018, and September 26, 2018.
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\43\ The FIP deadline is two years from the effective date of
the SIP disapproval or Finding of Failure to Submit, which generally
trails the publication date by 30 days.
\44\ Order, New York v. Pruitt, No. 1:18-cv-00406-JGK (S.D.N.Y.
June 12, 2018), ECF No. 34. The five states are Illinois, Michigan,
Pennsylvania, Virginia, and West Virginia.
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D. Summary of the CSAPR Update
On October 16, 2016, the EPA finalized the CSAPR Update. The
purpose of the CSAPR Update was to protect public health and welfare by
reducing interstate pollution transport that will significantly
contribute to nonattainment, or interfere with maintenance, of the 2008
ozone NAAQS in the eastern U.S. As discussed in section II.C, the EPA
finalized a FIP for each of the 22 states subject to the rule,\45\
either having previously found that those states failed to submit a
complete good neighbor SIP (15 states) or having issued a final rule
disapproving their good neighbor SIP submittals (seven states). For the
22 states covered by the CSAPR Update, the EPA promulgated EGU ozone
season NOX emissions budgets, implemented through a regional
allowance trading program, to reduce interstate ozone transport for the
2008 ozone NAAQS during the ozone season (May-September), beginning
with the 2017 ozone season.
---------------------------------------------------------------------------
\45\ Alabama, Arkansas, Illinois, Indiana, Iowa, Kansas,
Kentucky, Louisiana, Maryland, Michigan, Mississippi, Missouri, New
Jersey, New York, Ohio, Oklahoma, Pennsylvania, Tennessee, Texas,
Virginia, West Virginia, and Wisconsin.
---------------------------------------------------------------------------
To establish and implement the CSAPR Update emissions budgets, the
EPA followed a four-step analytic process that has been used in each of
the agency's regional interstate transport rulemakings. The four-step
interstate transport framework is described in more detail in section
III.A. To summarize, in step 1, the agency identified downwind
locations, referred to as receptors, that were expected to have
problems attaining or maintaining the NAAQS. In step 2, the EPA
examined, using a contribution threshold of one percent of the NAAQS,
which upwind states contributed to the nonattainment or maintenance
receptors identified in step 1. In step 3, the EPA quantified the
upwind emissions that significantly contributed to nonattainment or
interfered with maintenance and established emission budgets that
reflected removal of those emissions. Finally, in step 4, the agency
provided for implementation of the budgets through an allowance trading
program.
The EPA aligned its analysis of air quality and upwind state
contributions in steps 1 and 2, as well as implementation of the
trading program in step 4 with relevant attainment dates for the 2008
ozone NAAQS. The EPA's final 2008 Ozone NAAQS SIP Requirements Rule
established the attainment deadline of July 20, 2018, for ozone
nonattainment areas classified as
[[Page 65884]]
Moderate.\46\ Because the attainment date fell during the 2018 ozone
season, the 2017 ozone season was the last full season from which data
could be used to determine attainment of the NAAQS by that date.
Therefore, consistent with the court's instruction in North Carolina to
harmonize implementation of emission reductions under the good neighbor
provision with downwind attainment dates, 531 F.3d at 912, the EPA
established and implemented emissions budgets starting with the 2017
ozone season. 81 FR 74507. The establishment of 2017 as the CSAPR
Update's analytic year and compliance timeframe was further supported
by an assessment that certain control strategies to mitigate ozone
pollution transport were feasible in that timeframe.
---------------------------------------------------------------------------
\46\ 80 FR 12264, 12268 (Mar. 6, 2015); 40 CFR 51.1103. Ozone
nonattainment areas are classified as either Marginal, Moderate,
Serious, Severe, or Extreme, based on the severity of the air
quality problem in the area. Areas with more acute air quality
problems are required to implement more stringent control
requirements and are provided additional time to attain the NAAQS.
See CAA sections 181 and 182, 42 U.S.C. 7511, 7511a.
---------------------------------------------------------------------------
As to step 3, in particular, the EPA quantified emissions from
upwind states that would significantly contribute to nonattainment or
interfere with maintenance by first evaluating various levels of
uniform NOX control stringency, each represented by an
estimated marginal cost per ton of NOX reduced. The EPA then
applied a multi-factor test to evaluate cost, available emission
reductions, and downwind air quality impacts to determine the
appropriate level of uniform NOX control stringency that
addressed the impacts of interstate transport on downwind nonattainment
or maintenance receptors. The EPA used this multi-factor assessment to
gauge the extent to which emission reductions should be implemented in
the future compliance year (i.e., 2017) and to evaluate the potential
for over- and under-control of upwind state emissions.
Within the multi-factor test, the EPA identified a ``knee in the
curve,'' i.e., a point at which the cost-effectiveness of the emission
reductions was maximized, so named for the discernable turning point
observable in a multi-factor (i.e., multi-variable) curve. See 81 FR
74550. The EPA concluded that this was at the point where emissions
budgets reflected a uniform NOX control stringency
represented by an estimated marginal cost of $1,400 per ton of
NOX reduced. In light of this multi-factor test, EPA
determined this level of stringency in emissions budgets represented
the level at which incremental EGU NOX reduction potential
and corresponding downwind ozone air quality improvements were
maximized--relative to other control stringencies evaluated--with
respect to marginal cost. That is, the ratio of emission reductions to
marginal cost and the ratio of ozone improvements to marginal cost were
maximized relative to the other levels of control stringency evaluated.
The EPA found that feasible and cost-effective EGU NOX
reductions were available to make meaningful and timely improvements in
downwind ozone air quality to address interstate ozone transport for
the 2008 ozone NAAQS for the 2017 ozone season. 81 FR 74508. Further,
the agency's evaluation showed that emissions budgets reflecting the
$1,400 per ton cost threshold did not over-control upwind states'
emissions relative to either the downwind air quality problems to which
they were linked or the one percent contribution threshold in step 2
that triggered their further evaluation in step 3. Id. at 74551-52. As
a result, the EPA finalized EGU ozone season NOX emissions
budgets developed using uniform control stringency represented by
$1,400 per ton. These budgets represented emissions remaining in each
state after elimination of the amounts of emissions that the EPA
identified would significantly contribute to nonattainment or interfere
with maintenance of the 2008 ozone NAAQS in downwind states.
To implement the CSAPR Update's emission budgets, the EPA
promulgated FIPs requiring power plants in covered states to
participate in the CSAPR NOX Ozone Season Group 2 allowance
trading program starting in 2017.\47\ CSAPR's trading programs and the
EPA's prior emissions trading programs (e.g., CAIR and the
NOX Budget Trading Program) have provided a proven
implementation framework for achieving emission reductions. In addition
to providing environmental certainty (i.e., a cap on emissions), these
programs also provide regulated sources with flexibility in choosing
compliance strategies. By using the CSAPR allowance trading programs,
the EPA applied an implementation framework that was shaped by notice
and comment in previous rulemakings and reflected the evolution of
these programs in response to court decisions and practical experience
gained by states, industry, and the EPA.
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\47\ The ozone season NOX allowance trading program
created under the original CSAPR was renamed the CSAPR
NOX Ozone Season Group 1 Trading Program and now applies
only to sources in Georgia. In the CSAPR Update, the EPA found that
Georgia did not contribute to interstate transport with respect to
the 2008 ozone NAAQS, but the state has an ongoing ozone season
NOX requirement under the original CSAPR with respect to
the 1997 ozone NAAQS.
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Based on information available at the time of its promulgation, the
EPA was unable to conclude that the CSAPR Update fully addressed most
of the covered states' good neighbor obligations for the 2008 ozone
NAAQS. 81 FR 74521. Information available at the time indicated that,
even with CSAPR Update implementation, several downwind receptors were
expected to continue having problems attaining and maintaining this
NAAQS and that emissions from upwind states were expected to continue
to contribute greater than or equal to one percent of the NAAQS to
these areas during the 2017 ozone season. Id. at 74551-52. Further, the
EPA could not conclude at that time whether additional EGU and non-EGU
reductions implemented on a longer timeframe than 2017 would be
necessary, feasible, and cost-effective to address states' good
neighbor obligations for this NAAQS.
As noted, the EPA premised its conclusion that the CSAPR Update may
not fully address states' good neighbor obligations in part on the
agency's assessment that air quality problems would persist at downwind
receptors in 2017 even with CSAPR Update implementation. The EPA's
assessment of CSAPR Update implementation using the Air Quality
Assessment Tool (AQAT) indicated that certain eastern air quality
monitors would continue to have problems attaining and maintaining the
2008 ozone NAAQS in 2017. 81 FR 74550-52. Specifically, projected
nonattainment receptors remained in Connecticut, Texas, and Wisconsin,
while projected maintenance-only receptors remained in Connecticut,
Maryland, Michigan, New York, and Texas.\48\ See Table II.D-1 for a
list of remaining nonattainment receptors and Table II.D-2 for a list
of remaining maintenance-only receptors. (The EPA's approach to
defining nonattainment and maintenance-only receptors is explained in
section III.C.1 below.)
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\48\ Projected AQAT design values for the $1400/ton policy case
are available in Tables D-6 and D-7 of the CSAPR Update ``Ozone
Transport Policy Analysis Final Rule TSD'' (August 2016), Docket ID
No. EPA-HQ-OAR-2015-0500-0555.
[[Page 65885]]
Table II.D-1--Remaining 2017 Projected Nonattainment Receptors in the
Eastern U.S.
------------------------------------------------------------------------
Monitor ID State County
------------------------------------------------------------------------
090019003............. Connecticut............. Fairfield.
090099002............. Connecticut............. New Haven.
480391004............. Texas................... Brazoria.
484392003............. Texas................... Tarrant.
484393009............. Texas................... Tarrant.
551170006............. Wisconsin............... Sheboygan.
------------------------------------------------------------------------
Table II.D-2--Remaining 2017 Projected Maintenance-Only Receptors in the
Eastern U.S.
------------------------------------------------------------------------
Monitor ID State County
------------------------------------------------------------------------
090010017............. Connecticut............. Fairfield.
090013007............. Connecticut............. Fairfield.
240251001............. Maryland................ Harford
260050003............. Michigan................ Allegan.
360850067............. New York................ Richmond.
361030002............. New York................ Suffolk.
481210034............. Texas................... Denton.
482010024............. Texas................... Harris.
482011034............. Texas................... Harris.
482011039............. Texas................... Harris.
------------------------------------------------------------------------
The EPA's analysis also showed that 21 of the 22 CSAPR Update
states would continue to contribute equal to or greater than one
percent of the 2008 ozone NAAQS to at least one remaining nonattainment
or maintenance receptor in 2017.\49\ The EPA did not, at that time,
evaluate whether the projected air quality problems would persist and
whether upwind states would continue to contribute to these receptors
in years beyond 2017. Thus, for those 21 states, the EPA could not,
based on information available in the CSAPR Update rulemaking, make an
air quality-based conclusion that the CSAPR Update would fully resolve
states' good neighbor obligations with respect to the 2008 ozone NAAQS.
(For one state, Tennessee, the EPA determined that the CSAPR Update
fully resolved its good neighbor obligation.)
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\49\ See EPA's Air Quality Assessment Tool from the CSAPR Update
in the docket for this action.
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Further, it was not feasible for the EPA to complete an emissions
control analysis that may otherwise have been necessary to evaluate
full elimination of each state's significant contribution to
nonattainment or interference with maintenance and also ensure that
emission reductions already quantified in the rule would be achieved by
2017. 81 FR at 74522. Specifically, the EPA was unable to fully
consider both non-EGU ozone season NOX reductions and
further EGU reductions that may have been achievable after 2017. Id. at
74521. The EPA did not quantify non-EGU stationary source emission
reductions to address interstate ozone transport for the 2008 ozone
NAAQS in the CSAPR Update for two reasons. First, the EPA explained
that there was greater uncertainty in the EPA's assessment of non-EGU
NOX mitigation potential, and that more time would be
required for states and the EPA to improve non-EGU point source data
and pollution control assumptions before we could develop emission
reduction obligations based on that data. Id. at 74542. Second, the EPA
explained that we did not believe that significant, certain, and
meaningful non-EGU NOX reductions were feasible for the 2017
ozone season. Id. Many commenters on the CSAPR Update generally agreed
with the EPA that non-EGU emission reductions were not readily
available for the 2017 ozone season, but some advocated that such
reductions should be included as appropriate in future mitigation
actions. Id. at 74521-22. With respect to EGUs, the EPA concluded that
additional control strategies, such as the implementation of new post-
combustion controls, would take several years to implement, which was
beyond the 2017 ozone season targeted in the CSAPR Update. Id. at
74541. Thus, the EPA also could not make an emission reduction-based
conclusion that the CSAPR Update would fully resolve states' good
neighbor obligations with respect to the 2008 ozone NAAQS because the
reductions evaluated and required by the CSAPR Update were limited in
scope (both by technology and sector). Specifically, EPA focused the
policy analysis for the CSAPR Update on reductions available by the
beginning of the 2017 ozone season from EGUs.
Regardless of these limitations, in promulgating the CSAPR Update
the EPA stated its belief that it was beneficial to implement, without
further delay, EGU NOX reductions that were achievable in
the near term, particularly before the Moderate area attainment date of
July 20, 2018. Notwithstanding that additional reductions may be
required to fully address the states' interstate transport obligations,
the EPA concluded that the EGU NOX emission reductions
implemented by the final rule were needed for upwind states to
eliminate their significant contribution to nonattainment or
interference with maintenance of the 2008 ozone NAAQS and to assist
downwind states with ozone nonattainment areas that were required to
attain the standard by July 20, 2018.
As a result of the remaining air quality problems and the
limitations on the EPA's analysis, for all but one of the 22 affected
states, the EPA did not determine in the CSAPR Update that the rule
fully addressed those states' downwind air quality impacts under the
good neighbor provision for the 2008 ozone NAAQS. Id. at 74521. For one
state, Tennessee, the EPA determined in the final CSAPR Update that
Tennessee's emissions budget fully eliminated the state's significant
contribution to downwind nonattainment and interference with
maintenance of the 2008 ozone NAAQS because the downwind air quality
problems to which the state was linked were projected to be resolved
with implementation of the CSAPR Update. Id. at 74552.
III. Final Determination Regarding Good Neighbor Obligations for the
2008 Ozone NAAQS
As described in section II.D, in the CSAPR Update the EPA
promulgated FIPs intended to address the good neighbor provision for
the 2008 ozone NAAQS, but could not at that time determine, based on
information available when the rule was finalized, that those FIPs
would fully address 2008 ozone NAAQS good neighbor obligations for 21
of the 22 CSAPR Update states. As a result, the EPA could not conclude
that the CSAPR Update fully satisfied its obligation to issue FIPs, nor
had the agency otherwise approved SIPs at that time, to address those
states' good neighbor obligations for the 2008 ozone NAAQS. Since the
CSAPR Update, the EPA has approved a SIP revision fully resolving the
remaining 2008 ozone NAAQS good neighbor obligations for Kentucky.\50\
In this notice, the EPA finalizes a determination that, based on
additional information and analysis that has subsequently become
available, the CSAPR Update fully addresses the remaining 20 affected
states' good neighbor obligations for the 2008 ozone NAAQS.
---------------------------------------------------------------------------
\50\ 83 FR 33730 (July 17, 2018).
---------------------------------------------------------------------------
In particular, the EPA is finalizing a determination that 2023 is
an appropriate future analytic year considering relevant attainment
dates and the time necessary to implement further NOX
controls. This rationale is described within this section, starting
with Section III.A, which provides the EPA's analytic approach. Section
III.B discusses the agency's selection of 2023 as its future analytic
year and Sections III.B.2 provides the EPA's assessment of feasibility
(e.g., timing) to implement further regional NOX control
strategies for EGUs (Section III.B.2.a) and non-EGUs (Section
III.B.2.b). Further, based on the EPA's analysis of projected air
[[Page 65886]]
quality in that year, the EPA has determined that, for the purposes of
addressing good neighbor obligations for the 2008 ozone NAAQS, there
will be no remaining nonattainment or maintenance receptors in the
eastern U.S. in the future analytic year of 2023. The agency's analysis
is described in Section III.C. As a result of these determinations, the
EPA finds that, with CSAPR Update implementation, these states will no
longer contribute significantly to nonattainment in, or interfere with
maintenance by, any other state with respect to the 2008 ozone NAAQS.
This rationale is described in Section III.D. The agency includes a
summary of comments and the EPA's response to those comments at the
conclusion of certain sections and subsections therein. The comments
summarized in these sections and the EPA's responses are further
supplemented by the EPA's Response to Comment document in the docket
for this action.
A. Analytic Approach
Through the development and implementation of several previous
rulemakings, including most recently the CSAPR Update, the EPA, working
in partnership with states, established the following four-step
framework to address regional interstate transport of ozone pollution
under the Clean Air Act's good neighbor provision.\51\ The agency is
evaluating its determination regarding CSAPR Update states' remaining
good neighbor obligations for the 2008 ozone NAAQS by applying this
same approach.\52\ The steps are summarized in the following four
paragraphs.
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\51\ 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 Final Rule, 81 FR 74504 (October 26, 2016).
\52\ With respect to the 2015 ozone NAAQS, which is not
addressed in this action, the EPA recently provided information to
states to inform their development of SIPs to address CAA section
110(a)(2)(D)(i)(I). In a memorandum dated March 27, 2018, the agency
noted that, in developing their own plans, states have flexibility
to follow the familiar four-step transport framework (using the
EPA's analytical approach or somewhat different analytical
approaches within these steps) or alternative frameworks, so long as
their chosen approach has adequate technical justification and is
consistent with the requirements of the CAA.
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Step 1: Identify downwind air quality problems relative to the 2008
ozone NAAQS. The EPA historically (including in the CSAPR Update)
identified downwind areas with air quality problems, or receptors,
using air quality modeling projections for a future analytic year and,
where appropriate, considering monitored ozone data. In the CSAPR
Update, the agency relied on modeled and monitored data to identify
receptors expected to be in nonattainment with the ozone NAAQS in the
future analytic year, and relied on modeled data to identify additional
receptors that may have difficulty maintaining the NAAQS in the future
analytic year, notwithstanding clean monitored data or projected
attainment.
Step 2: Determine which upwind states contribute to these
identified downwind air quality problems sufficiently to warrant
further analysis to determine whether their emissions violate the good
neighbor provision. These states are referred to as ``linked'' states.
In the CSAPR Update, the EPA identified such upwind states as those
modeled to impact a downwind receptor in the future analytic year at or
above an air quality threshold equivalent to one percent of the 2008
ozone NAAQS.
Step 3: For states linked to downwind air quality problems,
identify upwind emissions on a statewide basis that will significantly
contribute to nonattainment or interfere with maintenance of a standard
at a receptor in another state. In all of the EPA's prior rulemakings
addressing interstate ozone pollution transport, the agency identified
and apportioned emission reduction responsibility among multiple upwind
states linked to downwind air quality problems considering multiple
factors consistently across the region. Specifically, the agency
considered feasible NOX control strategies and used cost-
based and air quality-based criteria to evaluate regionally uniform
NOX control strategies that were then used to quantify the
amount of a linked upwind state's emissions, if any, that will
significantly contribute to nonattainment or interfere with maintenance
in another state in the future analytic year. The agency then
established emission budgets reflecting remaining emission levels
following the reduction of emissions that significantly contribute to
nonattainment or interfere with maintenance of the NAAQS downwind.
Step 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 emission
reductions within the state. In the CSAPR Update, the EPA implemented
the emission budgets for upwind states found to have good neighbor
obligations by requiring EGUs in those states to participate in the
CSAPR NOX Ozone Season Group 2 Trading Program. In virtually
all respects other than the budgets and the starting year, the program
is identical to allowance trading programs used to implement the
emission reductions quantified in the original CSAPR, and it builds on
the experience of both the EPA and states using emission trading
programs to implement other earlier rules.\53\
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\53\ Affected sources have participated in EPA-administered
allowance trading programs under both SIPs and FIPs.
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Because this framework provides a reasonable and logical
structuring of the key elements that should be considered in addressing
the requirements of the good neighbor provision and because this action
is evaluating outstanding obligations that remain following the EPA's
application of this framework with respect to the 2008 ozone NAAQS in
the CSAPR Update, the agency believes it is reasonable to apply the
same framework in this final action.
Within this four-step interstate transport framework, the EPA would
only proceed to higher enumerated (i.e., downstream) steps if states
meet the criteria applied in lower enumerated (i.e., upstream) steps.
For example, the EPA would only proceed to step 4, in which sources in
upwind states are subject to enforceable emissions limitations, if
downwind air quality problems are identified at step 1, an upwind state
is found to be linked to a downwind air quality problem at step 2, and
sources in the linked upwind state are identified at step 3 as having
emissions that significantly contribute to nonattainment or interfere
with maintenance of the NAAQS considering multiple cost, emissions, and
air-quality factors. For the reasons described in the following
paragraphs, the EPA believes this approach is a reasonable
interpretation of the good neighbor provision.
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 is therefore interpreting 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
[[Page 65887]]
instruction follows the requirement that plans ``contain adequate
provisions prohibiting'' certain emissions in the good neighbor
provision. The following paragraphs will therefore explain how the
EPA's interpretation of the circumstances under which the good neighbor
provision requires that plans ``prohibit'' emissions through
enforceable measures 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. The EPA notes that 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). In
particular, these provisions demonstrate that the EPA's approach is
consistent with other relevant provisions of title I with respect to
what data is 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.\54\ 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.\55\ 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.\56\
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\54\ Policy tools are available to apply to areas experiencing
exceedances of ozone NAAQS that are appreciably impacted by U.S.
background ozone. The tools available for each affected location
will depend on the specific nature of U.S. background ozone in each
area. Some tools would provide relief from a nonattainment
designation; others would only provide relief from some of the CAA-
prescribed nonattainment area requirements.
\55\ Areas classified as Marginal nonattainment areas are
required to submit emission 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).
\56\ Clean Air Act 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.\57\ If such a determination is
made, sources in the nearby area are also subject to the applicable
Part D control requirements. However, if the EPA determines that the
nearby area does not contribute to the measured nonattainment problem,
then the nearby area is not part of the designated nonattainment area
and sources in that area are not subject to such control requirements.
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\57\ 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.
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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 these
title I requirements. That is, in steps 1 and 2 of the framework, the
EPA evaluates whether there is a downwind air quality problem (either
nonattainment or maintenance), and whether an upwind state impacts the
downwind area such that it contributes to and is therefore ``linked''
to the downwind area. The EPA's determination 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, EPA's determination at step 2 of the
good neighbor analysis (that, while it has at step 1 identified
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,
[[Page 65888]]
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 designation analysis. As described in more detail in section III.B,
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. These same factors, e.g., current control measures,
economic market influences, 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
consideration of 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 good neighbor analysis is reasonable and consistent with
the use of measured data in the designation analysis.\58\
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\58\ 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 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
section 107(d) designations provision and the 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 for evaluating the impact of nearby areas in
the designations process (``contribute''). 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 emissions in the upwind state to be controlled so as to address
the identified violation. This approach to steps 3 and 4 is analogous
to the trigger for the application of Part D 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 provision, and
therefore will not at step 4 be subject to any control requirements in
CSAPR, because no cost-effective emission reduction opportunities were
identified in the District).
Comment: Several comments received on the EPA's proposal addressed
the EPA's approach to identifying downwind air quality problems at step
1 of the framework. These comments contend that the agency's analysis
relies on projected future emission levels that are not based on
enforceable mechanisms that ensure those emission levels will actually
occur or remain in place in a future year and thus improve air quality
as modeled. The commenters contend that the Act requires that these
emission levels be enforceable in order for modeling relying on such
assumptions to be used to support any determination under the good
neighbor provision.
One commenter states that the EPA's approach is contrary to the
fundamental principle behind the statutory obligation that SIPs must
``include enforceable emission limitations'' and ``contain adequate
provisions prohibiting'' emissions that unlawfully impact other states,
citing CAA sections 110(a)(2)(A) and (D). The commenter contends that
the EPA subverts the text and meaning of section 110(a)(2) by declaring
that future air quality will attain the NAAQS without ensuring that the
emission levels that informed that prediction are enforceable. The
commenter further contends that enforceability of control measures is a
consistent requirement throughout the CAA, including for redesignation
to attainment under section 107(d)(3)(E)(iii) and for attainment SIPs
under section 172(c)(6).
In support of this argument, another commenter cites CAA section
110(a)(2)(A), which indicates that SIPs must ``include enforceable
emission limitations and other control measures, means, or techniques .
. . as well as schedules and timetables for compliance.'' The commenter
further cites CAA section 110(a)(2)(C), which indicates that SIPs must
``include a program to provide for the enforcement of the measures
described in subparagraph (A), and regulation of the modification and
construction of any stationary source within the areas covered by the
plan as necessary to assure that national ambient air quality standards
are achieved, including a permit program. . . .''
Response: As explained in this section, the EPA does not agree that
all assumptions in a model that inform future-year projections must be
subject to enforceable commitments before the EPA can rely on the
modeling for purposes of identifying downwind air quality problems.
As discussed earlier, within the four-step framework, the EPA
interprets the good neighbor provision to require sources in upwind
states to implement enforceable emission limitations only if: (1)
Downwind air quality problems are identified at step 1, (2) emissions
from an upwind state are linked to a
[[Page 65889]]
downwind air quality problem at step 2, and (3) sources in the linked
upwind state are identified at step 3 as having emissions that
significantly contribute to nonattainment and interfere with
maintenance of the NAAQS, considering cost- and air-quality-based
factors. If all three of these steps are not satisfied, then the state
is not required at step 4 to include provisions in its SIP prohibiting
any level of reductions because the EPA has determined that emissions
from the state will not significantly contribute to nonattainment or
interfere with maintenance of the NAAQS downwind and accordingly there
are no emissions the state is obligated to ``prohibit'' under the good
neighbor provision. Thus, the EPA does not agree that modeling used to
evaluate ozone concentrations at step 1 must only consider enforceable
emission levels. Rather, as explained in detail earlier, the EPA's
approach is consistent with other applicable provisions of title I
regarding the designations and planning requirements applicable in
nonattainment areas.
The fact that certain statutory provisions require imposition of
enforceable measures does not contradict the EPA's interpretation
regarding when the good neighbor provision requires such measures. In
fact, the requirement at section 172(c)(6), which commenters cite, that
attainment plans for designated nonattainment areas include enforceable
measures to bring the area into attainment is consistent with the EPA's
interpretation of the good neighbor provision, because that requirement
only applies once an area has been designated nonattainment. Similarly,
in the EPA's four-step framework, if the EPA identifies a downwind air
quality problem and determines that an upwind state significantly
contributes to nonattainment or interferes with maintenance of the
NAAQS in that downwind area, the EPA would also require, at step 4, the
imposition of enforceable measures to address the upwind state's impact
on the downwind area. Thus, consistent with the terms of the good
neighbor provision, the EPA requires states to ``prohibit'' emissions
upon a determination that such emissions are having the requisite
impact on downwind areas. However, the requirement of section 172(c)(6)
is not a predicate for an attainment designation, as would be the case
by analogy to commenters' suggestion that enforceable limits are a
required predicate for a determination that sources do not violate the
good neighbor provision.
The citation to the requirements for the redesignation of areas to
attainment under section 107(d)(3) is inapposite. Such requirements
only apply in areas that have at one point been designated
nonattainment under section 107(d)(1). The commenter has not explained
why the requirements for redesignation, which apply at the end of a
process for nonattainment areas that is well after initial area
designations, should be considered relevant to interpreting initial
obligations under the good neighbor provision. For the reasons
described earlier, the EPA believes it is more reasonable to liken the
process for identifying downwind air quality problems under the good
neighbor provision to initial designations, which do not turn on
evaluations of whether or not the measured emission levels informing
the designation are due to enforceable reductions.
The EPA also does not agree that either section 110(a)(2)(A) or
section 110(a)(2)(C) require the state to include measures to make the
projected emission limitations enforceable in order to address the good
neighbor provision. Section 110(a)(2)(A) states that a SIP should
``include enforceable emission limitations and other control measures,
means, or techniques . . . as may be necessary or appropriate to meet
the applicable requirements'' of the CAA (emphasis added). As described
earlier, a finding at step 1 that there is no downwind air quality
problem supports a conclusion that a state simply will not contribute
significantly or interfere with maintenance of the NAAQS in another
state, and thus that the state need not prohibit any particular level
of emissions under the good neighbor provision. Accordingly, under
section 110(a)(2)(A), no emission limitations would be ``necessary or
appropriate'' to meet the good neighbor provision. Section 110(a)(2)(C)
similarly indicates that SIPs should provide for the enforcement of
measures cited to support the requirements of section 110(a)(2)(A), but
it does not independently require the imposition of additional control
measures.
For these reasons, the EPA does not agree with the commenters'
conclusion that the statute requires the imposition of enforceable
emission limitations even where the agency has determined that an
upwind state does not significantly contribute to nonattainment or
interfere with maintenance of the NAAQS in a downwind state. See
section III.C.2 of this notice for further discussion regarding the
EPA's air quality analysis used to support this final determination.
B. Selection of a Future Analytic Year
In this action, consistent with its practice in previous
rulemakings addressing ozone transport, the EPA focuses its analysis on
a future analytic year in light of the forward-looking nature of the
good neighbor obligation in section 110(a)(2)(D)(i)(I) and in
consideration of prior court decisions. With respect to the statutory
language of the good neighbor provision, the statute 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 emission reductions. In the EPA's prior regional
transport rulemakings, the agency generally 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 emission reductions would be expected to go into effect.
For the 1998 NOX SIP Call, it used an analytic year of 2007,
and for the 2005 CAIR, it used analytic years of 2009 and 2010 for
ozone and PM2.5, respectively. 63 FR 57450; 70 FR 25241. The
D.C. Circuit affirmed the EPA's interpretation of ``will'' in CAIR,
finding the EPA's consideration of future projected air quality (in
addition to current measured data) to be a reasonable interpretation of
an ambiguous term. North Carolina, 531 F.3d at 913-14. The EPA applied
the same approach in finalizing CSAPR in 2011 and the CSAPR Update in
2016 by evaluating air quality in 2012 and 2017, respectively. 76 FR
48211; 81 FR 74537.
Consistent with this approach, a key decision that informs the
application of the interstate transport framework is the selection of a
future analytic year. Several court decisions guide the factors that
the EPA considers in selecting an appropriate future analytic year for
this action. First, in North Carolina, the D.C. Circuit held that the
timeframe for implementation of emission 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 U.S.
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 to which the upwind emissions contribute.
Specifically, the
[[Page 65890]]
courts found that the agency may not require emission reductions (at
steps 3 and 4 of the good neighbor framework) from a state that are
greater than necessary to achieve attainment and maintenance of the
NAAQS in all of the downwind areas to which that state is linked. See
EME Homer City, 134 S. Ct. at 1600-01; EME Homer City II, 795 F.3d at
127. In particular, in EME Homer City II, the D.C. Circuit determined
that the CSAPR phase 2 ozone-season NOX budgets for ten
states were invalid because the EPA's modeling showed that the downwind
air quality problems to which these states were linked would be
resolved by 2014, when the phase 2 budgets were scheduled to be
implemented. 795 F.3d at 129-30.\59\ These court decisions therefore
support the agency's choice to use a future analytic year in order to
help ensure that the EPA does not over- or under-control upwind state
emissions at the time that controls will be implemented. Generally,
NOX emissions levels are expected to decline in the future
through the combination of the implementation of existing local, state,
and federal emission reduction programs (e.g., fleet penetration of
mobile source programs through fleet turnover) and changing market
conditions for electricity generation technologies and fuels.\60\ As a
result of expected emission reductions and resulting lower ozone
concentrations in the future, the agency is relatively more at risk of
over-controlling emissions were it not to identify an appropriate
future year in which controls could be feasibly implemented to further
reduce emissions and ozone concentrations. Therefore, because further
controls cannot be implemented feasibly for several years, as discussed
further below, and emissions, upwind contributions, and downwind ozone
concentrations will likely be lower at that later point in time due to
continued phase-in of existing regulatory programs, changing market
conditions, and fleet turnover, it is reasonable for the EPA to
evaluate air quality (at steps 1 and 2 of the good neighbor framework)
in a future analytic year. In other words, it is appropriate for the
EPA's evaluation of air quality to focus on a future analytic year that
is aligned with feasible timing for installation of controls in order
to ensure that downwind air quality problems exist (at step 1) and that
upwind states continue (at step 2) to be linked to downwind air quality
problems at a time when any cost-effective emission reductions
(identified at step 3) would be implemented (at step 4) and to ensure
that such reductions do not over-control relative to the identified
ozone problems. Cf. EME Homer City, 134 S. Ct. at 1600-01; EME Homer
City II, 795 F.3d at 127.
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\59\ The Supreme Court also held that the agency may not over-
control upwind state emissions such that the impact from an upwind
state to all downwind air quality problems is below the contribution
threshold applied at step 2 that ``linked'' the upwind state in the
first place, EME Homer City, 134 S. Ct. at 1600-01, but CSAPR was
not found in EME Homer City II to have violated the prohibition on
this type of over-control.
\60\ Annual Energy Outlook 2018. Electricity Supply,
Disposition, Prices, and Emissions. Reference Case. Department of
Energy, Energy Information Administration. Available at https://www.eia.gov/outlooks/aeo/data/browser/#/?id=8-AEO2018&cases=ref2018&sourcekey=0.
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Thus, in determining the appropriate future analytic year for
purposes of assessing remaining interstate transport obligations for
the 2008 ozone NAAQS, the EPA considered two primary factors: (1) The
applicable attainment dates for this NAAQS; and (2) the timing to
feasibly implement new NOX control strategies. These factors
are discussed in the following two sections. The EPA is finalizing its
proposed determination that these factors collectively support the
identification of 2023 as the future analytic year for evaluating
whether further unfulfilled good neighbor obligations for the 2008
ozone NAAQS will remain after implementation of the CSAPR Update.
Comment: Several commenters challenge the EPA's interpretation of
the term ``will'' in the good neighbor provision to permit the
identification of downwind air quality problems based on evaluating air
quality in a future year. The commenters contend that the EPA's
interpretation is inconsistent with the Clean Air Act for various
reasons.
One commenter contends that the word ``will'' merely reflects the
temporal dimension of interstate transport of pollutants--i.e., the
fact that an upwind state ``will'' significantly contribute to
nonattainment or interfere with maintenance as soon as its ozone
pollutants are transported in significant amounts into a downwind area
measuring nonattainment or struggling to maintain the NAAQS. The
commenter concedes that the term ``will'' also contemplates impacts in
relevant future compliance years but contends it is not limited to the
distant future. The commenter asserts that section 110's prohibition
against ``emitting'' pollutants that will significantly contribute to
downwind nonattainment (or interfere with downwind maintenance) plainly
indicates that the phrase ``will contribute'' must be read to include
both current and future emissions, citing North Carolina, 531 F.3d at
914. The commenter contends that the EPA's interpretation of ``will''
to encompass future air quality, as affirmed by the D.C. Circuit in the
CAIR litigation, was reasonable only in light of the agency's
complementary consideration of present measured data. The commenter
states that the EPA's proposed interpretation would grant the agency
unfettered discretion, permitting it to find that ``will'' refers to
any future time that the EPA selects, even one only in the distant
future. The commenter contends that the interpretation of ``will'' to
refer to a future year when ``any emission reductions would be expected
to go into effect'' is circular, meaningless, and irrational where the
EPA finds that no further emission reductions are required.
Another commenter states that Congress specified that
implementation plans must prohibit ``any'' pollution from ``any''
source that will contribute significantly to nonattainment and
interfere with maintenance, and this includes pollution that will
contibute between now and 2023. The commenter states that the fact that
other pollution emitted at some other time allegedly will not
contribute significantly to nonattainment and interfere with
maintenance does not excuse the EPA's failure to prohibit the pollution
that will do so between now and 2023.
A further commenter contends that the use of the word ``emitting''
in section 110(a)(2)(D)(i) includes protection against current
emissions from upwind sources that are significantly contributing to
downwind areas' inability to attain a NAAQS. The commenter cites CAA
section 126(b), which provides that a state ``may petition the
Administrator for a finding that any major source or group of
stationary sources emits or would emit any air pollutant in violation
of the prohibition of'' section 110(a)(2)(D)(i) (emphasis added). The
commenter states that this clause confirms that current air pollution
transport cannot be ignored. Similarly, one commenter asserts that,
when interpreting the term ``emit'' in other provisions of the Act, the
D.C. Circuit has held that it refers to actual, present emissions, as
opposed to mere potential or future emissions, citing New York v. EPA,
413 F.3d 3, 39-40 (D.C. cir. 2005).
Response: These commenters are incorrect, for five reasons.
First, the commenters misconstrue both the facts and the holding of
the D.C. Circuit's decision in North Carolina. In that case, the court
was reviewing a challenge to the EPA's approach to identifying downwind
[[Page 65891]]
receptors in CAIR wherein the agency considered only those areas
projected to be in nonattainment in a future year to be downwind
receptors, but not areas projected to be in attainment that were
currently measuring nonattainment. 531 F.3d at 913. The court explained
that the EPA had consistently interpreted ``will'' in both the
NOX SIP Call and CAIR to ``indicate sources that presently
and at some point in the future `will' contribute to nonattainment,''
and noted that both rules relied on projections of nonattainment in the
future year in which the rule would go into effect. Id. at 914. Thus,
contrary to the commenters' assertions, the EPA did not identify
downwind air quality problems in CAIR based on either a current
measured violation or a projected violation of the NAAQS. Rather, in
CAIR the EPA determined that a downwind air quality problem was
required to be addressed under the good neighbor provision only if both
the current measured data and the projected future data demonstrated
there would be an air quality problem in a downwind area.
The 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), as one commenter contends it should, the court also
clearly acknowledged the ambiguity of this term and indicated this was
not the only reasonable interpretation. In light of this ambiguity, the
D.C. Circuit affirmed that the EPA's approach, which gives effect to
both meanings, is permissible under the Act. Here, as explained in more
detail later in section III.C.3, the EPA is identifying downwind
nonattainment receptors based on both current measured data and
projected future air quality, just as the EPA did in the CSAPR Update,
as well as CAIR and the NOX SIP Call.\61\
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\61\ In compliance with a separate holding of the North Carolina
decision, the EPA further evaluates receptors in areas currently
attaining the standard based on projected future air quality in
order to ensure that the ``interfere with maintenance'' clause of
the good neighbor provision is given independent effect. See 531
F.3d at 910-11.
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Second, the EPA also does not agree that the term ``emitting''
precludes its interpretation of ``will'' in the good neighbor
provision. The relevant clause of the CAA section 110(a)(2)(D)(i)
requires state plans (or federal plans, where the agency is acting in
the state's stead) to ``contain adequate provisions . . . prohibiting .
. . any source or other type of emissions activity within the State
from emitting any air pollution in amounts which will'' improperly
impact downwind areas under the remaining terms of the provision
(emphasis added). Thus, the term ``emitting'' should be read in concert
with the prohibition required in this clause to refer to the limitation
that should be imposed on sources otherwise found to be in violation of
section 110(a)(2)(D)(i)(I); the term ``emitting'' in its statutory
context does not clearly define the temporal requirements for
determining whether such a violation exists in the first instance.
Rather, the good neighbor provision indicates that sources should be
``prohibit[ed] . . . from emitting,'' which is a forward-looking phrase
intended to address limitations on a source's future activity. The
introduction of the phrase ``which will'' at the end of the clause
further serves as a transition from the general obligation to impose a
prohibition to the specific circumstances under which the prohibition
will apply.
The commenter's reference to the court's interpretation of ``emit''
in New York is therefore an inapt citation for purposes of interpreting
the good neighbor provision requirements. In that case, the court was
evaluating whether the use of the term ``emit'' in certain
nonattainment new source review provisions (a program imposing a
permitting requirement on the construction of new major sources of air
pollutants and major modifications of existing sources) was intended to
refer to actual or allowable emissions when determining whether
modifications to the source trigger a permitting requirement. 413 F.3d
3, 39-40 (D.C. Cir. 2005). The court noted that the statutory
provisions governing new source review use different language to
distinguish between actual emissions (``emit'' or ``emitted'') and
potential emissions (``potential to emit'' or ``emission
limitations''). Id. In the case of the good neighbor provision, the
phrase ``prohibiting . . . sources . . . from emitting'' certain
amounts of pollution is more consistent with the terminology used to
indicate potential emissions, and therefore more reasonably refers to
the emission limitation that would be imposed under the good neighbor
provision if the requisite finding of significant contribution or
interference with maintenance is made. Thus, the statute's use of the
term ``emit'' does not clearly preclude the EPA's interpretation of
``will'' as permitting the analysis of downwind air quality in a future
year to evaluate interstate transport. The new source review
preconstruction permitting program expressly lays out the predicate
trigger for the permitting requirement (and the D.C. Circuit in New
York was considering whether EPA's interpretation and application of
those statutory terms was permissible); the good neighbor provision
does not expressly lay out the methodology (including the termporal
frame of reference) for determining what constitutes a good neighbor
violation (and the D.C. Circuit in North Carolina affirmed EPA's
construction of the governing statutory provision).
Third, the commenters err in suggesting that the standard for
granting a section 126(b) petition is incorporated into the good
neighbor provision. While section 126(b) cross-references the
prohibition in section 110(a)(2)(D)(i),\62\ the cross-reference is
unidirectional. There is no indication that Congress intended for the
``emits or would emits'' language from section 126(b) to be conversely
incorporated into section 110, and section 110(a)(2)(D)(i) does not
contain any reference to section 126(b). In any event, the commenters
have not offered any explanation regarding how any relevant
interpretation of section 126(b) should inform the EPA's interpretation
of section 110 with respect to current emissions data or projections of
future air quality.
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\62\ 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 the correct cross-reference is to CAA section
110(a)(2)(D)(i). See Appalachian Power Co. v. EPA, 249 F.3d 1032,
1040-44 (D.C. Cir. 2001).
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Fourth, while the EPA agrees that the references to ``any'' in
section 110(a)(2)(D)(i) means 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 imposes an
obligation to select a specific analytic year when evaluating whether
such emissions are improperly impacting downwind areas and therefore
whether such control is necessary or authorized. Rather, as the
commenters fail 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
emission reductions imposed under the good neighbor provision be no
greater than necessary to address downwind
[[Page 65892]]
nonattainment and maintenance of the NAAQS, i.e., that the EPA avoid
unnecessary ``over-control'' of emissions from upwind states. See EME
Homer City, 134 S. Ct. at 1608. In interpreting that decision, the D.C.
Circuit declared EPA's emission 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 emission reductions would have been
implemented. See EME Homer City II, 795 F.3d at 130. Thus, the EPA does
not agree that information indicating a current violation necessarily
obligates the EPA to impose additional emission reductions, especially
if additional information indicates there will be no downwind air
quality issues to address by the time such reductions could be in
place. On the contrary, the D.C. Circuit has already spoken to both the
temporal flexibilities and the temporal obligations imposed by the good
neighbor provision. The court has both affirmed the EPA's
interpretation of ``will'' as permitting consideration of projected
future air quality and instructed the EPA to consider relevant downwind
attainment dates in establishing future compliance timeframes. North
Carolina, 531 F.3d at 910-11, 913. The EPA has reasonably aligned these
two considerations to ensure that emission reductions required from
``any source'' within the anticipated compliance timeframes are in fact
necessary to address downwind air quality problems at that time, in
order to avoid potential over-control in contradiction of EME Homer
City.
Fifth and finally, the EPA does not agree that its interpretation
of ``will'' to permit consideration of projected future air quality
grants the agency unfettered discretion to choose any future analytic
year, however distant, to justify its conclusions. While the EPA does
contend that the statute permits the consideration of air quality in a
future year aligned with anticipated compliance, the EPA concedes that
it must both comply with the holding in North Carolina to appropriately
consider relevant downwind attainment dates and provide a reasonable,
non-arbitrary justification for selecting an appropriate future
analytic year. The EPA provides such an explanation for the selection
of the 2023 analytic year in the following sections of this notice.
1. Attainment Dates for the 2008 Ozone NAAQS
As previously noted, in determining the appropriate future analytic
year for purposes of assessing remaining interstate transport
obligations for the 2008 ozone NAAQS, the EPA first considers the
downwind attainment dates for the 2008 ozone NAAQS. Many areas
currently have attainment dates of July 20, 2018 for areas classified
as Moderate. However, as noted earlier, the 2017 ozone season was the
last full season from which data could be used to determine attainment
of the NAAQS by that date.\63\ Given that the 2017 ozone season has now
passed, it is not possible to achieve additional emission reductions by
the Moderate area attainment date. It is therefore necessary to
consider what subsequent attainment dates should inform the EPA's
analysis. The next attainment dates for the 2008 ozone NAAQS will be
July 20, 2021, for nonattainment areas classified as Serious, and July
20, 2027, for nonattainment areas classified as Severe.\64\ Because the
various attainment deadlines are in July, which is in the middle of the
ozone monitoring season for all states, data from the calendar year
prior to the attainment date--e.g., data from 2020 for the 2021
attainment date and from 2026 for the 2027 attainment date--are the
last data that can be used to demonstrate attainment with the NAAQS by
the relevant attainment date. Therefore, the EPA considers the control
strategies that could be implemented by 2020 and 2026 in assessing the
2021 and 2027 attainment dates in its subsequent analysis. The EPA has
also considered that, in all cases, the statute provides that areas
should attain as expeditiously as practicable. See CAA section
181(a)(1).
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\63\ As discussed in Section II.D, emission reductions that were
feasible and cost-effective for the 2017 ozone season were the focus
of the CSAPR Update.
\64\ While there are no areas (outside of California) that are
currently designated as Serious or Severe for the 2008 ozone NAAQS,
the CAA requires that the EPA reclassify to Serious any Moderate
nonattainment areas that fail to attain by their attainment date of
July 20, 2018. See CAA section 181(b)(2), 42 U.S.C. 7511(b)(2).
Similarly, if any area fails to attain by the Serious area
attainment date, the CAA requires that the EPA reclassify the area
to Severe.
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Comment: One commenter notes that all of the states burdened by the
interstate pollution addressed by the proposed action are currently
subject to attainment deadlines in 2015, 2016, or 2018, and it is
likely that some states will be determined to have failed to attain and
become subject to more stringent requirements and a new deadline of
July 20, 2021. The commenter notes that no relevant states are subject
to a deadline of 2027, nor will any be subject to a 2027 deadline in
the future unless they fail yet again to attain by 2021. The commenter
therefore contends that the EPA's decision to consider the 2027
attainment deadline is illegal, unexplained, and arbitrary.
Response: The EPA does not agree that it may not consider any later
attainment dates simply because there are no states currently subject
to that deadline. As the commenter concedes, there are also currently
no areas in the east subject to the 2021 Serious area attainment date,
yet the EPA nonetheless believes it is appropriate to consider both
future attainment dates in selecting a future analytic year, especially
in light of the limitations on additional control strategies available
in the near term, as discussed in more detail later. Moreover, the EPA
was required to select an analytic year before the Moderate area
attainment date had passed in order to provide sufficient time to
conduct air quality modeling before issuing a proposal for the state of
Kentucky by the court-ordered deadline in June 2018. See Order, Sierra
Club v. Pruitt, No. 3:15-cv-04328 (N.D. Cal. May 23, 2017), ECF No. 73.
Because the Kentucky action addressed the same problem of regional
interstate ozone transport for the 2008 ozone NAAQS at issue in this
action, it was necessary to complete the modeling in time for the EPA
to issue a proposed action for Kentucky in advance of that deadline. At
that time, as the commenter notes, all areas were subject to attainment
dates in 2015, 2016, or 2018, and emission reductions intended to
assist with attainment by those dates would need to be achieved by the
prior year's ozone season. Since all of these dates were effectively in
the past (including one date that fell less than two weeks after the
date of the proposal of this action), the EPA reasonably looked forward
to the next potential attainment dates for purposes of this analysis.
2. Feasibility of Control Strategies To Further Reduce Ozone Season
NOX Emissions
The EPA's analysis of the feasibility of NOX control
strategies reflects the time needed to plan for, install, test, and
place into operation EGU and non-EGU NOX reduction
strategies regionally--i.e., across multiple states. This regional
analytic approach is consistent with the regional nature of interstate
ozone pollution transport as described in section II.A. As proposed,
the agency adopted this approach for this final action based on
previous interstate ozone transport analyses showing that where eastern
downwind ozone problems are identified, multiple upwind states
typically are linked to
[[Page 65893]]
these problems.\65\ Specifically of relevance to this action, as
discussed in section II.C, the EPA's prospective air quality assessment
of CSAPR Update implementation found that 21 states each continued to
contribute greater than or equal to one percent of the 2008 ozone NAAQS
(i.e., 0.75 ppb) to identified downwind nonattainment or maintenance
receptors in multiple downwind states in 2017. Thus, to reasonably
address any remaining ozone transport problems, the EPA must identify
and apportion emission reduction responsibility across multiple upwind
states. In other words, given the breadth of the ozone transport
problem identified in the CSAPR Update and the breadth of the remaining
CAA obligations (i.e., for 20 states), it is reasonable for the EPA's
analysis to be regional. Where such an analysis is needed for multiple
states, the inquiry into the availability and feasibility of control
options is considerably more time-consuming than it would be for a
single facility or state or sector.
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\65\ 81 FR 74538.
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Further, the feasibility of new emissions controls should be
considered with regard to multiple upwind source categories to ensure
that the agency properly evaluates NOX reduction potential
and cost-effectiveness from all reasonable control measures.
NOX emissions come from multiple anthropogenic source
categories, such as mobile sources, electric utilities, and stationary
non-EGU sources (e.g., resource extraction industries and industrial
and commercial facilities). Among stationary sources, EGUs in the
eastern U.S. have been the primary subject of regulation to address
interstate ozone pollution transport and have made significant
financial investments to achieve emission reductions. While the EPA
continues to evaluate control feasibility for EGUs in its analysis, the
EPA's recent analyses indicate that non-EGU source categories, which
the EPA has not made subject to new regulations to address interstate
ozone transport since the NOX SIP Call, may also warrant
further assessment of their potential to cost-effectively reduce
NOX relative to EGUs.\66\ Accordingly, the EPA's assessment
of control feasibility focuses on both EGU and non-EGU sources.
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\66\ See Assessment of Non-EGU NOX Emission Controls,
Cost of Controls, and Time for Compliance Final TSD from the CSAPR
Update (U.S. EPA, August 2016) in the docket for this action.
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Although mobile source emissions also influence ozone formation,
transport, and ambient concentrations, the EPA has historically
addressed mobile source emissions through national rulemakings. As a
result, mobile source emissions are already decreasing because of
sector[hyphen]specific standards related to fuels, vehicle fuel
economy, pollution controls, and repair and replacement of the existing
fleet. Programs such as the Tier 3 vehicle emissions standards are
already being phased in between now and 2023. That rule was finalized
in 2014 with a phase-in schedule of 2017-2025 reflecting fleet
turnover. As discussed in more detail later, emission reductions from
stationary sources could likely be implemented more quickly than would
result from any attempt to effect additional reductions from mobile
sources beyond those already being implemented. Thus, the EPA has
focused its analysis of the feasibility of implementing additional
emission controls on stationary sources.
a. EGUs
The EPA's analysis in the CSAPR Update is of particular relevance
to the agency's assessment of feasible EGU NOX mitigation
strategies in this action because that rule evaluated and implemented
all EGU strategies that were cost-effective and feasible to implement
quickly. Accordingly, as explained in the proposal for this action, the
EPA reasonably focused its current assessment of the feasibility of
implementing further EGU NOX mitigation strategies on
control technologies that require more time to implement and that were
thus not previously evaluated in the CSAPR Update with respect to the
2008 ozone NAAQS.
In establishing the CSAPR Update EGU ozone season NOX
emissions budgets, the agency quantified the emission reductions
achievable from all NOX control strategies that were
feasible to implement in less than one year and cost-effective at a
marginal cost of $1,400 per ton of NOX removed.\67\ These
EGU NOX control strategies were: Optimizing NOX
removal by existing, operational selective catalytic reduction (SCR)
controls; turning on and optimizing existing, idled SCR controls;
installing state-of-the-art NOX combustion controls; and
shifting generation to existing units with lower NOX
emissions rates within the same state. 81 FR 74541. The agency observes
that the resulting CSAPR Update emissions budgets are being
appropriately implemented under the CSAPR NOX Ozone Season
Group 2 allowance trading program. Data for the 2017 ozone season (the
first CSAPR Update compliance period) indicate that power plant ozone
season NOX emissions across the 22 state CSAPR Update region
fell by 77,512 tons (or 21%) from 2016 to 2017.\68\ As a result, total
2017 ozone season NOX emissions from covered EGUs across the
22 CSAPR Update states were approximately 294,394 tons,\69\ well below
the sum of states' 2017 emissions budgets established in the CSAPR
Update of 316,464 tons.\70\ Further, the EPA is not aware of any
relevant, significant changes in the EGU fleet since promulgation of
the CSAPR Update that would necessitate reevalution of the emission
reduction potential from control strategies already implemented in the
CSAPR Update. Accordingly, for the purposes of this final
determination, the EPA considers optimizing NOX removal by
existing, operational SCR controls, turning on and optimizing of
existing SCR controls, and the installation of combustion controls to
be NOX control strategies that have already been
appropriately evaluated and implemented in the final CSAPR Update for
purposes of addressing the good neighbor provision for the 2008 ozone
NAAQS. The EPA does not believe it would be reasonable to base its
selection of a future analytic year on the timeframe for implementation
of control strategies that the EPA has already evaluated in the CSAPR
Update and that are already being implemented appropriately, according
to the best data available at this time (i.e., recent ozone season
NOX emissions data with CSAPR Update implementation).
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\67\ The CSAPR Update was signed on September 7, 2016,
approximately 8 months before the beginning of the 2017 ozone season
on May 1.
\68\ https://ampd.epa.gov/ampd/ (Data current as of October 26,
2018).
\69\ Id.
\70\ Preliminary data for the 2018 ozone season (the second
CSAPR Update compliance period), which became available after the
proposal for this action and after the close of the comment period,
continue to indicate that CSAPR Update emissions budgets are being
appropriately implemented under the trading program. Power plant
ozone season NOX emissions across the 22 state CSAPR
Update region fell by 83,084 tons (or 22%) from 2016 to 2018. As a
result, total 2018 ozone season NOX emissions from
covered EGUs across the 22 CSAPR Update states were approximately
288,825 tons, well below the sum of states' 2018 emissions budgets
established in the CSAPR Update of 313,626 tons.
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In the CSAPR Update, the EPA also evaluated one EGU NOX
control strategy that was considered feasible to implement within one
year but was not cost-effective relative to other near-term control
strategies at a marginal cost of $1,400 per ton of NOX
removed: Turning on existing idled selective non-catalytic reduction
(SNCR) controls. In the CSAPR Update, the EPA identified
[[Page 65894]]
a marginal cost of $3,400 per ton as the level of uniform control
stringency that represents turning on and fully operating idled SNCR
controls.\71\ However, the CSAPR Update finalized emissions budgets
using $1,400 per ton control stringency, finding that this level of
stringency represented the control level at which incremental EGU
NOX reductions and corresponding downwind ozone air quality
improvements were maximized with respect to marginal cost in the
context of the short-term control strategies being considered in that
rulemaking. In finding that the $1,400 per ton control cost level was
appropriate, the EPA determined that, based on the fleet
characteristics of SNCR and their operation at the time of the CSAPR
Update, the more stringent emissions budget level reflecting $3,400 per
ton (representing turning on idled SNCR controls) yielded fewer
additional emission reductions and fewer air quality improvements
relative to the increase in control costs. In other words, based on the
CSAPR Update analysis, establishing emissions budgets at $3,400 per
ton, and therefore developing budgets based on operation of idled SNCR
controls, was not determined to be cost-effective for addressing good
neighbor provision obligations for the 2008 ozone NAAQS. 81 FR 74550.
As explained in our proposed determination, the EPA continues to
believe that the strategy of turning on and fully operating idled SNCR
controls was appropriately evaluated in the CSAPR Update with respect
to other short-term control strategies for addressing interstate ozone
pollution transport for the 2008 ozone NAAQS. Further, the EPA is not
aware of any significant changes in the fleet characteristics of
existing SNCR and their operation since promulgation of the CSAPR
Update and therefore does not find it necessary to reevaluate the cost-
effectiveness of operating idled SNCR in the short term. Based on data
available at this time, the EPA does not believe it would be reasonable
to base its selection of a future analytic year on the timeframe for
implementation of a control strategy that the EPA has already
determined was not cost-effective relative to other short-term control
strategies. Accordingly, in this final action the EPA is not further
assessing this control strategy for purposes of identifying an
appropriate future analytic year.
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\71\ See EGU NOX Mitigation Strategies Final Rule TSD
(docket ID EPA-HQ-OAR-2015-0500-0554, available at
www.regulations.gov and https://www.epa.gov/sites/production/files/2017-05/documents/egu_nox_mitigation_strategies_final_rule_tsd.pdf)
(NOX Mitigation Strategies TSD).
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The remaining control strategy that the EPA evaluated in the CSAPR
Update was the shifting of generation from EGUs with higher
NOX emissions rates to EGUs with lower NOX
emissions rates within the same state as a means of reducing emissions
at costs commensurate with and in support of emission control
technologies to reduce NOX emissions. Shifting generation is
a NOX control strategy that occurs on a time- and cost-
continuum, in contrast to the relatively discrete price-points and
installation timeframes that can be identified for emission control
technologies--i.e., combustion and post-combustion controls. Therefore,
in the CSAPR Update, the EPA identified the discrete cost thresholds
used to evaluate upwind states' good neighbor obligations based on its
evaluation of combustion and post-combustion control technologies, and
secondarily examined the amount of generation shifting that would
result at the same time and cost threshold associated with and in
support of the particular control technology. Quantifying
NOX reductions from shifting generation anticipated at the
same time and cost thresholds relative to the control technologies
being considered (e.g., restarting idled SCR controls) helped ensure
that the emission reductions associated with the control strategies
could be expected to occur in the CSAPR Update's market-based
implementation system. In other words, had the agency excluded
consideration of generation shifting in calculating emissions budgets
in step 3 in the CSAPR Update, generation shifting would have
nonetheless occurred as a compliance strategy in step 4. Although
potential emission reductions resulting from generation shifting were
factored into the final budgets, this compliance strategy did not drive
the EPA's identification of the analytic year or cost thresholds
analyzed in the CSAPR Update.
Consistent with our explanation at proposal, the EPA does not find
it appropriate to solely evaluate the potential for generation shifting
(e.g., in isolation from viable combustion or post-combustion control
assessments) for purposes of selecting a future analytic year. The EPA
continues to believe that generation shifting is not particularly well
suited to identifying discrete analytic inputs, given its ability to be
phased in on a time- and cost-continuum. Further, given CSAPR Update
implementation as well as current and projected natural gas prices that
are low relative to historical levels, significant shifting from
higher-emitting EGUs to lower-emitting EGUs (relative to historical
generation levels) is already occurring and expected to continue to
occur by 2023 due to market drivers.\72\ Thus, there may only be a
limited opportunity, if any, for the EGUs in CSAPR Update states to
implement as an interstate transport control measure further emission
reductions through generation shifting prior to 2023, beyond that which
is already occurring and reasonably expected to occur as a result of
other factors. Given EPA's historical consideration of this strategy as
a secondary factor in quantifying emissions budgets, the EPA believes
the most reasonable approach for selecting a future analytic year is to
focus on the timeframe in which specific control strategies other than
generation shifting can be implemented.\73\
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\72\ See Electric Monthly Power. Department of Energy, Energy
Information Administration. Table 1.1 Net Generation by Energy
Sources. September 2018. Also See Total Electricity Supply,
Disposition, Prices, and Emissions, Annual Energy Outlook.
Department of Energy, Energy Information Administration.
\73\ Because the EPA is not in this final action evaluating
additional generation shifting possibilities, it does not at this
time need to revisit the question whether it is within the EPA's
authority or otherwise proper to consider generation shifting in
implementing the good neighbor provision. The EPA is aware that this
has been an issue of contention in the past, and stakeholders have
raised serious concerns regarding this issue. See, e.g., 81 FR at
74545 (responding to comments); CSAPR Update--Response to Comment,
at 534-50 (EPA-HQ-OAR-2015-0500-0572) (summarizing and responding to
comments).
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For these reasons, for purposes of identifying an appropriate
future analytic year, the EPA is focusing its assessment of EGUs in
this action on control technologies that were deemed to be infeasible
to install for the 2017 ozone season rather than reassessing controls
previously analyzed for cost-effective emission reductions in the CSAPR
Update. In establishing the CSAPR Update emissions budgets, the EPA
identified but did not analyze the following two EGU NOX
control strategies in establishing emissions budgets because regional
implementation by 2017 was not considered feasible: (1) Installing new
SCR controls; and (2) installing new SNCR controls. The EPA observed
that EGU SCR post-combustion controls can achieve up to 90 percent
reduction in EGU NOX emissions. The EPA also observed that
SNCR controls can be effective at reducing NOX emissions and
can achieve up to a 25 percent emission reduction from EGUs (so long as
sufficient reagent is employed). In 2017, SCR controls were in
widespread use across the power sector in the east, whereas SNCR
controls are considerably
[[Page 65895]]
less prevalent. In the 22-state CSAPR Update region, approximately 62
percent of coal-fired EGU capacity is equipped with SCR controls while
12 percent is equipped with SNCR controls.\74\
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\74\ National Electric Energy Data System v6 (NEEDS). EPA
(September 2018). Available at https://www.epa.gov/airmarkets/national-electric-energy-data-system-needs-v6.
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The EPA notes that differences between these control technologies
exist with respect to the potential viability of achieving cost-
effective, regional NOX reductions from EGUs. As just
described, SCR controls generally achieve greater EGU NOX
reduction efficiency (up to 90 percent) than SNCR controls (up to 25
percent). Resulting in part from this disparity in NOX
reduction efficiency, the EPA found new SCR controls to be more cost-
effective at regionally removing NOX when considering both
control costs and the NOX reduction potential in developing
its cost-per-ton analysis for the CSAPR Update. Specifically, the EPA
found that new SCR controls could generally reduce EGU emissions at a
marginal cost of $5,000 per ton of NOX removed whereas new
SNCR controls could generally reduce EGU emissions at a higher cost of
$6,400 per ton of NOX removed.\75\ In other words, the
greater NOX reduction efficiency for SCR controls translates
into greater cost-effectiveness of NOX removal relative to
SNCR controls. Simply put, SCR can achieve significantly more regional
NOX reduction at a lower cost per ton than SNCR. The general
NOX mitigation and cost-effectiveness advantage of SCR is
also consistent with observed installation patterns where SCR controls
(62 percent of coal-fired capacity) are more prevalent across the CSAPR
Update states relative to SNCR (12 percent of coal-fired capacity).
Moreover, as discussed in response to a comment later in this section,
installation of SNCR still takes significant time as compared to the
2008 ozone NAAQS attainment dates and SNCR installation at an
individual source would likely make later installation of an SCR cost-
prohibitive and therefore forgo the potential for greater emission
reductions that could be achieved at that source from the latter
technology in the future. Considering these factors, the EPA believes
it is appropriate to give particular weight to the timeframe required
for implementation of SCR across the region as compared to SNCR.
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\75\ EGU NOX Mitigation Strategies Final Rule TSD.
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For SCR, the total time associated with project development is
estimated to be up to 39 months for an individual power plant
installing controls on more than one boiler.\76\ However, more time is
needed when considering installation timing for new SCR controls
regionally, for CSAPR Update states. As described in the subsequent
paragraphs, the EPA has determined that a minimum of 48 months (4
years) is a reasonable time period to allow to complete all necessary
steps of SCR projects at EGUs on a regional scale. This timeframe would
allow for regional implementation of these controls (i.e., at multiple
power plants with multiple boilers) considering the necessary stages of
post-combustion control project planning, shepherding of labor and
material supply, installation, coordination of outages, testing, and
operation. 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 also need to account for the same
regional factors as SCR installations.\77\ Therefore, the EPA finds
that more than 16 months would be needed to complete all necessary
steps of SNCR development at EGUs on a regional scale. Despite EPA's
prioritization of SCR as compared to SNCR in identifying the timeframe
for installing new controls, the EPA notes that installing these post-
combustion controls (SCR or SNCR) involve very similar steps and many
of the same considerations. The timing of their feasible regional
development is therefore described together in the following
paragraphs.
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\76\ Engineering and Economic Factors Affecting the Installation
of Control Technologies for Multipollutant Strategies. EPA Final
Report. Table 3-1. Available at https://archive.epa.gov/clearskies/web/pdf/multi102902.pdf.
\77\ A month-by-month evaluation of SNCR installation is
discussed in EPA's ``Engineering and Economic Factors Affecting the
Installation of Control Technologies for Mulitpollutant Strategies''
at Exhibit A-6 and in EPA's NOX Mitigation Strategies
TSD. As noted at proposal, the analysis in this exhibit estimates
the installation period from contract award as within a 10-13 month
timeframe. The exhibit also indicates a 16-month timeframe from
start to finish, inclusive of pre-contract award steps of the
engineering assessment of technologies and bid request development.
The timeframe cited for installation of SNCR at an individual source
in this final action is consistent with this more complete timeframe
estimated by the analysis in the exhibit.
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Installing new SCR or SNCR controls for EGUs generally involves the
following steps: Conducting an engineering review of the facility to
determine suitability and project scope; advertising and awarding a
procurement contract; obtaining a construction permit; installing the
control technology; testing the control technology; and obtaining or
modifying an operating permit.\78\ These timeframes are intended to
accommodate a plant's need to conduct an engineering assessment of the
possible NOX mitigation technologies necessary to then
develop and send a bid request to potential suppliers. Control
specifications are variable based on individual plant configuration and
operating details (e.g., operating temperatures, location restrictions,
and ash loads). Before making potential large capital investments,
plants need to complete these careful reviews of their system to inform
and develop the control design they request. They then need to solicit
bids, review bid submissions, and award a procurement contract--all
before construction can begin.
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\78\ Final Report: Engineering and Economic Factors Affecting
the Installation of Control Technologies for Multipollutant
Strategies, EPA-600/R-02/073 (Oct. 2002), available at https://nepis.epa.gov/Adobe/PDF/P1001G0O.pdf.
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An appropriate regional control implementation timeframe should
also accommodate the additional coordination of labor and material
supply necessary for any regional NOX mitigation efforts.
For example, the total construction labor for a SCR system associated
with a 500-megawatt (MW) EGU is in the range of 330,000 to 350,000
person-hours, with boilermakers accounting for approximately half of
this time.\79\ In a 2017 industry survey, one of the largest shortages
of union craft workers was for boilermakers. This shortage of skilled
boilermakers is expected to rise due to an anticipated nine percent
increase in boilermaker labor demand growth by 2026, coupled with
expected professional retirements and comparatively low numbers of
apprentices joining the workforce.\80\ The shortage of and demand for
skilled labor, including other craft workers critical to pollution
control installation, is pronounced in the manufacturing industry. The
Association of Union Constructors conducted a survey of identified
labor shortages and found that boilermakers were the second-most
frequently reported skilled labor market with a labor shortage.\81\
Moreover, recovery efforts from the natural disasters of recent
hurricanes (e.g.,
[[Page 65896]]
Harvey, Irma, Florence, and Michael) and wildfires in 2017 are expected
to further tighten the labor supply market in manufacturing in the near
term.\82\ The EPA determined that these tight labor market conditions
within the relevant manufacturing sectors, combined with regional
NOX mitigation initiatives, would likely lead to some
sequencing and staging of labor pool usage in implementing control
technologies, rather than simultaneous construction across all efforts.
This sector-wide trend supports SCR and SNCR installation timeframes
for a regional program that exceed the demonstrated single-facility
installation timeframe.
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\79\ Id.
\80\ Occupational Outlook Handbook. Bureau of Labor Statistics.
Available at https://www.bls.gov/ooh/construction-and-extraction/boilermakers.htm.
\81\ Union Craft Labor Supply Survey. The Association of Union
Constructors. Exhibit 4-2 at page 29. Available at https://www.tauc.org/files/2017_TAUC_UNION_CRAFT_LABOR_SUPPLY_REVISEDBC_FINAL.pdf.
\82\ Skilled Wage Growth Less Robust, Worker Shortage Still an
Issue. Industry Week. October 23, 2017. Available at http://www.industryweek.com/talent/skilled-wage-growth-less-robust-worker-shortage-still-issue.
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In addition to labor supply, NOX post-combustion control
projects also require materials and equipment such as steel and cranes.
Sheet metal workers, necessary for steel production, are reported as
having a well-above-average supply-side shortage of labor.\83\ This,
coupled with growth in steel demand estimated at three percent in 2018
suggests that there may be a constricted supply of steel needed for
installation of new post-combustion controls.\84\ Similarly, cranes are
critical for installation of SCRs, components of which must be lifted
hundreds of feet in the air during construction. Cranes are also facing
higher demand during this period of economic growth, with companies
reporting a shortage in both equipment and available labor.\85\ \86\
The tightening markets in relevant skilled labor, materials, and
equipment, combined with the large number of installations that could
be required under a regional air pollution transport program,
necessitates longer installation timetables relative to what has been
historically demonstrated at the facility level.
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\83\ Union Craft Labor Supply Survey. The Association of Union
Constructors. Exhibit 4-2 at page 29. Available at https://www.tauc.org/files/2017_TAUC_UNION_CRAFT_LABOR_SUPPLY_REVISEDBC_FINAL.pdf.
\84\ Worldsteel Short Range Outlook. October 16, 2017. Available
at https://www.worldsteel.org/media-centre/press-releases/2017/worldsteel-Short-Range-Outlook-2017-2018.html.
\85\ See, e.g., Seattle Has Most Cranes in the Country for 2nd
Year in a Row--and Lead is Growing. Seattle Times. July 11, 2017.
Available at https://www.seattletimes.com/business/real-estate/seattle-has-most-cranes-in-the-country-for-2nd-year-in-a-row-and-lead-is-growing/.
\86\ See RLB Crane Index, January 2018 in the docket for this
action.
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Further, scheduled curtailment, or planned outage, for pollution
control installation would be necessary to complete SCR or SNCR
projects on a regional scale. Given that peak demand and rule
compliance would both fall in the ozone season, sources would likely
need to schedule installation projects for the ``shoulder'' seasons
(i.e., the spring and/or fall seasons), when electricity demand is
lower than in the summer, reserves are higher, and ozone season
compliance requirements are not in effect. If multiple units were under
the same timeline to complete the retrofit projects as soon as feasible
from an engineering perspective, this could lead to bottlenecks of
scheduled outages as each unit attempts to start and finish its
installation in roughly the same compressed time period. Thus, any
compliance timeframe that would assume installation of new SCR or SNCR
controls should be developed to reasonably encompass multiple shoulder
seasons to accommodate scheduling of curtailment for control
installation purposes and better accommodate the regional nature of the
program.
Finally, the time lag observed between the planning phase and in-
service date of SCR operations in certain cases also illustrates that
site-specific conditions can lead to installation times of four years
or longer--even for individual power plants. For instance, SCR projects
for units at the Ottumwa power plant (Iowa), Columbia power plant
(Wisconsin), and Oakley power plant (California) were all in the
planning phase in 2014. By 2016, these projects were under construction
with estimated in-service dates of 2018.\87\ Similarly, individual SNCR
projects can exceed their estimated 16-month construction timeframe.
For example, the SNCR installation at the Jeffrey power plant (Kansas)
was in the planning phase in 2013 but not in service until 2015.\88\
Further, large-scale projects also illustrate that timelines can extend
beyond the general estimate for a single power plant when the project
is part of a larger, multifaceted air pollution reduction goal. For
instance, the Big Bend power plant in Florida completed a multifaceted
project that involved adding SCRs to all four units as well as
converting furnaces, over-fire air changes, and making windbox
modifications. A decade elapsed between the initial planning stages and
completion.\89\
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\87\ 2014 EIA Form 860. Schedule 6. Environmental Control
Equipment.
\88\ 2013 EIA Form 860, Schedule 6, Environmental Control
Equipment.
\89\ Big Bend's Multi-Unit SCR Retrofit. Power Magazine. March
1, 2010. Available at http://www.powermag.com/big-bends-multi-unit-scr-retrofit/.
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In summary, while facility-level SCR and SNCR projects can
themselves take up to 39 and 16 months, respectively, a comprehensive
and regional emission reduction effort requires more time to
accommodate the labor, materials, and outage coordination for these two
types of control strategies. Given the extra weight given to SCR
controls due to their greater NOX reduction efficiency and
cost-effectiveness as well as the time to regionally develop and
implement SCRs as a control strategy for CSAPR Update states, the EPA
concludes that 48 months would be a reasonable and expeditious
timeframe to coordinate the planning and completion of further regional
NOX mitigation efforts.
Comment: Several commenters contend that the EPA's assessment of
emission reductions available from existing EGU NOX controls
in the CSAPR Update is insufficient. These comments suggested that
additional reductions are available from existing SCR NOX
controls before 2023 because the EPA's use of a 0.10 lb/mmBtu emission
rate in its calculation of emission budgets was not reflective of the
total reduction potential from SCR optimization. The commenters provide
analysis using the unit-level ozone-season emission rates between 2005-
2016 and suggest that the EPA should have relied on each unit's best
performing ozone-season emission rate from a given year in that period
to determine the emission rate at which each unit's SCR is fully
optimized. The commenters suggest that because the optimization of SCRs
at a lower rate can be achieved prior to 2023, the EPA should examine
air quality in an earlier analytic year.
Response: The EPA does not agree that it is necessary to consider
any further emission reductions ostensibly available from the
optimization of existing SCRs. As described in the following
paragraphs, the agency's assessment of NOX reduction
potential from existing SCR controls used in establishing CSAPR Update
emission budgets remains appropriate. Moreover, as discussed later in
this notice, the best data available at this time--2017 EGU emission
data reflecting CSAPR Update implementation--indicate that in general
these controls are optimally operating to mitigate NOX
emissions across the CSAPR Update region. Thus, control optimization
for existing SCRs has already been addressed in the CSAPR Update and
emission reductions associated with the ``additional'' control
technology proposed by commenters are being commensurately realized
through implementation of the CSAPR Update's
[[Page 65897]]
allowance trading program. The EPA therefore does not agree that a
control strategy that is already being appropriately implemented should
guide its selection of a future analytic year.
In the CSAPR Update, the EPA determined that, based on an
aggregation of unit-level emission rates, an average fleet-wide
emission rate of 0.10 lb/mmBtu would represent the optimized operation
of SCR controls that were not already being operated and optimized. 81
FR 74543. In concluding that this rate would be appropriate for
calculating emission 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. The EPA explained that it used data from 2009 through 2015 and
calculated an average NOX ozone-season emission rate across
the fleet of coal-fired EGUs with SCR for each of those years. It then
selected the third-best (i.e., third-lowest) yearly rate for each unit,
noting that it did not find it prudent to use the first- and second-
best yearly rate because the best-performing data from those years is
likely to reflect the utilization of new SCR systems, all of whose
components were new in that year (e.g., new layers of catalyst), and
may not be representative of an ongoing, achievable NOX rate
once one or more SCR components have begun to degrade with age. Id. The
third-to-lowest year average was 0.10 lb/mmBtu. In the CSAPR Update,
the EPA applied that fleet-wide average to units with SCR that were not
already emitting at or below that NOX emission rate. For
units operating at or below that level in 2015 (the starting year from
EPA's budget-setting methodology), the EPA continued to utilize that
lower rate. The EPA in the CSAPR Update already addressed comments
regarding the reasonableness of its approach to calculating an
appropriate emission rate and did not, in this action, request
additional comment on the EPA's determination finalized in the CSAPR
Update that 0.10 lb/mmBtu was a reasonable rate to represent optimized
SCR controls.\90\ 81 FR 74544. The issue is also currently the subject
of litigation before the D.C. Circuit in Wisconsin v. EPA, No. 16-1406.
Accordingly, the EPA does not believe this issue is properly within the
scope of this action.
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\90\ 83 FR 31937 (indicating that EPA is not reconsidering or
reopening any analyses conducted or determinations made in the CSAPR
Update).
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The EPA continues to believe its approach in the CSAPR update was
prudent and reasonable for purposes of calculating emission reductions
achievable from the optimization of existing SCR controls and is not
changing its approach in this action. While commenters suggest
alternative emission rates would have been more appropriate, they have
not demonstrated that the EPA's approach is unreasonable. In
particular, the EPA does not agree with commenters that suggest that
the EPA should have used a value derived by relying on a 2005-2016
baseline (as opposed to the 2009-2015 baseline years used by EPA) and
selecting the single best year (i.e., the lowest average ozone-season
rate for SCR-controlled units in any given year) rather than the third-
best year. The EPA continues to find, as it did in the CSAPR Update,
that using a baseline starting in 2009 is more appropriate because that
year coincided with the onset of annual operation for most SCR controls
under the CAIR annual NOX program. Prior to 2009, these
controls operated seasonally, which allowed substantial time during the
fall, winter, and spring for routine maintenance and repair of the SCR,
as well as replacement of catalyst. This seasonal operation is not
representative of current or reasonably anticipated future operation of
these units that have been and continue to be subject to annual
NOX requirements, first under CAIR and now under CSAPR.
Further, the agency notes that the power sector has undergone
significant changes in recent years due to economic factors and
technological advances (e.g., natural gas production from horizontal
fracking technology advancements). As a result, the agency believes
that it is more appropriate to focus its analysis on relatively more
recent years of data, rather than to include a significant number of
years that preceded the set of current economic and technological
conditions affecting and driving outcomes in the sector. In other
words, the agency is more confident that recent data are an appropriate
basis to reasonably project future economic and technological
conditions with respect to operation of EGUs and their NOX
controls. The agency is not confident that older (i.e., pre-2009 data)
would be an appropriate basis to reasonably project future economic and
technological conditions with respect to operation of EGUs and their
NOX controls. The EPA therefore believes its approach in the
CSAPR Update was reasonable and preferable for the 2008 ozone NAAQS
compliance assumptions, and retains that approach in this action.
The EPA also believes that its decision to rely on the third-best
seasonal emission rate was more appropriate than the commenter's
suggestion that the EPA select the emission rate from the best
performing year. By selecting the third-best seasonal rate, the EPA
avoided selecting times when SCR controls were newly constructed for
most units or may have been recently refreshed/replaced with all-new
catalyst. Complete catalyst change may have occurred at the onset of
major NOX reduction programs or at a time when the purpose
of the catalyst use changed (such as simultaneously optimizing for
mercury (Hg) removal under the Mercury and Air Toxic Standards (MATS)
program). By selecting the third-best seasonal rate out of the 2009-
2015 time period, the agency evaluated repeatable, low-NOX
control operation consistent with ongoing operation and maintenance of
SCR controls.
Comment: A commenter asserts that the EPA should consider operation
of existing SNCR controls for purposes of selecting a future analytic
year, rather than considering cost-effectiveness to eliminate
utilization of some potentially feasible controls. The commenter
contends that the EPA's use of cost-effectiveness as a bright line for
determining what measures are appropriate for fully meeting the good
neighbor SIP obligations for upwind states is both erroneous and, as
applied here, arbitrary and capricious. The commenter states that, even
if the CSAPR Update could be read to conclude that operation of SNCR
was not cost-effective at that time, this conclusion was limited to the
purposes of the partial solution in that rule. The commenter claims
that the CSAPR Update did not deem operation of SNCR to never be cost-
effective, particularly in circumstances where the EPA has found no
other less-expensive way to reduce emissions. The commenter concludes
that, if EPA is using cost to eliminate potentially available
solutions, it must reevaluate these costs, not merely rest on cost data
from the CSAPR Update that are now several years old.
Response: The EPA does not agree that the timeframe for operating
existing SNCR should influence its selection of a future analytic year.
As discussed earlier, the EPA's assessment in the CSAPR Update
indicated that the $3,400 per ton NOX control stringency
(representing turning on idled SNCR) was not cost-effective relative to
other short-term control strategies considered in that rulemaking. This
conclusion was based on the fact that EGUs with idled SNCR in the CSAPR
Update analysis
[[Page 65898]]
were relatively few and relatively small, such that few NOX
reductions were incrementally achievable from operation of idled SNCR
compared to other near-term control strategies available, while the
difference in cost per ton compared to the other strategies was
relatively large. Accordingly, the EPA found that the level of
NOX control stringency reflecting operation of idled SNCR
did not maximize NOX reduction potential and air quality
improvement relative to cost. Although the commenters suggest that the
EPA should reevaluate the cost-effectiveness of operating idled SNCR,
the commenters have not provided any data to the agency that would
indicate the agency's analysis would significantly change. Rather, the
EPA's conclusion in the CSAPR Update is further supported by reported
2017 data which show that there were 55 coal units operating in the
CSAPR Update region with SNCR installed with a weighted average ozone-
season emission rate of 0.14 lb/mmBtu, indicating that existing SNCR-
controlled units are already widely operating and would likely provide
little opportunity for additional reductions.\91\
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\91\ Preliminary data for the 2018 ozone season, which became
available after the proposal for this action and after the close of
the comment period, continue to support this conclusion by showing
that there were 48 coal units operating in the CSAPR Update region
with SNCR installed with a weighted average ozone-season emission
rate of 0.148 lb/mmBtu.
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The EPA notes that the agency's analysis in the CSAPR Update was
specific to the conditions evaluated therein. Thus, the EPA's
conclusion that the feasibility of implementing SNCR should not inform
the potential compliance timeframe and the identification of the future
analytic year would not have precluded the EPA from considering whether
the operation of SNCR would be cost-effective relative to the
installation of the post-combustion controls discussed earlier in this
section. Had the EPA, at step 1 of the four-step framework, identified
continued downwind air quality problems in the future analytic year,
the EPA could have considered at step 3 whether it would be cost-
effective to require upwind states linked at step 2 to make emission
reductions consistent with operation of existing SNCR relative to other
longer-term control strategies like the implementation of new post-
combustion controls. However, because EPA has already concluded that
operation of existing SNCR is not cost-effective in the near term, the
EPA does not agree that it would be reasonable for EPA to select an
earlier analytic year that would only be consistent with the timeframe
for implementing that particular compliance strategy.
Comment: Several commenters contend that the EPA's implementation
of emission reductions via an allowance trading program is not
sufficient to guarantee that existing SCRs will continue to run in the
future (especially in light of low allowance prices). The commenters
therefore contend that further reductions are available from existing
EGU controls. The commenters suggest that EPA needs to ensure daily
operation of SCR controls and that the seasonal nature of the trading
program does not do so.
Response: The EPA begins by pointing out that the commenter appears
to be attempting to reopen a determination made in the CSAPR Update
regarding how best to implement the emission reductions required by
that rule. The question of whether an allowance trading program is
sufficient to ensure emission reductions, relative to other forms of
emission limitations, was raised by commenters and addressed in the
CSAPR Update.\92\ The EPA did not, in this action, request additional
comment on the appropriateness of an allowance trading program to
ensure the CSAPR Update emission reductions would be achieved,\93\ and
it is therefore not re-opening the issue in this action. Moreover, even
if this issue were within the scope of this action, the commenters have
not explained how this concern should influence the EPA's selection of
the future analytic year used in this action. Accordingly, the relative
effectiveness of the CSAPR Update allowance trading program to ensure
emission reductions commensurate with optimizing SCR, as compared to
daily limits, is outside the scope of this action.
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\92\ CSAPR Update--Response to Comment (EPA-HQ-OAR-2015-0500-
0572).
\93\ 83 FR 31937 (indicating that EPA is not reconsidering or
reopening any analyses conducted or determinations made in the CSAPR
Update).
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Nonetheless, the EPA notes that current data refute commenters'
assertion that allowance trading has been insufficient to achieve the
emission reductions associated with the operation and optimization of
existing SCRs. The best currently available data indicate that sources
in in CSAPR Update states are indeed operating SCRs in order to comply
with the CSAPR Update allowance trading program. Data from 2017, the
first year of ozone-season data that would be influenced by the CSAPR
Update compliance requirements, are consistent with the EPA's
assumption that the allowance trading program would incentivize SCR
operation on a fleet-wide level. The average emission rate for the 83
SCR-controlled units in the CSAPR Update region that were not
previously emitting with a NOX rate at or below 0.10 lb/
mmBtu in 2016 and are still operating in 2017 dropped by 45% from 0.22
lb/mmBtu to 0.12 lb/mmBtu between 2016 and 2017--the first ozone season
of CSAPR Update implementation.\94\ Not only is the program effective
at encouraging these particular units to achieve a better performance
rate, it also encourages the wider universe of SCR-controlled units to
keep operating their controls. In 2017, 261 of 274 EGUs with SCR in the
U.S. had ozone-season emission rates below 0.20 lb/mmBtu (194 of 202 in
CSAPR Update states), indicating that they were likely operating their
post-combustion controls throughout most of the ozone season. The 274
units were operating at an average emission rate of approximately 0.088
lb/mmBtu. Of the 13 units with 2017 emission rates above 0.20 lb/mmBtu,
five are located in states outside of the CSAPR Update region, five
have preliminary 2018 ozone season NOX emission rates below
0.20 lb/mmBtu, and one has retired (Killen unit 2 in Ohio).\95\
Consequently, the EPA finds that on average, SCR-controlled units
appear to be operating their SCRs throughout the season, and that the
petitioner's assertion regarding the likelihood of not operating
controls is therefore not supported by the most recently available
data. The EPA has not identified a basis for reevaluating emission
reductions available from optimizing SCRs and it therefore does not
believe it would be reasonable in light of this data to select an
earlier analytic year on the basis of this control strategy.
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\94\ Preliminary data for the 2018 ozone season, which became
available after the proposal for this action and after the close of
the comment period, continue to support this conclusion. The average
emission rate for the 73 SCR-controlled units in the CSAPR Update
region that were not previously emitting with a NOX rate
at or below 0.10 lb/mmBtu in 2016 and are still operating in 2018
dropped by 40% from 0.201 lb/mmBtu to 0.121 lb/mmBtu between 2016
and 2018--the second ozone season of CSAPR Update implementation.
Additionally, preliminary 2018 data indicate that the 192 coal units
operating in the CSAPR Update region with SCR installed had a
weighted average ozone-season NOX emission rate of 0.086
lb/mmBtu.
\95\ Source: AMPD (ampd.epa.gov), EPA, 2018.
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Notwithstanding the EPA's finding that SCRs are currently operating
consistent with optimizing NOX reduction potential, the EPA
notes that SCR operation is not the sole metric with which to gauge
success of a cap-and-trade program. Rather, the success of the program
is ultimately indicated
[[Page 65899]]
not by the employment of any particular control strategy, but rather by
regionwide and state-level emission reductions. The CSAPR Update has
contributed to a 21 percent reduction in regionwide NOX
emissions in its first year, below the cumulative level of the budgets,
and all states operated well below their assurance levels.\96\ If some
SCRs are not performing at lower rates, but commensurate reductions are
achieved elsewhere in the state, this demonstrates one of the benefits
of a market-based trading program: It helps participants identify and
make the least-cost reductions. The EPA does not agree that such a
result, even accepting the commenter's analysis for the sake of
argument, demonstrates that the allowance trading program is
ineffective at achieving the intended emission reductions simply
because the covered sources chose an alternative pathway to comply with
the program's requirements.
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\96\ Source: AMPD (ampd.epa.gov), EPA, 2018.
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The EPA has also not identified a need to supplement the allowance
trading program established in the CSAPR Update with additional
emission limits in order to promote the daily operation of controls.
The EPA examined the hourly NOX emissions data reported to
the EPA and did not observe a significant number of instances of units
selectively turning down or turning off their emission control
equipment during hours with high generation. SCR-controlled units
generally operated with lower emission rates during high generation
hours, suggesting SCRs generally were in better operating condition--
not worse condition, let alone idling--during those days/hours. In
other words, the EPA compared NOX rates for EGUs from hours
with high energy demand, compared them with seasonal average
NOX rates, and found very little difference. Thus, the data
do not support the notion that units are reducing SCR operation on high
demand days and that consequently a narrower compliance timeframe is
needed to incentivize them to run on a daily basis. An examination of
average daily NOX emission rates for SCR-controlled units in
the CSAPR Update region shows that 2017 emission rates were
significantly lower than 2016 and 2015. The seasonal decline in
emission rate was also observed on a daily basis in the CSAPR Update
region: Out of 153 days in the ozone season in 2017, all 153 days had
lower average emissions rates among SCR-controlled sources than the
same day in 2016.\97\ Moreover, the auxiliary power used for control
operation is small--typically less than one percent of the generation
at the facility--and it is therefore unlikely that sources would cease
operation of controls for such a limited energy savings. Instead, the
data indicate that increases in total emissions on days with high
generation are generally the result of additional units that do not
normally operate coming online to satisfy increased energy demand and
units that do regularly operate increasing hourly utilization, rather
than reduced functioning of control equipment. Thus, the EPA does not
agree that there are additional limitations that should be implemented
to achieve emission reductions from the optimization of existing SCRs.
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\97\ Source: AMPD (ampd.epa.gov), EPA, 2018.
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Comment: One commenter suggests that the EPA can achieve additional
emission reductions in the short term by reducing budgets to account
for the accumulation of banked allowances. The commenter contends that
this would support higher allowance prices under the CSAPR
NOX Ozone Season Group 2 program, thereby incentivizing
continued SCR operation and further cost-effective reductions in
NOX emissions.
Response: The EPA first notes that, to the extent the commenter is
challenging the EPA's decision in the CSAPR Update permit the continued
use of certain banked allowances, the agency already addressed comments
regarding this issue in that rulemaking, 81 FR 74557, and did not, in
this action, request additional comment on its determination with
regard to this issue as finalized in the CSAPR Update.\98\ The issue is
also currently the subject of litigation before the D.C. Circuit in
Wisconsin v. EPA. Accordingly, the EPA does not believe concerns
regarding the bank of allowances that were carried over in the CSAPR
Update are properly within the scope of this action. To the extent the
commenter suggests that the EPA eliminate the current bank of
allowances to achieve further NOX emission reductions in the
future, the EPA does not believe that the mere presence of a bank of
allowances indicates that such additional emission reductions are
actually achievable in practice. Current program design elements,
specifically the assurance provisions, are already in place to
incentivize the control operation referred to by the commenter and
ensure emission reductions. Moreover, the most recently observed
historical data suggest these controls are widely operating in the
compliance period and that their operation is not undermined by the
existence of the bank as suggested by the commenter.
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\98\ 83 FR 31937 (indicating that EPA is not reconsidering or
reopening any analyses conducted or determinations made in the CSAPR
Update).
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First, the CSAPR Update includes assurance provisions that help
ensure that EGUs in each covered state collectively limit their
emissions. These provisions include an assurance level for each state
that serves as a statewide emissions limit that cannot be exceeded
without penalty. This assurance level is the sum of the state emission
budget plus a variability limit equal to 21 percent of the state's
ozone-season budget. This means that collective EGU emissions in each
state cannot exceed 121 percent of the state budget level without
incurring penalties. The assurance levels are designed to help ensure
that emissions are reduced in each covered state of a region-wide
trading program while acknowledging and accommodating the inherent
variability in electricity generation and NOX emissions due
to year-to-year changes in power sector market conditions. These
assurance levels help ensure that emission reductions, including those
associated with the optimization of existing controls on which the
CSAPR Update budgets were based, continue to be implemented. Therefore,
even with fleet turnover and a growing allowance bank, EPA anticipates
that the assurance limit will maintain downward pressure on state-level
emissions.
Second, the commenter misconstrues the emissions impact of an
allowance bank and does not provide further evidence that would be
needed to show that real-world emission reductions are available. A
bank of allowances, first and foremost, represents emission reductions
and not an emissions liability. Specifically, an allowance bank
represents allowable emissions that have not been emitted into the
atmosphere, converted into ozone, or transported downwind to impact the
ability of downwind areas to attain or maintain the NAAQS. The
commenter essentially asserts that an allowance bank will necessarily
undermine the operation of NOX controls. However, as
described previously, the best currently available data (i.e., recent
EGU emissions data with CSAPR Update implementation) indicate that
existing controls are being operated consistent with optimizing for
NOX mitigation. As such, the agency finds that, at this
time, the accumulation of the allowance bank primarily represents
emission reductions, and is not creating the incentive for controls to
be idled. Because the emission reductions sought
[[Page 65900]]
by the commenter (via operation of existing SCRs) are in fact already
being implemented across the region, the EPA has no reason to believe
that additional emission reductions could be achieved by either
eliminating the banked allowances or adjusting the budgets in some
manner commensurate with the current level of banked allowances. As
such, the emission reduction potential asserted by commenters is
hypothetical and the EPA has no reason to believe at this time that the
adjustments to the bank would lead to significant real-world
NOX reductions.
Comment: The EPA received several comments on the proposed
determination regarding its assessment of new EGU NOX
control strategies, suggesting that new NOX emission
mitigation technologies are available prior to 2023 and that the EPA's
reliance on the feasibility of regional installation of SCRs for
selection of a future analytic year is arbitrary and capricious. The
commenter further questions the EPA's estimate for installation of SCRs
and suggests they can be installed at a faster pace, noting that the
EPA allowed for just 30 months under the initial CSAPR promulgated in
2011. They assert that the EPA has not adequately demonstrated that the
market for labor and materials, while observed to be strained, is more
strained than previous environments. The EPA notes that other
commenters agreed with the EPA's timeline for implementation of new
mitigation technologies and asserted that that it would be infeasible
for EGUs to install new SCRs or SNCRs in less than four years. The
commenters observe that in many cases it may take longer due to
planning and the outage window required for implementation of such
controls. They suggest that the EPA should consider a later analytic
year because not doing so puts the EPA at risk of over-controlling as
some plants that could not install controls by 2023 would install them
at a later date when those reductions are no longer needed.
Response: For the reasons discussed earlier in this notice, the EPA
believes that conducting a regional analysis ensures that the Agency
can fully evaluate remaining obligations pursuant to the good neighbor
provision with respect to the 2008 ozone NAAQS. As the EPA has
routinely found throughout nearly 20 years of interstate transport
rulemakings, the ozone transport problem is regional in nature, in that
downwind states' problems attaining and maintaining the ozone NAAQS
result from the contribution of pollution from multiple upwind states,
with multiple upwind states routinely contributing to multiple downwind
states' air quality problems in varying amounts. With respect to the
2008 ozone NAAQS, the EPA determined in the CSAPR Update rulemaking
that, collectively, 22 upwind states contributed at or above the 1
percent threshold to downwind air quality problems at one or more of 19
different receptor locations in the eastern United States. Individual
upwind states contributed to between 1 and 8 downwind nonattainment or
maintenance receptors and, in a number of cases, upwind states also
contained at least one receptor indicating a downwind air quality
problem to which other states contributed. Given the multi-faceted
nature of ozone transport, the Supreme Court has acknowledged that the
EPA is faced with the burden to determine ``how to differentiate among
otherwise like contributions of multiple upwind states.'' EME Homer
City, 134 S. Ct. at 1607. As the Supreme Court acknowledged, the
statute is silent as to which metric the EPA should use to decide the
apportionment of the shared obligation to address a downwind air
quality problem among multiple upwind states--what the Court referred
to as the ``thorny causation problem.'' Id. at 1603-04.
Accordingly, because ozone air quality problems (and in particular
interstate transport) are regional in nature, the EPA has developed--
and the Supreme Court has endorsed--a regional approach for quantifying
individual states' emission reduction obligation. In particular, the
EPA has developed a two-pronged metric (constituting steps 2 and 3 of
the four-step transport framework) to identify the amounts of an upwind
state's emissions that ``contribute significantly to nonattainment'' or
``interfere with maintenance'' of the ozone NAAQS in a downwind state
to which it is linked. The EPA identifies those emissions that both:
(1) Contribute 1 percent or more of the NAAQS to an identified downwind
air quality problem (i.e., the identification of linkage at CSAPR
framework step 2); and (2) can be eliminated through implementation of
cost-effective control strategies, applied uniformly to all states
linked to an air quality problem (i.e., the quantification of emission
reductions at CSAPR framework step 3). When evaluating at step 3
whether a control strategy is cost-effective for this purpose, the EPA
considers the incremental cost per ton of emissions reduced, the
magnitude of emissions that can be reduced using a particular control
strategy, and the downwind air quality benefits of implementing such
emission reductions. 81 FR at 74519. The Supreme Court found this
approach, as applied in the original CSAPR rulemaking, to be ``an
efficient and equitable solution to the allocation problem the Good
Neighbor Provision requires the Agency to address.'' Id. at 1607. The
Court held that this approach is: ``[e]fficient because EPA can achieve
the levels of attainment, i.e., of emission reductions, the
proportional approach [urged by respondants in EME Homer City] aims to
achieve, but at a much lower overall cost. Equitable because, by
imposing uniform cost thresholds on regulated States, EPA's rule
subjects to stricter regulation those States that have done relatively
less in the past to control their pollution. Upwind States that have
not yet implemented pollution controls of the same stringency as their
neighbors will be stopped from free riding on their neighbors' efforts
to reduce pollution. They will have to bring down their emissions by
installing devices of the kind in which neighboring States have already
invested.'' Id.
Given the regional nature of the ozone pollution problem and the
requirement that the EPA determine the remainder of its good neighbor
FIP obligation with respect to the 2008 ozone NAAQS for 21 states in
the CSAPR Update region, the EPA reasonably applied the regional
framework endorsed by the Supreme Court as an ``efficient and
equitable'' approach to resolving the remaining good neighbor
obligations interstate transport problem. Id. at 1607. Accordingly, the
EPA evaluated the contributions of all upwind states that are linked to
a given downwind air quality problem, rather than quantifying the
significant contributions of single states or sectors in a vacuum.
Similarly, the EPA evaluated potential control strategies to address
that contribution on a regional, rather than facility- or state-
specific, basis. Such an approach also ensures that each state's
contributions to downwind air quality problems are quantified relative
to the contribution of the other contributing states.
The commenters are also incorrect to assert that the agency's
conclusion that 48 months should be provided for the implementation of
new SCR is in conflict with its position in the original CSAPR
rulemaking. In the original CSAPR, the EPA established NOX
emission budgets in CSAPR based on a cost threshold of $500 per ton,
which was not anticipated to drive any new SCR installation in either
compliance phase. See Table VII.C.2-1, 76 FR 48279 and discussion at 76
FR 48302. As such,
[[Page 65901]]
this control strategy was not central to CSAPR Update implementation.
Notwithstanding that SCR post-combustion controls were omitted from
the EPA's CSAPR emissions budgets at the time, to the extent labor and
supply markets were a consideration for installation timing
requirements for scrubbers in CSAPR in 2011, those variables have
changed over the last seven years. For instance, the EPA noted a sharp
drop in boilermaker person-hours worked between 2008 and 2010,
suggesting that the market at that time had substantial underutilized
capacity whereas today's industry surveys identify labor shortages.\99\
The EPA also disagrees with the commenter's assertion that these
observations regarding crane and steel markets are not reasonable and
thus should not influence the EPA's analysis. While not the sole reason
for the EPA's conclusion that a 48-month timeframe would be necessary
for region-wide control installation, the EPA believes the market for
labor and materials is a relevant weight-of-evidence consideration in
light of reports from companies that supply the tower cranes that there
is a shortage of both equipment and available labor. The crane index
and quarterly construction costs reports are metrics regularly used to
evaluate construction activity by construction consultants and provide
a sense of equipment demand. Moreover, the commenter provides no
evidence to refute the EPA's finding that these equipment markets are
facing periods of higher demand.
---------------------------------------------------------------------------
\99\ Labor Availability for the Installation of Air Pollution
Control Systems at Coal-Fired Power Plants. Andover Technology
Partners. October 18, 2011. Available at http://www.andovertechnology.com/images/boilermaker%20labor%20availability%20final_jes_%2010%2018%202011.pdf.
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Thus, while the EPA does not agree that it is reasonable to
consider a timeframe longer than four years for the expeditious,
region-wide implementation of SCR controls, neither does the EPA agree
that it would be reasonable to assume any shorter timeframe under the
circumstances.
Comment: Some commenters assert that the EPA could identify an
earlier analytic year based on the installation of new SNCRs because
the controls can be implemented more quickly than SCRs.
Response: As explained above, the EPA does not agree that that the
regional installation of SNCRs should drive EPA's selection of an
appropriate future analytic year, primarily because SCR controls are
more effective at reducing NOX emissions and because SCR
controls are more regionally cost-effective at mitigating
NOX. Specifically, the EPA estimates the amount of
reductions available by SCR installation at uncontrolled sources is
nearly triple that available from SNCR installation.\100\ This
difference is significant because the agency is tasked with issuing
FIPs that fully resolve good neighbor obligations and therefore the
agency finds it reasonable to focus its analysis on the timeframe for
installing controls that would be best suited to achieve that goal in
terms of NOX mitigation, downwind air quality improvement,
and cost--i.e., SCR controls. Further, as described in the subsequent
paragraphs, the EPA finds that the regionally implementing
NOX reductions from SNCR would still take a significant
amount of time and would significantly hamper the ability of these EGUs
to obtain further emission reductions from installation of SCRs in the
future.
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\100\ Based on 2017 ozone-season NOX data. Applying
SCR reduction potential of 90 percent (up to a 0.07 lb/mmBtu floor)
as opposed to 25 percent reduction for SNCR to 2017 emission levels
for uncontrolled coal sources emitting at 0.15 lb/mmBtu or greater.
---------------------------------------------------------------------------
First, the EPA noted above that the estimated timing to install
SNCR for multiple boilers at one power plant is approximately 16
months--and can take even longer in practice. Accounting for the
regional factors that must be considered (described previously), it
would take more than 16 months for this control strategy to be
regionally implemented. Starting with promulgation of this action in
December of 2018, the agency believes it would take well into 2020 for
these controls to be feasibly implemented, regionally. As a result, it
is very unlikely that these controls could affect ozone season
NOX attainment demonstrations made in July 2021 for areas
designated serious for the 2008 ozone NAAQS.
Finally, the agency notes the potential for inefficiency in
effectively controlling NOX emissions in the long term by
prioritizing SNCR controls now to the detriment of future
NOX mitigation potential from SCR controls. Installing an
SNCR at a unit in the near term and then upgrading or retrofitting the
unit to an SCR a few years down the road would effectively increase the
cost per ton of that eventual SCR installation as compared to
installing the SCR in the first place. The main difference between the
two systems is the temperature window at which the reaction takes
place. With an SNCR, that window is 900-1050 degrees Celsius, whereas
it drops to a range of 160 to 350 degrees Celsius for an SCR. These
differentials in optimal temperatures influence the location and
modifications necessary for each retrofit technology and therefore
complicate any transition from SNCR to SCR. SNCR can be described as
including a silo or tank (for reagent), a conveyance system for the
reagent, and a properly placed injection lance in the furnace. In terms
of volume occupied, over 90 percent of the system exists outside the
flue gas path. The SCR system, on the other hand, requires a catalytic
reactor and is placed downstream of the economizer. An SCR occupies a
significant space as the catalytic reactor resides in a dedicated
multi-story structure elevated above ground elevation. Over 90 percent
of an SCR's volume exists within the flue and duct work.
The two systems are unique and distinct from one another in their
approach to reducing NOX and the equipment cannot be shared
or dual-purposed due to the size differences, conversion rates, and
reagent material flows based on the application (namely, the location
within the flue gas stream). Consequently, almost none of the capital
cost incurred for an SNCR system can be credited towards installation
of an SCR system. This would result--in most cases--in a higher overall
cost to get to the same level of emission reductions if a source first
installed an SNCR and then upgraded to an SCR as opposed to the initial
installation of an SCR. Such a retrofit would also likely increase the
amount of work, and therefore time, to complete the SCR installation.
Thus, selecting an analytic year and imposing emission reductions
focused on installation of SNCR alone at an earlier date (if this could
even occur on an earlier timeframe regionwide) would potentially
obviate a source's ability to cost-effectively install SCR, a more
effective NOX control, at a later date. The EPA's obligation
in this action was to fully address states' good neighbor obligation
for the 2008 ozone NAAQS. Therefore, it was reasonable for the EPA to
select a future analytic year that would allow for advanced control
installation which would deliver significant reductions, if they were
determined to be necessary. Choosing an earlier analytic year based on
the installation of a SNCR alone would potentially be counterproductive
to EPA's objective to address states' full obligations and severely
limit sources' ability to obtain more significant emission reductions
from SCR in the future to address other control obligations.
b. Non-EGU Control Technologies
The EPA is also evaluating the feasibility of implementing
NOX control
[[Page 65902]]
technologies for non-EGUs stationary sources as part of its
identification of an appropriate future analytic year. While the EPA
did not regulate non-EGUs in the CSAPR Update, the rule did evaluate
the feasibility of NOX controls on non-EGUs in the eastern
United States to assess whether any such controls could be implemented
in time for the 2017 ozone season. In the CSAPR Update, the EPA noted
that there was greater uncertainty in the assessment of non-EGU point-
source NOX mitigation potential as compared to EGUs, and
therefore explained that more time was required for states and the EPA
to improve non-EGU point source data, including data on existing
control efficiencies, additional applicable pollution control
technologies, and installation times for those control technologies. 81
FR 74542. A significant factor influencing uncertainty was that the EPA
lacked sufficient information on the capacity and experience of
suppliers and major engineering firms' supply chains to determine if
they would be able to install the pollution controls on non-EGU sources
in time for the 2017 ozone season. Further, using the best information
available to the EPA at that time, the EPA found that there were more
non-EGU point sources than EGU sources and that these sources on
average emit less NOX than EGUs. The implication was that
there were more individual sources that could be controlled, but
relatively fewer emission reductions available from each source when
compared to the number of EGUs and emission reductions available from
EGUs. Considering these factors, the EPA found that it was
substantially uncertain whether significant aggregate NOX
mitigation would be achievable from non-EGU point sources to address
the 2008 ozone NAAQS by the 2017 ozone season. Id.
Although the EPA determined that there were limited achievable
emission reductions available from non-EGUs by the 2017 ozone season,
the EPA acknowledged that it may be appropriate to evaluate potential
non-EGU emission reductions achievable on a timeframe after the 2017
ozone season to assess whether upwind states continued to have
outstanding good neighbor obligations for the 2008 ozone NAAQS. 81 FR
74522. In particular, the EPA's preliminary assessment in the CSAPR
Update indicated that there may be emission reductions achievable from
non-EGUs at marginal costs lower than the costs of remaining
NOX control strategies available for EGUs. In evaluating
potential non-EGU emission reductions in the CSAPR Update, the EPA
included preliminary estimates of installation times for some non-EGU
NOX control technologies in a technical support document
entitled Assessment of Non-EGU NOX Emission Controls, Cost
of Controls, and Time for Compliance Final Technical Support Document
(henceforth, ``Final Non-EGU TSD''). These preliminary estimates were
based on research from a variety of information sources, including:
Typical Installation Timelines for NOX
Emissions Control Technologies on Industrial Sources, Institute of
Clean Air Companies, December 2006 (all sources except cement kilns and
reciprocating internal combustion engines (RICE)); \101\
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\101\ Institute of Clean Air Companies. Typical Installation
Timelines for NOX Emissions Control Technologies on
Industrial Sources, December 2006. Available at https://c.ymcdn.com/sites/icac.site-ym.com/resource/resmgr/ICAC_NOx_Control_Installatio.pdf.
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Cement Kilns Technical Support Document for the NOX FIP,
U.S. EPA, January 2001; \102\ and
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\102\ U.S. EPA. Cement Kilns Technical Support Document for the
NOX FIP. January 2001. Available at https://www.regulations.gov/document?D=EPA-HQ-OAR-2015-0500-0094.
---------------------------------------------------------------------------
Availability and Limitations of NOX Emission Control
Resources for Natural Gas-Fired Reciprocating Engine Prime Movers Used
in the Interstate Natural Gas Transmission Industry, Innovative
Environmental Solutions Inc., July 2014--prepared for the Interstate
Natural Gas Association of America (INGAA Foundation).\103\
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\103\ INGAA Foundation. Availability and Limitations of
NOX Emission Control Resources for Natural Gas-Fired
Reciprocating Engine Prime Movers Used in the Interstate Natural Gas
Transmission Industry, Innovative Environmental Solutions Inc., July
2014. Available at http://www.ingaa.org/Foundation/Foundation-Reports/NOx.aspx.
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In assessing an appropriate future analytic year for this action,
the EPA has looked to the information compiled in the Final Non-EGU TSD
for the CSAPR Update to evaluate what timeframe might be appropriate
for installing sector- or region-wide controls on non-EGU sources.
Among the control technologies that were evaluated in the Final
Non-EGU TSD, the EPA identified six categories of common control
technologies available for different non-EGU emission source
categories. Final Non-EGU TSD at 19. For four of the technology
categories (SNCR, SCR, low-NOX burners (LNB), and mid-kiln
firing), the EPA preliminarily estimated that such controls for non-
EGUs could be installed in approximately one year or less in some unit-
specific cases. Installation time estimates presented in the Final Non-
EGU TSD considered a timeline that begins with control technology bid
evaluation (bids from vendors) and ends with the startup of the control
technology. See id. at 20. For the other two technology categories
(biosolid injection technology (BSI) and OXY-firing), as well as one
emission source category (RICE), the EPA had no installation time
estimates or uncertain installation time estimates. For example, the
EPA found that the use of BSI is not widespread, and therefore the EPA
does not have reliable information regarding the time required to
install the technology on cement kilns. The installation timing for
OXY-firing is similarly uncertain because the control technology is
installed only at the time of a furnace rebuild, and such rebuilds
occur at infrequent intervals of a decade or more. For those categories
for which preliminary estimates were available, as noted in the Final
Non-EGU TSD, the single-unit installation time estimates provided do
not account for additional important considerations in assessing the
full amount of time needed for installation of NOX control
measures at non-EGUs, including additional time likely necessary for
permitting or installation of monitoring equipment. See id. at 19-21.
These preliminary installation estimates also do not account for
factors such as multi-boiler installations at a particular source and
pre-vendor bid engineering studies.\104\
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\104\ In particular, this document presents different
installation time estimates for SCRs for EGUs and non-EGUs. However,
these installation times are not necessarily inconsistent, because
the EGU time estimate of 39 months mentioned above is based on
multi-boiler installation and factors in a pre-vendor bid
engineering study consideration, whereas the non-EGU SCR
installation time estimates are based on single-unit installation
and do not factor in pre-vendor bid evaluation. Consideration of
these additional factors might extend the time estimate for
installation of SCRs for non-EGUs.
---------------------------------------------------------------------------
In particular, the preliminary estimates of installation times of
approximately a year or less shown in the Final Non-EGU TSD are for
installation at a single source and do not account for the time
required for installing controls to achieve sector-wide compliance.
Thus, the preliminary estimates do not consider time, labor, and
materials needed for programmatic adoption of measures and time
required for installing controls on multiple sources in a few to
several non-EGU sectors across the region. When considering
installation of control measures on sources regionally and across non-
EGU sectors, the time for full sector-wide compliance is uncertain, but
it is likely longer than the installation times shown for control
measures for individual sources in the Final Non-EGU TSD. As discussed
earlier with respect to EGUs, regional,
[[Page 65903]]
sector-wide compliance could be slowed down by limited vendor capacity,
limited available skilled labor for manufacturers such as boilermakers
(who produce steel fabrications, including those for pollution control
equipment), availability of raw materials and equipment (e.g., cranes)
for control technology construction, and bottlenecks in delivery and
installation of control technologies. Some of the difficulties with
control technology installation as part of regional, sector-wide
compliance at non-EGUs, such as availability of skilled labor and
materials, could also have an impact on monitor installation at such
sources. The EPA currently has insufficient information on vendor
capacity and limited experience with suppliers of control technologies
and major engineering firms, which results in additional uncertainty in
the overall installation time estimates for non-EGU sectors.
The EPA notes that its analysis in the Final Non-EGU TSD focused on
potential control technologies within the range of costs considered for
EGUs in the final CSAPR Update, i.e., those controls available at a
marginal cost of $3,400 per ton (2011 dollars) of NOX
reduced or less. The EPA's analysis did not evaluate implementation
timeframes or potential emission reductions available from controls at
higher cost thresholds. See Final Non-EGU TSD at 18. This focus
excluded some emission source groups with emission reduction potential
at a marginal cost greater than $3,400 per ton, including: Industrial/
commercial/institutional boilers using SCR and LNB; and catalytic
cracking units, process heaters, and coke ovens using LNB and flue gas
recirculation. However, while emission reduction potential from these
source groups is uncertain, the timeframe for these control
technologies would be subject to considerations and limitations similar
to those discussed in the preceding paragraphs.
In summary, there is significant uncertainty regarding the
implementation timeframes for various NOX control
technologies for non-EGUs. While the EPA has developed preliminary
estimates for some potential control technologies, these estimates 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.
Moreover, these preliminary estimates do not account for the impacts of
sector- and region-wide compliance, which may be complex considering
the diversity of non-EGU sources as well as the greater number and
smaller size of the individual sources. The EPA did not receive any
comments on its proposal that would contradict the importance of these
considerations. Accordingly, in light of these considerations, the EPA
believes that it is reasonable to assume for purposes of this action
that an expeditious timeframe for installing sector- or region-wide
controls on non-EGU sources may be four years or more.
Comment: One commenter suggests that the EPA's assessment of
feasibility of control strategies for non-EGU sources rests on a need
for further information gathering, when the agency has had ample time
to do this work already, citing U.S. Sugar Corp. v. EPA, 830 F.3d 579,
644 (D.C. cir. 2016) (``The Agency was obligated to collect the data it
needed, and Congress gave it the authority to do so.''). The commenter
asserts that the EPA cited this same basis for deferring a full remedy
in the CSAPR Update and that the EPA has been invoking an alleged need
to gather more information on these sources for more than a decade,
citing the original CSAPR rulemaking and CAIR. The commenter states
that it is unlawful and arbitrary for the EPA to rely on a need for
information that it has failed to collect or analyze despite its own
longstanding recognition that the information is needed, citing Sierra
Club v. Johnson, 444 F. Supp. 2d 46, 53 (D.D.C. 2006) (explaining that
statutory deadlines in the Clean Air Act indicate that Congress
intended agencies to prioritize timeliness over perfection).
Another commenter notes that the EPA indicated in separate
litigation that it intended to take steps to improve its data on non-
EGU controls by November 2017, citing Opposition and Cross-Motion for
Summary Judgment, Sierra Club v. Pruitt, No. 3:15-cv-04328 (N.D. Cal.
Dec. 15, 2016) ECF No. 63., but that it has never completed these
steps. The commenter asserts that the determination is therefore based
on speculation. The commenter continues that the EPA does not explain
why the information that was previously found to be insufficient is now
sufficient for purposes of this action, nor does the EPA explain why it
still has not quantified or analyzed the potential for cost-effective
emission reductions from non-EGU sources. Thus, the commenter asserts
that the EPA ignores its own framework for determining the availability
and cost-effectiveness of non-EGU controls. The commenter claims that
this is a change in position from the CSAPR Update where the EPA stated
that a final determination of whether the emission reductions from that
rule would be sufficient to address the good neighbor obligation would
depend upon an evaluation of non-EGU sources.
Response: The commenter is incorrect in asserting that the EPA's
basis for its conclusion in this action regarding the implementation
timeframe for control strategies for non-EGU sources rests on the
assumption that more information gathering is necessary. While the EPA
has discussed the uncertainties associated with determining appropriate
implementation timeframes for a number of control measures and
technologies that could be applied to a large number and variety of
non-EGU sources, as discussed above the EPA has evaluated the
information known to the agency regarding various control measures and
technologies and the factors affecting the installation of various
control technologies. Considering the information known to the agency,
as outlined in the Final Non-EGU TSD, the EPA has reasonably concluded
that expeditious implementation of additional controls for non-EGU
sources may be four years or more. The commenter is thus incorrect to
suggest that the EPA has further deferred its evaluation of non-EGU
sources. This is the same information that the EPA relied upon to
determine that significant and meaningful non-EGU emission reductions
could not feasibly be implemented by the 2017 ozone season in the CSAPR
Update. 81 FR 74542. The commenter has not provided information that
would contradict the EPA's conclusion that it is appropriate to assume,
based on the information known to the agency, that four years or more
should be provided for the installation of controls for non-EGU
sources.
This approach is not a change in policy. In the CSAPR Update, the
EPA only stated that it could not conclude, at that time, whether
additional reductions from NOX sources (including non-EGUs)
would be necessary to fully resolve these obligations. In the CSAPR
Update, the EPA did indicate that it anticipated the need to evaluate
non-EGUs to evaluate the full scope of upwind states' good neighbor
obligations, and the agency has done so here in so far as evaluating
control feasibility. Specifically, in selecting the appropriate future
analytic year in which to evaluate air quality, contributions, and
NOX reduction potential, as necessary, the EPA considered
the implementation timeframes for controls at EGUs as well as non-EGUs.
As discussed in more detail later, the EPA's analysis showed
[[Page 65904]]
that there would be no remaining air quality problems in 2023 in the
eastern U.S., and thus the EPA has concluded that no such additional
reductions beyond those on-the-books or on-the-way controls are
necessary, whether from non-EGUs or otherwise, to bring downwind areas
into attainment and maintenance of the 2008 ozone NAAQS. Because the
air quality modeling results for 2023 show that air quality problems in
the eastern U.S. would be resolved by 2023, the EPA has not further
evaluated the cost-effectiveness of the control options considered for
the feasibility analysis. This approach is consistent with the EPA's
four-step framework and does not rely on the relative cost-
effectiveness of controls for non-EGU sources.
The commenter's reliance on U.S. Sugar and Sierra Club is therefore
inapposite. In U.S. Sugar, the court was reviewing the EPA's decision
not to regulate certain sources under a different provision of the CAA
based on a lack of information. 830 F.3d at 642-43. The court, however,
found that the agency's duty to regulate these sources was
nondiscretionary and that the statute provided the agency with explicit
authority to gather information from the affected sources for this
purpose. Id. at 644. Here, the EPA is not deferring a nondiscretionary
duty to issue a regulation addressing controls at non-EGU sources, but
has evaluated the potential NOX control measures and
technologies at non-EGU sources using all information known to the
agency, as described in the Final Non-EGU TSD, in order to inform its
further analysis of upwind state obligations under the good neighbor
provision. In Sierra Club, the court laid out the standard for
determining the time needed to promulgate regulations under the CAA
after the EPA fails to perform the mandatory duties within the
statutorily prescribed timeframe. 444 F. Supp. 2d at 52. As the
commenters note, the court stated, among other things, that courts will
generally not provide additional time to promulgate a regulation
``simply to improve the quality or soundness of the regulations to be
enacted.'' Id. at 53. However, the court in that case addressed a
mandatory deadline set by the statute to promulgate a plan; it was not
evaluating the EPA's interpretation of a statutory provision like the
good neighbor provision that does not set an express deadline for
implementation of emission reductions.
Notably, the court in Sierra Club did find that the statutory
deadlines in the Clean Air Act indicate that Congress intended agencies
to prioritize timeliness over perfection. 444 F. Supp. 2d at 53. Thus,
to the extent another commenter chides the EPA for acting based on the
information before the agency, even if it has not completed all steps
to improve its data for non-EGU sources, the Sierra Club decision
supports the agency's approach. Moreover, because the EPA did not need
to evaluate either the cost-effectiveness or NOX reduction
potential of either EGU or non-EGU sources, the commenter's concern
with whether the EPA has completed steps to improve its data on these
issues is irrelevant. Nonetheless, the EPA notes that the particular
efforts outlined in the court filing referred to by the commenter were
taken in support of the EPA's request in a mandatory duty suit that the
court permit the agency several years to develop a rulemaking to
address the good neighbor obligations with respect to the 2008 ozone
NAAQS for Kentucky and 20 other states. In that filing, the EPA
outlined steps that the agency believed would be necessary to
promulgate a rulemaking if the EPA's analysis demonstrated that
additional emission reductions would be required from sources in upwind
states, including what the EPA viewed as necessary analysis regarding
non-EGU sources. The EPA acknowledged in that same declaration that one
possible result of the EPA's analysis could be a determination that
downwind air quality problems would be resolved, in which case a cost-
effectiveness analysis would be unnecessary. See Opposition and Cross-
Motion for Summary Judgment, Exhibit 1 (Decl. of Janet G. McCabe) para.
98, Sierra Club v. Pruitt, No. 3:15-cv-04328-JD (N.D. Cal. Dec. 15,
2016), ECF No. 63. As the EPA could not know the results of any future
air quality modeling before it was performed, the EPA's proposed
timeline assumed that such an analysis might be required. Id. para.
170. Ultimately, the court disagreed with the EPA's proposed timeline
and provided only one year from its order--until June 30, 2018--for
promulgation of a rulemaking addressing Kentucky's good neighbor
obligation, which was insufficient time to complete all of the steps
outlined in the EPA's declaration, thereby requiring the EPA to
prioritize certain steps and eliminate others, including the additional
efforts intended to improve data regarding the feasibility and cost-
effectiveness of controls. Nonetheless, because the first step of the
EPA's analysis demonstrated that there would be no remaining air
quality problems in 2023 in the eastern U.S., it turned out to be
unnecessary for the EPA to finalize the efforts to improve its data
regarding the cost-effectiveness of controls before finalizing this
action. Thus, the representations that the EPA made to the court
regarding the steps necessary to take this action no longer apply under
the present circumstances.
3. Focusing on 2023 for Analysis
As discussed in section III.B, the EPA weighed several factors to
identify an appropriate future analytic year for evaluating interstate
transport obligations for the 2008 ozone NAAQS. First, the EPA
identified the relevant attainment dates to guide the EPA's
consideration as 2021 and 2027, respectively the Serious and Severe
area attainment dates for the 2008 ozone NAAQS.
Second, the EPA identified and analyzed the feasibility and timing
needed for installing additional NOX emissions controls. As
discussed in section III.B.2, the EPA believes it is appropriate to
assume that planning for, installing, and commencing operation of new
controls, regionally, for EGUs and non-EGUs would take up to 48 months,
and possibly more in some cases, following promulgation of a final rule
requiring appropriate emission reductions. This period of time
reflects, among other considerations, the time needed to regionally
develop new post-combustion SCR projects--systems that continue to
represent the engineering gold-standard in terms of reducing
NOX from the U.S. power sector.
To determine how this feasibility assessment should influence
potential compliance timeframes, the EPA believes it is appropriate to
consider the date of promulgation of the rule that would establish
emission reduction requirements if necessary and thereby provide notice
to potentially regulated entities that actions will be required for
compliance. The EPA, therefore, considered the timeframe in which this
rulemaking would be finalized. As discussed previously, the EPA is
subject to several statutory and court-ordered deadlines to issue FIPs
to address any outstanding requirements under the good neighbor
provision for the 2008 ozone NAAQS for several states. The agency is
issuing this final action in light of those obligations. This action
will be signed no later than December 6, 2018, consistent with a court
order to take action addressing the FIP obligation for five
states.\105\ Considering the EPA's conclusion that 48 months is a
reasonable, and potentially expeditious,
[[Page 65905]]
timeframe for implementation of substantial regional control strategies
considered herein, emission reductions from these control strategies
would not be feasible until the 2023 ozone season. In other words, 48
months from a final rule promulgated in December 2018 would be December
2022, after which the next ozone season begins in May 2023. Considering
the time necessary to implement the controls calculated from a
realistic timeframe in which EPA would expect to promulgate a final
rule requiring such controls, the EPA believes that such reductions on
a variety of sources across the region are unlikely to be feasibly
implemented for a full ozone season until 2023.
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\105\ Order, New York v. Pruitt, No. 1:18-cv-00406-JGK (S.D.N.Y.
June 12, 2018), ECF No. 34. The five states are Illinois, Michigan,
Pennsylvania, Virginia, and West Virginia.
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Consistent with the court's holding in North Carolina, the agency
considers this timing in light of upcoming attainment dates for the
2008 ozone NAAQS. While 2023 is later than the next attainment date for
nonattainment areas classified as Serious (i.e., July 20, 2021), for
the reasons discussed above the EPA does not believe it is reasonable
to expect that additional regional emissions control requirements could
be developed and implemented by the Serious area attainment date.
Rather, the most expeditious timeframe in which additional regional
control strategies could be implemented at both EGUs and non-EGUs is 48
months after promulgation of a final rule requiring appropriate
emission reductions. At the same time, the EPA does not believe that it
should generally take longer than 2023 to install emissions controls on
a regional basis, based on the analysis above. Therefore, there is no
basis to postpone any potentially needed emission reductions to the
next attainment date after 2023, which is for nonattainment areas
classified as Severe (i.e., July 20, 2027). Accordingly, the EPA
believes implementation of additional emission reductions by 2023 is
the earliest feasible timeframe that could be reasonably required of
EGU and non-EGU sources that would be potentially subject to control
requirements. Although this year does not precisely align with a
particular attainment date, it reflects the year that is as expeditious
as practicable for regionwide implementation, while also taking into
account the relevant attainment dates.
Given the current stage of the 2008 ozone implementation cycle, the
EPA's feasibility analysis set forth above, the relevant attainment
dates, and the courts' holdings in North Carolina and EME Homer City,
the EPA believes that 2023 is the most appropriate year for it to
assess downwind air quality and to evaluate any remaining requirements
under the good neighbor provision for the 2008 ozone NAAQS with regard
to all states covered in this action.
Comment: Several commenters contend that the EPA's selection of a
2023 analytic year is inappropriate because it does not address
downwind states' obligations to attain the 2008 Ozone NAAQS by the July
20, 2021 attainment date for nonattainment areas classified as Serious.
The commenters generally cite North Carolina for the proposition that
EPA must esatablish interstate transport compliance deadlines under the
good neighbor provision that are identical to deadlines for downwind
states to achieve attainment with the NAAQS. The commenters note that,
in that decision, the D.C. Circuit rejected portions of CAIR on the
grounds that it did not require upwind contributors to eliminate their
significant contributions in time for downwind areas to meet their
impending attainment deadlines. The commenters state that the
attainment date for areas classified as Moderate nonattainment for the
2008 ozone NAAQS passed on July 20, 2018, and the next attainment dates
for the 2008 ozone NAAQS will be Serious area attainment date. Because
July 20, 2021 falls during the 2021 ozone season, the 2020 ozone season
will be the last full ozone season from which data can be used to
demonstrate attainment of the NAAQS by the July 2021 attainment date.
The commenters contend that North Carolina compels the EPA to identify
upwind reductions and implementation programs to achieve these
reductions, to the extent possible, during or before the 2020 ozone
season.
One commenter further notes that CAA sections 110(a)(2)(D) and 182
require the EPA to implement the good neighbor provision ``consistent
with'' applicable attainment deadlines, and notes that the D.C. Circuit
held in North Carolina that this requirement is unambiguous. The
commenter states that the attainment deadlines in section 182 are fixed
dates with which the EPA must comply, citing Sierra Club v. Johnson,
294 F.3d 155, 161 (D.C. cir. 2002) (``[Section] 181(a)(1)[ ] as written
sets a deadline without an exception.''), and Train v. Natural
Resources Defense Council, 421 U.S. 60, 64-65 (1975) (Congress
``required'' attainment of air quality standards ``within a specified
period of time''). The commenter further states that the EPA is bound
by the requirement to eliminate significant contributions ``as
expeditiously as practicable'' but further notes that the use of the
words ``but not later than'' the dates listed in section 182
established the attainment deadlines as an express limit on the EPA's
discretion. The commenter therefore contends that the EPA's claim of
authority to fully implement the good neighbor provision ``as
expeditiously as practicable'' and later than the Serious attainment
dates is an exercise in rewriting the statute.
Commenters also contend that the EPA's consideration of feasibility
cannot justify delaying action or analysis until 2023. One commenter
contends that the D.C. Circuit's decision in North Carolina rejected
compliance deadlines in CAIR that were based on ``feasibility
restraints such as the difficulty of securing project financing and the
limited amount of specialized boilermaker labor to install controls''
but were not ``consistent with . . . compliance deadlines for downwind
states.'' 531 F.3d at 911-12. The commenter asserts that the Clean Air
Act's attainment deadlines ``leave[ ] no room for claims of
technological or economic infeasibility,'' citing Union Elec. Co. v.
EPA, 427 U.S. 246, 258 (1976) (deadlines are ``intended to foreclose
the claims of emission sources that it would be economically or
technologically infeasible for them to achieve emission limitations
sufficient to protect the public health within the specified time'');
id. at 259 (Congress ``determined that existing sources of pollutants
either should meet the standard of the law or be closed down'')
(quoting S. Rep. No. 91-1196, pp. 2-3 (1970)).
Response: The EPA does not agree that either the text of the
statute or the court's holding in North Carolina dictates that there
can only be one appropriate future analytic year and that this year
must be identical to an attainment deadline or forecloses consideration
of the feasibility of implementing emission reductions in determining
the appropriate future analytic year.
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 emission reductions. On its face, the good
neighbor provision is therefore ambiguous as to when the upwind
emission 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
[[Page 65906]]
provision does not specify what it means to be ``consistent with'' the
other provisions of the Act, and courts have routinely held that this
phrase is ambiguous See, e.g., EDF, 82 F.3d at 457 (holding the
requirement that implemention 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 emission
reductions.\106\ Therefore, Congress has left a gap for EPA to fill.
See Chevron v. NRDC, 467 U.S. 837, 843 (1984). In light of this
ambiguity, the good neighbor provision cannot be read to require
implementation of upwind emission reductions on a specific timeframe,
and a compliance timeframe imposed pursuant to a good neighbor plan
should be considered reasonable so long as the EPA has demonstrated
that it is chosen in consideration of and is not inconsistent with
downwind attainment dates and other relevant attainment planning
requirements in title I.
---------------------------------------------------------------------------
\106\ It is worth noting that the statutory text of CAA section
181(a) does not itself establish the attainment dates for the 2008
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 (Mar. 6, 2015); 40 CFR 51.1103.
---------------------------------------------------------------------------
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 five-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 section 181(a)(1) table may be (and often
are) modified pursuant to other provisions in section 182, considering
factors such as measured ozone concentrations and the feasibility of
implementing additional emission reductions. For example, the six-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 section 181(a)(5). And pursuant to
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 ``bump-ups'' like this, the date for an area to attain the
2008 ozone NAAQS could be extended to 2021, 2027, and 2032, and each of
these deadlines could be subject to further extensions of up to two
years pursuant to 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); 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'' (emphasis added)).
Thus, while the statute indicates that downwind areas should attain
as expeditiously as practicable, but no later than the attainment dates
specified in 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 by the EPA). Thus, the EPA's approach to evaluating upwind
emission 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. By contrast, the commenters' premise that all upwind
emission reductions must occur before the earliest downwind attainment
date, without regard to feasibility, is inconsistent with the framework
of section part D as it applies to downwind states.
The ambiguity in the good neighbor provision regarding the
relationship of upwind state emission 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 are already currently attaining the standard (or even designated
attainment) \107\ but which may have problems maintaining the standard
in the future (i.e., maintenance receptors). 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 EPA expected may have problems
maintaining attainment of the standard under certain circumstances.
While many of the maintenance receptors are in areas currently
designated nonattainment, the EPA's analysis suggests that these areas
will be able to demonstrate (and in many cases have in fact
demonstrated) \108\ attainment of the NAAQS by the attainment date or
otherwise receive a clean data determination that relieves the state of
further planning obligations. 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 in nonattainment of the standard. The
commenters present no argument as to why upwind obligations for states
linked to downwind maintenance areas
[[Page 65907]]
must be pegged to future analytic years identical to attainment dates
which may not themselves be relevant to maintenance receptors.
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\107\ 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).
\108\ 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)); 82 FR 50814
(November 2, 2017) (determination of attainment by attainment date
of Philadelphia PA-NJ-MD-DE (Philadelphia receptor)).
---------------------------------------------------------------------------
The EPA further disagrees 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 giving any consideration to upcoming attainment
dates in downwind states when setting compliance deadlines for upwind
emission reductions in CAIR: There, 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 emission reductions be identical to any attainment
date, let alone the next upcoming one. 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 (but, as with the
future analytic year selected in this action, well before the next date
after that one) or that are based, in part, on the feasibility of
implementing upwind emission 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 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.
The commenter's citations to Sierra Club and Train also do not
contradict the EPA's interpretation. At issue in Sierra Club was
whether the EPA could extend the deadline for attainment without
reclassifying the area as a ``Severe'' nonattainment area and suspend
other planning requirements based on the conclusion that continued
nonattainment would be caused by emissions transported from other
states. 294 F.3d at 159. Thus, although the court indicated that the
attainment dates are ``without exception,'' it specifically stated that
this was with respect to ``setbacks owing to ozone transport.'' Id. at
161. The court did not contradict the conclusion that states are only
required to implement measures that are ``reasonably available'' in
downwind areas, deferring to the EPA's interpretation of section 172(c)
as not requiring measures that ``would not advance the attainment date,
would cause substantial widespread and long-term adverse impacts, or
would be economically or technologically infeasible.'' Id. at 162-63,
quoting 66 FR 608. Sierra Club therefore supports EPA's position that
it is appropriate to consider the feasibility of implementing control
strategies when evaluating appropriate compliance timeframes under the
good neighbor provision. And although the Supreme Court in Train stated
that the Act requires states to attain the air quality standards
``within a specified period of time,'' the court pointed this out in a
background discussion describing the evolution of the CAA from a prior
period when the statute included no attainment dates. 421 U.S. at 65.
Moreover, the decision was issued in 1975, before the 1990 amendments
added the complicated set of provisions governing the timing concerns
and control obligations imposed on states with ozone nonattainment
areas. Thus, this decision cannot be relied upon to read out the
flexibilities subsequently provided in the Act.\109\ (And, of course,
in any event it does not address requirements such as the good neighbor
provision, which contains no express deadlines or other timeframes.)
---------------------------------------------------------------------------
\109\ Commenters also cite Union Electric for the proposition
that economic and technological feasibility may not be considered,
but the Court was also reviewing an earlier version of the Clean Air
Act that has since been amended to add the specific provisions for
ozone nonattainment areas discussed in this section which allow for
consideration of economic and technological feasibility. 427 U.S. at
249-50.
---------------------------------------------------------------------------
CAA section 110(a)(2)(D)(i) (the good neighbor provision) and part
D (governing nonattainment requirements), when read together, do not
unambiguously require good neighbor emission reductions by a particular
deadline. And in North Carolina the court simply found that EPA must
make an effort to ``harmonize'' its upwind good neighbor reductions
with downwind attainment dates. 531 F.3d at 911-12. The EPA has
reasonably harmonized these provisions to require good neighbor
emission reductions as expeditiously as practicable to benefit downwind
areas, taking into account their attainment dates as well as how
expeditiously upwind controls could feasibly be implemented. Thus,
where the EPA was able to identify substantial upwind emission
reductions available by the upcoming attainment date, as in the CSAPR
Update, the EPA implemented those reductions. However, where additional
controls could not be feasibly implemented by the next immediate
attainment date, the EPA has instead reasonably determined it was
appropriate to analyze air quality in the future year that represents
the most expeditious timeframe for implementation of such controls
after that date, but before the following attainment date. The EPA
reasonably reads the good neighbor provision and the gaps left in the
statutory scheme by Congress to allocate responsibility between the
upwind and downwind states in a manner that aligns with the overall
structure of CAA Title I. See, e.g., 81 FR at 74515-16, 74535-36.
Notably, the consequence of reading the statute as the commenters
suggest would be profound: Emission reductions would be required even
if such reductions could be achieved only by the use of manifestly
infeasible upwind control measures, an obligation not imposed on
downwind nonattainment areas due to the availability of extensions and
reclassifications, described earlier, which provide more time for such
areas to implement reductions to attain the relevant NAAQS. Cf. S. Rep.
No. 95-127, at 42 (1977) (the good neighbor provision is intended to
``mak[e] a source at least as responsible for polluting another State
as it would be for polluting its own State''--not more responsible)
(emphasis added). Nothing in the CAA or judicial precedents requires
this result.
Comment: One commenter suggests that EPA cannot rely on the need to
avoid over-control to justify the choice of the 2023 analytic year. The
commenter states that, in EME Homer City, the Supreme Court made clear
that, while EPA should strive to avoid over-control, ``the Agency also
has a statutory obligation to avoid `under-control.''' 134 S. Ct. at
1609. The commenter suggests that, should over-control become an issue
at some future time, such as in 2023, the EPA can address that issue
when it arises.
Response: The EPA disagrees with the commenter's assertion that the
EPA has inappropriately weighted concerns about over-control of upwind
state emissions. The Supreme Court and the D.C. Circuit have both held
that EPA may not require emission reductions that are greater than
necessary to achieve attainment and maintenance of the NAAQS in
downwind areas. See EME Homer City, 134 S. Ct. at 1608; EME Homer City
II, 795 F.3d at 127. While the Supreme Court indicated that ``EPA must
have leeway'' to balance the possibilities of under-control and over-
control and that ``some amount of over-
[[Page 65908]]
control . . . would not be surprising,'' the Court did not indicate
that the EPA should ignore the risk of over-control. 134 S. Ct. at
1609. Rather, the Court held, ``If EPA requires an upwind State to
reduce emissions by more than the amount necessary to achieve
attainment in every downwind State to which it is linked, the Agency
will have overstepped its authority, under the Good Neighbor
Provision.'' Id. at 1608. On remand in EME Homer City II, the D.C.
Circuit gave that holding further meaning when it determined that the
CSAPR phase 2 ozone season NOX budgets for 10 states were
invalid because EPA's modeling showed that the downwind air quality
problems to which these states were linked when EPA projected air
quality to 2012 would be entirely resolved by 2014, when the phase 2
budgets were scheduled to be implemented. 795 F.3d at 129-30. Thus, the
Court did not hold that over-control was a secondary consideration or
an issue that could be deferred to some indefinite future course
correction, but rather that it was a primary constraint on the EPA's
authority.
Under the current circumstances, the EPA is determining that
substantial additional emission reductions cannot be achieved until
2023 because the implementation of additional control strategies not
already considered and implemented in the CSAPR Update would take at
least four years to accomplish. Thus, in order to ensure that the
emission reductions that might be achieved from the implementation of
such controls would not be more than necessary to address downwind air
quality problems, the EPA reasonably evaluated air quality in the
future year when implementation of such controls could reasonably and
feasibly be expected to occur. Had the EPA instead evaluated air
quality in an earlier year (e.g., the 2021 Serious area attainment
date), even though emission reductions from these control strategies
could not be implemented for several more years, the EPA could not have
ensured that the emission reductions would still be necessary by the
time of implementation. Here, where the EPA has information indicating
that such emission reductions would likely not be necessary to address
downwind air quality problems by the time they could feasibly and
expeditiously be implemented, the D.C. Circuit's holding in EME Homer
City II suggests that the EPA may not have the authority under the good
neighbor provision to require such additional emission reductions. In
any event, the court's holding suggests that it is prudent for the EPA
to exercise its discretion taking into consideration, among other
factors, the prohibition against over-control as one of multiple
scientific, policy, and legal considerations informing the selection of
a future analytic year for projection of air quality at step 1 of the
four-step framework. Thus, it is reasonable for the EPA to harmonize
this consideration with the EPA's reasonable anticipation of how long
it would take to accomplish substantial additional emission reductions.
Comment: One commenter contends that North Carolina required that
the EPA model nonattainment and maintenance in the earliest compliance
year that would align with the next attainment deadline, which is
effectively the 2020 ozone season for the July 2021 Moderate area
attainment date. Under the four-step framework, the commenter asserts
that the EPA must first identify whether any downwind receptors are
expected to have problems attaining or maintaining the 2008 ozone NAAQS
in 2020 and then identify the upwind states that are contributing to
those downwind problems. The commenter then contends that EPA should
evaluate whether those unlawful contributions could be reduced through
compliance with state budgets established using the next most cost-
effective NOX control technology that EPA has not yet relied
upon to establish a good neighbor provision rule, in this case,
starting up and operating idled SNCR controls.
Another commenter states that the Ozone Transport Commission (OTC)
has already conducted modeling for 2020, which shows that a number of
receptor sites will exceed the 2008 ozone standard in 2020. In light of
this modeling, the commenter asserts that it would be arbitrary for the
EPA to dismiss the likelihood of continued attainment and maintenance
difficulties through and in 2020 or to fail to conduct comprehensive
modeling for the years before 2023.
Response: As discussed earlier, the EPA does not agree that it is
obligated to review air quality only in a year associated with the next
attainment date, particularly under the present circumstances where its
analysis of potential control strategies shows that new control
strategies cannot be feasibly implemented within that timeframe.
Further, the EPA does not believe it would be reasonable to implement
the next most costly control technology simply to achieve any amount of
additional reductions in the near term. As discussed in section III.B.2
earlier, the EPA has already determined in the CSAPR Update that the
operation of idled SNCR is not a cost-effective control strategy as
compared to other available short term control strategies because the
operation of such controls would result in small emission reductions
and small downwind air quality improvements relative to the cost and
relative to the much more significant emission reductions and ozone
improvements the EPA determined were available from less-costly control
strategies.\110\ Thus, it is incorrect to refer to the operation of
SNCR as the ``next most cost-effective'' control strategy because the
EPA concluded the control strategy was simply not cost-effective
relative to other near-term control strategies.
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\110\ For instance, based on 2017 heat input, SNCR coal-fired
operation reflected a small portion (8 percent) of the total coal-
fired fleet operation. Not only is it a small inventory of units,
but the additional reductions from these sources would be small as
the SNCR fleet was already averaging a nationwide ozone-season
emission rate of 0.16 lb/mmBtu and most SNCR-controlled units were
emitting at levels consistent with control operation. Less than 1
percent of the 2017 coal-fleet heat input had a SNCR and was
operating at emission rates (greater than 0.3 lb/mmBtu) that would
suggest additional reductions would be available from better SNCR
operation.
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The EPA notes that it would have been difficult under the
circumstances to conduct air quality modeling for both the 2020
attainment date suggested by the commenters and the 2023 compliance
timeframe associated with the additional control strategies discussed
earlier. Air quality modeling is a resource- and time-consuming
process, as described in more detail in Section III.C and in the
technical support documents in the record. Air quality modeling for a
future year requires more than three months to develop detailed
emission projection inventories for each emissions sector for the
future year (with many of the inventories themselves derived from
running other models) and to pre-process these emissions data for input
to the air quality model. Once the inputs are prepared, a month or more
is required to run the air quality model and post-process the outputs
in order to produce results, followed by additional analysis to
interpret the results. Producing contribution data, if necessary, also
requires additional time to run a different, more complex modeling tool
(i.e., modeling with source apportionment) and to interpret the
results. All told, preparing for, completing, and interpreting air
quality modeling data for a future year generally takes on the order of
6 months. Thus, modeling more than one future year would have required
significant additional time beyond that available to
[[Page 65909]]
the agency in light of the court-ordered deadline to propose an action
fully addressing the good neighbor obligation for the 2008 ozone NAAQS
for several states by June 30, 2018, and to take final action by
December 6, 2018.\111\ In light of the resource and time constraints,
the EPA determined that it was appropriate to select a single future
analytic year that was most likely to permit the agency to fulfill its
obligation to determine whether any good neighbor requirements remain
unfulfilled for the 2008 ozone NAAQS. Accordingly, the EPA reasonably
chose to only model air quality in 2023 in order to target the control
strategies that were most likely to impact downwind air quality. Cf.
Sierra Club v. Johnson, 444 F. Supp. 2d 46, 53 (D.D.C. 2006)
(explaining that statutory deadlines in the Clean Air Act indicate that
Congress intended agencies to prioritize timeliness over perfection).
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\111\ Order, New York v. Pruitt, No. 1:18-cv-00406-JGK (S.D.N.Y.
June 12, 2018), ECF No. 34 (setting deadline for EPA to address FIP
obligation for Illinois, Michigan, Pennsylvania, Virginia, and West
Virginia). The EPA's time to conduct the modeling was additionally
constrained by the court-ordered deadline to take final action
addressing the good neighbor obligation for Kentucky by June 30,
2018. See Order, Sierra Club v. Pruitt, No. 3:15-cv-04328 (N.D. Cal.
May 23, 2017), ECF No. 73. Because the Kentucky action addressed the
same problem of regional interstate ozone transport for the 2008
ozone NAAQS, it was necessary to complete the modeling in time for
the EPA to issue a proposed action for Kentucky in advance of that
deadline.
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If the EPA had analyzed air quality in 2020 instead of 2023, in
order to strictly adhere to the attainment dates under the Act, as the
commenters suggest, and identified downwind air quality problems in
that year, the agency would not have been able to identify any cost-
effective emission reductions that could be implemented in that year.
As explained earlier, the EPA has already addressed control strategies
that could be implemented in the short term and that were considered to
be cost-effective. If the EPA issued a rule that focused instead only
on the limited amount of emission reductions potentially achievable
from additional control strategies feasible to implement by 2020--i.e.,
from the optimization of SNCR--the EPA is not aware of any information
that would change its analysis of the cost-effectiveness of those
controls, and accordingly believes that those controls would be
unlikely to be implemented. Under these circumstances, any downwind air
quality problems projected in 2020 would remain.
The EPA believes that a more substantial amount of emission
reductions is likely achievable from the implementation of new controls
(SCR and SNCR) at EGUs or from the implementation of various control
strategies at non-EGUs, but its analysis shows that such control
strategies could not be feasibly implemented by the 2020 attainment
date (or, indeed, for several years thereafter). Thus, if the EPA had
relied on modeling for 2020 to identify downwind air quality issues, as
the commenter urges, the EPA could not ensure that implementation of
the emission reductions achievable with these control strategies
several years later would be justified by continued downwind air
quality problems (a concern justified by the results of the 2023
modeling cited in this action). NOX emissions levels are
expected to decline in the future through the combination of the
implementation of existing local, state, and federal emission reduction
programs and changing market conditions for generation technologies and
fuels.\112\ Therefore, were the EPA to evaluate downwind ozone
concentrations and upwind state linkages in a future year that precedes
the date when actual compliance is anticipated (i.e., the timeframe
within which additional control strategies can feasibly be
implemented), the EPA could not ensure that the emission reductions
will be ``necessary to achieve attainment'' in any downwind area by the
time they were implemented. EME Homer City, 134 S. Ct. at 1608. While
the Supreme Court indicated that the EPA was entitled to ``leeway,''
id. at 1609, the EPA does not believe it would have been consistent
with the EME Homer City decisions to impose substantially greater
emission reductions several years after the modeling year used to
identify downwind air quality problems without ensuring that such
reductions would be necessary by the time that they can reasonably be
anticipated to be implemented, i.e., without ensuring that they would
not over-control relative to downwind air quality. Such an approach
would only replicate the circumstances the D.C. Circuit found
impermissible in CSAPR in EME Homer City II.
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\112\ Annual Energy Outlook 2018. Electricity Supply,
Disposition, Prices, and Emissions. Reference Case. Department of
Energy, Energy Information Administration.
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Thus, if the EPA were to rely on only air quality modeling for
2020, the EPA would be faced with a choice between the possibility of
under-control if it promulgated a rule focusing only on the cost-
effective emission reductions achievable by the 2020 ozone season, and
the potential for a significant amount of over-control if it
promulgated a rule requiring substantial emission reductions to be
implemented several years after any downwind ozone problems projected
in 2020. Given the limited availability of potential emission
reductions by the 2020 attainment date, the EPA instead has reasonably
chosen to model downwind air quality in a year associated with a
compliance timeframe consistent with the NOX control
strategies anticipated to result in more meaningful improvements in
downwind areas.
While the EPA is aware of the modeling conducted by the OTC for
2020, the EPA does not believe that this information demonstrates that
the EPA's decision to model 2023 was unreasonable. As already noted,
the EPA has already implemented all cost-effective control strategies
that could be implemented in the near term under the CSAPR Update, and
does not believe additional cost-effective control strategies can be
implemented by the 2020 ozone season, even if the modeling did
appropriately identify downwind air quality problems in that year.
Moreover, despite asserting that the OTC used ``EPA-approved methods''
for the modeling, the commenter did not provide sufficient information
regarding the inputs and methodology for the modeling such that the EPA
could rely on the OTC modeling for purposes of this action. For the
same reasons described more fully below in section III.C.4 with regard
to the OTC's 2023 projections, the EPA also cannot conclude that the
projections are reliable for all of the areas identified as having
apparent projected air quality problems in 2020. Without reliable
projected design values, the EPA cannot appropriately determine whether
emission reductions implemented in that year (even assuming, contrary
to EPA's conclusions in this action, that any additional control
strategies that could be implemented in that year would be both
feasible and cost-effective) would under- or over-control upwind state
emissions.
It is worth noting that the EPA was not aware at the time that it
selected the 2023 modeling year that the results would show no
remaining air quality problems in the East. The EPA certainly
anticipated that ozone concentrations would improve over time relative
to the 2017 modeling conducted for the CSAPR Update. However, the EPA
had previously conducted modeling for 2023, released in Janaury 2017
and discussed further in section III.C, that showed at least one
potential maintenance receptor in Tarrant County, Texas. See Notice of
Data
[[Page 65910]]
Availability, 82 FR 1733, 1737.\113\ The EPA accepted comments on this
modeling and made adjustments to the emission inventories and other
modeling inputs before running the model for 2023 again for purposes of
this action after determining that 2023 would also be an appropriate
year to evaluate for purposes of the remaining good neighbor
obligations for the 2008 ozone NAAQS. It was only upon completing this
additional modeling run that the EPA could conclude that, for the
purposes of these good neighbor obligations, it projected no further
air quality problems in 2023.
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\113\ Although the modeling was conducted to evaluate air
quality relative to the more stringent 2015 ozone NAAQS, the data
show that the maximum design value for the Tarrant County, Texas
monitor was also expected to exceed the 2008 ozone NAAQS.
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Comment: One commenter contends that the EPA's approach to
determining that 2023 is the appropriate analytic year is a reversal of
past agency interpretation regarding the four-step CSAPR framework. The
commenter states that the CSAPR Update, though only a partial remedy
under the good neighbor provision, acknowledged the 2018 attainment
deadline for Moderate nonattainment areas. The commenter asserts that
here, in contrast, the EPA has begun by assessing the feasibility of
installing an arbitrarily narrow set of new controls without regard to
the next attainment date. The commenter contends that this approach
turns the CSAPR framework on its head, unreasonably changing agency
interpretation without explanation and in violation of the Act.
The commenter notes that control feasibility has played a role in
the past regional ozone rules, but contends that it cannot override the
obligation to prohibit pollution that prevents attainment and
maintenance of the standards, nor can it displace the attainment
deadlines. The commenter further asserts that when the EPA has
considered feasibility in analyzing ozone-related good neighbor
obligations since the North Carolina decision, it has not done so in
the context of selecting an analytic year, but in apportioning the
necessary emission reductions. The commenter explains that, in the
original CSAPR, feasibility of installing SO2 controls did
contribute to selecting two future analytic years, but contends that
the rule linked both analytic years to attainment deadlines, including
analysis of the next upcoming attainment year.
Response: In the CSAPR Update, the EPA focused its analysis on the
upcoming attainment date and the limited control strategies that could
be implemented within that timeframe with the explicit understanding
that such a limited analysis was unlikely to provide a sufficient basis
to determine that the good neighbor obligation was fully addressed for
all states for the 2008 ozone NAAQS. Here, the EPA is obligated to
conduct an analysis that fully addresses the good neighbor provision
and thus has selected a future analytic year to coincide with the
timeframe in which emission reductions most likely to address that
obligation could be implemented, rather than selecting a year in which
few emission reductions could be implemented. Selection of an analytic
year associated with anticipated future compliance is entirely
consistent with the EPA's four-step framework as applied in prior
rulemakings. See, e.g., NOX SIP Call, 63 FR 57450 (using the
anticipated 2007 compliance year for its analysis); CAIR, 70 FR 25241
(using the years 2009 and 2010, the anticipated compliance years for
the ozone and PM2.5 NAAQS, respectively); CSAPR, 76 FR 48211
(using the 2012 compliance year); CSAPR Update, 81 FR 74537 (using the
2017 compliance year).
The commenter is also incorrect to suggest that the EPA's approach
is inconsistent with the original CSAPR rulemaking, which addressed
good neighbor obligations for the 1997 ozone NAAQS. While it is true
that the EPA considered attainment dates in its CSAPR analysis, the
commenter fails to acknowledge that the EPA considered the entire suite
of attainment dates for the relevant NAAQS, including the ``maximum''
future attainment dates that CSAPR's later compliance phase was
intended to address. 76 FR 48277-78. Thus, in establishing two phases
of compliance in 2012 and 2014, the EPA considered attainment dates for
the ozone NAAQS between 2007 and 2024, and for the PM2.5
NAAQS, the EPA considered attainment dates ranging from 2010 to 2019.
Id. Moreover, as the commenter acknowledges, the EPA established two
compliance phases in CSAPR based on the feasibility of implementing
certain control strategies. Id. at 48278. In the earlier phase, the EPA
anticipated that the covered EGUs would undertake more easily
implemented control strategies that could be implemented in the short
term, including optimization of existing controls, installation of
relatively simple NOX controls, and generation shifting, see
id. at 48279, the same control strategies already considered and
implemented for the 2008 ozone NAAQS in the CSAPR Update. The EPA
determined that a later compliance phase was justified based on the
need for more time to feasibly implement other controls strategies. Id.
at 48278 (``Given the time needed to design and construct scrubbers at
a large number of facilities, EPA believes the 2014 compliance date is
as expeditious as practicable for the full quantity of SO2
reductions necessary to fully address the significant contribution to
nonattainment and interference with maintenance.''). The EPA's approach
to the 2008 ozone NAAQS has been consistent with ths earlier approach,
except that the EPA has evaluated these two categories of control
strategies in two separate actions (i.e., the CSAPR Update and this
action) rather than in a single rulemaking specifically to ensure that
the first phase of reductions could be implemented as soon as possible.
To the extent that the commenters suggest that the EPA chose an
earlier analytic year in prior rulemakings, the EPA notes that it has
not done so in all rulemakings. In the NOX SIP Call, the EPA
evaluated air quality in 2007, nine years after the rule was
promulgated. 63 FR 57377 (October 27, 1998). In CAIR, which was
promulgated in 2005, the EPA evaluated air quality in 2009 and 2010,
for the ozone and PM2.5 NAAQS, respectively. 70 FR 25241
(May 12, 2005). Thus, the EPA's approach in this action is not
inconsistent with these prior actions. Although the EPA evaluated
relatively more near-term air quality in CSAPR and CSAPR Update, the
EPA expected that certain cost-effective control strategies could be
implemented in the near term in those actions. Here, the EPA has
already analyzed and implemented those cost-effective control
strategies that could be implemented quickly to address the 2008 ozone
NAAQS through the CSAPR Update. Accordingly, any further emission
reductions that may be required to address the 2008 ozone NAAQS would
necessarily be implemented through control strategies that cannot be
implemented in the near term and require a longer period for
implementation.
C. Air Quality Analysis
In this section, the agency describes the air quality modeling
performed, consistent with step 1 of the framework described in section
III.A, to identify locations where it expects nonattainment or
maintenance problems with respect to the 2008 ozone NAAQS in the 2023
analytic year. This section includes information on the air quality
modeling platform used in support of the final determination with a
focus on the base year and future base case emission inventories. The
June 2018 Air
[[Page 65911]]
Quality Modeling Technical Support Document (AQM TSD) in the docket for
this action contains more detailed information on the air quality
modeling for 2023 used to support the final determination.\114\
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\114\ And available online at https://www.epa.gov/airmarkets/proposed-csapr-close-out.
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In addition to the proposal, 83 FR 31915 (July 10, 2018), the EPA
provided an additional opportunity to comment on the air quality
modeling platform and air quality modeling results that are used in
this determination when it published a Notice of Data Availability (82
FR 1733) on January 6, 2017, which provided the preliminary modeling
results for the 2023 analytic year. Specifically, in the NODA the EPA
requested comment on the data and methodologies related to the 2011 and
2023 emission inventories and the air quality modeling to project 2023
ozone concentrations and ozone contributions. While the EPA issued this
NODA to provide information to assist state interstate transport
planning for the 2015 ozone NAAQS (which is set at 70 ppb), the
modeling approaches and future year projection methods were also
applicable to the 2008 ozone NAAQS (set at 75 ppb). In fact, commenters
explicitly commented on these methods with respect to the 2008 ozone
NAAQS. The EPA considered comments received on the NODA in the
development of the air quality modeling analysis used for proposal. As
discussed below and in the Response to Comments (RTC) in the docket for
this action, we have considered additional comments on emission
inventories and air quality modeling submitted in response to the
proposal for this action for this final determination. However, the EPA
did not find that any of these comments raised concerns with the
modeling discussed at proposal such that additional air quality
modeling was merited. Accordingly, the emission inventories and
modeling discussed in the following sections is the same information
discussed in the EPA's proposed action.
1. Overview of Air Quality Modeling Platform
The EPA performed nationwide photochemical modeling for 2023 to
identify nonattainment and maintenance receptors relevant for the 2008
ozone NAAQS. For this action, the EPA performed air quality modeling
for two emissions scenarios: (1) A 2011 base year; and (2) the 2023
analytic year (i.e., a business-as-usual scenario in 2023: One without
any additional interstate ozone transport requirements beyond those
imposed by the CSAPR Update). The modeling results for 2023 presented
here were originally released to the public with an accompanying
memorandum on October 27, 2017.\115\
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\115\ Memorandum from Stephen D. Page, Director, Office of Air
Quality Planning and Standards, to Regional Air Division Directors,
Regions 1-10, 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) (Oct. 27, 2017), available at https://www.epa.gov/airmarkets/october-2017-memo-and-supplemental-information-interstate-transport-sips-2008-ozone-naaqs.
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The 2011 base year has previously been used to support the CSAPR
Update proposal and final rule. The EPA chose to continue using 2011 as
the base year because when EPA's analyses commenced, 2011 was the most
recent emissions modeling platform available that included future year
projected inventories needed for transport analyses. Using 2011 as a
base year also remains appropriate from the standpoint of good modeling
practice. The meteorological conditions during the summer of 2011 were
generally conducive for ozone formation across much of the U.S.,
particularly the eastern U.S. As described in the AQM TSD, the EPA's
guidance for ozone attainment demonstration modeling, hereafter
referred to as the modeling guidance, recommends modeling a time period
with meteorology conducive to ozone formation for purposes of
projecting future year design values.\116\ The EPA therefore believes
that meteorological conditions and emissions during the summer of 2011
provide an appropriate basis for projecting 2023 ozone concentrations.
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\116\ U.S. Environmental Protection Agency, 2014. Modeling
Guidance for Demonstrating Attainment of Air Quality Goals for
Ozone, PM2.5, and Regional Haze, Research Triangle Park,
NC, available at http://www.epa.gov/ttn/scram/guidance/guide/Draft_O3-PM-RH_Modeling_Guidance-2014.pdf.
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For this rule, the EPA used the Comprehensive Air Quality Model
with Extensions (CAMx) version 6.40 \117\ to simulate pollutant
concentrations for the 2011 base year and the 2023 future year
scenarios. This version of CAMx was the most recent publicly available
version of this model at the time that the EPA performed air quality
modeling for this final rule. CAMx is a grid cell-based, multi-
pollutant photochemical model that simulates the formation and fate of
ozone and fine particles in the atmosphere. The CAMx model applications
were performed for a modeling region (i.e., modeling domain) that
covers the contiguous 48 United States, the District of Columbia, and
adjacent portions of Canada and Mexico using grid cells with a
horizontal resolution of 12 km x 12 km. A map of the air quality
modeling domain is provided in the AQM TSD.
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\117\ CAMx v6.40 was the most recent public release version of
CAMx at the time the EPA updated its modeling in fall 2017.
Comprehensive Air Quality Model with Extensions version 6.40 User's
Guide. Ramboll Environ, December 2016, available at http://www.camx.com/.
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The 2011-based air quality modeling platform includes 2011 base
year emissions, 2023 future year projections of these emissions, and
2011 meteorology for air quality modeling with CAMx. In the remainder
of this section, the EPA provides an overview of the 2011 and 2023
emission inventories and the methods for identifying nonattainment and
maintenance receptors along with a list of the receptors in the U.S.
that EPA projected would have nonattainment and maintenance air quality
problems in 2023 (in the business-as-usual scenario).
To ensure the reliability of its modeling results, the EPA
conducted an operational model performance evaluation of the 2011
modeling platform by comparing the 8-hour daily maximum ozone
concentrations predicted during the May through September ozone season
to the corresponding measured concentrations in 2011. This evaluation
generally followed the approach described in the modeling guidance.
Details of the model performance evaluation are described in the AQM
TSD. The model performance results indicate that the 8-hour daily
maximum ozone concentrations predicted by the 2011 CAMx modeling
platform generally reflect the corresponding magnitude of observed 8-
hour ozone concentrations on high ozone days in the 12-km U.S. modeling
domain. These results provide confidence in the ability of the modeling
platform to provide a reasonable projection of expected future year
ozone concentrations and contributions.\118\
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\118\ As recommended in the modeling guidance, the acceptability
of model performance was judged by considering the 2011 CAMx
performance results in light of the range of performance found in
recent regional ozone model applications. These other modeling
studies represent a wide range of modeling analyses that cover
various models, model configurations, domains, years and/or
episodes, and chemical mechanisms. Overall, the ozone model
performance results for the 2011 CAMx simulations are within the
range found in other recent peer-reviewed and regulatory
applications. The model performance results, as described in the AQM
TSD, demonstrate that the predictions from the 2011 modeling
platform correspond to measured data in terms of the magnitude,
temporal fluctuations, and spatial differences for 8-hour daily
maximum ozone.
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[[Page 65912]]
2. Emission Inventories
The EPA developed emission inventories for this rule, including
emissions estimates for EGUs, non-EGU point sources, stationary
nonpoint sources, onroad mobile sources, nonroad mobile sources,
wildfires, prescribed fires, and biogenic emissions. The EPA's air
quality modeling relies on this comprehensive set of emission
inventories because emissions from multiple source categories are
needed to model ambient air quality and to facilitate comparison of
model outputs with ambient measurements.
To prepare the emission inventories for air quality modeling, the
EPA processed the emission inventories using the Sparse Matrix Operator
Kernel Emissions (SMOKE) Modeling System version 3.7 to produce the
gridded, hourly, speciated, model-ready emissions for input to the CAMx
air quality model. Additional information on the development of the
emission inventories and on datasets used during the emissions modeling
process for this final rule is provided in the October 2017 Technical
Support Document ``Additional Updates to Emission Inventories for the
Version 6.3, 2011 Emissions Modeling Platform for the Year 2023''
(Emissions Modeling TSD).\119\
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\119\ This TSD is also available in the docket for this final
action and at https://www.epa.gov/air-emissions-modeling/additional-updates-2011-and-2023-emissions-version-63-platform-technical.
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As noted earlier, the emission inventories, methodologies, and data
used for the air quality modeling discussed in this final rule are the
same as the inventories discussed at proposal as no new modeling was
performed following the proposal. The inventories incorporate comments
received on the January 2017 NODA along with improved data and methods
that became available after the NODA modeling was completed. The
inventories are documented in the Emissions Modeling TSD. The January
2017 NODA itself was developed after taking into account the several
iterations of comments on the data and methods used in the 2011
emissions modeling platform.\120\
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\120\ The initial modeling platform based on the 2011 National
Emissions Inventory (NEI) was first released for public comment in
November 2013 through a NODA (78 FR 70935). In developing the CSAPR
Update, the EPA subsequently updated the base year 2011 emission
inventory as well as future year inventories for that rulemaking and
took comment on those updates. Notice of Data Availability, 79 FR
2437 (January 2014); CSAPR Update proposal, 80 FR 46271 (August
2015); CSAPR Update final, 81 FR 74527 (September 2016). Technical
support documents are available for each iteration of the
inventories on EPA's emissions modeling website: https://www.epa.gov/air-emissions-modeling/2011-version-6-air-emissions-modeling-platforms.
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As noted above, the EPA uses emissions data from the year 2011 in
its base year air quality modeling. The 2011 NOX and
SO2 EGU emissions are based primarily on reported data from
continuous emissions monitoring systems (CEMS). Other EGU pollutants in
the 2011 emission inventories are estimated using emissions factors and
annual heat input data reported to the EPA. For EGUs without CEMS, the
EPA used data submitted to the National Emissions Inventory (NEI) by
the states. The 2011 inventories also include some updates to 2011 EGU
stack parameters and emissions made in response to comments on the
January 2017 NODA. For more information on the details of how the 2011
EGU emissions were developed and prepared for air quality modeling, see
the Emissions Modeling TSD.
In developing the 2023 emission inventory, the EPA did not
incorporate any new interstate transport emission reductions beyond the
CSAPR Update, but the 2023 projected emission inventory does reflect
expected changes in activity and emission reductions from on-the-books
actions, including planned emission control installations and
promulgated federal measures that affect anthropogenic emissions. The
emission inventories for air quality modeling include some emissions
categories that are held constant between the base and future years,
such as biogenic emissions and emissions from agricultural, wild, and
prescribed fires.\121\ The emission inventories used for Canada were
received from Environment and Climate Change Canada in April 2017 and
were provided for the years 2013 and 2025. This was the first time that
future year projected inventories for Canada were provided directly by
Environment and Climate Change Canada and the new inventories are
thought to be an improvement over inventories projected by EPA. The EPA
used the Canadian emission inventories without adjusting the emissions
to the represented year because the EPA lacks specific knowledge
regarding Canadian emissions trends and because the interval of years
(i.e., 12) was the same as that used for the U.S. modeling which relied
on a 2011 to 2023 interval. For Mexico, onroad mobile source inventory
data were based on 2011 and 2023 runs of MOVES-Mexico. For area,
nonroad, and point source emissions in Mexico, EPA used the Inventario
Nacional de Emisiones de Mexico using 2018 and 2025 data projections to
interpolate 2023 estimates.
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\121\ Biogenic emissions and emissions from wildfires and
prescribed fires were held constant between 2011 and 2023 because:
(1) These emissions are tied to 2011 meteorological conditions and
(2) the focus of this action is on the contribution from
anthropogenic emissions to projected ozone nonattainment and
maintenance.
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As noted in the October memo, the EPA projected EGU emissions for
the 2023 emission inventory based on an approach that combines the
latest reported operational data with known and anticipated fleet and
pollution controls changes. The EPA begins with the most recent
reported ozone season data available at the time of the EPA's
analysis--in this case, 2016 SO2 and NOX data
from units reporting under the Acid Rain and CSAPR programs under 40
CFR part 75. The EPA then updated the 2016 reported emissions with
unit-specific adjustments to account for upcoming announced
retirements, post-combustion control retrofits, coal-to-gas
conversions, combustion controls upgrades, new units, and on-the-books
reductions such as CSAPR Update compliance, state rules, and Best
Available Retrofit Technology (BART) requirements under the regional
haze program of the CAA.\122\ The EPA implemented reductions associated
with the CSAPR Update in its emission projection, because the 2016
reported data did not reflect the implementation of this rule, by
assuming each SCR-controlled unit in the CSAPR Update region not
already emitting at or below 0.10 lb/mmBtu would do so beginning in
2017. For emissions from EGUs not reporting under 40 CFR part 75, the
EPA largely relied on unadjusted 2011 NEI data for its 2023
assumptions.\123\ We note that the EPA's approach to projecting 2023
EGU emissions is consistent with the approach the EPA used in the CSAPR
Update to project the future EGU emissions baseline from which to
estimate reduction potential. 81 FR 74543.\124\ Additional details
about the EPA's future year EGU emissions projections are provided in
the Emissions Modeling TSD.
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\122\ The EPA uses the U.S. EIA Form 860 as a source for
upcoming controls, retirements, and new units.
\123\ Available at https://www.epa.gov/air-emissions-modeling/2011-version-63-platform.
\124\ Also see the Ozone Transport Policy Analysis Final Rule
Technical Support Document. EPA. August 2016. Available at https://www.epa.gov/sites/production/files/2017-05/documents/ozone_transport_policy_analysis_final_rule_tsd.pdf.
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Non-EGU point source emissions in the 2011 inventory are generally
based on the 2011 NEI version 2.\125\ However,
[[Page 65913]]
the NEI emission inventories must be processed into a format that is
appropriate for the air quality model to use. Details on the
development and processing of the emissions for 2011 are available in
the Emissions Modeling TSD. The TSD also describes the EPA's
methodology for developing the non-EGU emissions for the 2023 emission
inventory. Projection factors and percent reductions used to estimate
2023 emissions in this final rule reflect comments received through the
January 2017 NODA, along with emission reductions due to national and
local rules, control programs, plant closures, consent decrees, and
settlements. The Emissions Modeling TSD contains details on the factors
used and on their respective impacts on the emission inventories.
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\125\ For more information on the 2011 National Emissions
Inventory version 2, see https://www.epa.gov/air-emissions-inventories/2011-national-emissions-inventory-nei-technical-support-document.
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As noted in the proposal, the EPA updated its methodology for
estimating point and nonpoint 2023 emissions from the oil and gas
sector after the release of the January 2017 NODA. The projection
factors used in the updated 2023 oil and gas emission inventory
incorporate state-level factors based on historical growth from 2011-
2015 and region-specific factors that represent projected growth from
2015 to 2023. The 2011-2015 state-level factors were based on
historical state oil and gas production data published by the U.S.
Department of Energy's Energy Information Administration (EIA), while
the 2015-2023 factors are based on projected oil and gas production in
EIA's 2017 Annual Energy Outlook (AEO) Reference Case without the Clean
Power Plan for the six EIA supply regions. The 2017 AEO was the latest
available at the time the modeling was performed. Details on the
revised methodology that the EPA used to project oil and gas emissions
to 2023, as well as changes to the base year 2011 and future year 2023
emission inventories for other sectors, can be found in the Emissions
Modeling TSD.
The EPA developed the onroad mobile source emissions for both the
2011 and 2023 inventories using the EPA's Motor Vehicle Emissions
Simulator, version 2014a (MOVES2014a). The agency computed these
emissions within SMOKE by multiplying the MOVES-based emissions factors
with activity data appropriate to each inventory year. MOVES2014a
reflects projected changes to fuel usage and onroad mobile control
programs finalized as of March 2014, which include emission reductions
expected to occur into the future. Therefore, for the 2011 inventory,
those rules that were in effect in 2011 are reflected at a level that
corresponds to the extent to which each rule had penetrated the fleet
and fuel supply by that year, and similarly for the 2023 inventory.
Local control programs such as the California Low Emission Vehicle
(LEV) III program, also implemented in states other than California
that have adopted California's program pursuant to CAA section 177, are
included in the onroad mobile source emissions. Activity data for
onroad mobile sources, such as the expected vehicle miles traveled in
2023, were projected for future year using trends identified in AEO
2016.
The commercial marine category 3 vessel (``C3 marine'') emissions
in the 2011 emission inventory for this rule are equivalent to those in
the 2011NEIv2 with the inclusion of updated emissions for California.
These emissions reflect reductions associated with the Emissions
Control Area proposal to the International Maritime Organization
control strategy (EPA-420-F-10-041, August 2010); reductions of
NOX, VOC, and CO emissions for new C3 engines that went into
effect in 2011; and fuel sulfur limits that went into effect as early
as 2010. The cumulative impacts of these rules, which will achieve
additional reductions through 2023, are incorporated in the 2023
projected emissions for C3 marine sources. For this modeling, the
larger C3 marine sources are treated with plume rise, thereby putting
the emissions into model layers higher than ground-level. This was done
because the ships have stacks that release emissions higher than the
20-meter threshold for the ground-level layer in the air quality model.
The height at which the emissions are inserted into the model impacts
how the emissions are transported within the model. The emissions from
the smaller category 1 (C1) and category 2 (C2) vessels are still
released into the ground-level layer of the model.
To develop the nonroad mobile source emission inventories other
than C3 marine for the modeling platform, the EPA used monthly, county,
and process-level emissions output from the National Mobile Inventory
Model (NMIM) (http://www.epa.gov/otaq/nmim.htm). The nonroad mobile
emissions control programs include reductions in emissions from
locomotives, diesel engines, and marine engines, along with standards
for fuel sulfur content and evaporative emissions. A comprehensive list
of control programs included for mobile sources is available in the
Emissions Modeling TSD.
The emissions for stationary nonpoint sources in the 2011 emission
inventory are generally derived from the 2011 NEI version 2. For more
information on nonpoint source emissions in the 2011 emission
inventory, see the Emissions Modeling TSD and the 2011NEIv2 TSD. 2023
emissions for stationary nonpoint sources were projected using a
variety of factors, including AEO 2017 projections for 2023 and state
projection factors using EIA data from 2011-2015. The 2023 emission
inventory in the EPA's proposal and this final rule also incorporate
information from states about projected control measures or changes in
nonpoint source emissions provided in comments to the January 2017
NODA. These changes were limited and are discussed in the Emissions
Modeling TSD.
Comment: While some commenters agreed with the reasonableness of
the EPA's projections, others contend that the EPA's EGU emission
projections are unreasonable for a variety of reasons. These commenters
assert that actual 2023 emissions may be higher than modeled due to low
CSAPR Update allowance prices or natural gas price uncertainty. They
suggest that the 0.10 lb/mmBtu average used by EPA for SCR-controlled
units covered by the CSAPR Update is not reasonable because some units
may operate at higher levels in the future, and they also suggest that
EPA should have incorporated impacts of the proposed repeal of the
Clean Power Plan and the proposed Affordable Clean Energy (ACE) rule
into its emissions projections.
Response: The EPA disagrees with the suggestion that its 2023 EGU
emission projections and the underlying methodology to generate those
projections are unreasonable. As with all projections, there is
inherent uncertainty, but 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. As explained above, 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 emission 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
emission projections using a variety of methods and models suggest that
inclusion of these factors would likely further reduce future
NOX emission projections. To illustrate the potential for
additional NOX reductions when considering further factors,
we note that
[[Page 65914]]
nationwide 2023 EGU NOX emission projections using various
modeling approaches estimate lower NOX emission futures than
the methodology EPA applied here. The EPA's EGU emissions projection
methodology estimates that 2023 NOX emissions will be 20%
below 2016 levels whereas EIA estimates that 2023 NOX
emissions will be 21% to 32% below 2016 levels and EPA's Integrated
Planning Model estimates that 2023 NOX emissions will be 28%
below 2016 levels.126 127
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\126\ EIA 2018 Annual Energy Outlook, Reference Case and High
Oil and Gas Resource and Technology side case. Table 8 ``Electricity
Supply, Disposition, Prices, and Emissions,'' available at https://www.eia.gov/outlooks/aeo/.
\127\ IPM Version 6--Initial Run, available at https://www.epa.gov/airmarkets/clean-air-markets-power-sector-modeling.
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The EPA neither intends nor expects to be able to predict future
emissions from each of thousands of EGUs.\128\ And it does not expect
each of these SCR-controlled units to emit at the fleet-wide
technology-specific average emission rate that it uses in its EGU
emissions projections. Some of the units will over-perform and some of
the units will under-perform in comparison to this average rate, but
the average rate nevertheless reflects both a reasonable compliance
pathway in response to the CSAPR Update and a reasonable fleet average
for that compliance pathway. Predicting each unit's individual emission
rate is an exercise in increased uncertainty, and the use of an average
technology-specific fleet emission rate for each unit reduces that
uncertainty. Moreover, in a trading program with state-specific caps,
sources are permitted the flexibility to emit in a variety of ways
provided the state and regional caps are met. The compliance success is
not gauged on unit-level operation and emissions, but rather state and
regional operation and emission levels. (The same holds true for
gauging the reasonableness and accuracy of projections for such
programs.) This compliance mechanism promotes more cost-effective
attainment of the emissions and air quality goals. Therefore, it is
plausible--and entirely consistent with EPA projections--that sources
in each state would find an alternative compliance pathway that
achieves commensurate emission reductions in equally relevant parts of
the upwind airshed.
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\128\ EPA-HQ-OAR-2018-0225-0042 at 98; EPA-HQ-OAR-2009-0491-4512
(RTC at 4).
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The EPA's EGU assumptions for 2023 reflected ozone-season emission
levels that were approximately 10 percent lower than the CSAPR Update
budgets. 2017 ozone-season data reflected emissions that were already 7
percent below the CSAPR Update budgets, reflecting a 21 percent drop
from the prior year, a pace of reduction that would, if continued, put
actual emissions well below 2023 assumptions. Preliminary 2018 data
suggest continuing reductions, and indicate that the CSAPR Update
region is already in 2018 emitting at or near the EPA-assumed 2023
emission level. In other words, the emission levels that commenters
suggest are unreasonable for 2023 may well already have been achieved
or nearly achieved in 2018--five years ahead of the analytic year. In
order for emissions in 2023 to be at the levels commenters prefer that
the EPA model (e.g., only emission levels that can be ensured via
enforceable limits), a decade-long decline in ozone-season emissions
would have to not only cease but reverse. Moreover, this would have to
occur during a time period where significantly more high-emitting coal
generation capacity has announced plans to retire and significantly
more zero- or lower-emitting generation capacity is expected to come
online. In particular, since the EPA in 2017 made EGU projections for
2023 (in which the EPA only assumed retirements that had already been
planned and announced at the time it made the projections), many
additional high emitting coal units have announced their plans to
retire by 2023. 5.9 gigawatts (GW) of coal capacity retirements were
announced and planned for 2019-2022 based on the June 2017 EIA 860m
Form, but that same form a year later (June 2018 EIA Form 860m) shows
10.2 GW of coal retirements for that same period, reflecting a near
doubling of coal retirement announcements occurring over a one-year
period. For instance, Conesville Units 4, 5, and 6 in Ohio have
announced their retirement prior to 2023. The EPA in its 2017
projections had assumed these units would be operating and collectively
emitting 1,502 tons of NOX in the 2023 ozone season. These
additional retirements announced subsequent to the EPA's analysis
further bolster the conclusion that the EPA's emission estimates are
conservative (i.e., that they may overpredict 2023 emissions). The
magnitude of coal retirements like this, announced after the EPA's
analysis, but scheduled to occur prior to 2023, suggests the emissions
trend will continue downward. Moreover, the commenters' assertion that
an assumed increase would be a more reasonable projection is not
supported by compelling analysis or economic modeling: It contradicts
the recent historical data, the most recent announcements on
retirements and newly built capacity, and the widely used power sector
models' outlook for 2023. The EPA believes, supported by the most
recent reported data, that its 2023 EGU projections are reasonable and
conservative. To the extent that actual 2023 emissions may differ from
these projections, they are more likely to be even lower than the
assumptions used in the EPA's modeling.
The utility and the reasonableness of the EPA's EGU projections
hinge on state-level and regional-level EGU emission projections, not
projections for individual units or groups of units within a state.
Nonetheless, the EPA notes that the assumed average emission rate for
units with SCR optimization potential was quite consistent with the
observed compliance measures. That is, the most recent historical data
reported by unit operation, discussed in more detail in section
III.B.2, bears out EPA assumptions in the CSAPR Update that these units
would lower their emission rates in response to that rule, as they did
in fact lower their emission rate 45 percent in the first year of the
program.
The EPA also disagrees with the assertion that that low allowance
prices necessarily mean that emissions will be higher than the EPA's
EGU projections. In a scenario where all other elements of the power
sector and allowance market are held constant, the commenters
observation would likely be realized. However, it is the EPA's
experience with trading programs that those other variables do not
remain constant over time. In most cases, lower allowance prices
reflect the market's expectation that future emissions will be lower
than anticipated, rather than higher, as other market forces continue
to drive down emissions, thus decreasing demand for allowances
authorizing those emissions. The commenters' claim is therefore not
consistent with observed historical emission patterns over successive
years of an allowance trading program's implementation. For example,
regional emissions under the Acid Rain Program and CSAPR have
consistently been below the sum of emission budgets, despite relatively
low allowance prices.\129\ The commenters' claim is also not consistent
with forward-looking emissions projections in power sector models.
There are a variety of policy and market forces at work beyond CSAPR
Update allowance prices that are
[[Page 65915]]
anticipated to continue to drive generation shifting from higher-
emitting to lower-emitting sources. These include changes such as:
Sustained, lower natural gas prices that make lower-emitting natural
gas combined cycle units more economic to build and dispatch; state
energy policy and technology advancements which have made renewable
energy (e.g., solar and wind) more competitive compared to higher-
emitting fossil-fuel fired generation; and the aging of the coal fleet
which is leading many companies to conclude that a significant number
of higher-emitting plants are reaching the end of their useful economic
life. The EPA's experience implementing prior allowance trading
programs shows that emissions from covered sources generally trend
downwards (regardless of allowance price) as time extends further from
the initial compliance year. Both the Acid Rain Program and CSAPR
SO2 allowance banks grew in 2017 from their 2016 levels,
indicating that sources are collectively adding to the bank by emitting
below state budgets rather than drawing down the bank because of the
availability of low-cost allowances. This supports the EPA's belief
that the assumptions underlying its projection of 2023 ozone-season
NOX levels for EGUs are reasonable and appropriate.
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\129\ See 2016 Program Progress--Cross-State Air Pollution Rule
and Acid Rain Program available at https://www3.epa.gov/airmarkets/progress/reports/index.html.
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To the extent that commenters assert that the EPA cannot in its
projections perfectly predict future natural gas prices, the EPA
agrees. Projections are inherently uncertain, and the EPA believes it
has made reasonable and conservative estimates regarding the role of
natural gas prices in generation shifting and lower future emission
reductions. The EPA's EGU projection method for this action started
with existing data and only assumed generation shifting in instances
where retirements were scheduled to occur and newly built capacity was
scheduled to come online. In other words, the generation shifting
assumed for 2023 reflects concrete, planned actions. The agency's
applied projection method would suggest that the EPA's 2023 projections
are conservative and that more, not less, generation shifting is likely
to occur as we remain in a low natural gas price environment that is
complemented by debottlenecking of Marcellus region natural gas
production through significant new pipeline and pipeline capacity
expansion in the 2017-2023 timeframe.
With regard to comments stating that the EPA should factor the
proposed ACE rule into its 2023 outlook, the EPA notes it has not done
so as the ACE rule is not final. Moreover, it has not factored the
Clean Power Plan into its projections given the stay of that rule
issued by the Supreme Court. Both of these assumptions are reasonable
and consistent with EPA analytic precedents and OMB Circular A-4
guidance (requiring that regulatory baselines should reflect the future
effect of current government programs and policies).130 131
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\130\ Regulatory Impact Analysis for the Proposed Emission
Guidelines for Greenhouse Gas Emissions from Existing Electric
Utility Generating Units; Revisions to Emission Guideline
Implementing Regulations; Revisions to New Source Review Program.
EPA. Table ES-8. August 2018. Available at https://www.epa.gov/sites/production/files/2018-08/documents/utilities_ria_proposed_ace_2018-08.pdf.
\131\ Regulatory Impact Analysis for the Proposed Emission
Guidelines for Greenhouse Gas Emissions from Existing Electric
Utility Generating Units; Revisions to Emission. Table ES-8.
Available at https://www.epa.gov/sites/production/files/2018-08/documents/utilities_ria_proposed_ace_2018-08.pdf.
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Comment: For mobile source and non-EGU emissions, commenters
suggest that emissions projections for these sectors could be
unreliable due to the EPA's planned rulemaking actions including the
proposed repeal of regulations with respect to so-called ``glider''
vehicles, engines, and kits, 82 FR 53442 (Nov. 16, 2017) (proposing to
repeal the Greenhouse Gas Emissions and Fuel Efficiency Standards for
Medium- and Heavy-Duty Engines and Vehicles--Phase 2); the proposed
Safer Affordable Fuel Efficient (SAFE) Vehicles Rule for Model Years
2021-2026 Passenger Cars and Light Trucks, 83 FR 42986 (Aug. 24, 2018)
(proposing to repeal the Corporate Average Fuel Economy (CAFE)
standards); and the proposed withdrawal of Control Techniques
Guidelines (CTG) for the Oil and Natural Gas Industry, 83 FR 10478
(Mar. 9, 2018).
Response: The EPA disagrees that its 2023 projections are
unreliable because of potential changes to other regulations. The EPA
first notes any potential regulatory changes to the ``glider''
regulations, the SAFE vehicle rules, and the oil and gas CTG have not
been finalized. In general, the mobile source and non-EGU emission
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 and whether these
additional emissions would affect downwind ozone concentrations. The
model year 2017-2025 GHG regulations for cars and light trucks were
projected to yield small but measurable criteria and toxic emission
reductions from vehicles.\132\ Because the vehicles affected by the
2017-2025 GHG standards would still need to meet applicable criteria
pollutant emissions standards (e.g., the Tier 3 emissions standards; 79
FR 23414), the regulatory impact analysis that accompanied the proposed
revision to the GHG standards estimated a very limited impact on
criteria and toxic pollutant emissions (increases in upstream emissions
and decreases in tailpipe emissions). Moreover, the proposed SAFE
Vehicles Rule specifically notes that none of the regulatory
alternatives considered ``would noticeably impact net emissions of
smog-forming or other `criteria' or toxic air pollutants.'' 83 FR
42996. As to glider kits in particular, we note that the ``no action
assurance'' provided by then-Administrator Pruitt via memorandum of
July 6, 2018, was subsequently rescinded via a memorandum signed by
Acting Administrator Wheeler on July 26, 2018, and that the EPA has not
taken any further final action that would change any requirements for
glider vehicles, glider engines, or glider kits.
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\132\ See Table 4.3-19 in EPA Regulatory Impact Analysis for
EPA's Final Rulemaking for 2017-2025 Light-Duty Vehicle Greenhouse
Gas Emission Standards and Corporate Average Fuel Economy Standards
(EPA-420-R-12-016, August 2012).
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Finally, with regard to the proposed withdrawal of the oil and gas
CTG, we also note that impacts of the CTGs were not included in the
modeled inventories, so their withdrawal would not change the results
of the modeling.
3. Definition of Nonattainment and Maintenance Receptors
In this action, the EPA is continuing to apply the CSAPR Update
approach to identifying nonattainment and maintenance receptors for the
2008 ozone NAAQS in the 2023 analytic year. The EPA here describes the
analytical approach pursued in the CSAPR Update with regard to the good
neighbor requirements for the 2008 ozone NAAQS. For consistency's sake,
the analysis and discussion underlying and presented in this action
adheres to that analytical approach.
To give independent effect to both the ``contribute significantly
to nonattainment'' and the ``interfere with maintenance'' prongs of
section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS, consistent with
the D.C. Circuit's opinion in North Carolina, 531
[[Page 65916]]
F.3d at 910-11, the EPA has separately identified downwind areas
expected to be in nonattainment of the 2008 ozone NAAQS and downwind
areas expected to have problems maintaining the 2008 ozone NAAQS.
Specifically, the EPA has identified as nonattainment receptors
those monitors that both currently measure nonattainment based on
measured 2014-2016 design values and that the EPA projects will be in
nonattainment for the 2008 ozone NAAQS in 2023 (i.e., are projected to
have average design values that exceed the NAAQS).
The EPA has identified maintenance receptors as those receptors
that would have difficulty maintaining the relevant NAAQS in a scenario
that accounts for historical variability in air quality at that
receptor. The variability in air quality was determined by evaluating
the ``maximum'' future design value at each receptor based on a
projection of the maximum measured design value over the relevant base-
year period. The EPA defines the projected maximum future design value
as a potential future air quality outcome consistent with the
meteorology that yielded maximum measured concentrations in the ambient
data set analyzed for that receptor. The EPA also recognizes that
previously experienced meteorological conditions (e.g., dominant wind
direction, temperatures, air mass patterns) promoting ozone formation
that led to maximum concentrations in the measured data may reoccur in
the future. Therefore, the maximum design value gives a reasonable
projection of future air quality at the receptor under a scenario in
which such conditions do, in fact, reoccur. The projected maximum
design value is used to identify downwind areas where emissions from
upwind states could therefore interfere with the area's ability to
maintain the NAAQS. The EPA therefore assessed the magnitude of the
maximum projected design value for 2023 at each receptor in relation to
the 2008 ozone NAAQS. Where that value exceeded the NAAQS, the EPA
determined that receptor to be a ``maintenance'' receptor for purposes
of defining interference with maintenance, consistent with the method
used in CSAPR and upheld by the D.C. Circuit in EME Homer City II.\133\
That is, monitoring sites with a maximum projected design value that
exceeds the NAAQS in 2023 are considered to have a maintenance problem
in 2023.
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\133\ See 795 F.3d at 136.
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All nonattainment receptors also, by definition, meet EPA's
criteria for identifying maintenance receptors--i.e., in addition to
currently measuring nonattainment and having projected average design
values that exceed the NAAQS, the receptors also would have difficulty
maintaining the NAAQS accounting for variability in air quality at the
receptor. The EPA refers to maintenance receptors that are not also
nonattainment receptors as ``maintenance-only'' receptors. Maintenance-
only receptors therefore include those sites where the projected
maximum design value exceeds the NAAQS, but the projected average
design value is at or below the NAAQS. In addition, those sites that
are currently measuring clean data (i.e., are at or below the 2008
ozone NAAQS), but are projected to be in nonattainment based on the
average design value (and that, by definition, are projected to have a
maximum design value above the standard) are also identified as
maintenance-only receptors. Unlike nonattainment receptors, the EPA did
not disqualify potential maintenance receptors based on current clean
monitored data in order to account for the possibility that certain
areas would fail to maintain the NAAQS in the future, even though they
may be currently attaining the NAAQS. See North Carolina, 531 F.3d at
910-11 (finding that failure to give independent significance to the
maintenance prong ``provides no protection for downwind areas that,
despite EPA's predictions, still find themselves struggling to meet
NAAQS due to upwind interference'').
For further details regarding the EPA's identification of receptors
in the CSAPR Update, see 81 FR 74526.
4. Air Quality Modeling To Identify Nonattainment and Maintenance
Receptors
The following summarizes the procedures for projecting future-year
8-hour ozone average and maximum design values to 2023 to determine
nonattainment and maintenance receptors. Consistent with the EPA's
modeling guidance, the agency uses the air quality modeling results in
a ``relative'' sense to project future concentrations. That is, the
ratios of future year model predictions to base year model predictions,
i.e., the ``relative response factor'' or relative (percent) change in
model predictions for each location, are used to adjust monitored
ambient ozone design values to generate future year projected design
values. The modeling guidance recommends using measured ozone
concentrations for the 5-year period centered on the base year as the
air quality data starting point for future year projections. This
average design value is used to dampen the effects of inter-annual
variability in meteorology on ozone concentrations and to provide a
reasonable projection of future air quality at the receptor under
``average'' conditions. In addition, the EPA uses the projection of the
maximum base period design value to provide a projection of future year
air quality during meteorological conditions more favorable for ozone
formation than on average. Because the base year for this analysis is
2011, the EPA is using the base period 2009-2013 ambient ozone design
value data to project 2023 average and maximum design values in a
manner consistent with the modeling guidance.
The approach for projecting future ozone design values involved the
projection of an average of up to three design value periods, which
include the years 2009-2013 (design values for 2009-2011, 2010-2012,
and 2011-2013). The 2009-2011, 2010-2012, and 2011-2013 design values
are accessible at www.epa.gov/airtrends/values.html. The average of the
three design values creates a ``5-year weighted average'' value. The 5-
year weighted average values were then projected to 2023. To project 8-
hour ozone design values, the agency used the 2011 base year and 2023
future base-case model-predicted ozone concentrations to calculate
relative response factors (RRFs) for the location of each monitoring
site. The RRFs were then applied to actual monitored data, i.e., the
2009-2013 average ozone design values (to generate the projected
average design values) and the individual design values for 2009-2011,
2010-2012, and 2011-2013 (to generate potential maximum design values).
Details of this approach are provided in the AQM TSD.
The EPA considers projected design values that are greater than or
equal to 76.0 ppb to be violating the 2008 ozone NAAQS in 2023.\134\ As
noted previously, nonattainment receptors are those sites that both
have projected average design values greater than the 2008 ozone NAAQS
and are also
[[Page 65917]]
violating the NAAQS based on the most recent measured air quality data.
Therefore, as an additional step, for those sites that are projected to
be violating the NAAQS based on the average design values in 2023, the
EPA examined the most recent measured design value data to determine if
the site was currently violating the NAAQS. For the proposal, the
agency examined ambient data for the 2014-2016 period, which form the
basis for the most recent available, certified measured design values
at the time of proposal. Certified measured design value data for 2015-
2017 are now available and have been included in the analysis of
projected receptor. The 2015-2017 design values can be found in a
spreadsheet file in the docket for this rule. Considering the 2015-2017
measured design values does not change the determination regarding
nonattainment and maintenance receptors in 2023 for the 2008 NAAQS.
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\134\ From 40 CFR 50.15(b): ``The 8-hour primary and secondary
ambient air quality standards are met at an ambient air quality
monitoring site when the 3-year average of the annual fourth-highest
daily maximum 8-hour average O3 concentration is less
than or equal to 0.075 ppm, as determined in accordance with
appendix P to this part.'' The agency's use of 76.0 ppb (or 0.076
parts per million) to identify violations of the 2008 Ozone NAAQS in
this action is consistent the 2008 ozone NAAQS regulation. From
section 2.2 of appendix P to 40 CFR part 50: ``The computed 3-year
average of the annual fourth-highest daily maximum 8-hour average
O3 concentrations shall be reported to three decimal
places (the digits to the right of the third decimal place are
truncated, consistent with the data handling procedures for the
reported data).''
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As discussed above, maintenance-only receptors include both: (1)
Those sites with projected average and maximum design values above the
NAAQS that are currently measuring clean data; and (2) those sites with
projected average design values below the level of the NAAQS, but with
projected maximum design values of 76.0 ppb or greater.
In projecting these future year design values, the EPA applied its
own modeling guidance,\135\ which recommends using model predictions
from the ``3 x 3'' array of grid cells surrounding the location of the
monitoring site to calculate the relative response factors and identify
future areas of nonattainment. In addition, in light of comments on the
January 2017 NODA and other analyses, the EPA also projected 2023
design values based on a modified version of this approach for those
monitoring sites located in coastal areas. In brief, in the alternative
approach, the EPA eliminated from the design value calculations those
modeling data in grid cells not containing a monitoring site that are
dominated by water (i.e., more than 50 percent of the land use in the
grid cell is water).\136\ For each individual monitoring site, the EPA
is providing the base period 2009-2013 average and maximum design
values, 2023 projected average and maximum design values based on both
the 3 x 3 approach and the alternative approach affecting coastal
sites, and 2014-2016 measured design values.
---------------------------------------------------------------------------
\135\ U.S. Environmental Protection Agency, 2014. Modeling
Guidance for Demonstrating Attainment of Air Quality Goals for
Ozone, PM2.5, and Regional Haze. http://www.epa.gov/ttn/scram/guidance/guide/Draft_O3-PM-RH_Modeling_Guidance-2014.pdf.
\136\ 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 Weather Research Forecast
(WRF) modeling used to develop the 2011 meteorology for EPA's air
quality modeling.
---------------------------------------------------------------------------
Tables III.C-1 and III.C-2 contain the ambient 2009-2013 base
period average and maximum 8-hour ozone design values, the 2023
projected baseline average and maximum design values, and the ambient
2014-2016 design values for the air quality monitors that were
identified in the CSAPR Update as having remaining problems attaining
or maintaining the 2008 ozone NAAQS in 2017, even with CSAPR Update
implementation. The tables present the projected design values under
both the 3x3 approach and the alternative approach. Table III.C-1
contains data for the monitors identified as remaining nonattainment
receptors in 2017 in the CSAPR Update and Table III.C-2 contains data
for the monitors identified as remaining maintenance-only receptors in
2017 in the CSAPR Update.\137\ The design values for all monitoring
sites in the contiguous U.S. are provided in the docket. According to
the EPA's modeling, there are no remaining nonattainment or maintenance
receptors in the eastern U.S. in 2023 regardless of which approach to
projecting design values is used.
---------------------------------------------------------------------------
\137\ The EPA recognizes that the modeling results indicate a
substantial projected improvement in ozone air quality (compared to
current measured ozone levels) at several locations, including three
monitors in Connecticut located near the sea--i.e., on the order of
10-12 ppb.
Table III.C-1--Base Period, Current (2014-2016), and 2023 Projected Design Values (ppb) for Monitors Identified as Remaining Nonattainment Receptors in
2017 in the CSAPR Update
--------------------------------------------------------------------------------------------------------------------------------------------------------
2009-2013 2009-2013 2023en 2023en 2023en ``No 2023en ``No
Monitor ID State County Avg Max 2014-2016 ``3x3'' Avg ``3x3'' Max Water'' Avg Water'' Max
--------------------------------------------------------------------------------------------------------------------------------------------------------
090019003........... Connecticut........ Fairfield......... 83.7 87 85 72.7 75.6 73.0 75.9
090099002........... Connecticut........ New Haven......... 85.7 89 76 71.2 73.9 69.9 72.6
480391004........... Texas.............. Brazoria.......... 88.0 89 75 74.0 74.9 74.0 74.9
484392003........... Texas.............. Tarrant........... 87.3 90 73 72.5 74.8 72.5 74.8
484393009........... Texas.............. Tarrant........... 86.0 86 75 70.6 70.6 70.6 70.6
551170006........... Wisconsin.......... Sheboygan......... 84.3 87 79 70.8 73.1 72.8 75.1
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table III.C-2--Base Period, Current (2014-2016), and 2023 Projected Design Values (ppb) for Monitors Identified as Remaining Maintenance-Only Receptors
in 2017 in the CSAPR Update
--------------------------------------------------------------------------------------------------------------------------------------------------------
2009-2013 2009-2013 2023en 2023en 2023en ``No 2023en ``No
Monitor ID State County Avg Max 2014-2016 ``3x3'' Avg ``3x3'' Max Water'' Avg Water'' Max
--------------------------------------------------------------------------------------------------------------------------------------------------------
090010017........... Connecticut........ Fairfield......... 80.3 83 80 69.8 72.1 68.9 71.2
090013007........... Connecticut........ Fairfield......... 84.3 89 81 71.2 75.2 71.0 75.0
240251001........... Maryland........... Harford........... 90.0 93 73 71.4 73.8 70.9 73.3
260050003........... Michigan........... Allegan........... 82.7 86 75 69.0 71.8 69.0 71.7
360850067........... New York........... Richmond.......... 81.3 83 76 71.9 73.4 67.1 68.5
361030002........... New York........... Suffolk........... 83.3 85 72 72.5 74.0 74.0 75.5
481210034........... Texas.............. Denton............ 84.3 87 80 69.7 72.0 69.7 72.0
482010024........... Texas.............. Harris............ 80.3 83 79 70.4 72.8 70.4 72.8
482011034........... Texas.............. Harris............ 81.0 82 73 70.8 71.6 70.8 71.6
482011039........... Texas.............. Harris............ 82.0 84 67 71.8 73.6 71.8 73.5
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 65918]]
Comment: The EPA received several comments regarding its projection
of 2023 ozone design values. The commenters suggest that certain
monitoring sites in the New York City area will continue to have
nonattainment and/or maintenance problems for the 2008 NAAQS in 2023, a
claim which is contrary to the results of the EPA's modeling which
shows that nonattainment and maintenance problems will be resolved in
all areas outside of California by 2023. The assertion by the
commenters is based on their examination of measured design values for
2017 and modeling-based projected design values for 2017 and 2023.
First, some commenters compared the projected design values for 2017
based on modeling by the OTC using the Community Multi-scale Air
Quality Model (CMAQ) to the 2017 design values projected by the EPA
using the CAMx model. Those commenters point out that the 2017 CMAQ-
based design values are higher than the EPA CAMx design values by up to
9.2 ppb at certain sites in the Northeast. Commenters also point to
data showing that the greatest difference between the OTC CMAQ and EPA
CAMx 2017 design values is at coastal monitoring sites, such as the
Susan Wagner site in New York and the Westport site in Connecticut.
Second, commenters compared the 2017 OTC CMAQ and EPA CAMx design
values to the corresponding 2017 measured design values and contend
that the CMAQ-based 2017 design values compare favorably to the
measured data and that the CAMx-based design values under-predict the
measured data. One commenter identified eight sites in Connecticut that
are currently measuring nonattainment based on 2015-2017 design values
which the EPA's CAMx modeling predicts will be in attainment in 2017.
Third, commenters point to OTC CMAQ-based design values for 2023 which
indicate that there will be two monitoring sites in Connecticut with
design values that exceed the 2008 NAAQS in that year. Fourth, the
commenters note that the design values based on OTC CAMx modeling for
2023 are comparable in magnitude to the corresponding 2023 design
values based on EPA's 2023 CAMx modeling. Commenters use this
information to contend that the CAMx model provides a forecast that is
too optimistic and that the EPA should rely upon the higher projected
design values for 2023 from the OTC CMAQ modeling.
Some of the commenters point out that the EPA's 2023 modeling
projects a maximum design value of 75.9 ppb at Westport site and
contend that, before the EPA can conclude that areas will attain by
2023 with only the narrowest of margins (i.e., 0.1 ppb), the EPA must
conduct its own analysis of the emission response differences between
CMAQ and CAMx. Similarly, some commenters said that the EPA must
address the demonstrated tendency of its methodology to under-predict
real-world ozone levels in many downwind locations and that the EPA's
modeling is not sufficiently conservative to give confidence that
attainment is assured even as late as 2023.
Response: The EPA does not agree that the modeling provided by
commenters should affect the EPA's reliance on its own 2023 modeling.
First, the commenters focused on projected average design values and
completely ignore the EPA's projected maximum design values when
comparing modeled to measured design values for 2017.\138\ The
projected maximum design values are intended to represent future ozone
concentrations when meteorological conditions are more conducive to
ozone formation than on average. Analysis of meteorological conditions
for the summers of 2015, 2016, and 2017 indicate that meteorology was
more conducive than average for ozone formation during these summers in
the Northeast.\139\ Comparing both the 2017 modeled average design
values and maximum projected design values from the EPA's modeling to
the 2017 measured design values indicates that the projected maximum
design values are, in most cases, closer in magnitude to the 2017
measured design values than the 2017 model-projected average design
values, particularly for the Susan Wagner and Westport sites cited by
commenters. Specifically, the 2017 measured design value and the EPA's
modeled maximum design value at the Susan Wagner site are 76 ppb and
77.8 ppb, respectively. At the Westport site the 2017 measured design
value and the EPA's modeled maximum design value are 83 ppb and 79.5
ppb, respectively. At the site in Philadelphia County, Pennsylvania the
modeled 2017 maximum design value was 1.1 ppb lower than the
corresponding measured value (78 ppb), and at the site in Harford
County, Maryland, the modeled value was higher, not lower, than the
measured 2017 design value (75 ppb). As part of our response to the
commenters' concerns about the EPA's modeling we also compared the 2017
measured design values to the EPA's projected 2017 maximum design
values for 81 sites in the Northeast that had both a 2009 to 2013 base
period measured maximum design value exceeding the 2008 NAAQS and valid
2017 measured design values. As a result of this analysis we found that
the 2017 projected maximum design values are only 0.5 ppb higher than
the corresponding 2017 measured design values, on average across these
81 sites, and the median difference is -0.9 ppb. Thus, while the EPA
recognizes that there are uncertainties in the modeling, the results
for sites in the Northeast do not, on balance, show a notable bias in
the EPA's design value projections. It is not unreasonable that there
may be some differences in terms of over- and under-estimates between
the modeling-based projections for a future year and the measured data
in part because the meteorology of the future year cannot be known in
advance. For instance, the degree of ozone conducive meteorology in a
particular region can vary from year to year such that some years are
more conducive then others. Since it is not possible to forecast
meteorology for analytic years in the future, the EPA chose to model
meteorological conditions from a historical time-period when
meteorology was generally conducive for ozone formation, as recommended
in the EPA's modeling guidance.
---------------------------------------------------------------------------
\138\ Note that the analysis of modeled ozone design values
described in this response are based on the ``3x3'' method to be
consistent with the modeling data submitted by the commenter.
\139\ See the Appendix in to the Considerations for Identifying
Maintenance Receptors Memo (signed on October 19, 2018).
---------------------------------------------------------------------------
For 2023, the modeling results show that the EPA and OTC CAMx-based
2023 average design value projections are consistent on an individual
site basis for all sites in the Northeast.\140\ Both the EPA and OTC
CAMx modeling indicate that there will be no sites with design values
that exceed the 2008 NAAQS by 2023.
---------------------------------------------------------------------------
\140\ The OTC did not provide data on projected future year
maximum design values based on their modeling.
---------------------------------------------------------------------------
Moreover, the OTC CMAQ 2023 design values are, in fact, fairly
consistent with both the OTC and EPA CAMx-based 2023 projections at
nearly all sites. As an example, the average and median differences
between the OTC CMAQ and EPA CAMx 2023 design values for sites in the
Northeast are 0.15 ppb and 0.70 ppb, respectively. However, while the
EPA and OTC CAMx modeling both indicate that all sites in the Northeast
will be clean for the 2008 NAAQS by 2023, the OTC CMAQ modeling
projects that two sites will have average design values above the 2008
NAAQS by 2023. The two sites projected to exceed the 2008 NAAQS in
[[Page 65919]]
2023 with OTC CMAQ modeling are the Westport and the Susan Wagner site.
The CMAQ projected design values for these two sites are not only
inconsistent with the CAMx modeling, but they are also inconsistent
with the CMAQ modeling for other nearby sites in Connecticut, New York,
and New Jersey. For example, based on the OTC CMAQ modeling, ozone at
the Susan Wagner site is projected to decline by only 5 percent between
2011 and 2023, whereas at a site in nearby Bayonne, New Jersey, ozone
is projected to decline by 13 percent over this same time period.
Similarly, ozone at the Westport site is projected to decline by only 3
percent between 2011 and 2023 with CMAQ, but at other sites along the
Connecticut coastline (i.e., sites in Greenwich, Stratford, and
Madison), ozone is projected to decline by 10 to 19 percent. In
addition, the OTC CMAQ results for these two sites (i.e., Westport and
Susan Wagner) are inconsistent with ozone reductions predicted by CMAQ
at other sites in the New York City area which range from 11 to 18
percent. In contrast, the EPA's 2023 modeling shows that ozone is
projected to decline by 13 percent at the Westport site which is an
amount far greater than the 3 percent predicted by OTC's CMAQ modeling.
The EPA's predicted ozone reductions at Westport, however, are
consistent with the predicted reductions at other coastal sites in
Greenwich, Madison, and Stratford, all of which are in the range of 13
to 18 percent. Similarly, ozone at the Susan Wagner site is projected
to decline by 12 percent between 2011 and 2023 based on the EPA's CAMx
modeling which is consistent with the 15 percent reduction predicted at
the nearby site in Bayonne, New Jersey. Thus, the change in ozone from
2011 to 2023 predicted by the EPA's CAMx modeling is much more
spatially consistent within the New York City area than OTC's CMAQ
modeling which predicts spatially anomalous results at two sites (i.e.,
Westport and Susan Wagner).
While it is possible ozone levels in 2023 at the Westport and/or
Susan Wagner sites may be higher than at other sites in the New York
City area, the commenter fails to provide any explanation regarding the
large difference in the CMAQ-based model response to emission
reductions compared to the response at nearby sites and to other sites
in the New York City area. Based on the complicated photochemistry in
this area, it is possible that ozone monitoring sites closest to the
large NOX emissions in New York City may be less responsive
to NOX controls compared to sites further downwind. Due to
non-linear chemistry, sites very close to the city may experience
increases in ozone or less reduction than other nearby sites on some
days in response to local emission reductions in NOX. Thus,
we might expect that monitoring sites in Connecticut that are closer to
New York City would show less reduction in ozone than sites in
Connecticut that are further downwind. However, as noted above, in the
OTC CMAQ modeling, the closest downwind Connecticut site (Greenwich)
has a 10-percent modeled ozone reduction, while the Westport site,
which is slightly farther downwind, has only a 3-percent modeled ozone
reduction. The commenter did not provide any information to explain why
the OTC CMAQ modeling results for the Westport and Susan Wagner
monitoring sites are dissimilar to other nearby sites or why the
commenters believe that the OTC CMAQ modeling provides a more
representative ozone projection for these two sites compared to the EPA
and OTC CAMx-based modeling.
Information in the OTC air quality modeling technical support
document (OTC TSD) provides some insight into why their CMAQ and CAMx
modeling shows a dramatic difference in model response in New York City
and coastal Connecticut.\141\ First, the OTC's comparison of CMAQ and
CAMx 2011 base year model predictions to the corresponding measured
data indicate that the CAMx 2011 predictions have lower error and
higher correlation with measured data (i.e., better model performance)
than the CMAQ 2011 predictions for the 8 monitoring sites in
Connecticut and New York that are included in Table 6-6 of the OTC TSD.
Second, examining the 2011 modeled data for the top-10 days used to
calculate the site-specific RRF indicates that the CMAQ 2011
predictions are not representative of ozone concentrations at the
location of high ozone coastal sites in New York City and coastal
Connecticut for which data are provided in the OTC TSD. For example,
Figures 6-81 through 6-90 in the OTC TSD provide time series plots of
measured and CMAQ and CAMx-modeled ozone data for the days used to
calculate the RRF at each of 5 monitoring sites in the Northeast (2
sites in coastal Connecticut, 2 sites in New York City, and 1 site in
Maryland). These figures show several types of data including (1) the
2011 measured and corresponding model-predicted hourly ozone
concentrations at the monitoring site and (2) the highest 2011 and 2017
modeled 8-hour daily maximum ozone concentrations in the 3 x 3 array of
grid cells including and surrounding the monitoring site.\142\ The
latter set of data are used in the calculation of the RRF which, in
turn, is used to project the future year design value at each site. It
is expected that the highest modeled ozone values based on the 3 x 3
approach for calculating RRFs will be equal to or greater than the
modeled value in the grid cell containing the monitor. However, as
evident from the figures in the OTC TSD, the 2011 and 2017 ozone
concentrations used for projecting design values based on OTC's CMAQ
modeling overstate the modeled values at the coastal monitoring sites
by a notably larger amount than the corresponding 2011 predictions from
OTC's CAMx modeling. The clearest example of this is at the Queens
College site in New York City where the CMAQ-based 2011 and 2017 data
for the ten days used for the RRF calculation appear to be 50 to 60 ppb
above the highest hourly measured concentrations at the location of the
monitoring site. In contrast, the CAMx data used for the RRF
calculation appear to be within 20 ppb of the highest hourly measured
data on all ten days at this site. Overall, the OTC CAMx 2011 ozone
concentrations used to calculate the RRF align closely with the model
predictions and measured data at the monitoring sites for which data
are provided in the OTC TSD. Thus, the CAMx-based projections are more
likely to be representative than OTC's CMAQ modeling of the expected
ozone response to emissions reductions at the location of the
monitoring site.
---------------------------------------------------------------------------
\141\ Ozone Transport Commission/Mid-Atlantic Northeastern
Visibility Union 2011 Based Modeling Platform Support Document,
October 18, 2018. This document can be found in the docket for this
action.
\142\ In Figures 6-81 through 6-90 of the OTC TSD the highest
modeled ozone concentration in the 3 x 3 array of grid cells is
referred to as the ``9-Grid 8HMX'' value.
---------------------------------------------------------------------------
Typically, the highest modeled concentrations near coastal
monitoring sites are found in adjacent over-water grid cells. Ozone can
be higher over water than over land because mixing of the air is more
limited over water and titration (i.e., removal) by chemical reaction
of ozone with fresh NO emissions is less prevalent. Thus, it is
possible that the apparent anomalous 2017 design values at the Westport
and Susan Wagner sites derived from OTC's CMAQ modeling may be the
result of using predicted ozone values in the RRF calculations that are
not representative of concentrations at the monitoring site. This
hypothesis is supported by the
[[Page 65920]]
OTC's own analysis in which the OTC applied an approach that limits the
use of over-water ozone predictions in the calculation of projected
design values (i.e., Land Water Mask or LWMASK). When the OTC applied
the LWMASK approach, the projected 2017 design values at the Westport
and Susan Wagner sites were lowered significantly. Specifically, the
2017 OTC CMAQ design value at Westport drops from 83 ppb to 76 ppb and
from 78 ppb to 72 ppb at Susan Wagner by limiting the amount of over
water grid cells used in the projections. Thus, the concerns with the
OTC's application of CMAQ for 2017, as described above, call into
question the validity of their CMAQ modeling for other future years.
Regarding the comment that the EPA's modeling predicts attainment
in 2017 at eight monitors in Connecticut that are currently measuring
nonattainment, it is entirely reasonable to project that these sites
will be in attainment by 2023 as a result of the roughly 19 percent
reduction in aggregate ozone season NOX emissions that is
expected to occur between 2017 and 2023 for the states covered by the
CSAPR Update. Despite large regional and local NOX emission
reductions, ozone has remained stubbornly high at sites in Connecticut.
Larger ozone reductions are expected at these sites in the future as
NOX emissions continue to go down, and the local ozone
chemistry becomes more responsive to NOX reductions. That
is, because of the high NOX emissions in the New York City
area and the non-linear chemistry associated with ozone formation, the
benefits of NOX emission reductions may not have been fully
realized to date at downwind sites in Connecticut. More notable
reductions in ozone at these sites are expected as NOX
emissions decline further, in response to existing control programs and
other factors influencing emissions. Large, short-term reduction in
ozone is not unprecedented at historically high-ozone sites in other
parts of the Northeast Corridor. Specifically, the measured design
values at the Edgewood monitoring site in Harford County, Maryland,
which is downwind of the Baltimore/Washington, DC urban area, declined
by nearly 20 percent between 2012 and 2014 and have been below the
level of the 2008 NAAQS since 2014, as shown by the data in Table
III.C-3, below. Thus, the EPA disagrees that the monitored and OTC CMAQ
modeling data cited by the commenter indicate that the EPA modeling
projections for 2023 are not reliable.
Table III.C-3--Design Values (ppb) at Edgewood Site in Harford County, MD, 2007 Through 2017
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Year 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Design Value................................................ 94 91 87 89 92 93 85 75 71 73 75
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
As the commenters have suggested, the EPA did perform an analysis
comparing model response of ozone to emissions between CMAQ and CAMx
and found that both models give very similar responses when both models
are run with similar inputs (e.g., emissions, meteorology, and boundary
concentrations) and similar technical constructs (e.g., vertical layer
structure and vertical mixing method).\143\ The results of that study
are further supported by a more recent comparison by the EPA of
projected CAMx and CMAQ ozone design values using the EPA's version 6.2
of the 2011 emissions platform \144\ with 2025 as the future
year.145 146 For the two sites in the New York City area
that are the focus of the comments (i.e., Westport and Susan Wagner),
the EPA's analysis shows that both models predict a comparable
reduction at each of these sites. Specifically, at the Westport site
the 2009 to 2013 base period ozone design values were projected to
decline by 9 percent with CMAQ and by 11 percent with CAMx. This
difference in model response equates to only a 1.8 ppb difference in
projected 2025 design values at this site, which is far less than the
9.2 ppb difference between CMAQ and CAMx seen in the OTC's analysis of
2023 modeling results. Similarly, at the Susan Wagner site the base
period ozone design value was projected to decline by 11.2 percent with
CMAQ and 11.7 percent with CAMx in EPA's modeling. The difference in
model response at the Susan Wagner site equates to only a 0.4 ppb
difference in the projected 2025 design, which is far less than the 5.8
ppb difference between CMAQ and CAMx in OTC's 2023 analysis.\147\
Furthermore, a study sponsored by the Texas Commission on Environmental
Quality also found that CAMx and CMAQ provide a comparable response to
the same amount of NOX and VOC emission reductions.\148\ In
summary, based on the EPA's analysis of its own data and the data
available from commenters, we disagree with the commenter's contention
that the EPA's CAMx-based modeling does not provide a credible
projection of 2023 ozone design values.
---------------------------------------------------------------------------
\143\ Baker, K., S. Phillips, and B. Timin. ``Operational
Evaluation and Model Response Comparison of CAMx and CMAQ for Ozone
and PM2.5'', 7th Annual Community Modeling & Analysis
System Conference, October 2008.
\144\ See the Technical Support Document (TSD): Preparation of
Emissions Inventories for the Version 6.2, 2011 Emissions Modeling
Platform, EPA, August 2015.
\145\ A description of the CAMx modeling can be found in the
Regulatory Impact Analysis of the Final Revisions to the National
Ambient Air Quality Standards for Ground-Level Ozone, EPA-452/R-15-
007, September 2015.
\146\ A description of the EPA CMAQ modeling can be found in the
docket.
\147\ An Excel file containing the differences in projected
design values between EPA's CMAQ and CAMx modeling for sates along
the Northeast Corridor from Washington, DC to Connecticut can be
found in the docket for this final action.
\148\ Final Report: Three-Dimensional Performance Comparison of
CAMx and CMAQ Using the 2013 DISCOVER-AQ Field Study Data Base.
Prepared by Ramboll under contract to the Texas Commission on
Environmental Quality, August 2015.
---------------------------------------------------------------------------
5. Pollutant Transport From Upwind States
Although the EPA has conducted nationwide contribution modeling for
2023, the EPA does not believe this information is necessary for
evaluating remaining good neighbor obligations for the 2008 ozone NAAQS
because there are no ozone monitoring sites in the eastern U.S. that
are expected to have problems attaining or maintaining the 2008 ozone
NAAQS in 2023. Nonetheless, the results of the EPA's state-by-state
ozone contribution modeling were released in a memorandum on March 27,
2018, and are also available in the docket for this action.\149\ The
EPA notes that, while the air quality modeling did identify potential
remaining problem receptors in California in 2023, none of the EPA's
prior analysis nor its current contribution modeling have linked any of
the CSAPR Update states in the eastern U.S., whose good neighbor
obligations for the 2008 ozone NAAQS
[[Page 65921]]
are the subject of this action, to any of those potential remaining
problem receptors. Therefore, the EPA does not believe there is a need
to further evaluate the contributions of the 20 CSAPR Update states to
any downwind receptors identified in the EPA's 2017 modeling conducted
for the CSAPR Update.
---------------------------------------------------------------------------
\149\ 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). EPA Memorandum to Regional Air Division
Directors. March 27, 2018. Available at https://www.epa.gov/sites/production/files/2018-03/documents/transport_memo_03_27_18_1.pdf.
---------------------------------------------------------------------------
D. Final Determination
Consistent with the proposed action, the EPA has determined that,
with CSAPR Update implementation, 20 eastern states' good neighbor
obligations for the 2008 ozone NAAQS are fully addressed.\150\ The
states covered by this action are listed in table III.D-1. The EPA's
determination is based on findings that: (1) 2023 is a reasonable
future analytic year for evaluating ozone transport problems with
respect to the 2008 ozone NAAQS; and (2) for the purposes of interstate
ozone transport, air quality modeling projections for 2023 indicate
that no further air quality problems will remain in the east in 2023.
---------------------------------------------------------------------------
\150\ The EPA has also already separately finalized an approval
of Kentucky's SIP submittal demonstrating that the CSAPR Update is a
full remedy for Kentucky's good neighbor obligation for the 2008
ozone NAAQS. 83 FR 33730 (July 17, 2018).
---------------------------------------------------------------------------
As explained in more detail in section III.B, the EPA's selection
of 2023 as a reasonable future analytic year is supported by an
assessment of attainment dates for the 2008 ozone NAAQS and feasibility
of implementing control strategies to reduce NOX in CSAPR
Update states. The EPA's NOX control strategy feasibility
assessment prioritizes NOX control strategies in CSAPR
Update states that would be additional to those strategies that were
already quantified into CSAPR Update emissions budgets. The EPA finds:
(1) That 2023 is an appropriate future analytic year, taking into
consideration relevant attainment dates, because it is the first ozone
season for which significant new controls to reduce NOX
could be feasibly installed across the CSAPR Update region and thus
represents the timeframe that is as expeditious as practicable for
upwind states to implement additional emission reductions.
Furthermore, as described in section III.C, the EPA finds: (2) That
its analysis of ozone concentrations in step 1 for the 2023 analytic
year indicates that there are no monitoring sites in the east that are
projected to have nonattainment or maintenance problems with respect to
the 2008 ozone NAAQS in 2023. Together, these two findings lead to
EPA's final determination that--with CSAPR Update implementation--CSAPR
Update states are not expected to significantly contribute to
nonattainment or interfere with maintenance of the 2008 ozone NAAQS in
downwind states in 2023.
As a result of this final determination, the EPA finds that the
promulgation of the CSAPR Update fully satisfies the requirements of
the good neighbor provision for the 2008 ozone NAAQS for these states,
and therefore also satisfies the agency's obligation pursuant to CAA
section 110(c) for these states. Accordingly, the EPA has no remaining
obligation to issue FIPs, nor are the states required to submit SIPs,
that would further reduce transported ozone pollution beyond the
existing CSAPR Update requirements with regard to the 2008 ozone NAAQS.
Table III.D-1--States Covered by the Final Determination Regarding Good
Neighbor Obligations for the 2008 Ozone NAAQS
------------------------------------------------------------------------
State name
-------------------------------------------------------------------------
Alabama
Arkansas
Illinois
Indiana
Iowa
Kansas
Louisiana
Maryland
Michigan
Mississippi
Missouri
New Jersey
New York
Ohio
Oklahoma
Pennsylvania
Texas
Virginia
West Virginia
Wisconsin
------------------------------------------------------------------------
Consistent with this final determination, this action also
finalizes minor revisions to the existing state-specific sections of
the CSAPR Update regulations for states other than Kentucky and
Tennessee. The revisions will remove the current statements indicating
that the CSAPR Update FIP for each such state only partially addresses
the state's good neighbor obligation under CAA section
110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS. Because states can replace
the CSAPR Update FIPs with SIPs, these revisions will also mean that a
SIP that is approved through notice-and-comment rulemaking to fully
replace the CSAPR Update FIP for one of these states would also fully
address the state's good neighbor obligation for this NAAQS. In
particular, the EPA finalizes findings that the agency's previous
approvals of CSAPR Update SIPs for Alabama (82 FR 46674) and Indiana
(signed November 27, 2018; publication in the Federal Register
forthcoming) \151\ fully satisfy those states' good neighbor
obligations for the 2008 ozone NAAQS. Thus, Alabama and Indiana have no
obligation to submit any additional SIP revisions addressing these good
neighbor obligations.
---------------------------------------------------------------------------
\151\ In this action, the EPA proposed to find that Alabama's
previously approved CSAPR Update SIP would now fully satisfy its
good neighbor obligation for the 2008 ozone NAAQS. Subsequent to the
proposal, the EPA finalized its approval of Indiana's CSAPR Update
SIP. As discussed earlier, the EPA found that Indiana's SIP approval
only partially satisfied its good neighbor obligation for the 2008
ozone NAAQS for the same reasons that the EPA found that Alabama's
SIP approval only partially satisfied that state's good neighbor
obligation. Although the EPA did not propose in this action to find
that Indiana's SIP would now fully satisfy its good neighbor
obligation, the EPA did propose to find that the state's CSAPR
Update FIP would fully satisfy its obligation. Because Indiana's
approved SIP is commensurate with its prior CSAPR Update FIP such
that Indiana is therefore now situated identically to Alabama, the
EPA believes it is a logical outgrowth of the proposal to finalize a
finding that Indiana's approved CSAPR Update SIP also now fully
satisfies its good neighbor obligation for the 2008 ozone NAAQS.
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IV. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review, and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is a significant regulatory action that was submitted
to the Office of Management and Budget (OMB) for review. Any changes
made in response to OMB recommendations have been documented in the
docket.
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
This action is not subject to Executive Order 13771 because this
final rule is expected to result in no more than de minimis costs.
C. Paperwork Reduction Act
This action does not impose any new information collection burden
under the Paperwork Reduction Act. The OMB has previously approved the
information collection activities contained in the existing regulations
and has assigned OMB control number 2060-0667. The minor revisions to
the FIP provisions finalized in this action have no impact on
monitoring, recordkeeping, and reporting requirements for affected
[[Page 65922]]
EGUs in the CSAPR NOX Ozone Season Group 2 Trading Program.
D. Regulatory Flexibility Act
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the Regulatory
Flexibility Act. In making this determination, the impact of concern is
any significant adverse economic impact on small entities. An agency
may certify that a rule will not have a significant economic impact on
a substantial number of small entities if the rule relieves regulatory
burden, has no net burden, or otherwise has a positive economic effect
on the small entities subject to the rule. This action makes a minor
modification to existing CSAPR Update FIPs and does not impose new
requirements on any entity. The EPA has therefore concluded that this
action will have no net regulatory burden for all directly regulated
small entities.
E. Unfunded Mandates Reform Act
This action does not contain any unfunded mandate as described in
the Unfunded Mandates Reform Act, 2 U.S.C. 1531-1538, and does not
significantly or uniquely affect small governments. The action imposes
no enforceable duty on any state, local, or tribal governments or the
private sector. This action simply updates the existing CSAPR Update
FIPs to establish that no further federal regulatory requirements are
necessary.
F. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government. This
action simply updates the existing CSAPR Update FIPs to establish that
no further federal regulatory requirements are necessary.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175. It will not have substantial direct effects on
tribal governments, on the relationship between the federal government
and Indian tribes, or on the distribution of power and responsibilities
between the federal government and Indian tribes. This action simply
updates the existing CSAPR Update FIPs to establish that no further
federal regulatory requirements are necessary. Thus, Executive Order
13175 does not apply to this action. Consistent with the EPA Policy on
Consultation and Coordination with Indian Tribes, the EPA consulted
with tribal officials while developing the CSAPR Update. A summary of
that consultation is provided in the preamble for the CSAPR Update, 81
FR 74584 (October 26, 2016). Additionally, the EPA provided an overview
of its proposed determination during a National Tribal Air
Association--EPA Air Policy Update meeting on Thursday July 26, 2018.
H. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it simply updates the existing CSAPR
Update FIPs to establish that no further federal regulatory
requirements are necessary.
Comment: One commenter contends that the EPA has inappropriately
failed to identify and assess the health risks to children from its
decision to authorize continued interstate ozone pollution that
contributes to violations of the 2008 and 2015 ozone air quality
standards in downwind states. The commenter states that the EPA has
consistently recognized that children are disproportionately vulnerable
to the environmental health risks of ozone and asserts that by
authorizing continued pollution that will harm children, the EPA has
failed to ensure that its policies, programs, activities, and standards
address these risks. The commenter claims that this rule is subject to
section 2-202 of the Executive Order, which provides that ``covered
regulatory action'' means ``any substantive action in a rulemaking''
that is ``likely to result in a rule that may'' (1) ``adversely affect
in a material way . . . the environment, public health or safety, or
State, local, or tribal governments or communities'' and (2) ``concern
an environmental health risk or safety risk that an agency has reason
to believe may disproportionately affect children.'' The commenter
asserts that ozone pollution above the air quality standards the EPA
has adopted indisputably is a health risk that disproportionately
affects children.
Response: According to section 2-202, a rulemaking is a ``covered
regulatory action'' and thus subject to the Executive Order if the
action is economically significant under Executive Order 12866 and
involves an environmental health risk or safety risk that the agency
has reason to believe may disproportionately affect children. This
rulemaking does not qualify under either criterion. First, although
this action is considered a significant regulatory action under
Executive Order 12866, the EPA has not determined that the rule is
economically significant under that Order, and the commenter has not
explained whether or why it should be considered economically
significant. To the extent that the commenter cites the standard for
economic significance wherein an action ``would adversely affect in a
material way . . . the environment, public health or safety, or State,
local, or tribal governments or communities,'' the commenter has not
explained how this action, which concludes that air quality problems
will be resolved and therefore does not either impose or repeal any
regulatory requirements, would have an adverse effect.
Second, the health-based standard at issue in this action has
already been set in a prior rulemaking to promulgate the 2008 ozone
NAAQS, wherein the EPA did consider the effects of the standard under
the Executive Order. 73 FR 16436, 16506-07. Therefore, this action does
not concern an environmental health or safety risk because the EPA is
simply evaluating how to implement an existing health standard.
Moreover, under the good neighbor provision, the EPA's authority to
prohibit emissions from sources in upwind states is constrained by the
obligation to demonstrate that such reductions are necessary to address
a downwind nonattainment or maintenance problem relative to a NAAQS.
See EME Homer City, 134 S. Ct. at 1608. If the EPA's analysis
determines that there are no such downwind air quality problems in the
future, then the EPA cannot demonstrate that further emission
reductions are necessary from an upwind state and the EPA lacks the
authority to prohibit any further emissions. See id.; EME Homer City
II, 795 F.3d at 130. Under such circumstances, there is no health or
safety risk which may disproportionality affect children.
I. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not a ``significant energy action'' because it is
not likely to
[[Page 65923]]
have a significant adverse effect on the supply, distribution, or use
of energy. This action simply updates the existing CSAPR Update FIPs to
establish that no further federal regulatory requirements are
necessary.
J. National Technology Transfer Advancement Act
This rulemaking does not involve technical standards.
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Consistent with Executive Order 12898 and the EPA's environmental
justice policies, the EPA considered effects on low-income populations,
minority populations, and indigenous peoples while developing the CSAPR
Update. The process and results of that consideration are described in
the preamble for the CSAPR Update, 81 FR 74585 (October 26, 2016).
Because this action simply updates the existing CSAPR Update FIPs to
establish that no further federal regulatory requirements are necessary
and does not establish a new environmental health or safety standard,
the EPA believes that no further review of this action under Executive
Order 12898 is necessary.
Comment: One commenter asserts that the EPA has failed either to
identify or to address the disproportionately high and adverse impact
on minority communities of continued interstate ozone pollution that
contributes to violations of both the 2008 and 2015 health-based
standards for ozone and harms human health, in violation of the
Executive Order. The commenter notes that the EPA's modeling conducted
for the CSAPR Update showed that interstate ozone pollution contributes
significantly to downwind states' failure to attain and maintain the
2008 ozone standard and identified the downwind nonattainment and
maintenance areas that receive this pollution. However, the commenter
contends that the EPA conceded the CSAPR Update would achieve only very
small reductions in the pollution and that the EPA expected air quality
problems in downwind areas to persist. Data for the 2017 ozone season
confirms the EPA's projection that these areas would continue to suffer
poor air quality in violation of the 2008 standard. The commenter
asserts that the agency's claim that all Eastern states will be in
compliance with the 2008 ozone standard in 2023 does not negate the
serious harms that will result from unhealthy ozone levels this year,
next year, and in future years. The commenter states that the
populations in downwind areas that continue to experience violations
are disproportionately members of minority racial and ethnic groups,
and that the EPA's decision will expose communities who live near
polluting sources, who are also disproportionally members of racial and
ethnic minorities, to continued high levels of pollution. The commenter
further asserts that people most exposed to power plant pollution are
the least likely to be able to afford the health care costs imposed by
exposure to pollution and are otherwise socially disadvantaged.
The commenter concludes that the agency's attempt to justify its
failure to identify and address disproportionately high and adverse
impacts on minority populations is contrary to the Executive Order and
arbitrary. The commenter explains that Executive Order 12898 applies to
all ``effects of [EPA's] programs, policies, and activities,'' which
includes effects of the EPA's administration of the Clean Air Act's
good neighbor provision and the decision not to address ongoing air
pollution that contributes to violations of health-based air quality
standards. The commenter contends that there is no basis to conclude
that the Executive Order creates any exception for EPA programs,
policies, or activities that effectively authorize, rather than curtail
pollution, concluding that decisions that result in greater pollution
are most likely to have disproportionately high and adverse impacts on
minority populations.
Response: The health-based standard at issue in this action was set
in a prior rulemaking to promulgate the 2008 ozone NAAQS, wherein the
EPA did consider the effects of ozone on different populations,
including those identified by the commenter. 73 FR 16436, 16507. As
discussed earlier, the EPA also considered these effects in
promulgating the emission reduction obligations intended to address
downwind nonattainment and maintenance concerns with respect to this
standard in the CSAPR Update. However, under the good neighbor
provision, the EPA's authority to prohibit emission reductions from
sources in upwind states is constrained by the obligation to
demonstrate that such reductions are necessary to address a downwind
nonattainment or maintenance problem relative to a NAAQS. See EME Homer
City, 134 S. Ct. at 1608. If the EPA's analysis demonstrates that there
are no such downwind air quality problems in the future, then the EPA
cannot demonstrate that further emission reductions are necessary from
an upwind state and the EPA therefore lacks the authority to prohibit
any further emissions. See id.; EME Homer City II, 795 F.3d at 130.
Under such circumstances, further review under Executive Order 12898 is
not warranted.
L. Congressional Review Act
This action is subject to the Congressional Review Act, and the EPA
will submit a rule report to each House of the Congress and to the
Comptroller General of the United States. This action is not a ``major
rule'' as defined by 5 U.S.C. 804(2).
M. 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.''
The EPA finds that this action is ``nationally applicable'' or, in
the alternative, is based on a determination of ``nationwide scope and
effect'' within the meaning of section 307(b)(1). This action addresses
emissions impacts and sources located in 20 States, which are located
in multiple EPA Regions and federal circuits. The final action is also
based on a common core of factual findings and analyses concerning the
transport of pollutants between the different states. Furthermore, the
EPA intends this interpretation and approach to be consistently
implemented nationwide with respect to section 110(a)(2)(D)(i)(I) for
the 2008 ozone NAAQS.
For these reasons, the Administrator determines that this final
action is nationally applicable or, in the alternative, is based on a
determination of nationwide scope and effect for purposes of section
307(b)(1). Thus, pursuant to 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 this final
action is published in the Federal Register.
In addition, pursuant to sections 307(d)(1)(C) and 307(d)(1)(V) of
the CAA, the Administrator has determined
[[Page 65924]]
that this action is subject to the provisions of section 307(d). CAA
section 307(d)(1)(B) provides that section 307(d) applies to, among
other things, ``the promulgation or revision of an implementation plan
by the Administrator under CAA section 110(c).'' 42 U.S.C.
7407(d)(1)(B). Under section 307(d)(1)(V), the provisions of 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) during the course of this
rulemaking.
List of Subjects in 40 CFR Part 52
Environmental protection, Administrative practice and procedure,
Air pollution control, Incorporation by reference, Intergovernmental
relations, Nitrogen oxides, Ozone, Particulate matter, Regional haze,
Reporting and recordkeeping requirements, Sulfur dioxide.
Dated: December 6, 2018.
Andrew R. Wheeler,
Acting Administrator.
For the reasons stated in the preamble, part 52 of chapter I of
title 40 of the Code of Federal Regulations is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Sec. Sec. 52.54, 52.184, 52.731, 52.789, 52.840, 52.882, 52.984,
52.1084, 52.1186, 52.1284, 52.1326, 52.1584, 52.1684, 52.1882, 52.1930,
52.2040, 52.2283, 52.2440, 52.2540, and 52.2587 [Amended]
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2. Part 52 is amended by removing the text ``, provided that because
the CSAPR FIP was promulgated as a partial rather than full remedy for
an obligation of the State to address interstate air pollution, the SIP
revision likewise will constitute a partial rather than full remedy for
the State's obligation unless provided otherwise in the Administrator's
approval of the SIP revision'' from the second sentence in each of the
following paragraphs:
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a. Section 52.54(b)(2);
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b. Section 52.184(b);
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c. Section 52.731(b)(2);
0
d. Section 52.789(b)(2);
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e. Section 52.840(b)(2);
0
f. Section 52.882(b)(1);
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g. Section 52.984(d)(2);
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h. Section 52.1084(b)(2);
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i. Section 52.1186(e)(2);
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j. Section 52.1284(b);
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k. Section 52.1326(b)(2);
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l. Section 52.1584(e)(2);
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m. Section 52.1684(b)(2);
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n. Section 52.1882(b)(2);
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o. Section 52.1930(b);
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p. Section 52.2040(b)(2);
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q. Section 52.2283(d)(2);
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r. Section 52.2440(b)(2);
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s. Section 52.2540(b)(2); and
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t. Section 52.2587(e)(2).
[FR Doc. 2018-27160 Filed 12-20-18; 8:45 am]
BILLING CODE 6560-50-P