[Federal Register Volume 86, Number 229 (Thursday, December 2, 2021)]
[Rules and Regulations]
[Pages 68413-68421]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-26144]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2019-0156; FRL-8697-02-R4]
Air Plan Approval; FL, GA, NC, SC; Interstate Transport (Prongs 1
and 2) for the 2015 8-Hour Ozone Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA or Agency) is
approving State Implementation Plan (SIP) submissions from Florida,
Georgia, North Carolina, and South Carolina, addressing the Clean Air
Act (CAA or Act) Good Neighbor interstate transport infrastructure SIP
requirements for the 2015 8-hour ozone National Ambient Air Quality
Standard (NAAQS or standards). EPA has determined that each state's SIP
contains adequate provisions to prohibit emissions that will
significantly contribute to nonattainment or interfere with maintenance
of the 2015 ozone NAAQS in any other state. This action is being taken
in accordance with the CAA.
DATES: This rule is effective January 3, 2022.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2019-0156. 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, i.e.,
Confidential Business Information 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 or in hard
copy at the Air Regulatory Management Section, Air Planning and
Implementation Branch, Air and Radiation Division, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia
30303-8960. EPA requests that if at all possible, you contact the
person listed in the FOR FURTHER INFORMATION CONTACT section to
schedule your inspection. The Regional Office's
[[Page 68414]]
official hours of business are Monday through Friday 8:30 a.m. to 4:30
p.m., excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT: Evan Adams of the Air Regulatory
Management Section, Air Planning and Implementation Branch, Air and
Radiation Division, U.S. Environmental Protection Agency, Region 4, 61
Forsyth Street SW, Atlanta, Georgia 30303-8960. Mr. Adams can be
reached by telephone at (404) 562-9009, or via electronic mail at
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On December 30, 2019, EPA proposed to approve SIP submissions from
Alabama, Florida, Georgia, North Carolina, South Carolina, and
Tennessee \1\ as meeting the interstate transport requirements of CAA
section 110(a)(2)(D)(i)(I), or the Good Neighbor provision, for the
2015 8-hour ozone NAAQS. See 84 FR 71854. Specifically, the 2019 notice
of proposed rulemaking (NPRM) originally proposed to find that
emissions from sources in these states will not significantly
contribute to nonattainment or interfere with maintenance of the 2015
8-hour ozone NAAQS in any other state based on information for the
analytic year 2023, consistent with the 2024 Moderate area attainment
date. Refer to the December 30, 2019 NPRM for an explanation of the CAA
requirements, the four-step framework that EPA applies under the Good
Neighbor provision for ozone NAAQS, a detailed summary of the state
submissions, and EPA's proposed rationale for approval. See 84 FR
71854. The public comment period for the December 30, 2019, NPRM closed
on January 29, 2020.\2\
---------------------------------------------------------------------------
\1\ The submittals from these six southeastern states were
submitted separately under the following cover letters: Alabama
Department of Environmental Management dated August 20, 2018
(received by EPA on August 27, 2018); Florida Department of
Environmental Protection dated September 18, 2018 (received by EPA
on September 26, 2018); Georgia Environmental Protection Division
dated September 19, 2018 (received by EPA on September 24, 2018);
North Carolina Department of Environmental Quality dated September
27, 2018 (received by EPA October 10, 2018); South Carolina
Department of Health and Environmental Control dated and received by
EPA on September 7, 2018; and Tennessee Department of Environment
and Conservation dated September 13, 2018 (received by EPA on
September 17, 2018).
\2\ On March 24, 2020, former EPA Region 4 Administrator Mary
Walker signed a document (hereinafter referred to as the March 24,
2020 document) that EPA had intended to become a final rule upon
publication in the Federal Register. However, the March 24, 2020
document was never published in the Federal Register. Further, on
January 19, 2021, former EPA Region 4 Administrator Mary Walker
signed a second document (hereinafter referred to as the January 19,
2021 document) that EPA had intended to become a final rule, which
EPA posted to its website at https://www.epa.gov/air-quality-implementation-plans/epas-approval-2015-8-hour-ozone-interstate-transport-requirements. EPA noted in that posting ``Notwithstanding
the fact that the EPA is posting a pre-publication version, the
final rule will not be promulgated until published in the Federal
Register.'' EPA will not publish either the March 24, 2020 document
or the January 19, 2021 document in the Federal Register, and now
intends that this notice constitutes final action with respect to
the 2019 proposal, superseding all versions of previous draft final
action documents.
---------------------------------------------------------------------------
Subsequent to the publication of the NPRM on December 30, 2019, two
events caused EPA to adjust its analysis of the aforementioned SIP
submissions. First, the United States Court of Appeals for the District
of Columbia Circuit (D.C. Circuit) issued its ruling in Maryland v.
EPA, 958 F.3d 1185 (D.C. Cir. 2020) (Maryland), which held that EPA
must address Good Neighbor obligations consistent with the 2021
attainment date for downwind areas classified as being in Marginal
nonattainment under the 2015 8-hour ozone NAAQS, ``not at some later
date.'' 958 F.3d at 1203-04 (citing Wisconsin v. EPA, 938 F.3d 303, 314
(D.C. Cir. 2019) (Wisconsin)).\3\ Second, on October 30, 2020, EPA
released and accepted public comment on updated 2023 modeling that used
the 2016 emissions platform developed under the EPA/Multi-
Jurisdictional Organization (MJO)/state collaborative project as the
primary source for the base year and future year emissions data. On
April 30, 2021, EPA published the final Revised Cross-State Air
Pollution Rule (CSAPR) Update for the 2008 ozone NAAQS (Revised CSAPR
Update) using the same modeling that was made publicly available in the
proposed rulemaking for the Revised CSAPR Update.\4\ Although that
modeling focused on the year 2023, EPA conducted an interpolation
analysis of these modeling results to generate air quality and
contribution values for the 2021 analytic year, consistent with the
Maryland holding, as the relevant analytic year for the 2015 8-hour
ozone NAAQS.
---------------------------------------------------------------------------
\3\ Maryland involved EPA's denial of administrative petitions
filed by the states of Maryland and Delaware under CAA section
126(b), seeking to have EPA impose emissions limits on sources in
upwind states alleged to be emitting in violation of the Good
Neighbor Provision. The court disagreed with EPA that use of a 2023
analytic year, consistent with the 2024 attainment date for areas
classified as being in Moderate nonattainment, was a proper reading
of the court's earlier decision in Wisconsin. Id. at 1204.
\4\ Revised Cross-State Air Pollution Rule Update for the 2008
Ozone NAAQS, 86 FR 23054; see also Emissions Modeling TSD titled
``Preparation of Emissions Inventories for the 2016v1 North American
Emissions Modeling Platform.'' This TSD is available in the docket
for this action and at https://www.epa.gov/air-emissionsmodeling/2016v1-platform. The underlying modeling files are available on data
drives in the Docket office for public review. See the docket for
the Revised CSAPR Update (EPA-HQ-OAR-2020-0272). See also Air
Quality Modeling Data Drives_Final RCU.pdf, available in the docket
for this action for a file inventory and instructions on how to
access the modeling files.
---------------------------------------------------------------------------
As a result, EPA issued a supplemental notice of proposed
rulemaking (SNPRM) on July 19, 2021, which relied on the new modeling
and analysis to supplement EPA's proposed finding in the December 30,
2019 NPRM that emissions from sources in Florida, Georgia, North
Carolina, and South Carolina will not significantly contribute to
nonattainment or interfere with maintenance of the 2015 8-hour ozone
NAAQS in any other state.\5\ See 86 FR 37942. The new modeling and
analysis indicated that Florida, Georgia, North Carolina, and South
Carolina, individually, will not contribute greater than one percent of
the 2015 8-hour ozone NAAQS to any potential nonattainment or
maintenance receptors in 2021. In addition, EPA analyzed past and
projected emissions of ozone precursors (nitrogen oxides
(NOX) and volatile organic compounds (VOCs)), finding a
downward trend in emissions to support the modeling analysis and
indicate that the contributions from emissions from sources in Florida,
Georgia, North Carolina, and South Carolina to ozone receptors in
downwind states will continue to decline and remain below one percent
of the 2015 8-hour ozone NAAQS. Thus, the July 19, 2021 SNPRM provided
that ``EPA continues to propose to approve the interstate transport
portions of the infrastructure SIP submissions from Florida, Georgia,
North Carolina, and South Carolina as meeting CAA section
110(a)(2)(D)(i)(I) requirements for the 2015 8-hour ozone NAAQS.'' See
86 FR 37942.
---------------------------------------------------------------------------
\5\ EPA previously proposed to approve infrastructure SIP
elements submitted to fulfill the interstate transport requirements
of CAA section 110(a)(2)(D)(i)(I) for the states of Alabama and
Tennessee for the 2015 8-hour ozone NAAQS in the December 30, 2019,
NPRM referenced previously in this rule. However, the July 19, 2021
SNPRM did not address these submissions, and EPA is deferring action
on the referenced SIP submissions from Alabama and Tennessee at this
time.
---------------------------------------------------------------------------
The technical rationale for EPA's proposed action is given in the
July 19, 2021 SNPRM and in supportive materials contained in the docket
for this action. The comment period for the July 19, 2021 SNPRM closed
on August 18, 2021, and EPA received no additional comments. However,
EPA did receive comments on the original December 30, 2019 NPRM, and
relevant responses are provided in section II. EPA is finalizing the
approval of this action based on the technical rationale
[[Page 68415]]
presented in the July 19, 2021 SNPRM and in accordance with the CAA.
II. Response to Comments
EPA received four sets of adverse comments and one set of
supportive comments on the December 30, 2019, NPRM. The comments were
submitted by the Midwest Ozone Group, Sierra Club, New Jersey
Department of Environmental Protection, New York State Department of
Environmental Conservation, and one anonymous commenter. The full set
of comments is provided in the docket for this final rule. This section
contains summaries of the comments and EPA's responses.
Comment 1: Several commenters asserted that EPA's December 30, 2019
NPRM improperly focused on the analytic year of 2023, which the
commenters argue ignores the August 2021 attainment date faced by
Marginal 2015 ozone nonattainment areas. These commenters asserted that
EPA's decision focused on 2023 (consistent with the August 2024
attainment date for Moderate nonattainment areas under the 2015 8-hour
ozone NAAQS, rather than the August 2021 attainment date for Marginal
nonattainment areas), which contravenes the statutory text and the
Wisconsin decision, and is arbitrary and capricious. The commenters
specifically mention that the distinction EPA has drawn between
Marginal and Moderate areas is misleading, that it is unreasonable for
EPA to expect downwind areas to voluntarily request reclassifications
to Moderate, and that EPA has not provided adequate support for its
assumption that Marginal areas will achieve attainment by 2021. A
commenter also contended that the CSAPR Update is insufficient to bring
all downwind states into attainment with the 2015 8-hour ozone NAAQS,
citing a conclusion made in the December 30, 2019, NPRM in support of a
2023 analytic year and monitoring data from the 2017 ozone season
indicating certain 8-hour daily maximum concentrations at air quality
monitors in Delaware were above the level of the NAAQS. In addition, a
commenter asserted that recent monitoring data at other monitoring
sites suggests that these areas will continue to have difficulty
attaining the NAAQS in 2021.
Response 1: The comments related to the 2023 analytic year refer to
a D.C. Circuit court decision addressing, in part, the issue of the
relevant analytic year for the purposes of evaluating interstate ozone
transport under the Good Neighbor provision. On September 13, 2019, the
D.C. Circuit issued the Wisconsin decision, remanding the CSAPR Update
(81 FR 74504, October 26, 2016) to the extent that it failed to require
upwind states to eliminate their significant contribution no later than
the next applicable attainment date by which downwind states must come
into compliance with the NAAQS, as established under CAA section
181(a). See 938 F.3d 303, 313. In the December 30, 2019 NPRM, EPA had
interpreted that holding as limited to the attainment dates for
Moderate nonattainment area or higher classifications under CAA section
181 on the basis that Marginal nonattainment areas have reduced
planning requirements and other considerations. See 84 FR 71854, 71856-
58.
On May 19, 2020, however, the D.C. Circuit issued the Maryland
decision that cited the Wisconsin decision in holding that EPA must
assess the impact of interstate transport on air quality at the next
downwind attainment date, including Marginal area attainment dates, in
evaluating the basis for EPA's denial of a petition under CAA section
126(b). See 958 F.3d 1185, 1203-04. The court noted that ``section
126(b) incorporates the Good Neighbor Provision,'' and therefore ``the
EPA must find a violation [of section 126] if an upwind source will
significantly contribute to downwind nonattainment at the next downwind
attainment deadline. Therefore, the EPA must evaluate downwind air
quality at that deadline, not at some later date.'' Id. at 1204
(emphasis added). EPA interprets the court's holding in Maryland as
requiring the Agency, under the Good Neighbor provision, to address
Good Neighbor obligations by no later than the next applicable
attainment date for downwind areas, including a Marginal area
attainment date under section 181 for ozone nonattainment.\6\
---------------------------------------------------------------------------
\6\ EPA notes that the court in Maryland did not have occasion
to evaluate circumstances in which EPA may determine that an upwind
linkage to a downwind air quality problem exists at steps 1 and 2 of
the four-step interstate transport framework by a particular
attainment date, but for reasons of impossibility or profound
uncertainty the Agency is unable to mandate upwind pollution
controls by that date. See Wisconsin, 938 F.3d at 320. The D.C.
Circuit noted in Wisconsin that upon a sufficient showing, these
circumstances may warrant a certain degree of flexibility in
effectuating the implementation of the Good Neighbor provision. Such
circumstances are not at issue in the present action.
---------------------------------------------------------------------------
The December 30, 2019 NPRM proposing approval of the 2015 8-hour
ozone Good Neighbor SIPs for Florida, Georgia, North Carolina, and
South Carolina on the basis of a 2023 analytic year analysis predates
the D.C. Circuit's decisions in Wisconsin and Maryland. In the July 19,
2021 SNPRM, EPA explained why it now considers 2021 to be the relevant
analytic year for the purposes of determining whether sources in
Florida, Georgia, North Carolina, and South Carolina will significantly
contribute to downwind nonattainment or interfere with maintenance of
the 2015 8-hour ozone NAAQS in any other state. See 86 FR 37944. Also
in the July 19, 2021 SNPRM, EPA conducted an additional analysis for
the year 2021, and provided additional notice and opportunity for
public comment. Id. Thus, comments regarding the improper use of 2023
as a model year are now moot.\7\
---------------------------------------------------------------------------
\7\ EPA recognizes that this action is now being finalized after
the Marginal area attainment date has passed and after the close of
the 2021 ozone season. However, this does not change EPA's analysis
or its conclusion. The modeling information available in the record
and included in the supplemental proposal also indicates that these
four states will not be linked to any downwind nonattainment or
maintenance receptors in 2023 and 2028, confirming that no new
linkages to downwind receptors are projected in later years.
---------------------------------------------------------------------------
Multiple commenters stated that the approach for identifying
nonattainment and maintenance receptors in the original December 30,
2019 NPRM failed to identify all of the potential receptors relevant in
a 2021 analytic year. In addition to their objections to EPA's
selection of the 2023 analytic year, these commenters argued that
measured design values at certain monitoring sites made clear that
certain areas would not be able to attain the 2015 8-hour ozone NAAQS
by the 2021 Marginal area attainment date. The shift in the July 19,
2021 SNPRM and this final action to a 2021 analytic year partially
addresses the concerns raised by these commenters. To the extent
commenters are arguing that EPA's method of defining nonattainment and
maintenance receptors for Good Neighbor purposes ignores certain areas
that may have air quality problems in 2021 based solely on historical
measured data, EPA disagrees with these comments. EPA's method of
defining these receptors, as described in section II of the SNPRM takes
into account both measured data and reasonable projections based on
modeling analysis.\8\
---------------------------------------------------------------------------
\8\ Further, as recognized by the court in Wisconsin, 938 F.3d
at 320, nonattainment areas that measure clean data in a given year,
even if not sufficient to be redesignated to attainment based on the
three-year design value, may qualify for up to two one-year
extensions of their attainment dates, as provided at CAA section
181(a)(5). Thus, simply providing the value that would be needed in
2020 in order for an area to be designated to attainment using the
three-year average, as some commenters did, does not present a
complete picture of the likelihood that an area will be
``reclassified'' or ``bumped-up.''
---------------------------------------------------------------------------
[[Page 68416]]
Regarding the contention that the CSAPR Update, which covered the
2008 8-hour ozone NAAQS, will not be sufficient to bring areas into
attainment of the 2008 or 2015 8-hour ozone NAAQS, this is not relevant
to the analysis in support of this action. Whether downwind states may
or may not reach attainment of the 2015 8-hour ozone NAAQS with the
assistance of the upwind state emissions reductions resulting from the
CSAPR Update is not determinative of whether Florida, Georgia, North
Carolina, and South Carolina have Good Neighbor obligations for the
2015 8-hour ozone NAAQS pursuant to the CAA. At issue is whether
Florida, Georgia, North Carolina, and South Carolina will significantly
contribute to downwind nonattainment or interfere with maintenance of
the 2015 8-hour ozone NAAQS in any other state. The updated information
presented in the SNPRM made clear that they will not, and no party
commented on that updated information.
Comment 2: Several commenters call into question certain
assumptions used in EPA's 2023 air quality modeling described in the
March 2018 memorandum. A number of commenters contend that EPA's
modeling was flawed because it relied on ``unenforceable emissions
limitations,'' including assumptions that power plants equipped with
selective catalytic reduction (SCR) controls would emit at or below
0.10 pounds per one million British Thermal Units (lb/mmBtu) beginning
in 2017. One commenter contended that many plants emit above that rate.
Another commenter asserts that EPA should not approve any prong 1 and 2
SIPs \9\ that reflect ``EPA's flawed data showing attainment by 2023.''
---------------------------------------------------------------------------
\9\ Section 110(a)(2)(D)(i)(I) requires SIPs to contain adequate
provisions that prohibit any source or other types of emissions
activity in one state from contributing significantly to
nonattainment of the NAAQS in another state (prong 1) and from
interfering with maintenance of the NAAQS in another state (prong
2).
---------------------------------------------------------------------------
Response 2: As discussed previously and in the SNPRM, EPA is
relying on updated modeling and analysis based on the 2021 analytic
year and not the 2023 air quality modeling described in the March 2018
memorandum. However, EPA disagrees that its assessment of air quality
and contributions at step 1 and 2 of the four-step interstate transport
framework is flawed because it relies on unenforceable emission
assumptions for electric generating units (EGUs) or that those
assumptions are otherwise unrealistic. As an initial matter, in this
context it is appropriate for EPA to focus on actual EGU emission
projections, rather than modeling only enforceable limits (sometimes
referred to as ``allowable'' emissions). EPA has previously explained
that its analysis at steps 1 and 2 of the four-step interstate
transport framework is appropriately focused on a projection of actual
air quality concentrations and upwind-state contributions. As EPA
explained in the final CSAPR Close-out, this approach to conducting
future-year modeling in the Good Neighbor analysis to identify downwind
air quality problems and linked states is consistent with the use of
current measured data in the designations process under section 107 of
the CAA. See 83 FR 65878, 65887-88 (December 21, 2018).\10\ In both
cases, the purpose is to determine whether there is an actual air
quality problem that needs to be further addressed (in the designations
context, whether an area is in nonattainment of a NAAQS; in the Good
Neighbor context, whether there are expected future air quality
problems (i.e., downwind nonattainment or maintenance receptors) and
upwind state contribution to these downwind nonattainment or
maintenance receptors that require further analysis at steps 3 and 4).
EPA's future-year air quality projections reflect a variety of factors,
including current emissions data, on-the-books control measures,
economic market influences, and meteorology. Like the factors that
affect measured ozone concentrations used in the designations process,
not all of the factors influencing EPA's modeling projections are or
can be subject to enforceable limitations on emissions or ozone
concentrations. However, EPA believes that consideration of these
factors contributes to a reasonable estimate of anticipated future
ozone concentrations and contributions at steps 1 and 2 of the four-
step interstate transport framework. In short, EPA's consideration of
these factors--even when not based on or amendable to enforceable
limits or controls--in its future-year modeling projections used at
steps 1 and 2 of the Good Neighbor analysis is reasonable. See 83 FR at
65888 (December 21, 2018). Only where such analysis indicates an
upwind-state linkage under projected conditions does further analysis
proceed at steps 3 and 4 of the four-step interstate transport
framework to determine what enforceable emissions limits should be
required in the linked upwind state. EPA's air quality modeling and
analysis is designed to reflect what downwind air quality problems will
exist in the relevant analytic year, and the assumptions used are based
on realistic projections of source emissions.
---------------------------------------------------------------------------
\10\ The CSAPR Close-out was vacated on grounds unrelated to
this issue. See New York v. EPA, 781 F. App'x. 4 (D.C. Cir. 2019).
---------------------------------------------------------------------------
In response to the commenters' contention that EPA should not model
using the 0.1 lb/mmBtu emission rate assumption for EGUs because it is
not enforceable and some units emit higher than this rate, this concern
is addressed by the updates contained in the updated 2023 modeling used
to derive EPA's 2021 air quality analysis for this final action.
Specifically, as noted in the SNPRM, EPA is relying on updated
Integrated Planning Model (IPM) modeling for its EGU projection in the
updated analysis for this final action. Additionally, EPA has modeled a
range of scenarios reflecting alternative EGU assumptions--each
resulting in the same finding made in this action.\11\
---------------------------------------------------------------------------
\11\ See the Ozone Air Quality Assessment Tool (AQAT)
spreadsheet and the Ozone Policy Analysis TSD located in the docket
for this action for details about these scenarios, emissions, and
air quality estimates.
---------------------------------------------------------------------------
Although EPA disagrees with these comments regarding the modeling
approach it took at the original proposal with respect to projecting
EGU emissions,\12\ the Agency made updates to incorporate the latest
modeling and data, which address the concerns expressed by the
commenters. The December 30, 2019 NPRM rule relied on air quality
modeling analysis and data released in 2018 that showed results from
analytic work completed in 2017 (prior to the completion of the first
year of CSAPR Update compliance).\13\ As explained in the modeling TSD
referenced in the July 19, 2021 SNPRM, EPA started with the latest
historical data at that time (2016) and assumed that, on average, SCR-
controlled coal units would operate at 0.1 lb/mmBtu if not already
doing so (reflecting the fleet's response (on average) to the CSAPR
Update that would begin in 2017).\14\ In this final action, EPA's
future year air quality projections are informed by actual compliance
data from 2019, which allows EPA to rely less on compliance assumptions
and more on actual data from the past three years in evaluating likely
EGU emissions in 2021. EPA estimated future
[[Page 68417]]
year emissions using the January 2020 IPM Reference Case, which was
informed by actual 2018 compliance rates rather than anticipated
compliance rates (i.e., 2018 reported emission rates (not a 0.1 lb/
mmBtu assumption)). This largely obviates the commenters' concern
regarding the 0.1 lb/mmBtu assumption at proposal. Moreover, the IPM
modeling explicitly includes the CSAPR Update enforceable limits (i.e.,
the states' trading allowance budgets) at both the regional and state
level. With these enforceable limits included, the model allowed
covered sources to emit up to those limits if it would be economically
advantageous to do so, but this did not occur in the modeling.
---------------------------------------------------------------------------
\12\ As explained further in this rule, the analysis supporting
the December 30, 2019 proposal over-estimated EGU emissions.
\13\ See March 2018 memorandum, located in the docket for this
action.
\14\ Technical Support Document (TSD) Additional Updates to
Emissions Inventories for the Version 6.3, 2011 Emissions Modeling
Platform for the Year 2023, available at https://www.epa.gov/sites/production/files/2017-11/documents/2011v6.3_2023en_update_emismod_tsd_oct2017.pdf.
---------------------------------------------------------------------------
EPA projected future 2021 and 2023 baseline EGU emissions using the
version 6--January 2020 reference case of the IPM.15 16 IPM,
developed by ICF Consulting, is a state-of-the-art, peer-reviewed,
multi-regional, dynamic, deterministic linear programming model of the
contiguous U.S. electric power sector. It provides forecasts of least
cost capacity expansion, electricity dispatch, and emission control
strategies while meeting energy demand and environmental, transmission,
dispatch, and reliability constraints. EPA has used IPM for over two
decades to better understand power sector behavior under future
business-as-usual conditions and to evaluate the economic and emission
impacts of prospective environmental policies. The model is designed to
reflect electricity markets as accurately as possible. EPA uses the
best available information from utilities, industry experts, gas and
coal market experts, financial institutions, and government statistics
as the basis for the detailed power sector modeling in IPM. The model
documentation provides additional information on the assumptions
discussed here as well as all other model assumptions and inputs. The
IPM version 6--January 2020 reference base case accounts for updated
federal and state environmental regulations, committed EGU retirements
and new builds, and technology cost and performance assumptions as of
late 2019. This projected base case accounts for the effects of the
finalized Mercury and Air Toxics Standards rule, the CSAPR and the
CSAPR Update, New Source Review settlements, final actions EPA has
taken to implement the Regional Haze Rule, and other on-the-books
federal and state rules through 2019 impacting sulfur dioxide,
NOX, directly emitted particulate matter, and
CO2. For the new 2023 air quality modeling used to
interpolate air quality projections in 2021, EPA relied on these 2023
EGU emissions to inform the broader emissions inventory.
---------------------------------------------------------------------------
\15\ See https://www.epa.gov/airmarkets/analysis-revised-cross-state-air-pollution-rule-update (last accessed November 8, 2021).
\16\ The January 2020 IPM reference case is a later version than
what was released with 2016v1.
---------------------------------------------------------------------------
The EGU emissions data--both historical and projected--are shown in
Table 1, and compared with the CSAPR Update enforceable budget,
demonstrate: (1) The reasonableness of EPA's practice of not solely
using enforceable levels in deriving projections of actual conditions
and contribution at steps 1 and 2 of the interstate-transport framework
for ozone, and (2) the robustness of its examination.
Table 1--Reported Ozone Season NOX Emissions From EGUs in the CSAPR Update Region \17\
----------------------------------------------------------------------------------------------------------------
Reported ozone season NOX emissions (tons) IPM CSAPR Update
------------------------------------------------------------------------------------- projection budget
(tons) \18\ (enforceable
-------------- tons)
2015 2016 2017 2018 2019 2020 -------------
2021 2021
----------------------------------------------------------------------------------------------------------------
398,831 371,994 294,483 289,988 251,763 227,325 222,900 313,626
----------------------------------------------------------------------------------------------------------------
In sum, EPA's EGUs assumptions show that its projected ozone-season
EGU emissions levels from proposal of 283,164 tons in 2023 was, if
anything, conservative--that is, it is likely that emissions levels
from EGUs will be lower than what was projected in the proposal, not
higher as suggested by the commenter. The 2019 ozone-season data
reflected emissions that were already 20 percent below the CSAPR Update
budgets, reflecting a 13 percent drop from the prior year, and at a
pace of reduction that strongly suggests actual emissions from EGUs in
2021 will be well below the CSAPR Update budget levels. In other words,
the emissions levels that the commenter claimed were not reasonable to
expect in 2023 have already been achieved--four years ahead of that
analytic year. The EGU projections EPA used in its analysis for 2021,
as discussed previously, are reasonable and properly inform its
analysis of ozone levels and contribution in that analytic year. In
order for emissions in 2021 to rise to total budget levels (e.g.,
313,626 tons, representing the aggregate budgets for the covered
states), a decade-long decline in ozone-season NOX emissions
would have to not only cease but reverse sharply.
---------------------------------------------------------------------------
\17\ This data analysis relies on 40 CFR part 75 emissions
reporting data as available in EPA Air Markets Program Data
available at http://ampd.epa.gov/ampd/.
\18\ These values are available in the Air Quality Modeling Base
Case State Emissions file (fossil >25 MW worksheet) available at
https://www.epa.gov/airmarkets/analysis-revised-cross-state-air-pollution-rule-update. Additionally, as noted in the Revised CSAPR
proposal, EPA's earlier engineering analytics used a more
conservative 283,164 tons for 2023. As a sensitivity analysis for
the proposed Revised CSAPR Update Modeling using IPM, EPA also used
an updated engineering analytics EGU estimate (relying on 2019 data)
that resulted in a 2021 estimate of 238,798 tons.
---------------------------------------------------------------------------
Supported by the most recent reported emissions data, EPA concludes
that its EGU projections used in the most recent modeling and in the
interpolation of that modeling to 2021 are reasonable and conservative.
Thus, EPA believes it is reasonable and appropriate to rely on these
emissions projections in its air quality analysis for 2021 to approve
the 2015 8-hour ozone transport SIP submissions for Florida, Georgia,
North Carolina, and South Carolina.
Comment 3: A commenter states that EPA's 2023 modeling described in
the March 2018 memorandum is also flawed given the modeling's reliance
on certain federal emissions reduction programs, which the commenter
argues EPA is ``actively working to undermine.'' For example, the
commenter points to EPA's proposed repeal of its rule regulating
emissions from glider vehicles, glider engines, and glider kits, 82 FR
53442 (November 16, 2017) (Proposed Repeal of the Glider Rule), noting
that EPA has estimated unregulated glider vehicles would increase
emissions by approximately 300,000 tons annually in 2025. The
[[Page 68418]]
commenter notes that even though EPA never finalized the Proposed
Repeal of the Glider Rule, EPA's enforcement office issued a memorandum
on July 6, 2018, stating that it would not enforce the Glider Rule. The
commenter states that although this ``no action assurance'' is being
challenged in court and has been temporarily stayed, ``EPA's non-
enforcement efforts underline the unreasonableness of relying on the
emissions reductions from this rule as a basis for concluding that
Marginal nonattainment areas will attain the 2015 NAAQS by 2021.'' The
commenter also asserts that EPA's recent actions ``weakening'' the
Corporate Average Fuel Economy (CAFE) standards for light-duty vehicles
and EPA's recent proposal to withdraw the Control Techniques Guidelines
(CTGs) for the Oil and Natural Gas Industry call into question the
accuracy of EPA's 2023 modeling, and that ``each deregulatory action .
. . demonstrates the arbitrariness of EPA's assumption that Marginal
nonattainment areas will comply with the 2015 NAAQS by 2021 without
additional ozone-precursor pollution reductions from southeastern
upwind states.''
Response 3: As an initial matter, the updated 2023 modeling used to
interpolate 2021 contributions that was relied on did not make
different regulatory assumptions than the previous 2023 modeling
released with the March 2018 memorandum regarding the Glider Rule and
the light-duty CAFE standards, so the comment is relevant to the
updated modeling as presented in the SNPRM. However, EPA disagrees that
EPA's updated air quality modeling did not properly account for
expected changes in projected emissions that would result from changes
to federal programs. The mobile source and non-EGU emissions
inventories in both the previous and updated modeling do not reflect
changes in emissions resulting from 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. This reflects EPA's normal practice 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.
EPA did not finalize the Proposed Repeal of the Glider Rule. EPA
announced in the U.S. Office of Management and Budget's Spring 2020
Unified Agenda and Regulatory Plan that ``EPA is no longer pursuing
this action, and the emission standards and other requirements for
heavy-duty glider vehicles, glider engines, and glider kits will remain
in place as published in the `Greenhouse Gas Emissions and Fuel
Efficiency Standards for Medium- and Heavy-Duty Engines and Vehicles
Phase 2' final rule on October 26, 2016 (81 FR 73478).'' \19\
Additionally, EPA withdrew the conditional no action assurance for
small manufacturers of glider vehicles in a memorandum dated July 26,
2018.\20\
---------------------------------------------------------------------------
\19\ See also https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202004&RIN=2060-AT79 (last accessed October
10, 2021).
\20\ See https://www.epa.gov/sites/production/files/2018-07/documents/memo_re_withdrawal_of_conditional_naa_regarding_small_manufacturers_of_glider_vehicles_07-26-2018.pdf (last accessed October 10, 2021).
---------------------------------------------------------------------------
EPA did not finalize the proposed withdrawal of the CTGs for oil
and natural gas sources. On March 9, 2018, for reasons explained in the
Federal Register (83 FR 10478), EPA proposed to withdraw the 2016 CTG
for the oil and natural gas industry. However, EPA did not finalize the
proposal to withdraw the CTG. EPA announced in the U.S. Office of
Management and Budget's Spring 2020 Unified Agenda and Regulatory Plan
that ``the CTG will remain in place as published on October 27, 2016
(81 FR 74798).'' \21\
---------------------------------------------------------------------------
\21\ See https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202004&RIN=2060-AT76 (last accessed October
10, 2021).
---------------------------------------------------------------------------
EPA and the National Highway Traffic Safety Administration have
finalized the revisions to the greenhouse gas (GHG) and CAFE standards
for light duty vehicles.\22\ However, that final action is not expected
to have a meaningful impact on 2021 ozone-precursor emissions. 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; see 79 FR 23414), the SAFE Vehicles Rule
anticipated that any impacts of the SAFE Vehicles Rule on ozone
precursor emissions ``would most likely be far too small to observe.''
See 85 FR 25041.
---------------------------------------------------------------------------
\22\ ``The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule
for Model Years 2021-2026 Passenger Cars and Light Trucks,'' 85 FR
24174 (April 30, 2020) (SAFE Vehicles Rule).
---------------------------------------------------------------------------
Comment 4: Two commenters disagree with EPA guidance that a 1 ppb
contribution threshold is acceptable to determine whether an upwind
contribution is significant, stating it is arbitrary and capricious.
One commenter also asserts that allowing different states contributing
to a collective problem to use different air quality threshold rates to
avoid regulation is inequitable. The commenters refer to EPA's August
31, 2018 memorandum from Peter Tsirigotis, titled ``Analysis of
Contribution Thresholds for Use in Clean Air At Section
110(a)(2)(D)(i)(I) Interstate Transport State Implementation Plan
Submissions for the 2015 Ozone National Ambient Air Quality Standards''
(``August 2018 memorandum''),\23\ and generally contend that the August
2018 memorandum provides an insufficient evaluation regarding the
result of such approach on downwind states' ability to attain and
maintain the relevant NAAQS and shifts the responsibility for upwind
pollution from upwind to downwind states.
---------------------------------------------------------------------------
\23\ Available at https://www.epa.gov/sites/production/files/2018-09/documents/contrib_thresholds_transport_sip_subm_2015_ozone_memo_08_31_18.pdf.
---------------------------------------------------------------------------
Response 4: As the commenters correctly note, the August 2018
memorandum suggested that states could potentially justify the use of
an alternative contribution threshold of 1 ppb with respect to the 2015
8-hour ozone NAAQS in step 2 of EPA's four-step interstate framework
under the Good Neighbor provision. However, EPA is not making a
determination in this final action to approve a state's use of an
alternative 1 ppb threshold. Neither EPA's NPRM, SNRPM, nor this final
action rely on a 1 ppb threshold and are instead based on a finding
that Florida, Georgia, North Carolina, and South Carolina will not
contribute at or above one percent of the level of the NAAQS at any
projected nonattainment or maintenance receptor based on EPA modeling.
The use of the one percent threshold is consistent with all of EPA's
ozone transport actions since the promulgation of the original CSAPR in
2011. For the 2015 8-hour ozone NAAQS, where the impacts of a state's
emissions on all out of state receptors are below a one percent of the
NAAQS threshold, no further analysis is required to determine that that
state is not contributing to an out of state air quality problem under
the Good Neighbor provision. Therefore, there is no need to evaluate
any potential higher contribution threshold, as discussed in the August
2018 memorandum, in the present final action.
Comment 5: A commenter states that ozone exposure has significant
health impacts, particularly for the respiratory system. The commenter
cites the 2013 EPA Integrated Science Assessment for Ozone and Related
Photochemical Oxidants (Final Report) and several other health studies
in order to describe numerous health impacts associated with ozone
exposure in detail.
Response 5: EPA agrees that ozone has a number of adverse health
impacts.
[[Page 68419]]
See National Ambient Air Quality Standards for Ozone, Final Rule, 80 FR
65292 (October 26, 2015).\24\ EPA evaluates air quality criteria and
impacts to public health and welfare as part of the comprehensive
standard setting process. Id. EPA's final rule revising the primary and
secondary ozone NAAQS includes a thorough explanation of human exposure
and health risk assessments conducted in support of the Agency's review
of evidence of ambient ozone exposures on human health effects, as well
as detailed rationales for the Administrator's decisions on both
standards. See 80 FR 65292.
---------------------------------------------------------------------------
\24\ See also National Ambient Air Quality Standards for Ozone,
Final Rule for the 2008 NAAQS, 73 FR 16436 (March 27, 2008), 16440,
16450-51, 16470-71 & n.20.
---------------------------------------------------------------------------
The commenter does not explain how the information they provided
regarding health impacts from ambient ozone exposure should influence
EPA's action on the Florida, Georgia, North Carolina, and South
Carolina Good Neighbor SIP submissions for the 2015 8-hour ozone NAAQS,
and EPA considers such comments to be outside of the scope of this
action. As stated previously, EPA's evaluation of air quality criteria
and impacts to public health and welfare are part of the standard
setting process, rather than a step completed through actions on
individual SIP submissions that address Good Neighbor interstate
transport infrastructure SIP requirements pursuant to CAA section
110(a)(2)(D)(i)(I). EPA's evaluation of individual SIP revisions is
limited to determining whether the statutory criteria for
implementation and attainment of the NAAQS and other CAA requirements,
as applicable, have been satisfied. See CAA section 110(k)(2), (3).
Comment 6: EPA received one supportive set of comments on the
December 30, 2019, NPRM. The comments support EPA's application of the
4-step process, and state that EPA correctly concluded that none of the
states in EPA's December 30, 2019, NPRM contributed above 1 percent to
downwind receptors. Commenters also expressed support for flexibility
in addressing the Good Neighbor SIPs.
Response 6: EPA agrees with commenter that it appropriately applied
steps 1 and 2 of the four-step interstate transport framework (which
the commenter refers to as the 4-step process), and that, according to
EPA's analysis, neither Florida, Georgia, North Carolina nor South
Carolina contribute above one percent of the 2015 8-hour ozone NAAQS to
any downwind state. With respect to the portion of the comment
regarding retaining the ability for states to take different approaches
to analyzing and addressing their Good Neighbor obligations, EPA's use
of certain analytic methods in this action (such as the use of a one
percent of NAAQS contribution threshold or the definition of
nonattainment and maintenance receptors) does not in itself necessarily
preclude different approaches to Good Neighbor analysis in other
contexts, where EPA determines to be appropriate and consistent with
legal requirements and governing case law.
III. Final Action
EPA is finalizing approval of revisions to the Florida, Georgia,
North Carolina, and South Carolina SIPs. EPA finds that emissions from
sources in Florida, Georgia, North Carolina, and South Carolina will
not significantly contribute to nonattainment or interfere with
maintenance of the 2015 8-hour ozone NAAQS in any other state. Thus,
EPA is approving the interstate transport portions of the
infrastructure SIP submissions from Florida, Georgia, North Carolina,
and South Carolina, separately, as meeting CAA section
110(a)(2)(D)(i)(I) requirements for the 2015 8-hour ozone NAAQS.
IV. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. These actions merely
approve state law as meeting Federal requirements and do not impose
additional requirements beyond those imposed by state law. For that
reason, these actions:
Are not significant regulatory actions subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
Do not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Are certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Do not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Do not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Are not economically significant regulatory actions based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Are not significant regulatory actions subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Are not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Do not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, for Florida, Georgia, and North Carolina, the Good
Neighbor SIPs are not approved to apply on any Indian reservation land
or in any other area where EPA or an Indian tribe has demonstrated that
a tribe has jurisdiction. In those areas of Indian country, the rule
does not have tribal implications as specified by Executive Order 13175
(65 FR 67249, November 9, 2000), nor will it impose substantial direct
costs on tribal governments or preempt tribal law.
For South Carolina, because this final action merely approves state
law as meeting Federal requirements and does not impose additional
requirements beyond those imposed by state law, this action for the
state of South Carolina does not have Tribal implications as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000). Therefore,
this final action will not impose substantial direct costs on Tribal
governments or preempt Tribal law. The Catawba Indian Nation
Reservation is located within the boundary of York County, South
Carolina. Pursuant to the Catawba Indian Claims Settlement Act, S.C.
Code Ann. 27-16-120 (Settlement Act), ``[a]ll state and local
environmental laws and regulations apply to the [Catawba Indian Nation
and] Reservation and are fully enforceable by all relevant state and
local agencies and authorities.'' The Catawba Indian Nation also
retains authority to impose regulations applying higher environmental
standards to the Reservation than those imposed by state law or local
governing bodies, in accordance with the Settlement Act.
[[Page 68420]]
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by January 31, 2022. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements. See CAA section 307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Dated: November 26, 2021.
John Blevins,
Acting Regional Administrator, Region 4.
For the reasons stated in the preamble, the Environmental
Protection Agency amends 40 CFR part 52 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.
Subpart K--Florida
0
2. In Sec. 52.520(e), amend the table by adding a new entry for
``110(a)(1) and (2) Infrastructure Requirements for the 2015 8-Hour
Ozone NAAQS'' at the end of the table to read as follows:
Sec. 52.520 Identification of plan.
* * * * *
(e) * * *
EPA-Approved Florida Non-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
State EPA approval Federal Register
Provision effective date date notice Explanation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
110(a)(1) and (2) Infrastructure 9/18/2018 12/2/2021 [Insert citation of Addressing Prongs 1
Requirements for the 2015 8-Hour publication]. and 2 of section
Ozone NAAQS. 110(a)(2)(D)(i)(I)
only.
----------------------------------------------------------------------------------------------------------------
Subpart L--Georgia
0
3. In Sec. 52.570(e) amend the table by adding a new entry for
``110(a)(1) and (2) Infrastructure Requirements for the 2015 8-Hour
Ozone NAAQS'' at the end of the table to read as follows:
Sec. 52.570 Identification of plan.
* * * * *
(e) * * *
EPA-Approved Georgia Non-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
State
Name of nonregulatory SIP Applicable geographic submittal date/ EPA approval date Explanation
provision or nonattainment area effective date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
110(a)(1) and (2) Georgia................ 9/24/2018 12/2/2021, [Insert Addressing Prongs
Infrastructure Requirements citation of 1 and 2 of
for the 2015 8-Hour Ozone publication]. section
NAAQS. 110(a)(2)(D)(i)(I
) only.
----------------------------------------------------------------------------------------------------------------
Subpart II--North Carolina
0
4. In Sec. 52.1770(e), amend the table by adding a new entry for
``110(a)(1) and (2) Infrastructure Requirements for the 2015 8-Hour
Ozone NAAQS'' at the end of the table to read as follows:
Sec. 52.1770 Identification of plan.
* * * * *
(e) * * *
EPA-Approved North Carolina Non-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
State EPA approval Federal Register
Provision effective date date citation Explanation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
110(a)(1) and (2) Infrastructure 9/27/2018 12/2/2021 [Insert citation of Addressing Prongs 1
Requirements for the 2015 8-Hour publication]. and 2 of section
Ozone NAAQS. 110(a)(2)(D)(i)(I)
only.
----------------------------------------------------------------------------------------------------------------
[[Page 68421]]
Subpart PP--South Carolina
0
5. In Sec. 52.2120(e), amend the table by adding a new entry for
``110(a)(1) and (2) Infrastructure Requirements for the 2015 8-Hour
Ozone NAAQS'' at the end of the table to read as follows:
Sec. 52.2120 Identification of plan.
* * * * *
(e) * * *
----------------------------------------------------------------------------------------------------------------
State
Provision effective date EPA approval date Explanation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
110(a)(1) and (2) Infrastructure 9/7/2018 12/2/2021, [Insert Addressing Prongs 1 and 2
Requirements for the 2015 8-Hour Ozone citation of publication]. of section
NAAQS. 110(a)(2)(D)(i)(I) only.
----------------------------------------------------------------------------------------------------------------
[FR Doc. 2021-26144 Filed 12-1-21; 8:45 am]
BILLING CODE 6560-50-P