[Federal Register Volume 87, Number 35 (Tuesday, February 22, 2022)]
[Proposed Rules]
[Pages 9516-9533]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-02952]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
EPA-R03-OAR-2021-0873; EPA-HQ-OAR-2021-0663; FRL-9494-01-R3]
Air Plan Disapproval; West Virginia; Interstate Transport of Air
Pollution for the 2015 8-Hour Ozone National Ambient Air Quality
Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the
Environmental Protection Agency (EPA) is proposing to disapprove a
State Implementation Plan (SIP) submittal from West Virginia intended
to address interstate transport for the 2015 8-hour ozone national
ambient air quality standards (2015 8-hour ozone NAAQS). The ``good
neighbor'' or ``interstate
[[Page 9517]]
transport'' provisions require that each state's SIP contain adequate
provisions to prohibit emissions from within the state from
significantly contributing to nonattainment or interfering with
maintenance of the NAAQS in other states. This requirement is part of
the broader set of ``infrastructure'' requirements, which are designed
to ensure that the structural components of each state's air quality
management program are adequate to meet the state's responsibilities
under the CAA. This disapproval, if finalized, will establish a 2-year
deadline for the EPA to promulgate a Federal Implementation Plan (FIP)
to address the relevant interstate transport requirements, unless the
EPA approves a subsequent SIP submittal that meets these requirements.
Disapproval does not start a mandatory sanctions clock.
DATES: Written comments must be received on or before April 25, 2022.
ADDRESSES: You may send comments, identified as Docket No. EPA-R03-OAR-
2021-0873, by any of the following methods: Federal eRulemaking Portal
at https://www.regulations.gov following the online instructions for
submitting comments or via email to [email protected]. For additional
methods for submitting comments, contact the person in the FOR FURTHER
INFORMATION CONTACT section. Include Docket ID No. EPA-R03-OAR-2021-
0873 in the subject line of the message.
Instructions: All submissions received must include the Docket ID
No. for this rulemaking. Comments received may be posted without change
to https://www.regulations.gov/, including any personal information
provided. For detailed instructions on sending comments and additional
information on the rulemaking process, see the ``Public Participation''
heading of the SUPPLEMENTARY INFORMATION section of this document. Out
of an abundance of caution for members of the public and our staff, the
EPA Docket Center and Reading Room are open to the public by
appointment only to reduce the risk of transmitting COVID-19. Our
Docket Center staff also continues to provide remote customer service
via email, phone, and webform. For further information on EPA Docket
Center services and the current status, please visit us online at
https://www.epa.gov/dockets.
FOR FURTHER INFORMATION CONTACT: Michael Gordon, Planning &
Implementation Branch (3AD30), Air & Radiation Division, U.S.
Environmental Protection Agency, Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103. The telephone number is (215) 814-
2039. Mr. Gordon can also be reached via electronic mail at
[email protected].
SUPPLEMENTARY INFORMATION: Public Participation: Submit your comments,
identified by Docket ID No. EPA-R03-OAR-2021-0873, at https://www.regulations.gov (our preferred method), or the other methods
identified in the ADDRESSES section. Once submitted, comments cannot be
edited or removed from the docket. The EPA may publish any comment
received to its public docket. Do not submit to EPA's docket at https://www.regulations.gov any information you consider to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Multimedia submissions (audio, video, etc.) must
be accompanied by a written comment. The written comment is considered
the official comment and should include discussion of all points you
wish to make. The EPA will generally not consider comments or comment
contents located outside of the primary submission (i.e., on the web,
cloud, or other file sharing system).
There are two dockets supporting this action, EPA-R03-OAR-2021-0873
and EPA-HQ-OAR-2021-0663. Docket No. EPA-R03-OAR-2021-0873 contains
information specific to West Virginia, including the notice of proposed
rulemaking. Docket No. EPA-HQ-OAR-2021-0663 contains additional
modeling files, emissions inventory files, technical support documents,
and other relevant supporting documentation regarding interstate
transport of emissions for the 2015 8-hour ozone NAAQS which are being
used to support this action. All comments regarding information in
either of these dockets are to be made in Docket No. EPA-R03-OAR-2021-
0873. For additional submission methods, please contact Michael Gordon,
215-814-2039, [email protected]. For the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets. Due to public health
concerns related to COVID-19, the EPA Docket Center and Reading Room
are open to the public by appointment only. Our Docket Center staff
also continues to provide remote customer service via email, phone, and
webform. For further information and updates on EPA Docket Center
services, please visit us online at https://www.epa.gov/dockets.
The EPA continues to carefully and continuously monitor information
from the Centers for Disease Control and Prevention (CDC), local area
health departments, and our Federal partners so that we can respond
rapidly as conditions change regarding COVID-19. The index to the
docket for this action, Docket No. EPA-R03-OAR-2021-0873, is available
electronically at www.regulations.gov. While all documents in the
docket are listed in the index, some information may not be publicly
available via the online docket, such as modeling data files, due to
docket file size restrictions or content (e.g., CBI). Please contact
the EPA Docket Center Services for further information on how to obtain
these files.
Throughout this document, ``we,'' ``us,'' and ``our'' means the
EPA.
I. Background
A. Description of Statutory Background
On October 1, 2015, the EPA promulgated a revision to the ozone
NAAQS (2015 8-hour ozone NAAQS), lowering the level of both the primary
and secondary standards to 0.070 parts per million (ppm).\1\ Section
110(a)(1) of the CAA requires states to submit, within 3 years after
promulgation of a new or revised standard, SIP submissions meeting the
applicable requirements of section 110(a)(2).\2\ One of these
applicable requirements is found in CAA section 110(a)(2)(D)(i)(I),
otherwise known as the ``interstate transport'' or ``good neighbor''
provision, which generally requires SIPs to contain adequate provisions
to prohibit in-state emissions activities from having certain adverse
air quality effects on other states due to interstate transport of
pollution. There are two so-called ``prongs'' within CAA section
110(a)(2)(D)(i)(I). A SIP for a new or revised NAAQS must contain
adequate provisions prohibiting any source or other type of emissions
activity within the state from emitting air pollutants in amounts that
will significantly contribute to nonattainment of the NAAQS in another
state (prong 1) or interfere with maintenance of the NAAQS in another
state (prong 2). The EPA and states must give independent
[[Page 9518]]
significance to prong 1 and prong 2 when evaluating downwind air
quality problems under CAA section 110(a)(2)(D)(i)(I).\3\
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\1\ National Ambient Air Quality Standards for Ozone, Final
Rule, 80 FR 65292 (October 26, 2015). Although the level of the
standard is specified in the units of ppm, ozone concentrations are
also described in parts per billion (ppb). For example, 0.070 ppm is
equivalent to 70 ppb.
\2\ SIP revisions that are intended to meet the applicable
requirements of section 110(a)(1) and (2) of the CAA are often
referred to as infrastructure SIPs and the applicable elements under
section 110(a)(2) are referred to as infrastructure requirements.
\3\ See North Carolina v. EPA, 531 F.3d 896, 909-11 (D.C. Cir.
2008).
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B. Description of the EPA's Four-Step Interstate Transport Regulatory
Process
The EPA is using the 4-step interstate transport framework (or 4-
step framework) to evaluate the states' SIP submittals addressing the
interstate transport provision for the 2015 8-hour ozone NAAQS. The EPA
has addressed the interstate transport requirements of CAA section
110(a)(2)(D)(i)(I) with respect to prior ozone NAAQS in several
regional regulatory actions, including the Cross-State Air Pollution
Rule (CSAPR), which addressed interstate transport with respect to the
1997 ozone NAAQS as well as the 1997 and 2006 fine particulate matter
standards,\4\ and the Cross-State Air Pollution Rule Update (CSAPR
Update) \5\ and the Revised CSAPR Update, both of which addressed the
2008 ozone NAAQS.\6\
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\4\ See Federal Implementation Plans: Interstate Transport of
Fine Particulate Matter and Ozone and Correction of SIP Approvals,
76 FR 48208 (August 8, 2011).
\5\ Cross-State Air Pollution Rule Update for the 2008 Ozone
NAAQS, 81 FR 74504 (October 26, 2016).
\6\ In 2019, the D.C. Circuit Court of Appeals remanded the
CSAPR Update to the extent it failed to require upwind states to
eliminate their significant contribution by the next applicable
attainment date by which downwind states must come into compliance
with the NAAQS, as established under CAA section 181(a). Wisconsin
v. EPA, 938 F.3d 303, 313 (D.C. Cir. 2019). The Revised CSAPR Update
for the 2008 Ozone NAAQS, 86 FR 23054 (April 30, 2021), responded to
the remand of the CSAPR Update in Wisconsin and the vacatur of a
separate rule, the ``CSAPR Close-Out,'' 83 FR 65878 (December 21,
2018), in New York v. EPA, 781 F. App'x. 4 (D.C. Cir. 2019).
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Through the development and implementation of the CSAPR rulemakings
and prior regional rulemakings pursuant to the interstate transport
provision,\7\ the EPA, working in partnership with states, developed
the following 4-step interstate transport framework to evaluate a
State's obligations to eliminate interstate transport emissions under
the interstate transport provision for the ozone NAAQS: (1) Identify
monitoring sites that are projected to have problems attaining and/or
maintaining the NAAQS (i.e., nonattainment and/or maintenance
receptors); (2) identify states that impact those air quality problems
in other (i.e., downwind) states sufficiently such that the states are
considered ``linked'' and therefore warrant further review and
analysis; (3) identify the emissions reductions necessary (if any),
applying a multifactor analysis, to eliminate each linked upwind
state's significant contribution to nonattainment or interference with
maintenance of the NAAQS at the locations identified in Step 1; and (4)
adopt permanent and enforceable measures needed to achieve those
emissions reductions.
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\7\ In addition to the CSAPR rulemakings, other regional
rulemakings addressing ozone transport include the ``NOX
SIP Call,'' 63 FR 57356 (October 27, 1998), and the ``Clean Air
Interstate Rule'' (CAIR), 70 FR 25162 (May 12, 2005).
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C. Background on the EPA's Ozone Transport Modeling Information
In general, the EPA has performed nationwide air quality modeling
to project ozone design values which are used in combination with
measured data to identify nonattainment and maintenance receptors. To
quantify the contribution of emissions from specific upwind states on
2023 ozone design values for the identified downwind nonattainment and
maintenance receptors, the EPA performed nationwide, state-level ozone
source apportionment modeling for 2023. The source apportionment
modeling provided contributions to ozone at receptors from precursor
emissions of anthropogenic nitrogen oxides (NOX) and
volatile organic compounds (VOCs) in individual upwind states.
The EPA has released several documents containing projected ozone
design values, contributions, and information relevant to evaluating
interstate transport with respect to the 2015 8-hour ozone NAAQS.
First, on January 6, 2017, the EPA published a notice of data
availability (NODA) in which we requested comment on preliminary
interstate ozone transport data including projected ozone design values
(DVs) and interstate contributions for 2023 using a 2011 base year
platform.\8\ In the NODA, the EPA used the year 2023 as the analytic
year for this preliminary modeling because that year aligns with the
expected attainment year for Moderate ozone nonattainment areas for the
2015 8-hour ozone NAAQS.\9\ On October 27, 2017, we released a
memorandum (October 2017 memorandum) containing updated modeling data
for 2023, which incorporated changes made in response to comments on
the NODA, and noted that the modeling may be useful for states
developing SIPs to address interstate transport obligations for the
2008 ozone NAAQS.\10\ On March 27, 2018, we issued a memorandum (March
2018 memorandum) noting that the same 2023 modeling data released in
the October 2017 memorandum could also be useful for identifying
potential downwind air quality problems with respect to the 2015 8-hour
ozone NAAQS at Step 1 of the 4-step interstate transport framework.\11\
The March 2018 memorandum also included the then newly available
contribution modeling data for 2023 to assist states in evaluating
their impact on potential downwind air quality problems for the 2015 8-
hour ozone NAAQS under Step 2 of the 4-step interstate transport
framework.\12\ The EPA subsequently issued two more memoranda in August
and October 2018, providing additional information to states developing
interstate transport SIP submissions for the 2015 8-hour ozone NAAQS
concerning, respectively, potential contribution thresholds that may be
appropriate to apply in Step 2 of the 4-step interstate transport
framework, and considerations for identifying downwind areas that may
have problems maintaining the standard at Step 1 of the 4-step
interstate transport framework.\13\
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\8\ See Notice of Availability of the Environmental Protection
Agency's Preliminary Interstate Ozone Transport Modeling Data for
the 2015 8-hour Ozone National Ambient Air Quality Standard (NAAQS),
82 FR 1733 (January 6, 2017).
\9\ See 82 FR 1733, 1735 (January 6, 2017).
\10\ See 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), October 27, 2017, available in the docket for
this action or at https://www.epa.gov/interstate-air-pollution-transport/interstate-air-pollution-transport-memos-and-notices.
\11\ See Information on the Interstate Transport State
Implementation Plan Submissions for the 2015 Ozone National Ambient
Air Quality Standards under Clean Air Act Section
110(a)(2)(D)(i)(I), March 27, 2018 (``March 2018 memorandum''),
available in the docket for this action or at https://www.epa.gov/interstate-air-pollution-transport/interstate-air-pollution-transport-memos-and-notices.
\12\ The March 2018 memorandum, however, provided, ``While the
information in this memorandum and the associated air quality
analysis data could be used to inform the development of these SIPs,
the information is not a final determination regarding states'
obligations under the good neighbor provision. Any such
determination would be made through notice-and-comment rulemaking.''
\13\ See Analysis of Contribution Thresholds for Use in Clean
Air Act Section 110(a)(2)(D)(i)(I) Interstate Transport State
Implementation Plan Submissions for the 2015 Ozone National Ambient
Air Quality Standards, August 31, 2018) (``August 2018
memorandum''), and Considerations for Identifying Maintenance
Receptors for Use in Clean Air Act Section 110(a)(2)(D)(i)(I)
Interstate Transport State Implementation Plan Submissions for the
2015 Ozone National Ambient Air Quality Standards, October 19, 2018,
available in the docket for this action or at https://www.epa.gov/airmarkets/memo-and-supplemental-information-regarding-interstate-transport-sips-2015-ozone-naaqs.
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Since the release of the modeling data shared in the March 2018
[[Page 9519]]
memorandum, the EPA performed updated modeling using a 2016-based
emissions modeling platform (i.e., 2016v1). This emissions platform was
developed under the EPA/Multi-Jurisdictional Organization (MJO)/state
collaborative project.\14\ This collaborative project was a multi-year
joint effort by the EPA, MJOs, and states to develop a new, more recent
emissions platform for use by the EPA and states in regulatory modeling
as an improvement over the dated 2011-based platform that the EPA had
used to project ozone design values and contribution data provided in
the 2017 and 2018 memoranda. The EPA used the 2016v1 emissions to
project ozone design values and contributions for 2023. On October 30,
2020, in the Notice of Proposed Rulemaking for the Revised CSAPR
Update, the EPA released and accepted public comment on 2023 modeling
that used the 2016v1 emissions platform.\15\ Although the Revised CSPAR
Update addressed transport for the 2008 ozone NAAQS, the projected
design values and contributions from the 2016v1 platform are also
useful for identifying downwind ozone problems and linkages with
respect to the 2015 ozone NAAQS.\16\
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\14\ The results of this modeling, as well as the underlying
modeling files, are included in docket EPA-HQ-OAR-2021-0663.
\15\ See 85 FR 68964, 68981
\16\ See the Air Quality Modeling Technical Support Document for
the Final Revised Cross-State Air Pollution Rule Update, included in
the Headquarters docket ID No. EPA-HQ-OAR-2021-0663.
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Following the final Revised CSAPR Update, the EPA made further
updates to the 2016 emissions platform to include mobile emissions from
the EPA's Motor Vehicle Emission Simulator MOVES3 model \17\ and
updated emissions projections for electric generating units (EGUs) that
reflect the emissions reductions from the Revised CSAPR Update, recent
information on plant closures, and other sector trends. The construct
of the updated emissions platform, 2016v2 (2016v2 emissions platform),
is described in the emissions modeling technical support document (TSD)
for this proposed rulemaking.\18\ The EPA performed air quality
modeling of the 2016v2 emissions using the most recent public release
version of the Comprehensive Air-quality Model with extensions (CAMx)
photochemical modeling, version 7.10.\19\ The EPA now proposes to
primarily rely on modeling based on the updated and newly available
2016v2 emissions platform in evaluating these submissions with respect
to Steps 1 and 2 of the 4-step interstate transport framework and
generally referenced within this action as 2016v2 modeling for 2023. By
using the updated modeling results, the EPA is using the most current
and technically appropriate information for this proposed rulemaking.
Section III of this document and the Air Quality Modeling TSD for 2015
8-hour Ozone NAAQS Transport SIP Proposed Actions, included in Docket
ID No. EPA-HQ-OAR-2021-0663 for this proposal, contain additional
detail on the EPA's 2016v2 modeling. In this document, the EPA is
accepting public comment on this updated 2023 modeling, which uses a
2016v2 emissions platform. Comments on the EPA's air quality modeling
should be submitted in the Regional docket for this action, Docket ID
No. EPA-R03-OAR-2021-0873. No comments on any topic are being accepted
in docket ID No. EPA-HQ-OAR-2021-0663.
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\17\ Additional details and documentation related to the MOVES3
model can be found at https://www.epa.gov/moves/latest-version-motor-vehicle-emission-simulator-moves.
\18\ See Technical Support Document (TSD) Preparation of
Emissions Inventories for the 2016v2 North American Emissions
Modeling Platform, included in the Headquarters docket ID No. EPA-
HQ-OAR-2021-0663.
\19\ Ramboll Environment and Health, January 2021, www.camx.com.
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States may have chosen to rely on the results of EPA modeling and/
or alternative modeling performed by states or MJOs to evaluate
downwind air quality problems and contributions as part of their
submissions. EPA's evaluation of how West Virginia used air quality
modeling information in their submission is in Section III of this
document.
D. The EPA's Approach to Evaluating Interstate Transport SIPs for the
2015 8-Hour Ozone NAAQS
The EPA proposes to apply a consistent set of policy judgments
across all states for purposes of evaluating interstate transport
obligations and the approvability of interstate transport SIP
submittals for the 2015 8-hour ozone NAAQS. These policy judgments
reflect consistency with relevant case law and past agency practice as
reflected in the CSAPR and related rulemakings. Nationwide consistency
in approach is particularly important in the context of interstate
ozone transport, which is a regional-scale pollution problem involving
many smaller contributors. Effective policy solutions to the problem of
interstate ozone transport going back to the NOX SIP Call
have necessitated the application of a uniform framework of policy
judgments in order to ensure an ``efficient and equitable'' approach.
See EME Homer City Generation, LP v. EPA, 572 U.S. 489, 519 (2014).
In the March, August, and October 2018 memoranda, the EPA
recognized that states may be able to establish alternative approaches
to addressing their interstate transport obligations for the 2015 8-
hour ozone NAAQS that vary from a nationally uniform framework. The EPA
emphasized in these memoranda, however, that such alternative
approaches must be technically justified and appropriate in light of
the facts and circumstances of each particular state's submittal. In
general, the EPA continues to believe that deviation from a nationally
consistent approach to ozone transport must be substantially justified
and have a well-documented technical basis that is consistent with
relevant case law. Where states submitted SIPs that rely on any such
potential ``flexibilities'' as may have been identified or suggested in
the past, the EPA will evaluate whether the state adequately justified
the technical and legal basis for doing so. The EPA's proposed
framework with respect to analytic year, definition of nonattainment
and maintenance receptors, selection of contribution threshold, and
multifactor control strategy assessment is described in this section.
The EPA notes that certain concepts included in an attachment to the
March 2018 memorandum require unique consideration, and these ideas do
not constitute agency guidance with respect to transport obligations
for the 2015 ozone NAAQS. Attachment A to the March 2018 memorandum
identified a ``Preliminary List of Potential Flexibilities'' that could
potentially inform SIP development.\20\ However, EPA made clear in that
Attachment that the list of ideas were not suggestions endorsed by the
Agency but rather ``comments provided in various forums'' on which EPA
sought ``feedback from interested stakeholders.'' \21\ Further,
Attachment A stated, ``EPA is not at this time making any determination
that the ideas discussed below are consistent with the requirements of
the CAA, nor is the EPA specifically recommending that states use these
approaches.'' \22\ Attachment A to the March 2018 memorandum,
therefore, does not constitute agency guidance, but was intended to
generate further discussion around potential approaches to addressing
ozone transport among interested stakeholders. To the extent
[[Page 9520]]
states sought to develop or rely on these ideas in support of their SIP
submittals, the EPA will thoroughly review the technical and legal
justifications for doing so.
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\20\ March 2018 memorandum, Attachment A.
\21\ Id. at A-1.
\22\ Id.
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The remainder of this section describes the EPA's proposed
framework with respect to analytic year, definition of nonattainment
and maintenance receptors, selection of contribution threshold, and
multifactor control strategy assessment.
1. Selection of Analytic Year
In general, the states and the EPA must implement the interstate
transport provision in a manner ``consistent with the provisions of
[title I of the CAA.]'' CAA section 110(a)(2)(D)(i). This requires,
among other things, that these obligations are addressed consistently
with the timeframes for downwind areas to meet their CAA obligations.
With respect to ozone NAAQS, under CAA section 181(a), this means
obligations must be addressed ``as expeditiously as practicable'' and
no later than the schedule of attainment dates provided in CAA section
181(a)(1).\23\ Several D.C. Circuit court decisions address the issue
of the relevant analytic year for the purposes of evaluating ozone
transport air-quality problems. On September 13, 2019, the D.C. Circuit
issued a decision in Wisconsin v. EPA, remanding the CSAPR Update to
the extent that it failed to require upwind states to eliminate their
significant contribution by the next applicable attainment date by
which downwind states must come into compliance with the NAAQS, as
established under CAA section 181(a). 938 F.3d 303 at 313.
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\23\ For attainment dates for the 2015 8-hour ozone NAAQS, refer
to CAA section 181(a), 40 CFR 51.1303, and Additional Air Quality
Designations for the 2015 Ozone National Ambient Air Quality
Standards, 83 FR 25776 (June 4, 2018, effective August 3, 2018).
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On May 19, 2020, the D.C. Circuit issued a decision in Maryland v.
EPA that cited the Wisconsin decision in holding that the 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 the EPA's denial of a petition under CAA
section 126(b). Maryland v. EPA, 958 F.3d 1185, 1203-04 (D.C. Cir.
2020). The court noted that ``section 126(b) incorporates the Good
Neighbor Provision,'' and, therefore, ``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 agency must evaluate downwind air quality at that
deadline, not at some later date.'' Id. at 1204 (emphasis added). The
EPA interprets the court's holding in Maryland as requiring the Agency,
under the good neighbor provision, to assess downwind air quality as
expeditiously as practicable and no later than the next applicable
attainment date,\24\ which is now the Moderate area attainment date
under CAA section 181 for ozone nonattainment. The Moderate area
attainment date for the 2015 8-hour ozone NAAQS is August 3, 2024.\25\
The EPA believes that 2023 is now the appropriate year for analysis of
interstate transport obligations for the 2015 8-hour ozone NAAQS
because the 2023 ozone season is the last relevant ozone season during
which achieved emissions reductions in linked upwind states could
assist downwind states with meeting the August 3, 2024 Moderate area
attainment date for the 2015 8-hour ozone NAAQS.
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\24\ We note that the court in Maryland did not have occasion to
evaluate circumstances in which the EPA may determine that an upwind
linkage to a downwind air quality problem exists at steps 1 and 2 of
the 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
flexibility in effectuating the purpose of the interstate transport
provision.
\25\ See CAA section 181(a); 40 CFR 51.1303; Additional Air
Quality Designations for the 2015 Ozone National Ambient Air Quality
Standards, 83 FR 25776 (June 4, 2018, effective August 3, 2018).
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The EPA recognizes that the attainment date for nonattainment areas
classified as Marginal for the 2015 8-hour ozone NAAQS was August 3,
2021. Under the Maryland holding, any necessary emissions reductions to
satisfy interstate transport obligations should have been implemented
by no later than this date. At the time of the statutory deadline to
submit interstate transport SIPs (October 1, 2018), many states relied
upon the EPA modeling of the year 2023, and no state provided an
alternative analysis using a 2021 analytic year (or the prior 2020
ozone season). However, the EPA must act on SIP submittals using the
information available at the time it takes such action. In this
circumstance, the EPA does not believe it would be appropriate to
evaluate states' obligations under CAA section 110(a)(2)(D)(i)(I) as of
an attainment date that is wholly in the past, because the Agency
interprets the interstate transport provision as forward looking. See
86 FR at 23074(April 30, 2021); see also Wisconsin, 938 F.3d at 322.
Consequently, in this proposal the EPA will use the analytical year of
2023 to evaluate each state's CAA section 110(a)(2)(D)(i)(I) SIP
submission with respect to the 2015 8-hour ozone NAAQS.
2. Step 1 of the 4-Step Interstate Transport Framework
In Step 1, the EPA identifies monitoring sites that are projected
to have problems attaining and/or maintaining the NAAQS in the 2023
analytic year. Where the EPA's analysis shows that a site does not fall
under the definition of a nonattainment or maintenance receptor, that
site is excluded from further analysis under the EPA's 4-step
interstate transport framework. For sites that are identified as a
nonattainment or maintenance receptor in 2023, we proceed to the next
step of our 4-step interstate transport framework by identifying the
upwind state's contribution to those receptors.
The EPA's approach to identifying ozone nonattainment and
maintenance receptors in this action is consistent with the approach
used in previous transport rulemakings. The EPA's approach gives
independent consideration to both the ``contribute significantly to
nonattainment'' and the ``interfere with maintenance'' prongs of CAA
section 110(a)(2)(D)(i)(I), consistent with the D.C. Circuit's
direction in North Carolina v. EPA.\26\
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\26\ See North Carolina v. EPA, 531 F.3d 896, 910-11 (D.C. Cir.
2008) (holding that the EPA must give ``independent significance''
to each prong of CAA section 110(a)(2)(D)(i)(I)).
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For the purpose of this proposal, the EPA identifies nonattainment
receptors as those monitoring sites that are projected to have average
design values that exceed the NAAQS and that are also measuring
nonattainment based on the most recent monitored design values. This
approach is consistent with prior transport rulemakings, such as the
CSAPR Update, where the EPA defined nonattainment receptors as those
areas that both currently measure nonattainment and that the EPA
projects will be in nonattainment in the future analytic year (i.e.,
2023).\27\
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\27\ See 81 FR 74504 (October 26, 2016). This same concept,
relying on both current monitoring data and modeling to define
nonattainment receptor, was also applied in CAIR. See 70 FR 25241
(January 14, 2005); see also North Carolina, 531 F.3d at 913-14
(affirming as reasonable EPA's approach to defining nonattainment in
CAIR).
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In addition, in this proposal, the EPA identifies a receptor to be
a ``maintenance'' receptor for purposes of defining interference with
maintenance, consistent with the method used in the CSAPR and upheld by
the D.C. Circuit in EME Homer City Generation, L.P. v. EPA, 795 F.3d
118, 136 (D.C. Cir.
[[Page 9521]]
2015).\28\ Specifically, the EPA identified maintenance receptors as
those receptors that would have difficulty maintaining the relevant
NAAQS in a scenario that takes into account 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 period. The EPA interprets the projected maximum
future design value to be a potential future air quality outcome
consistent with the meteorology that yielded maximum measured
concentrations in the ambient data set analyzed for that receptor
(i.e., ozone conducive meteorology). 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. 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 upwind emissions that, under those circumstances,
could interfere with the downwind area's ability to maintain the NAAQS.
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\28\ See 76 FR 48208 (August 8, 2011). CSAPR Update and Revised
CSAPR Update also used this approach. See 81 FR 74504 (October 26,
2016) and 86 FR 23054 (April 30, 2021).
---------------------------------------------------------------------------
Recognizing that nonattainment receptors are also, by definition,
maintenance receptors, the EPA often uses the term ``maintenance-only''
to refer to those receptors that are not nonattainment receptors.
Consistent with the concepts for maintenance receptors, as described
above, the EPA identifies ``maintenance-only'' receptors as those
monitoring sites that have projected average design values above the
level of the applicable NAAQS, but that are not currently measuring
nonattainment based on the most recent official design values. In
addition, those monitoring sites with projected average design values
below the NAAQS, but with projected maximum design values above the
NAAQS are also identified as ``maintenance only'' receptors, even if
they are currently measuring nonattainment based on the most recent
official design values.
3. Step 2 of the 4-Step Interstate Transport Framework
In Step 2, the EPA quantifies the contribution of each upwind state
to each receptor in the 2023 analytic year. The contribution metric
used in Step 2 is defined as the average impact from each state to each
receptor on the days with the highest ozone concentrations at the
receptor based on the 2023 modeling. If a state's contribution value
does not equal or exceed the threshold of 1 percent of the NAAQS (i.e.,
0.70 parts per billion (ppb) for the 2015 8-hour ozone NAAQS), the
upwind state is not ``linked'' to a downwind air quality problem, and
the EPA, therefore, concludes that the state does not significantly
contribute to nonattainment or interfere with maintenance of the NAAQS
in the downwind states. However, if a state's contribution equals or
exceeds the 1 percent threshold, the state's emissions are further
evaluated in Step 3, considering both air quality and cost as part of a
multi-factor analysis, to determine what, if any, emissions might be
deemed ``significant'' and, thus, must be eliminated under CAA section
110(a)(2)(D)(i)(I). The EPA is proposing to rely in the first instance
on the 1 percent threshold (i.e., 0.70 ppb) for the purpose of
evaluating a state's contribution to nonattainment or maintenance of
the 2015 8-hour ozone NAAQS at downwind receptors. This is consistent
with the Step 2 approach that EPA applied in CSAPR for the 1997 ozone
NAAQS, which has subsequently been applied in the CSAPR Update when
evaluating interstate transport obligations for the 2008 ozone NAAQS.
The EPA continues to find 1 percent to be an appropriate threshold. For
ozone, as the EPA found in the Clean Air Interstate Rule (CAIR), CSAPR,
and CSAPR Update, a portion of the nonattainment problems from
anthropogenic sources in the U.S. result from the combined impact of
relatively small contributions from many upwind states, along with
contributions from in-state sources and, in some cases, substantially
larger contributions from a subset of particular upwind states. The
EPA's analysis shows that much of the ozone transport problem being
analyzed in this proposed rulemaking is still the result of the
collective impacts of contributions from many upwind states. Therefore,
application of a consistent contribution threshold is necessary to
identify those upwind states that should have responsibility for
addressing their contribution to the downwind nonattainment and
maintenance problems to which they collectively contribute. Continuing
to use 1 percent of the NAAQS as the screening metric to evaluate
collective contribution from many upwind states also allows the EPA
(and states) to apply a consistent framework to evaluate interstate
emissions transport under the interstate transport provision from one
NAAQS to the next. See 81 FR at 74518 (October 26, 2016). See also 86
FR at 23085 (April 30, 2021) (reviewing and explaining rationale from
CSAPR, 76 FR at 48237-38 (August 8, 2011), for selection of 1 percent
threshold).
The EPA's August 2018 memorandum recognized that in certain
circumstances, a state may be able to establish that an alternative
contribution threshold of 1 ppb is justifiable. Where a state relies on
this alternative threshold, and where that state determined that it was
not linked at Step 2 using the alternative threshold, the EPA will
evaluate whether the state provided a technically sound assessment of
the appropriateness of using this alternative threshold based on the
facts and circumstances underlying its application in the particular
SIP submission.
4. Step 3 of the 4-Step Interstate Transport Framework
Consistent with the EPA's longstanding approach to eliminating
significant contribution or interference with maintenance, at Step 3,
states linked at Steps 1 and 2 are generally expected to prepare a
multifactor assessment of potential emissions controls. The EPA's
analysis at Step 3 in prior Federal actions addressing interstate
transport requirements has primarily focused on an evaluation of cost-
effectiveness of potential emissions controls (on a marginal cost-per-
ton basis), the total emissions reductions that may be achieved by
requiring such controls (if applied across all linked upwind states),
and an evaluation of the air quality impacts such emissions reductions
would have on the downwind receptors to which a state is linked; other
factors may potentially be relevant if adequately supported. In
general, where the EPA's or alternative air quality and contribution
modeling establishes that a state is linked at Steps 1 and 2, it will
be insufficient at Step 3 for a state merely to point to its existing
rules requiring control measures as a basis for approval. In general,
the emissions-reducing effects of all existing emissions control
requirements are already reflected in the air quality results of the
modeling for Steps 1 and 2. If the state is shown to still be linked to
one or more downwind receptor(s), states must provide a well-
[[Page 9522]]
documented evaluation determining whether their emissions constitute
significant contribution or interference with maintenance by evaluating
additional available control opportunities by preparing a multifactor
assessment. While the EPA has not prescribed a particular method for
this assessment, the EPA expects states at a minimum to present a
sufficient technical evaluation. This would typically include
information on emissions sources, applicable control technologies,
emissions reductions and costs, cost effectiveness, and downwind air
quality impacts of the estimated reductions, before concluding that no
additional emissions controls should be required.\29\
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\29\ As examples of general approaches for how such an analysis
could be conducted for their sources, states could look to the CSAPR
Update, 81 FR 74504, 74539-51; CSAPR, 76 FR 48208, 48246-63 (August
8, 2011); CAIR, 70 FR 25162, 25195-229 (May 12, 2005).; or the
NOX SIP Call, 63 FR 57356, 57399-405 (October 27, 1998).
See also Revised CSAPR Update, 86 FR 23054, 23086-23116 (April 30,
2021). Consistently across these rulemakings, the EPA has developed
emissions inventories, analyzed different levels of control
stringency at different cost thresholds, and assessed downwind air
quality improvements.
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5. Step 4 of the 4-Step Interstate Transport Framework
At Step 4, states (or the EPA) develop permanent and federally
enforceable control strategies to achieve the emissions reductions
determined to be necessary at Step 3 to eliminate significant
contribution to nonattainment or interference with maintenance of the
NAAQS. For a state linked at Steps 1 and 2 to rely on an emissions
control measure at Step 3 to address its interstate transport
obligations, that measure must be included in the state's SIP so that
it is permanent and federally enforceable. See CAA section 110(a)(2)(D)
(``Each such [SIP] shall . . . contain adequate provisions . . .'').
See also CAA section 110(a)(2)(A); Committee for a Better Arvin v. U.S.
E.P.A., 786 F.3d 1169, 1175-76 (9th Cir. 2015) (holding that measures
relied on by state to meet CAA requirements must be included in the
SIP).
II. West Virginia's SIP Submission Addressing Interstate Transport of
Air Pollution for the 2015 8-Hour Ozone NAAQS
On September 14, 2018, the West Virginia Department of
Environmental Protection (WVDEP), on behalf of the State of West
Virginia, made a SIP submission to address most of the 2015 8-hour
ozone NAAQS i-SIP requirements under CAA section 110(a)(2), except for
the CAA section 110(a)(2)(D)(i)(I) (the ``Good Neighbor'' or
``interstate transport'') requirements, which West Virginia proposed to
address in a separate SIP submittal. The EPA published a final approval
of this SIP submission on March 17, 2020. 85 FR 15071. On February 4,
2019, WVDEP submitted a separate, supplemental SIP revision addressing
only the CAA Section 110(a)(2)(D)(i)(I) interstate transport
requirements for the 2015 8-hour ozone NAAQS (the 2019 SIP).\30\ West
Virginia's 2019 SIP submittal evaluated different modeling options,
provided an analysis of ozone monitoring data and emission trends, and
argued that the State has already implemented adequate measures to
address pollutant transport that may significantly contribute to
downwind states' ozone maintenance and nonattainment problems, before
concluding that West Virginia has satisfied its section
110(a)(2)(D)(i)(I) Good Neighbor obligations for the 2015 8-hour ozone
NAAQS.
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\30\ See the 2019 SIP submittal included in docket EPA-R03-OAR-
2021-0873.
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WVDEP requested that the EPA ``conditionally'' approve the 2019 SIP
submittal, because at the time of submission, WVDEP had a proposed
rulemaking pending before the West Virginia Legislature for approval
during the 2019 legislative session. The proposed rulemaking, entitled
``45CSR43--Cross-State Air Pollution Rule to Control Annual Nitrogen
Oxide Emissions, Annual Sulfur Dioxide Emissions and Ozone Season
Nitrogen Oxide Emissions,'' would incorporate by reference into the
West Virginia regulations the following emissions trading programs set
forth in the CSAPR and CSAPR Update regulations: 40 CFR part 97,
subpart AAAAA (CSAPR NOX Annual Trading Program), subpart
CCCCC (CSAPR SO2 Group 1 Trading Program), and subpart EEEEE
(CSAPR NOX Ozone Season Group 2 Trading Program). Following
the submission of this 2019 SIP revision, the West Virginia Legislature
approved the state regulation incorporating by reference these
subparts, and WVDEP submitted a SIP revision requesting that the EPA
approve this regulation into the West Virginia SIP on June 5, 2019. The
EPA proposed approval of this SIP revision on August 16, 2019. 84 FR
41944.\31\ WVDEP claimed that following the EPA final approval of the
SIP revision incorporating these programs, the West Virginia SIP would
contain all the measures necessary to ensure that it met the good
neighbor obligations of the CAA section 110(a)(2)(D)(i)(I) for the 2015
8-hour ozone NAAQS. The EPA has not taken final action on that SIP
revision.\32\
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\31\ Docket No. EPA-R03-OAR-2019-0349.
\32\ The D.C. Circuit court's decision in Wisconsin v. EPA, 938
F.3d 303 (September 13, 2019) remanding the CSAPR Update rule to EPA
for further consideration prevented final approval of West
Virginia's SIP submission.
---------------------------------------------------------------------------
WVDEP's submittal to address interstate transport for the 2015 8-
hour ozone NAAQS roughly followed the 4-step interstate transport
framework, as briefly described here. At Step 1, WVDEP discussed and
compared the EPA's transport modeling provided in the March 2018
memorandum against transport modeling provided by Alpine and LADCO and
decided that the Alpine modeling was the ``most appropriate, robust
modeling available to identify the nonattainment and maintenance
receptors to which West Virginia significantly contributes.'' Alpine
released air quality modeling in June 2018, which used a 12-km grid
(supplemented with two 4-km nested grids) based on the EPA's 2023en
modeling platform and preliminary source contribution assessment. In
addition to air quality modeling, the Alpine TSD \33\ included a
discussion of ``Selected SIP Revision Approaches'' based on information
on the ``flexibilities'' listed in an appendix to the EPA's March 2018
Memorandum. Alpine's air quality modeling incorporated meteorological
data from the WRF model along with emissions data developed using
SMOKE, MOVES2014, and BEIS version 3.61. Alpine used CAMx, and the
OSAT/APCA tool to project ozone concentrations at downwind receptors.
The modeling used 2023 as the projection year based on the EPA's
guidance in the 2017 Memorandum stating that 2023 was the appropriate
year to use. As shown in Table 1 of this document, Alpine modeling
projected that in the Mid-Atlantic region, one receptor would have
nonattainment issues and nine receptors would have maintenance problems
in 2023 with respect to the 2015 ozone NAAQS.
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\33\ See Appendix E of the WVDEP submittal. ``Good Neighbor''
Modeling Technical Support Document for 8-Hour Ozone State
Implementation Plans.'' Alpine Geophysics, June 2018.
[[Page 9523]]
Table 1--Receptors Identified by West Virginia Using Alpine's June 2018 Modeling
----------------------------------------------------------------------------------------------------------------
2023 Average 2023 Maximum 2014-2016
Receptor ID Location Nonattainment/ design value design value Actual design
maintenance (ppb) (ppb) value (ppb)
----------------------------------------------------------------------------------------------------------------
240251001.................... Harford, MD..... Nonattainment.. 71.1 73.5 73
551170006.................... Sheboygan, WI... Nonattainment.. 71.7 74.0 79
90010017..................... Fairfield, CT... Maintenance.... 69.2 71.5 80
90013007..................... Farifield, CT... Maintenance.... 69.7 73.6 81
90019003..................... Farifield, CT... Maintenance.... 69.9 72.7 83
90099002..................... New Haven, CT... Maintenance.... 70.3 73.0 76
90110124..................... New London, CT.. Maintenance.... 68.2 71.3 72
260050003.................... Allegan, MI..... Maintenance.... 70.3 73.1 75
340150002.................... Gloucester, NJ.. Maintenance.... 68.8 71.0 74
360850067.................... Richmond, NY.... Maintenance.... 69.6 71.0 76
361030002.................... Suffolk, NY..... Maintenance.... 70.7 72.1 72
421010024.................... Philadelphia, PA Maintenance.... 68.0 71.0 77
----------------------------------------------------------------------------------------------------------------
At Step 2 of the analysis, WVDEP noted that the Alpine modeling
projected that West Virginia would be ``linked'' to the only downwind
2023 nonattainment receptor and three maintenance receptors in the Mid-
Atlantic 4-km region. The contribution results of the Alpine modeling
are shown in Table 2 of this document. WVDEP noted that the Alpine
modeling projected that West Virginia's largest identified contribution
to downwind 8-hour ozone nonattainment and maintenance receptors was
2.52 ppb and 1.63 ppb, respectively.
Table 2--West Virginia's Contribution to Receptors Based on Alpine's June 2018 Modeling
----------------------------------------------------------------------------------------------------------------
2023 Average 2023 Maximum West Virginia
Receptor ID Location Nonattainment/ design value design value contribution
maintenance (ppb) (ppb) (ppb)
----------------------------------------------------------------------------------------------------------------
240251001.................... Harford County, Nonattainment.. 71.1 73.5 2.52
MD.
340150002.................... Gloucester Maintenance.... 68.8 71.0 1.63
County, NJ.
360850067.................... Richmond County, Maintenance.... 69.6 71.0 0.71
NY.
421010024.................... Philadelphia Maintenance.... 68.0 71.0 1.21
County, PA.
----------------------------------------------------------------------------------------------------------------
WVDEP identified specific receptors for further analysis, based
upon the Alpine modeling that indicated that emissions from the State
would be ``linked'' to the downwind ozone nonattainment receptor at
Harford, Maryland, and to three maintenance receptors at Gloucester,
New Jersey; Richmond, New York; and Philadelphia, Pennsylvania.
Therefore, WVDEP stated that further review and analysis relevant to
those areas was warranted. With respect to these specific monitors,
WVDEP also presented further analysis of the air pollution problems at
these four locations in Section 4 of the SIP submittal, entitled
``Flexibilities.''
At Step 3, WVDEP noted that it is necessary to identify the
emissions reductions necessary (if any), considering cost and air
quality factors, to prevent the identified upwind state from
contributing significantly to downwind air quality problems. To do
this, WVDEP reviewed NOX emissions data from EPA's 2008,
2011, 2014 and 2017 NEI Air Pollution Emissions Trends Data website, to
evaluate emissions' trends data for all Tier 1 Categories from 1990
through 2017.\34\ This review determined that six categories of Tier 1
sources accounted for approximately 95% of the State's NOX
emissions in 2017, and thus WVDEP focused its evaluation of potential
controls and the cost-effectiveness of those controls on these six
categories of sources in West Virginia.
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\34\ This website provides current emissions trends data for all
Tier 1 Categories from 1990 through 2017. See also https://www.epa.gov/air-emissions-inventories/what-sources-make-tier-1-categories-used-emissions-trends.
---------------------------------------------------------------------------
For two of these categories--highway vehicles and off-highway
vehicles--WVDEP determined that these emission sources are regulated by
the Federal government, and therefore declined to conduct any further
analysis of emissions reduction opportunities. For the other four
categories--fuel combustion electric utilities, fuel combustion
industrial, fuel combustion other, and petroleum and related
industries--WVDEP grouped these into two categories for analysis: EGUs
and non-EGUs. For the EGU category, WVDEP identified the shutdown of
six EGUs since 2011 and the amount of emissions that these sources
emitted prior to shutdown. For those EGUs still operating, WVDEP relied
upon the EPA's analysis in the proposed CSAPR Update for its finding
that ``because all identified highly cost-effective emission reductions
have already been implemented with respect to EGUs, WV finds that no
additional highly cost-effective reductions are available for EGUs for
the 2015 ozone NAAQS.''
For the non-EGU categories, WVDEP relied upon a technical support
document (TSD) developed by the EPA analyzing available controls and
the costs for non-EGU sources for the CSAPR Update. This TSD identified
nine non-EGU sources in West Virginia emitting more than 100 tons per
year of NOX, and 21 West Virginia sources emitting between
25 and 100 tons per year of NOX. WVDEP then listed those
sources in these two groupings which have shut down, or will shut down
in the near future, and the reduction in NOX emissions from
the 2011 base year attributable to these past and future shutdowns and
various other information before determining that ``[t]he shutdown of
the identified 10 sources; the required shutdown of the
[[Page 9524]]
additional five sources; and the current level of control on the
remaining 20 sources, in conjunction with the implementation of the
Control Measures programs listed in Section 6, represent the
implementation of reasonable control measures in West Virginia.''
For the petroleum category, WVDEP separately opined that its
approved permitting programs would prevent new or modified sources from
causing or contributing to a violation of the NAAQS and included a
discussion of these programs in section 6.1 of the SIP submittal.
At Step 4 of its analysis, WVDEP identified the control measures it
has already implemented or is subject to that ``reasonably'' reduce
emissions from relevant sources located in the State. Among the
measures identified by WVDEP in its SIP submittal are permitting
programs, stationary source control measures, and mobile source control
measures. WVDEP also determined that the adoption of a regional trading
program to replace the CSAPR Update FIP under 45CSR43 was sufficient to
address the State's significant contribution to the downwind receptors.
Upon approval of West Virginia's 45CSR43 into the SIP, WVDEP states
that its SIP will contain the necessary measures to reduce the State's
impact on the identified downwind receptors for purposes of the 2015
ozone NAAQS.
Under the permitting programs, WVDEP referenced the State's NSR
permit program, which includes revision of applications, determination
of permit applicability and issuance of permits for both minor \35\ and
major \36\ sources. Under the minor source NSR program, the
construction or modification of a source with the potential to emit six
or more pounds per hour (lbs/hr), or greater than 144 pounds per
calendar day, of a regulated pollutant, including ozone precursors,
requires that the source obtain a permit under the state rule 45CSR13.
WVDEP stated that ``45CSR13 is the mechanism under which NSPS are
applied to a given minor source,'' and reductions from sources subject
to NSPS are assumed to be equivalent to reasonably available control
technology/reasonably available control measures (RACT/RACM).
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\35\ Permitting requirements for minor sources are codified at
45CSR13--Permits for Construction, Modification, Relocation and
Operation of Stationary Sources of Air Pollutants, Notification
Requirements, Administrative Updates, Temporary Permits, General
Permits, Permission to Commence Construction, and Procedures for
Evaluation.
\36\ Permitting requirements for major sources are codified at
45CSR14--Permits for the Construction and Major Modification of
Major Stationary Sources of Air Pollution for the Prevention of
Significant Deterioration, and 45CSR19--Permits for Construction and
Major Modification of Major Stationary Sources Which Cause or
Contribute to Nonattainment Areas and 45CSR30--Requirements for
Operating Permits.
---------------------------------------------------------------------------
For major stationary sources, WVDEP referenced two additional
permitting programs: One that satisfies the prevention of significant
deterioration (PSD) requirements under Part C of Title 1 of the CAA,
and another that satisfies the nonattainment area NSR (NNSR)
requirements under Part D of the CAA. These are codified at 45CSR14
\37\ and 45CSR19,\38\ respectively. WVDEP asserts that the PSD
regulations at 45CSR14 regulate future growth and thus provide for
continued maintenance of the 2015 8-hour ozone NAAQS. WVDEP also notes
that, pursuant to CAA section 165(a)(3), WVDEP is authorized to
implement the existing PSD permit program to ensure that construction
and modification of a major source will not cause or contribute to
violations of the NAAQS.\39\ The State explained that the NNSR
regulations at 45CSR19 cover new major sources and major modifications,
not subject to PSD, in nonattainment areas. The State explained that
this regulation contains a significance level for ozone of 40 tons per
year of VOC or NOX. WVDEP specified in its SIP submittal
that there are no areas designated as nonattainment for the 2008 or
2015 ozone NAAQS in West Virginia.
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\37\ Permits for the Construction and Major Modification of
Major Stationary Sources of Air Pollution for the Prevention of
Significant Deterioration.
\38\ Permits for Construction and Major Modification of Major
Stationary Sources Which Cause or Contribute to Nonattainment Areas.
\39\ See 45CSR 14-9.1 and 40 CFR 51.166(k).
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For stationary sources, WVDEP's submittal also included a list of
other federally established control measures including: (i) New source
performance standards (40 CFR part 60); (ii) the Acid Rain Program;
(iii) the NOX SIP call; (iv) the CAIR; (v) CSAPR; (vi) the
CSAPR Update; (vii) solid waste combustion rules (40 CFR part 60); and
(viii) the maximum achievable control technology (MACT) program (i.e.,
the NESHAPS at 40 CFR part 63).
In addition, WVDEP included a list of control measures for mobile
sources that EPA has established. These control measures include: (i)
The 2007 heavy-duty highway rule in 40 CFR part 86, subpart P; (ii)
Tier 2 vehicle and gasoline sulfur program at 40 CFR part 80, subpart
H, 40 CFR part 85 and 40 CFR part 86; (iii) Tier 3 motor vehicle
emission and fuel standards codified under 40 CFR parts 79, 80, 85, 86,
600, 1036, 1037, 1039, 1042, 1048, 1054, 1065, and 1066; (iv) Tier 4
vehicle standards; and (v) the nonroad diesel emissions program at 40
CFR part 89.
In conclusion, following a review of the emission reductions
created by shutdowns, and various existing emission control
requirements, WVDEP states that ``upon incorporation of 45CSR43 into
the SIP, no additional highly cost-effective reductions are available
for the 2015 8-hour ozone NAAQS.''
III. EPA Evaluation
The EPA is proposing to find that WVDEP's February 4, 2019 SIP
submission does not meet the State's obligations with respect to
prohibiting emissions that contribute significantly to nonattainment or
interfere with maintenance of the 2015 8-hour ozone NAAQS in any other
state. The proposed disapproval is based on both newer, updated
modeling performed by the EPA that was not available when WVDEP
submitted its SIP submission to address the requirements of section
110(a)(2)(D)(i)(I) for the 2015 ozone NAAQS, and the EPA's evaluation
of WVDEP's SIP submission using the 4-step interstate transport
framework.
A. West Virginia
1. Evaluation of Information Provided by West Virginia Regarding Steps
1 and 2
As explained in Section II of this document, at Step 1 of the 4-
Step interstate transport framework, WVDEP used the Alpine modeling
released in June 2018 to identify any areas where that modeling would
project nonattainment or maintenance problems in 2023. Although
Alpine's June 2018 modeling TSD describes several potential concepts
identified by outside parties and listed in an appendix to the EPA's
March 2018 Memorandum, it does not appear that WVDEP relied on those
so-called ``flexibilities.'' \40\ The nonattainment and maintenance
receptors identified in Alpine's modeling under Step 1 are listed in
Table 1 in Section II of this document. Based on the results of the
Alpine modeling alone, WVDEP acknowledged
[[Page 9525]]
in its SIP submission that it should proceed to Step 2 of the analysis.
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\40\ The ``flexibilities'' identified in the Alpine modeling
TSD, but not used by West Virginia, include removing Canadian and
Mexican contributions from modeling results, using an alternate
significant contribution threshold in Step 2 of EPA's four-step
transport interstate framework, using relative significant impact
amongst those states similarly contributing to a downwind receptor
under Step 3 of EPA's four-step transport interstate framework, and
using alternative timeframes to address the ``interference with
maintenance'' prong of the good neighbor provision.
---------------------------------------------------------------------------
At Step 2 of its analysis, WVDEP again relied on Alpine's June 2018
modeling results and highlighted any receptors to which emissions from
the State contributed more than 1 percent of the NAAQS (i.e., >0.70
ppb). Table 2 in Section II of this document identifies receptors from
Alpine's June 2018 modeling that are projected to receive contribution
levels from emissions in West Virginia above the 1 percent threshold.
According to Alpine's June 2018 modeling projections, emissions from
West Virginia would significantly contribute to the Harford, MD
nonattainment receptor, with a 2.52 ppm contribution, and to the
Gloucester, NJ, Richmond, NY, and Philadelphia, PA maintenance
receptors with contributions of 1.63, 0.71, and 1.21 ppb, respectively.
WVDEP concluded in its own analysis that it was linked using the 1
percent of the NAAQS threshold and acknowledged that ``it is [then]
necessary to identify the emissions reductions (if any), considering
cost and air quality factors, to prevent West Virginia from
contributing to downwind air quality problems,'' \41\ which is Step 3
of the 4-step interstate transport framework.
---------------------------------------------------------------------------
\41\ See the February 4, 2019 SIP submittal included in docket
EPA-R03-OAR-2021-0873.
---------------------------------------------------------------------------
Although WVDEP relied on alternative modeling instead of the EPA's
modeling included in the March 2018 memorandum, WVDEP acknowledged in
its SIP submission that it is linked to downwind receptors and is
projected to contribute above the 1 percent threshold to certain
nonattainment and/or maintenance receptors in 2023. Because the
alternative modeling relied on by the state also demonstrates that a
linkage exists between the state and downwind receptors at Step 2, the
EPA need not conduct a comparative assessment of the alternative
modeling. The State's analysis corroborates the conclusion in the EPA's
most recent modeling.
2. Results of the EPA's Step 1 and Step 2 Modeling and Findings for
West Virginia
As described in Section I of this document, the EPA performed air
quality modeling using the 2016v2 emissions platform to project design
values and contributions for 2023. These data were examined to
determine if West Virginia contributes at or above the threshold of 1
percent of the 2015 8-hour ozone NAAQS (i.e., 0.70 ppb) to any downwind
nonattainment or maintenance receptor. As shown in Table 1 of this
document, the data \42\ indicate that in 2023, emissions from West
Virginia contribute greater than 1 percent of the NAAQS to
nonattainment or maintenance-only receptors in Fairfield County-
Westport, Fairfield County-Stratford, and New Haven County in
Connecticut, as well as Bucks County, Pennsylvania.\43\
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\42\ Design values and contributions at individual monitoring
sites nationwide are provide in the file:
2016v2_DVs_state_contributions.xlsx which is included in docket ID
No. EPA-HQ-OAR-2021-0663.
\43\ These modeling results are consistent with the results of a
prior round of 2023 modeling using the 2016v1 emissions platform
which became available to the public in the fall of 2020 in the
Revised CSAPR Update, as noted in Section I of this document. That
modeling showed that West Virginia had a maximum contribution
greater than 0.70 ppb to at least one nonattainment or maintenance-
only receptor in 2023. These modeling results are included in the
file ``Ozone Design Values And Contributions Revised CSAPR
Update.xlsx'' in docket EPA-HQ-OAR-2021-0663.
Table 3--West Virginia's Linkage Results Based on EPA 2016v2-Based Modeling
----------------------------------------------------------------------------------------------------------------
2023 Average 2023 Maximum West Virginia
Receptor ID Location Nonattainment/ design value design value contribution
maintenance (ppb) (ppb) (ppb)
----------------------------------------------------------------------------------------------------------------
90099002..................... New Haven, CT... Nonattainment.. 71.8 73.9 1.45
420170012.................... Bucks, PA....... Maintenance.... 70.7 72.2 1.44
90019003..................... Fairfield- Nonattainment.. 76.1 76.4 1.34
Westport, CT.
90013007..................... Fairfield- Nonattainment.. 74.2 75.1 1.30
Stratford, CT.
----------------------------------------------------------------------------------------------------------------
We recognize that the results of EPA (2011 and 2016 base year) and
Alpine (2011 base year) modeling indicated different receptors and
linkages at Steps 1 and 2 of the framework. These differing results
regarding receptors and linkages can be affected by the varying
meteorology from year to year, but this does not indicate that the
modeling or the EPA or the state's methodology for identifying
receptors or linkages is inherently unreliable. Rather, these three
separate modeling runs all indicated: (i) That there would be receptors
in areas that would struggle with nonattainment or maintenance in the
future, and (ii) that West Virginia was linked to some set of these
receptors, even if the receptors and linkages differed from one another
in their specifics (e.g., a different set of receptors were identified
to have nonattainment or maintenance problems, or West Virginia was
linked to different receptors in one modeling run versus another). The
EPA thinks this common result indicates that West Virginia's emissions
have been substantial enough to generate linkages at Steps 1 and 2 to
some set of downwind receptors, under varying assumptions and
meteorological conditions, even if the precise set of linkages changed
between modeling runs. Under these circumstances, we think it is
appropriate to proceed to a Step 3 analysis to determine what portion
of West Virginia's emissions should be deemed ``significant.'' In doing
so, the EPA does not necessarily agree with the methods and assumptions
contained in the Alpine modeling relied on by WVDEP in this action, nor
that we consider our own earlier modeling to be of equal reliability
relative to more recent modeling. However, where alternative or older
modeling generated linkages, even if those linkages differ from
linkages in the EPA's most recent set of modeling, that information
provides further evidence, not less, in support of a conclusion that
the state is required to proceed to Step 3 to further evaluate its
emissions.
Therefore, based on the EPA's evaluation of the information
submitted by West Virginia, and based on the EPA's most recent modeling
results for 2023, the EPA proposes to find that West Virginia is linked
at Steps 1 and 2 and has an obligation to assess potential emissions
reductions from sources or other emissions activity at Step 3 of the 4-
step framework.
[[Page 9526]]
3. West Virginia's Analysis of ``Flexibilities''
Before proceeding to Step 3 of the analysis, WVDEP examined several
so-called ``flexibilities'' identified in Attachment A to the EPA's
March 2018 Memorandum in section 4 of its SIP submission,\44\
ostensibly to show that West Virginia should not be seen as
contributing significantly to certain 2023 nonattainment or maintenance
receptors identified by the Alpine modeling. Although the Alpine
modeling is now out of date, and the EPA is primarily relying upon the
updated 2023 modeling using the 2016v2 emissions platform to inform its
decision, the EPA has evaluated the ``flexibilities'' discussed by West
Virginia to see if any of these ideas continue to have relevance to
this proposed disapproval action.
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\44\ See West Virginia 2019 SIP submittal, p. 14.
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a. HYSPLIT Back Trajectories
WVDEP evaluated the potential interstate impacts of emissions from
West Virginia on other states, using HYPLIT modeling. To do so, WVDEP
considered impacts at the one nonattainment receptor (Harford, MD) and
three maintenance receptors (Philadelphia, PA; Gloucester, NJ;
Richmond, NY) to which West Virginia was linked by the Alpine 4-km
modeling. WVDEP identified the exceedance days for each of those
receptors during the 2015-2017 time period. For the identified
exceedance days, West Virginia then used the National Oceanic and
Atmospheric Administration's (NOAA) Air Resources Laboratory's Hybrid
Single-Particle Lagrangian Integrated Trajectory (HYSPLIT) model to
develop a back trajectory analysis for each day to show the origin of
air masses and establish emission source-receptor relationships. These
back trajectory analyses are shown in Appendix H of the West Virginia
2019 SIP submittal. Using this approach, WVDEP concluded that the 291
back trajectory analyses ``demonstrate that on the majority of the days
on which ozone exceedances occurred at the subject receptors, the
origin of the air masses impacting the receptors did not originate
within, or pass through, West Virginia's borders in the 48 hours
preceding the exceedance.'' \45\
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\45\ Id. at 17.
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The EPA notes that WVDEP's own back trajectory analysis did not
indicate that there were no cases when air masses associated with
exceedance days at linked receptors passed over West Virginia. Rather,
the state claimed that air masses did not move across West Virginia on
a ``majority'' of the days the State examined ``in the 48 hours
preceding'' the exceedance. WVDEP further argued that only some of the
air masses moving across the state moved across ``an industrial area
where air emissions are more predominate.'' Thus, WVDEP's evaluation of
HYSPLIT back trajectories still show linkages between some downwind
exceedances and air masses originating or passing through West
Virginia.
In addition, the data in Appendix H of the WVDEP submittal indicate
that one or more of the daily back trajectories from the Harford,
Maryland receptor moved across West Virginia on 50 percent of the
exceedance days between 2015 and 2017 at this receptor. Furthermore,
the line thickness displayed on trajectory plots does not represent the
geographic extent of the transported air mass, but rather they
represent the centerline of an air parcel's motion, calculated to
understand the trajectory line itself. Uncertainties are clearly
present in these results and these uncertainties change with trajectory
time and distance traveled. In this regard, one should avoid concluding
a region is not along a trajectory's path if the center line of that
trajectory missed the region by a relatively small distance.\46\ In
contrast, the EPA's analysis of transported emissions as discussed in
Section I.C of this document, above, uses updated, photochemical grid
modeling designed to assess ozone transported to downwind monitors
across the entire region and over extended timeframes that fully
account for fate and transport of ozone-precursors over longer
distances. Thus, the EPA finds that WVDEP's back trajectory analysis
does not show that West Virginia should not be linked to downwind
nonattainment or maintenance receptors in 2023.
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\46\ See Area Designations for the 2015 Ozone National Ambient
Air Quality Standards memorandum from Janet G. McCabe to the EPA
Regional Administrators, February 25, 2016.
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b. Downwind Air Quality Context
As the ``context'' surrounding certain downwind receptors, WVDEP
presented information regarding other local sources of emissions also
contributing to the nonattainment or maintenance problems at those
locations. In Section 4.2 of the SIP submittal, WVDEP analyzed various
types of information.\47\ From this analysis, WVDEP concluded that all
of the projected receptors in the Alpine modeling are located in 2015
8-hour ozone NAAQS nonattainment areas within the Interstate 95 highway
corridor, that high population areas ``closely correspond'' to the
nonattainment areas, and that high Vehicle Miles Traveled (VMT) also
``closely correlate'' with the nonattainment areas. WVDEP included a
more detailed analysis of these factors in Appendix I of the West
Virginia 2019 SIP Submittal.
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\47\ Id.
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While the EPA would generally agree that the high VMT along the
Interstate 95 corridor, along with high population densities in the
various existing and predicted 2023 nonattainment areas, have a large
impact on the ozone nonattainment status of these areas, this does not
prove that West Virginia's emissions do not also contribute to
nonattainment and maintenance problems at those locations. The fact
that local sources of emissions also contribute to high ozone levels is
neither surprising nor outcome determinative. The EPA has developed the
4-step process to help evaluate whether or not a given state is linked
to downwind nonattainment and maintenance problems, and that analysis
starts at the question of whether the state's emissions have a
projected impact above the 1 percent of the NAAQS threshold in 2023.
That value at Step 2 is set relatively low in light of the ``collective
contribution'' problem associated with regional ozone transport. The
Alpine modeling that WVDEP relied upon shows such impacts above the
Step 2 threshold from West Virginia at a number of receptors. The more
recent modeling that the EPA has conducted indicates impacts above that
threshold at other monitors. Thus, the EPA does not agree that WVDEP's
analysis of the relative impacts of local sources compared to the
projected impacts of emissions from the state establishes that West
Virginia does not significantly contribute to these nonattainment and
maintenance areas. Nor would the EPA agree that similar arguments about
the ``context'' of local emissions would apply at the more recently
identified receptors.
c. International Emissions
The last consideration noted by WVDEP is Section 179B of the CAA,
entitled ``International border areas.'' The State focused not on
section 179B(a), applicable to states that are required to submit
nonattainment plan SIP submissions to address applicable requirements
in nonattainment areas, but rather section 179B(b), which applies in
the case of a state with a designated ozone nonattainment area that
fails to meet the applicable attainment date and thus may trigger a
reclassification to the next highest
[[Page 9527]]
classification of ozone nonattainment. Section 179B(b) states:
``Notwithstanding any other provision of law, any State that
establishes to the satisfaction of the Administrator that, with respect
to an ozone nonattainment area in such State, such State would have
attained the national ambient air quality standard for ozone by the
applicable attainment date, but for emissions emanating from outside of
the United States, shall not be subject to the provisions of section
7511(a)(2) or (5) of this title or section 7511d of this title.'' \48\
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\48\ Section 7511(a)(2) relates to the attainment date for
severe ozone nonattainment areas, and (a)(5) describes the
conditions necessary for a one-year extension of ozone attainment
dates. Section 7511d pertains to enforcement for severe and extreme
ozone nonattainment areas for failure to attain. Neither provision
is germane to this action.
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West Virginia cites a statement in the TSD for the Alpine modeling
which notes that if anthropogenic emissions from Canada and Mexico,
tracked as a single tag, are taken into account, then both the EPA and
Alpine's modeling demonstrate attainment at the Harford Maryland
receptor with the 2015 ozone NAAQS.\49\ In other words, simply
subtracting the projected impact of international emissions from Canada
and Mexico at that receptor would result in ``attainment'' at that
location. WVDEP asserts that this fact would allow the State to ``stop
at Step 1 of the four-factor process.'' EPA notes that WVDEP only
raised this issue with respect to the nonattainment receptor it
identified in Harford, Maryland, rather than the maintenance receptors,
presumably in recognition of the fact that section 179B(b) pertains to
nonattainment areas, rather than maintenance areas.
---------------------------------------------------------------------------
\49\ Id. at p. 20.
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The EPA disagrees with the theory that section 179B applies in this
way. First, the EPA notes that section 179B(b), relied upon and quoted
by WVDEP, has no bearing on the issue of interstate transport as
posited in the State's SIP submission. That specific statutory
provision, by its explicit terms, only applies in the event a state
with a designated ozone nonattainment area fails to attain the NAAQS by
the applicable attainment date. If, in those circumstances, the state
at issue would have attained the NAAQS but for the impacts of
international transport, then that state may seek to avoid
reclassification to the next level of ozone nonattainment that would
otherwise occur upon the EPA making the requisite finding of failure to
attain. WVDEP misapplies section 179B(b) when it suggests that it
alters the State's obligations with respect to section 110(a)(D)(i)(I),
using the example of the impacts at the Harford Maryland receptor
identified in the Alpine modeling. However, even if Maryland could in
the future seek to invoke section 179B(b), the only effect would be to
excuse Maryland from certain additional nonattainment plan requirements
of CAA sections 7511(a)(2) and (5) and 7511D. Further, if Maryland were
to do so, the mere existence of international transport impacts would
not be outcome determinative--even in that context where CAA section
179B(b) actually applies.\50\ Section 179B does not supplant the
separate obligation of upwind states such as West Virginia to address
their interstate transport impacts on other downwind states. It is a
separate provision of the CAA intended to address the impacts of
international emissions on nonattainment areas.
---------------------------------------------------------------------------
\50\ See Guidance on the Preparation of Clean Air Act Section
179B Demonstrations for Nonattainment Areas Affected by
International Transport of Emissions (December 2020), pages 10-12,
available at https://www.epa.gov/sites/default/files/2020-01/documents/draft_179b_guidance-final_draft_for_posting.pdf.
---------------------------------------------------------------------------
Second, and more importantly, West Virginia's reasoning related to
international emissions is inapplicable to the requirements of CAA
section 110(a)(2)(D)(i)(I). The good neighbor provision requires states
and the EPA to address interstate transport of air pollution that
contributes to downwind states' ability to attain and maintain NAAQS.
Whether emissions from other states or other countries also contribute
to the same downwind air quality issue is irrelevant in assessing
whether a downwind state has an air quality problem, or whether an
upwind state is significantly contributing to that problem. States are
not obligated under CAA section 110(a)(2)(D)(i)(I) to reduce emissions
sufficient on their own to resolve downwind receptors' nonattainment or
maintenance problems. Rather, states are obligated to eliminate their
own ``significant contribution'' or ``interference'' with the ability
of other states to attain or maintain the NAAQS.
Indeed, the D.C. Circuit in Wisconsin specifically rejected
petitioner arguments suggesting that upwind states should be excused
from good neighbor obligations on the basis that some other source of
emissions (whether international or another upwind state) could be
considered the ``but-for'' cause of downwind air quality problem. 938
F.3d 303 at 323-324. The court viewed petitioners' arguments as
essentially an argument ``that an upwind State `contributes
significantly' to downwind nonattainment only when its emissions are
the sole cause of downwind nonattainment.'' 938 F.3d 303 at 324. The
court explained that ``an upwind State can `contribute' to downwind
nonattainment even if its emissions are not the but-for cause.'' Id. at
324-325. See also Catawba County v. EPA, 571 F.3d 20, 39 (D.C. Cir.
2009) (rejecting the argument ``that `significantly contribute'
unambiguously means `strictly cause' '' because there is ``no reason
why the statute precludes EPA from determining that [an] addition of
[pollutant] into the atmosphere is significant even though a nearby
county's nonattainment problem would still persist in its absence'');
Miss. Comm'n o Envtl. Quality v. EPA, 790 F.3d 138, 163 n.12 (D.C. Cir.
2015) (observing that the argument that ``there likely would have been
no violation at all . . . if it were not or the emissions resulting
from [another source]'' is ``merely a rephrasing of the but-for
causation rule that we rejected in Catawba County.''). Therefore, a
state is not excused from eliminating its significant contribution on
the basis that international emissions also contribute some amount of
pollution to the same receptors to which the State is linked.
Therefore, the EPA proposes to find that Section 179B(b) of the CAA
does not serve to alleviate West Virginia of any potential obligations
under Section 110(a)(2)(D)(i)(I).
EPA will proceed to evaluate the information and analysis WVDEP
provided at Step 3 of the 4-step interstate transport framework.
4. Evaluation of Information Provided Regarding Step 3
At Step 3 of the 4-step interstate transport framework, the state
should further evaluate its sources of emissions that may impact the
relevant downwind receptors, in light of multiple factors, including
air quality and cost considerations, to determine what, if any,
emissions significantly contribute to nonattainment or interfere with
maintenance and, thus, must be eliminated under CAA section
110(a)(2)(D)(i)(I).
To evaluate effectively which emissions in the state should be
deemed ``significant'' and therefore prohibited, states generally
should prepare an accounting of sources and other emissions activity
for relevant pollutants and assess potential, additional emissions
reduction opportunities and resulting downwind air quality
improvements. The EPA has consistently applied this general approach
(i.e., Step 3 of the 4-step
[[Page 9528]]
interstate transport framework) when identifying emissions
contributions that the Agency has determined to be ``significant'' (or
interfere with maintenance) in each of its prior Federal, regional
ozone transport rulemakings, and this interpretation of the statute has
been upheld by the Supreme Court. See EME Homer City, 572 U.S. 489, 519
(2014). While the EPA has not directed states that they must conduct a
Step 3 analysis in precisely the manner the EPA has done in its prior
regional transport rulemakings, state implementation plans addressing
the obligations in CAA section 110(a)(2)(D)(i)(I) must prohibit ``any
source or other type of emissions activity within the State'' from
emitting air pollutants which will contribute significantly to downwind
air quality problems. Thus, states must complete something similar to
the EPA's analysis (or an alternative approach to defining
``significance'' that comports with the statute's objectives) to
determine whether and to what degree emissions from a state should be
``prohibited'' to eliminate emissions that will ``contribute
significantly to nonattainment in, or interfere with maintenance of,''
the NAAQS in any other state.
In Step 3, West Virginia evaluated statewide NOX
emissions data from the triennial National Emissions Inventory (NEI)
for 2008, 2011, 2014 and 2017, as updated on August 2, 2018, on the
EPA's NEI Air Pollution Emissions Trends Data website. This website
provides current emissions trends data for all Tier 1 Categories of
NOX emissions from 1990 through 2020.\51\ WVDEP's analysis
found that of the Tier 1 Categories, six of those categories
represented 95% of the total 2017 NOX emissions from sources
in the State. These categories are: (i) Fuel Combustion--Electric
Utilities (29.5%); (ii) Fuel Combustion--Industrial (9.1%); (iii) Fuel
Combustion--Other (4.8%); (iv) Petroleum and Related Industries
(22.8%); (v) Highway Vehicles (21.5%); (vi) and Off-Highway (7.6%).
West Virginia therefore focused its Step 3 control and cost analysis on
these six categories of sources.
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\51\ At the time West Virginia submitted its SIP in 2019, NEI
data for 2020 was not available, so West Virginia limited its
analysis to data available at that time.
---------------------------------------------------------------------------
a. Highway Vehicles and Off-Highway
West Virginia's analysis of NEI data indicated that these two Tier
1 source categories combined produced 29.1% of the NOX
emissions in the State in 2017. For these categories of mobile sources,
WVDEP noted that such sources are regulated at the Federal level and
not the state level, so WVDEP concluded that no further analysis of the
Highway Vehicles and Off-Highway categories for additional potential
reductions is required. In Section 6.1 of the SIP submission, WVDEP
noted and described a number of EPA programs designed to reduce
NOX emissions from mobile sources, including the 2007 Heavy-
Duty Highway Rule (40 CFR part 86, subpart P); the Tier 2 Vehicle and
Sulfur Program (40 CFR part 80, subpart H; 40 CFR part 85, 40 CFR part
86), Tier 3 Motor Vehicle Emission and Fuel Standards (40 CFR parts 79,
80, 85, 86, 600, 1036, 1037, 1042, 1048, 1054, 1065, and 1066); Tier 4
Vehicle Standards; and the Nonroad Diesel Emissions Program (40 CFR
part 89).
Given the magnitude of NOX emission reductions in West
Virginia reflected in the NEI, the EPA agrees that it is appropriate
for WVDEP to evaluate these source categories for potential additional
controls to reduce interstate transport for the purposes of the 2015 8-
hour ozone NAAQS. The EPA does not agree, however, with the State's
attempt to categorize certain sectors of emissions as per se beyond its
regulatory control. Clearly the State possesses regulatory authority
over many categories of sources and other types of ``emissions activity
within the state,'' see CAA section 110(a)(2)(D)(i). While the EPA
generally regulates mobile sources at the Federal level under title II
of the CAA, the state also has the authority to undertake any number of
measures to reduce emissions from mobile sources through means and
techniques that are not preempted by title II. See, e.g., CAA sections
182(b)(3), 182(b)(4), 182(c)(3), 182(c)(4), 182(c)(5), 182(d)(1),
182(e)(3), and 182(e)(4) (identifying programs to control mobile source
emissions that states are required to implement depending on the degree
of ozone nonattainment). Pursuant to CAA section 116, states retain
authority to regulate sources in SIPs, and to do so more stringently
than the EPA, unless preempted. For example, many states, including
states with receptors to which West Virginia is linked, have adopted
California motor vehicle standards as permitted under CAA section
177.\52\
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\52\ California Air Resources Board, States That Have Adopted
California's Vehicle Standards Under Section 177 of the Federal
Clean Air Act (Current as of December 6, 2021), https://ww2.arb.ca.gov/resources/documents/states-have-adopted-californias-vehicle-standards-under-section-177-federal.
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WVDEP's listing of existing Federal control measures for mobile
sources does not in and of itself serve as an adequate substitute for a
Step 3 analysis of additional potential emission reductions. First,
these standards, to the extent they are ``on-the-books,'' are already
reflected in the base case air quality modeling conducted at Steps 1
and 2. Further, the listing of existing or on-the-way control measures,
whether approved into the State's SIP or not, does not substitute for a
complete Step 3 analysis under the EPA's 4-step framework to define
``significant contribution.''
b. Petroleum and Related Industries
For the Petroleum and Related Industries Tier 1 category, WVDEP's
analysis indicated that sources of this type produced 22.8% of the 2017
NOX emissions in the State. West Virginia further
acknowledged that this category has been a growing source of emissions
in more recent years, but argued that West Virginia's New Source Review
(NSR) permitting programs will adequately ensure that emissions from
any new or modified sources in this category do not cause or contribute
to nonattainment of the NAAQS.\53\ West Virginia has a PSD program that
requires new or modified major stationary sources located in designated
attainment areas to obtain a permit and impose emission controls that
meet the best available control technology (BACT) level of control.
Similarly, West Virginia has a Nonattainment NSR program that requires
new or modified major stationary sources located in designated
nonattainment areas to obtain a permit and impose emission controls
that meet the lowest achievable emission rate (LAER) level of control.
WVDEP asserts that the BACT and LAER requirements are by definition
more stringent than the RACT/RACM level of control required in
nonattainment plans that states must impose in designated nonattainment
areas. As a component of these permitting programs, the State noted
that there is also a requirement to consider whether the emissions from
the source ``will interfere with attainment or maintenance of an
applicable ambient air quality standard.'' The State therefore did not
perform an analysis of potential additional control measures or costs
for this category of sources.
---------------------------------------------------------------------------
\53\ Id. at 25.
---------------------------------------------------------------------------
The EPA agrees with WVDEP's identification of the sources in the
Petroleum and Related Industries category from the NEI as sufficiently
significant to warrant evaluation for NOX emission controls.
As the State reflected in its SIP submission, the
[[Page 9529]]
cumulative NOX emissions from this category comprise 22.8%
of West Virginia's emissions, and thus a proportion of emissions second
only to the category that includes EGUs. Further, WVDEP acknowledged
that unlike other source categories, the NOX emissions from
this category have been increasing in recent years. In Table 6 of the
SIP submission, the State reflected the large increase in such
emissions from 2008 through 2017.
Notwithstanding these increases in emissions, WVDEP relies
primarily on the existing permitting programs (minor source, PSD, and
NNSR) as the basis for concluding that no further controls would be
necessary for these sources to address interstate transport problems
for purposes of the 2015 8-hour ozone NAAQS. First, WVDEP seems to have
done no more than describe the general framework for new source
permitting that is mandated of all states under the CAA and has not
identified how its state programs in particular go beyond those basic
requirements in any manner relevant to ozone transport. Nonetheless,
the State is correct that these permitting programs do impose control
requirements (e.g., BACT or LAER) and do require an analysis of
potential impacts on attainment and maintenance of the NAAQS. But there
are likewise important distinctions between the permitting program
requirements and interstate transport requirements, including but not
limited to: (i) The permitting programs generally apply only to new
sources or major modification of existing sources; (ii) the evaluation
of impacts on attainment and maintenance in other states in the context
of a permit for a single source may not be as robust and have the same
geographic scope as that undertaken by states and the EPA for purposes
of section 110(a)(2)(D)(i)(I); and (iii) the timing of the permitting
process evaluation may have no bearing on the NAAQS at issue (i.e., a
permit issued in 2005 would not have considered impacts vis a vis the
2015 8-hour ozone NAAQS). Further, existing sources may have been
permitted under a new source permitting program years or even decades
ago, before more effective or cheaper emissions control technologies
became available.
Thus, even if the permitting programs address new sources of
emissions for the intended purposes of those programs, it does not
necessarily follow that they automatically meet all other CAA
requirements as well. The EPA disagrees, therefore, with the conclusion
that the existence of these permitting programs resolves the issue of
whether there are additional control measures that the State should
impose specifically for purposes of eliminating significant
contribution to nonattainment or interference with maintenance at
downwind receptors for the 2015 8-hour ozone NAAQS.\54\
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\54\ The EPA notes that WVDEP has not explained why new source
permitting was a sufficient control measure for interstate ozone
transport from the ``Petroleum and Related Industries'' category,
but not other source categories, when the new source permitting
requirements apply to all new sources.
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In general, the listing of existing or on-the-way control measures,
whether approved into the State's SIP or not, does not substitute for a
complete Step 3 analysis under EPA's 4-step framework to define
``significant contribution.'' WVDEP did not provide an assessment of
the overall effects of these measures, when the emissions reductions
would be achieved, and what the overall resulting air quality effects
would be at identified out of state receptors. WVDEP did not evaluate
additional, potential emissions control opportunities, or their costs
or impacts, or attempt to analyze whether, if applied more broadly
across linked states, the emissions reductions would constitute the
elimination of significant contribution. Although the EPA acknowledges
states are not necessarily bound to follow its own analytical framework
at Step 3, we note that WVDEP did not do a meaningful analysis of what
other potential controls may be necessary to achieve NOX
emission reductions from these sources for the 2015 ozone NAAQS. This
would have been similar to the approach to defining significant
contribution that EPA has applied in prior rulemakings such as CSAPR
and or the CSAPR Update, even if such an analysis is not technically
mandatory.
c. Fuel Combustion--Electric Utilities
West Virginia's analysis of NEI data indicated that EGUs produced
30.2% of the NOX emissions in the State in 2017.\55\ The
State noted that NOX emissions from EGUs have already
declined as a result of other CAA requirements, such as the Acid Rain
Program, the NOX Budget Trading Program, the CAIR, and the
CSAPR programs. As a result of these programs and actions, WVDEP
estimated a reduction in ozone season emissions of 75 percent, or
almost 2 million tons, since 1997. The EPA acknowledges that these
existing programs have already reduced NOX emissions
substantially from EGUs, but the question at issue at this time is
whether more NOX emissions reductions are necessary from
such sources for purposes of CAA section 110(a)(2)(D)(i)(I) for the
2015 8-hour ozone NAAQS. Notwithstanding the past reductions of
NOX from EGUs, WVDEP correctly concluded that further
analysis of potential controls is necessary.
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\55\ The narrative text of West Virginia's SIP submission at
page 27 says that EGUs contribute 30.2%, while Table 6 of the SIP
submission identifies the EGU contribution as 29.5%. This difference
in attributed contribution does not change the outcome of EPA's
analysis.
---------------------------------------------------------------------------
As one part of this analysis, West Virginia relied on the shutdown
of specific EGUs that would further reduce NOX emissions
from the state. West Virginia identified the retirements of six coal-
fired power plants (consisting of 17 units total) that have occurred in
recent years. Three power plants shut down in September 2012. Three
additional power plants shut down in June 2015. WVDEP provided
documentation for these units showing that the units were permanently
retired, and the Title V permits were surrendered. The State further
indicated that should operations resume at any of the shut-down units
in the future, the source \56\ would have to complete the permitting
process as a new facility.
---------------------------------------------------------------------------
\56\ The documentation is in Appendix M of West Virginia's 2019
SIP submittal.
---------------------------------------------------------------------------
The EPA agrees that these shutdowns will eliminate NOX
emissions from these sources, and thus this may help to reduce the
impacts of such emissions from West Virginia at the identified
nonattainment and maintenance receptors. Evaluation of further control
of these specific EGU sources is not required. However, EPA's most
recent 2016v2 emissions platform-based modeling has already taken these
shutdowns into account, and projects impacts at nonattainment or
maintenance receptors in Connecticut, New York, and Maryland
notwithstanding these reductions in emissions. Further, the mere fact
that a particular EGU has shutdown does not mean that all associated
emissions should be subtracted from the total inventory of a state's
emissions. Typically, a shutdown is accompanied by a shift in
generation to new sources or existing sources with available capacity,
which in turn produces some incremental increase in emissions at those
sources. WVDEP did not analyze the net emissions effects of the
shutdowns it listed. By contrast, in its most recent modeling, the EPA
has thoroughly and comprehensively evaluated emissions from EGUs in
West Virginia and other states. The EPA's latest projections of the
baseline EGU emissions uses the version 6--Summer 2021 Reference Case
of the Integrated Planning Model (IPM). IPM is a multi-
[[Page 9530]]
regional, dynamic, and deterministic linear programming model of the
U.S. electric power sector.\57\ The model provides forecasts of least
cost capacity expansion, electricity dispatch, and emission control
strategies, while meeting energy demand, environmental, transmission,
dispatch, and reliability constraints.
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\57\ Detailed information and documentation of EPA's Base Case,
including all the underlying assumptions, data sources, and
architecture parameters can be found on EPA's website at: https://www.epa.gov/airmarkets/epas-power-sector-modeling-platform-v6-using-ipm-summer-2021-reference-case.
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The IPM version 6--Summer 2021 Reference Case incorporated recent
updates through the Summer of 2021 to account for updated Federal and
State environmental regulations for EGUs. This projected base case
accounts for the effects of the finalized Mercury and Air Toxics
Standards rule, CSAPR, the CSAPR Update, the Revised CSAPR Update, New
Source Review settlements, the final effluent limitation guidelines
(ELG) Rule, the coal combustion residual (CCR) Rule, and other on-the-
books Federal and State rules (including renewable energy tax credit
extensions from the Consolidated Appropriations Act of 2021) through
early 2021 impacting SO2, NOX, directly emitted
particulate matter, CO2, and power plant operations. It also
includes final actions EPA has taken to implement the Regional Haze
Rule and best available retrofit technology (BART) requirements.
Further, the IPM Platform v6 uses demand projections from the Energy
Information Agency's (EIA) Annual Energy Outlook (AEO) 2020.\58\
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\58\ Detailed information and documentation of EPA's Base Case,
including all the underlying assumptions, data sources, architecture
parameters, and IPM comments form can be found on EPA's website at:
https://www.epa.gov/airmarkets/epas-power-sector-modeling-platform-v6-using-ipm-summer-2021-reference-case.
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The IPM version 6--Summer 2021 Reference Case uses the National
Electric Energy Data System (NEEDS) v6 database as its source for data
on all existing and planned-committed units. Units are removed from the
NEEDS inventory only if a high degree of certainty could be assigned to
future implementation of the announced future closure or
retirement.\59\ The available retirement-related information was
reviewed for each unit, and the following rules are applied to remove:
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\59\ The ``Capacity Dropped'' and the ``Retired Through 2023''
worksheets in NEEDS lists all units that are removed from the NEEDS
v6 inventory--NEEDS v6 Summer 2021 Reference Case. This data can be
found on EPA's website at: https://www.epa.gov/airmarkets/national-electric-energy-data-system-needs-v6.
(i) Units that are listed as retired in the December 2020 EIA
Form 860M;
(ii) Units that have a planned retirement year prior to June 30,
2023 in the December 2020 EIA Form 860M;
(iii) Units that have been cleared by a regional transmission
operator (RTO) or independent system operator (ISO) to retire before
2023, or whose RTO/ISO clearance to retire is contingent on actions
that can be completed before 2023;
(iv) Units that have committed specifically to retire before
2023 under Federal or state enforcement actions or regulatory
requirements; and
(v) Finally, units for which a retirement announcement can be
corroborated by other available information. Units required to
retire pursuant to enforcement actions or state rules on July 1,
2023 or later are retained in NEEDS v6.
Retirement of EGU units that follow this process are excluded from
the NEEDS inventory. This includes EGU units as highlighted in the West
Virginia SIP submission (Appendix G and Appendix M).\60\ Thus, the
modeling already accounts for the NOX emission reductions in
West Virginia that resulted from the source shutdowns identified by
WVDEP. Further, closures taking place on or after July 1, 2023 are
captured as constraints on those units in the IPM modeling, and the
units are retired in future year projections per the terms of the
related requirements.
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\60\ The ``Capacity Dropped'' and the ``Retired Through 2023''
worksheets in NEEDS lists all units that are removed from the NEEDS
v6 inventory--NEEDS v6 Summer 2021 Reference Case. This data can be
found on EPA's website at: https://www.epa.gov/airmarkets/national-electric-energy-data-system-needs-v6.
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As a second part of its Step 3 evaluation of potential controls for
EGUs, West Virginia also relied on the EPA's own analysis of potential
NOX emission reductions in connection with the CSAPR Update
for the 2008 ozone NAAQS. WVDEP noted that the EPA itself considered
the adequacy of NOX controls for EGUs as part of the CSAPR
Update rulemaking. The State pointed to the EPA's analytical process in
the CSAPR Update rulemaking concerning factors such as cost, available
emissions reductions, and downwind air impacts, and the resulting
emission budgets that EPA derived using the ``knee in the curve''
evaluation of cost effectiveness as described in the proposed
``Determination Regarding Good Neighbor Obligations for the 2008 Ozone
National Ambient Air Quality Standard.'' In particular, WVDEP
emphasized the EPA statement in the proposal that it ``considers the
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.'' The State also pointed to the EPA's proposed CSAPR
Close-Out Rule, in which the EPA similarly stated, ``the EPA considers
the 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.''
In support of this argument, WVDEP also included a Table containing
the ozone season NOX emission rates in 2017 and 2018 for EGU
sources located in West Virginia. Table 7 presents information about
the size, fuel type, control type, and emission rates in pounds (lbs)
per million British thermal unit (MMBtu) (lbs/MMBtu). This table
provides key information about the existing control measures and
emission rates for these individual sources, at the time of the SIP
submission. However, WVDEP does not provide analysis of any potential
additional or strengthened control measures at these sources, that may
or may not be needed for purposes of the 2015 8-hour ozone NAAQS.
Finally, for EGUs, WVDEP asserted that because the EPA's CSAPR
Update concluded that all identified highly cost-effective emission
reductions have already been implemented with respect to EGUs for the
2008 ozone NAAQS, no additional highly cost-effective reductions are
available for EGUs for the 2015 8-hour ozone NAAQS. WVDEP argues that
because its EGUs are subject to the CSAPR Update (which reflected a
stringency at the nominal marginal cost threshold of $1400/ton (2011$)
for the 2008 ozone NAAQS), it has already implemented all cost-
effective emissions reductions for its EGU fleet.
The EPA disagrees. First, the so-called CSAPR Close-Out has been
vacated for unlawfully permitting significant contribution to continue
beyond the next attainment date. New York v. EPA, 781 Fed. App'x 4
(D.C. Cir. 2019). See also Wisconsin, 938 F.3d at 318-20. Second, in
the CSAPR Update, EPA had promulgated only a partial remedy as to EGUs
even with respect to the less stringent 2008 ozone NAAQS, a conclusion
affirmed by the D.C. Circuit in New York v. EPA, 964 F.3d 1214, 1225
(D.C. Cir. 2020). EPA has recently completed action on remand from the
Wisconsin decision and has promulgated a full remedy as to West
Virginia's obligations for the 2008 ozone NAAQS in the Revised CSAPR
Update. EPA found that additional, cost-effective emissions reductions
from West Virginia's EGUs were indeed necessary to resolve its
obligations under the 2008
[[Page 9531]]
ozone NAAQS, see 86 FR 23054, 23100, 23123-24 (April 30, 2021).
Therefore, WVDEP's conclusions that no further cost-effective emission
reductions are available from its EGUs cannot be sustained.
More fundamentally, relying on the CSAPR Update's (or any other CAA
program's) determination of cost-effectiveness without further Step 3
analysis is insufficient. Cost-effectiveness must be assessed in the
context of the specific CAA program; assessing cost-effectiveness in
the context of ozone transport should reflect a more comprehensive
evaluation of the nature of the interstate transport problem, the total
emissions reductions available at several cost thresholds, and the air
quality impacts of the reductions at downwind receptors. While the EPA
has not established a benchmark cost-effectiveness value for the 2015
8-hour ozone NAAQS interstate transport obligations, because the 2015
8-hour ozone NAAQS is a more stringent and more protective air quality
standard, it is reasonable to expect control measures or strategies to
address interstate transport under this NAAQS to reflect higher
marginal control costs. As such, the marginal cost threshold of $1,400/
ton for the CSAPR Update (which addresses the 2008 ozone NAAQS and is
in 2011$) is not an appropriate cost threshold and cannot be approved
as a benchmark to use for interstate transport SIP submissions for the
2015 8-hour ozone NAAQS.
In addition, the updated 2016v2 emissions platform captures all
existing CSAPR trading programs in the baseline, and that modeling
confirms that these control programs were not sufficient to eliminate
West Virginia's linkage at Steps 1 and 2 under the 2015 8-hour ozone
NAAQS. Although the state provided an inventory of existing controls on
its EGU fleet, based on updated modeling results, the State was
therefore obligated at Step 3 to assess additional control measures
using a multifactor analysis.
d. Fuel Combustion--Industrial and Fuel Combustion--Other
WVDEP's analysis indicated that NOX emissions from non-
EGU sources in two other NEI source categories, Fuel Combustion--
Industrial and Fuel Combustion--Other, together comprised 13.9% of the
NOX emissions in West Virginia in 2017. For non-EGU sources
of NOX emissions, WVDEP similarly reviewed EPA documentation
for the CSAPR Update, specifically a cost-effectiveness evaluation
provided by SRA International (SRA), which was contracted by the EPA to
perform this analysis. The analysis split the sources subject to the
cost-effectiveness analysis into two groups: Sources with
NOX emissions greater than 100 tons per year (tpy) in 2017,
and sources with NOX emissions between 25 and 100 tpy in
2017. The analysis then reviewed these sources using a $10,000 per ton
cost effectiveness threshold. In West Virginia, the analysis identified
nine emissions units in the ``greater than 100 tpy'' group and 21
emission units in the ``25 to 100 tpy'' group for further evaluation
based on potential for controls.
Of the nine ``greater than 100 tpy'' units, WVDEP noted that four
had permanently shutdown, two were subject to a Consent Order to
shutdown by December 31, 2021, and one was subject to a Consent Order
which established a 0.20 lbs/MMBtu during the ozone season. For the
remaining two sources, WVDEP claims that the EPA determined in the
CSAPR Close-Out Rule that one source was well controlled and the other
did not have any technically and economically available controls.
However, EPA made no such determinations with respect to any non-EGUs
in the CSAPR Close-Out. Of the 21 ``25 to 100 tpy'' units, WVDEP noted
that six units have permanently shutdown and three are subject to a
Consent Order to shutdown by December 31, 2021.\61\ West Virginia's SIP
submission concludes that ``[t]he shutdown of the identified 10
sources; the required shutdown of the additional five sources; and the
current level of control on the remaining 20 sources, in conjunction
with the implementation of the Control Measures programs listed in
Section 6, represent the implementation of reasonable control measures
in West Virginia.'' \62\
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\61\ See Appendix N of West Virginia's SIP submittal.
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Given that the emissions from these source categories comprise
13.9% of the total NOX emissions from West Virginia in the
2017 NEI, the EPA agrees that it is appropriate for WVDEP to evaluate
them. The EPA does not, however, agree with this analysis for certain
non-EGU sources. First, many of the source shutdowns identified by West
Virginia have generally been captured in the data the EPA used to
perform the 2016v2 emissions platform-based modeling. Even with the
shutdowns, the results of that updated modeling continue to show that
West Virginia's sources contribute to nonattainment and maintenance
receptors. Moreover, because the 2015 8-hour ozone NAAQS is more
stringent than the 2008 ozone NAAQS, the EPA's findings of an
acceptable cost threshold for controls (which did not include non-EGUs)
in the CSAPR Update, which only addresses transport for the 2008 ozone
NAAQS, are not sufficient to evaluate whether West Virginia has adopted
all reasonable control measures for these non-EGU sources for purposes
of the 2015 8-hour ozone NAAQS. Additional reductions above and beyond
those amounts may be needed for a more stringent 2015 8-hour ozone
NAAQS, so WVDEP's analysis showing the NOX reductions
attributable to sources shutdown since 2011 did not address the
quantity of additional reductions that may be needed from these types
of sources for purposes of meeting section 110(a)(2)(D)(i)(I)
requirements for the 2015 8-hour ozone NAAQS. Although the State
provided an inventory of non-EGU sources based on previous CoST
outputs, the State did not assess additional control measures using a
multifactor analysis for sources that were not shut down, not under the
obligations of a consent order, or were not considered well controlled
based on the EPA's assessment. The inventory of non-EGU stationary
sources included in EPA's most recent emissions inventory indicates
that there are a number of such sources that continue to emit
NOX in excess of 100 tpy.\63\ WVDEP conducted no analysis of
additional emissions control opportunities at these sources.
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\63\ See ``wv_og_nonegu_unit_comparison_16_17_18_19_20.xlsx'' in
Docket ID No. EPA-R03-OAR-2021-0873.
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Finally, relying on a FIP at Step 3 is per se not approvable if the
state has not adopted that program into its SIP and instead continues
to rely on the FIP. States may not rely on non-SIP measures to meet SIP
requirements. See CAA section 110(a)(2)(D) (``Each such [SIP] shall . .
. contain adequate provisions. . . .''). See also CAA section
110(a)(2)(A); Committee for a Better Arvin v. U.S. E.P.A., 786 F.3d
1169, 1175-76 (9th Cir. 2015) (holding that measures relied on by state
to meet CAA requirements must be included in the SIP). In this matter,
West Virginia has adopted a state regulation, 45CSR43,\64\
incorporating by reference 40 CFR part 97, subparts AAAAA, CCCCC, and
EEEEE, which are the CSAPR NOX Annual, SO2 Group
1, and Ozone Season NOX trading programs. The State designed
the SIP submission to incorporate into the West Virginia SIP the
requirements of the CSAPR Update
[[Page 9532]]
Group 2 trading program, in order to meet the State's obligations under
the good neighbor provision for the 2008 ozone NAAQS. WVDEP submitted
this as a SIP revision to the EPA on June 5, 2019, and the EPA proposed
approval of the revision.\65\ However, following EPA's proposed
approval of this SIP submission, a court decision and EPA's subsequent
rulemaking in the Revised CSAPR Update have rendered it inadequate. As
explained in Section I of this document, the D.C. Circuit issued a
decision in Wisconsin v. EPA, remanding the CSAPR Update because the
EPA had failed to require upwind states to eliminate their significant
contribution by the next applicable attainment date by which downwind
states must come into compliance with the NAAQS, as established under
CAA section 181(a). 938 F.3d at 313. The EPA has since issued the
Revised CSAPR Update, which released updated budgets and requirements
for states, including West Virginia, in order to fully resolve
interstate transport obligations for the 2008 ozone NAAQS. As such, the
ozone season NOX budgets in the West Virginia SIP submission
for which the EPA proposed approval no longer satisfy the State's
interstate transport obligations under the 2008 ozone NAAQS. The EPA is
not in this action addressing the pending June 5, 2019 SIP submission
and will address it in a separate action. The EPA encourages West
Virginia to withdraw the June 5, 2019 SIP submission.
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\64\ See ``Cross State Air Pollution Rule to Control Annual
Nitrogen Oxide Emissions, Annual Sulfur Dioxide Emissions, and Ozone
Season Nitrogen Oxide Emission,'' at https://dep.wv.gov/daq/publicnoticeandcomment/Documents/45CSR43Prop_wAttachments.pdf.
\65\ See 84 FR 41944 (August 16, 2019).
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5. Evaluation of Information Provided Regarding Step 4
Step 4 of the 4-step interstate transport framework calls for
development of permanent and federally enforceable control strategies
to achieve the emissions reductions determined to be necessary at Step
3 to eliminate significant contribution to nonattainment or
interference with maintenance of the NAAQS. As mentioned previously,
WVDEP's SIP submission did not contain an evaluation of additional
emission control opportunities or establish that no additional controls
are required beyond their existing controls and regulatory mechanisms
to eliminate significant contribution to nonattainment or interference
with maintenance of the 2015 8-hour ozone NAAQS. WVDEP additionally
identified the incorporation by reference into its SIP certain emission
budgets and trading programs created by CSAPR and the CSAPR Update and
the EPA's pending final action on this proposed SIP revision to meet
its requirements for the good neighbor provisions under the 2015 8-hour
ozone NAAQS. However, as explained in our evaluation of Step 3 of
WVDEP's 2019 SIP submittal, we do not agree that the requirements of
the CSAPR Update satisfy West Virginia's good neighbor obligations
under the 2015 8-hour ozone NAAQS (or the 2008 ozone NAAQS).
Additionally, the budgets and trading programs created by CSAPR and the
CSAPR Update is not a new measure with new requirements, as the FIP
implementing these programs has been in effect for several years and
the emissions reductions associated have been taken into account in the
EPA's modeling of 2023 nonattainment and maintenance receptors using
the 2016v2 emissions platform. As a result, EPA proposes to disapprove
West Virginia's submittal on the separate, additional basis that the
State has not developed the appropriate permanent and enforceable
emissions reductions necessary to meet the obligations of CAA section
110(a)(2)(d)(i)(I).
6. Conclusion
Based on the EPA's evaluation of West Virginia's SIP submission,
the EPA is proposing to find that West Virginia's February 4, 2019 SIP
submission addressing CAA section 110(a)(2)(D)(i)(I) does not meet the
State's interstate transport obligations, because it fails to contain
the necessary provisions to eliminate emissions that will contribute
significantly to nonattainment or interfere with maintenance of the
2015 8-hour ozone NAAQS in any other state.
IV. Proposed Action
We are proposing to disapprove West Virginia's February 4, 2019 SIP
submission pertaining to interstate transport of air pollution which
will significantly contribute to nonattainment or interfere with
maintenance of the 2015 8-hour ozone NAAQS in other states. Under CAA
section 110(c)(1), disapproval would establish a 2-year deadline for
the EPA to promulgate a FIP for West Virginia to address the CAA
section 110(a)(2)(D)(i)(I) interstate transport requirements pertaining
to significant contribution to nonattainment and interference with
maintenance of the 2015 8-hour ozone NAAQS in other states, unless the
EPA approves a new West Virginia SIP submission that meets these
requirements. Disapproval does not start a mandatory sanctions clock
for West Virginia.
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action as defined by
E.O. 12866 and was therefore not submitted to the Office of Management
and Budget for review.
B. Paperwork Reduction Act (PRA)
This proposed action does not impose an information collection
burden under the PRA because it does not contain any information
collection activities.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action merely proposes to disapprove a SIP submission as not meeting
the CAA.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 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.
E. 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.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175. This action does not apply on any Indian
reservation land, any other area where the EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction, or non-reservation areas of
Indian country. Thus, Executive Order 13175 does not apply to this
action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks 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
[[Page 9533]]
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 merely proposes to disapprove a SIP submission as not
meeting the CAA.
H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA believes the human health or environmental risk addressed
by this action will not have potential disproportionately high and
adverse human health or environmental effects on minority, low-income
or indigenous populations. This action merely proposes to disapprove a
SIP submission as not meeting the CAA.
K. CAA Section 307(b)(1)
Section 307(b)(1) of the CAA governs judicial review of final
actions by the EPA. This section provides, in part, that petitions for
review must be filed in the D.C. Circuit: (i) When the agency action
consists of ``nationally applicable regulations promulgated, or final
actions taken, by the Administrator,'' or (ii) when such action is
locally or regionally applicable, if ``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.'' For locally or regionally applicable final
actions, the CAA reserves to the EPA complete discretion whether to
invoke the exception in (ii).\66\
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\66\ In deciding whether to invoke the exception by making and
publishing a finding that an action is based on a determination of
nationwide scope or effect, the Administrator takes into account a
number of policy considerations, including his judgment balancing
the benefit of obtaining the D.C. Circuit's authoritative
centralized review versus allowing development of the issue in other
contexts and the best use of agency resources.
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If the EPA takes final action on this proposed rulemaking, the
Administrator intends to exercise the complete discretion afforded to
him under the CAA to make and publish a finding that the final action
(to the extent a court finds the action to be locally or regionally
applicable) is based on a determination of ``nationwide scope or
effect'' within the meaning of CAA section 307(b)(1). Through this
rulemaking action (in conjunction with a series of related actions on
other SIP submissions for the same CAA obligations), the EPA interprets
and applies section 110(a)(2)(d)(i)(I) of the CAA for the 2015 ozone
NAAQS based on a common core of nationwide policy judgments and
technical analysis concerning the interstate transport of pollutants
throughout the continental U.S. In particular, the EPA is applying here
(and in other proposed actions related to the same obligations) the
same, nationally consistent 4-step framework for assessing good
neighbor obligations for the 2015 8-hour ozone NAAQS. The EPA relies on
a single set of updated, 2016-base year photochemical grid modeling
results of the year 2023 as the primary basis for its assessment of air
quality conditions and contributions at Steps 1 and 2 of that
framework. Further, the EPA proposes to determine and apply a set of
nationally consistent policy judgments to apply the 4-step framework.
The EPA has selected a nationally uniform analytic year (2023) for this
analysis and is applying a nationally uniform approach to nonattainment
and maintenance receptors and a nationally uniform approach to
contribution threshold analysis.\67\
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\67\ A finding of nationwide scope or effect is also appropriate
for actions that cover states in multiple judicial circuits. In the
report on the 1977 Amendments that revised section 307(b)(1) of the
CAA, Congress noted that the Administrator's determination that the
``nationwide scope or effect'' exception applies would be
appropriate for any action that has a scope or effect beyond a
single judicial circuit. See H.R. Rep. No. 95-294 at 323, 324,
reprinted in 1977 U.S.C.C.A.N. 1402-03.
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For these reasons, the Administrator intends, if this proposed
action is finalized, to exercise the complete discretion afforded to
him under the CAA to make and publish a finding that this action is
based on one or more determinations of nationwide scope or effect for
purposes of CAA section 307(b)(1).\68\
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\68\ The EPA may take a consolidated, single final action on all
of the proposed SIP disapproval actions with respect to obligations
under CAA section 110(a)(2)(D)(i)(I) for the 2015 ozone NAAQS.
Should EPA take a single final action on all such disapprovals, this
action would be nationally applicable, and the EPA would also
anticipate, in the alternative, making and publishing a finding that
such final action is based on a determination of nationwide scope or
effect.
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List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Ozone.
Authority: 42 U.S.C. 7401 et seq.
Dated: February 7, 2022
Diana Esher,
Acting Regional Administrator, Region III.
[FR Doc. 2022-02952 Filed 2-18-22; 8:45 am]
BILLING CODE 6560-50-P