                                       
Response To December 9, 2013 Clean Air Act Section 176A Petition From Connecticut, Delaware, Maryland, Massachusetts, New Hampshire, New York, Pennsylvania, Rhode Island And Vermont
                                       
                                       
                                       
                               October 27, 2017
                                       
                         Response to Comment Document

This document includes only those comments for which the EPA did not include a response in the preamble.  The EPA elected to include in the preamble the principal comments that were submitted by a number of comments. 


Contents 
Contribution and Interstate Transport	3
Air Quality	6
Control Measures	8
Effects of Ozone Pollution	10
Emissions Considerations	11
Other Comments	12



Contribution and Interstate Transport 

Commenter: Tennessee Department of Environment and Conservation

Comment: The commenter believes the petition lacks merit. The commenter believes that Tennessee's contribution to the OTR is minimal using a 0.7 ppb threshold, and when compared to the contribution of other non-OTR states is generally much lower than the contribution that originates within the OTR itself. 

Response: While the agency has reviewed the technical information supplied in support of the petition, as explained in the preamble, there have been significant changes to emissions levels, regulatory requirements, and ambient air quality since the petition was submitted in December 2013. The EPA has considered this additional supporting air quality information, including current air quality conditions, some recent on-the-books control strategies, and significant changes in emissions inventories that have occurred over the past several years to deny the petition. For more information on the EPA's interstate transport contribution assessment for the 2008 ozone NAAQS, please see the CSAPR Update at 81 FR 74504.
   

Commenters: North Carolina Department of Environmental Quality and Tennessee Department of Environment and Conservation and 

Comment: The commenters reference a SEMAP report that shows both a 30% reduction in NOX emissions and a separate 30% reduction in VOC emissions from Tennessee, North Carolina, and other SEMAP states showed no or little reduction in ozone levels at certain OTR receptors. The commenters also assert that biogenic VOC emissions are abundant in the Southeast and therefore anthropogenic VOC reductions in non-OTR states would have little impact in improving air quality in the OTR. This is illustrated by CAMx ozone source apportionment modeling results which show small (0.02-0.10 ppb) ozone contributions to OTR receptors, from North Carolina anthropogenic VOC emissions 

Response: It is not necessary to rely on the data in the SEMAP report as a separate basis for denial, and the agency has not independently verified them. In Section V. B. of the preamble, the EPA addresses the effectiveness of reducing ozone precursor emissions. 


Commenter: North Carolina Department of Environmental Quality

Comment: The commenter states that the EPA must deny the petitioners' request for the state of North Carolina based on the CSAPR Update modeling showing that the state is not linked to any downwind receptors. The commenter requests that the EPA explain this finding as an independent basis for denying the petition for North Carolina. The commenter notes comments submitted on the EPA's January 2017 Notice of Data Availability (80 FR 46271) and states that the results of the Notice of Data Availability are in contrast to information issued in January 22, 2015 from the EPA.

Response: The EPA is denying the petition as explained in the preamble. The EPA also acknowledges that we concluded in the CSAPR Update that North Carolina is not significantly contributing to nonattainment or interfering with maintenance of the 2008 ozone NAAQS in other states. See 81 FR at 74524. In Section IV.A., the EPA explains that North Carolina is not included in the final CSAPR Update and that the CSAPR Update analysis found that North Carolina was not linked to any downwind air quality problems.


Commenters: Connecticut Department of Energy and Environmental Protection, Connecticut Department of Public Health and Connecticut Economic and Community Development

Comment: The commenter highlights that the entire state of Connecticut is designated nonattainment for ozone. The commenters state that 90% of ozone pollution is from outside the state.

Commenter: New York State Department of Environmental Conservation

Comment: Comments that an estimated 47% of New York ozone concentrations are attributable to emissions from major sources outside the state using the EPA's CSAPR Update data and that the disparity between environmental performance of sources outside the OTR to compared to those in the OTR has grown, while at the same time the regional nature of ozone nonattainment has shifted.

Commenter: Maryland Department of the Environment

Comment: The commenter cites research that shows ozone is transported to Maryland at significant levels from the 9 states named to be added to the OTR.

Commenter: Delaware State Chamber of Commerce

Comment: The commenter notes that Delaware has well controlled sources. The commenter asserts that Delaware's Department of Natural Resources and Environmental Control and EPA studies show upwind states are the root cause of Delaware's nonattainment. 

Commenter: Sierra Club

Comment: Given that many of the non-OTR states contribute more to nonattainment within the OTR than certain of their OTR counterparts, the regulatory disparity between OTR and non-OTR states is irrational and arbitrary.

Response: The EPA recognizes that there is transported ozone from outside of the OTR affecting certain receptors within the OTR, and has explained that the existence of transported ozone is by itself not a reason to grant this petition. However, regarding the commenters' claims about the degree of transport, the EPA disagrees. Baseline modeling for the CSAPR Update projected that in 2017 the anthropogenic ozone contribution from emissions in the OTR states accounted for well over 50% of the total U.S. anthropogenic ozone contribution to all OTR nonattainment and maintenance receptors, and over 80% of the U.S. anthropogenic ozone contributions to several Connecticut receptors (see CSAPR Update for more details on the EPA's ozone transport assessment). With the implementation of the CSAPR Update, the actual levels of interstate-transported ozone overall would, generally speaking, be reduced, and so these percentages may vary. In addition, because the model contributions are at the state level, the OTR contribution percentage does not include the portion of northern Virginia already included in the OTR, and thus the OTR level of contribution would actually be directionally higher than suggested here, especially for receptors in the southern portion of the OTR.  


Commenter: University of Delaware

Comment: The commenter believes technical information supports that the EPA should grant the petition for at least 2 additional states, Ohio and West Virginia. The commenter believes that the EPA should reduce those 2 states emissions by at least 10%. The commenter includes data to support its claims that 5 states contribute more than that Delaware to Delaware's ozone concentrations. The commenter claims that NOX and VOC emission reductions in the Philadelphia nonattainment area does not reduce Delaware's ozone concentrations. The commenter also suggests that reducing Maryland, Pennsylvania, Virginia, Ohio and West Virginia NOX and VOC emission reductions by 20% will decrease Delaware's ozone concentration by 0.5-1.3 ppb on average. The commenter also included other data to support its claims.  

Response: Commenter incorrectly identifies Virginia as a whole as already part of the OTR. Only the metropolitan area around Washington, D.C. in northern Virginia is currently part of the OTR. The EPA has assessed state-to-state contributions in the CSAPR Update. The EPA recognizes that there is transported ozone from outside of the OTR affecting many states within the OTR (see CSAPR Update for more details on the EPA's ozone transport assessment). However, the existence of transported ozone is by itself not a reason to grant this petition. The EPA modeling agrees in principle with the commenter's analysis, in that Ohio, West Virginia, and Virginia were all found to contribute significantly to receptors in the OTR for purposes of the good neighbor provision. However, the commenter has not shown that adding the states of Ohio, (the non-OTR portion of) Virginia, and West Virginia to the OTR would in fact result in the emission reductions that are assumed in their analysis in projecting downwind air quality improvements. 


Commenter: American Petroleum Institute

Comment: The commenter argues the EPA cannot apply a "cumulative contribution" standard to expand the OTR because it would allow a petitioner to simply add enough states to a petition to reach a "significant contribution" threshold irrespective of what any individual state contributes. The commenter claims that the petition does not adequately establish that transport from any one of the named states significantly contributes to OTR nonattainment areas.

Response: It is not necessary to definitively answer this question in this action. The EPA is not applying a significance threshold in denying this petition. Rather, even conceding that there may be a linkage between any of the states named in the petition and receptors in the OTR, the agency is exercising the discretion afforded by CAA section 176A(a) to deny the petition in light of the considerations set forth in the preamble.  


Commenter: West Virginia Department of Environmental Protection 

Comment: The commenter claims that ozone exceedances within the OTR are strongly influenced by local emissions. The commenter suggests that sources within the OTR may not be effectively controlling ozone precursor emissions. The commenter includes information recognized by the Ozone Transport Commission Stationary Source Committee, High Electric Demand Day (HEDD) Workgroup White Paper that found that "peaking units can contribute over 30% of total OTR EGU NOX mass on the episode days that were analyzed, and that NOX emission reductions of over 20 tons per day could be realized if gas- and oil-fired combustion turbines without installed controls were to meet "moderate RACT" emissions level." The commenter suggests that the daily emission profile for West Virginia does not demonstrate the same variability as that of the OTR and the emissions do not generally correspond to OTR exceedance days. 

Response: The EPA is not addressing whether sources in the OTR are effectively operating controls in this action. The EPA agrees that expanding the OTR to include West Virginia is not necessary to address the downwind air quality problems in light of other CAA authorities. 


Commenter: Virginia Department of Environmental Quality

Comment: The commenter suggests certain ozone monitors in the Mid-Atlantic and Northeast are largely urban coastal sites, predominantly impacted by the "home state" emissions and do not appear to be as responsive to emission reductions from upwind sources.

Response: Regardless of whether ozone monitors are near coastal areas or not, a large fraction (more than half) of the projected 2017 ozone concentrations in all OTR nonattainment and maintenance receptors in the CSAPR Update analysis were found to be from upwind states (both from non-OTR states and other OTR states). Therefore, there is no indication from the CSAPR Update modeling analysis that these sites are "predominantly impacted" by the home state or that these sites are not responsive to emissions reductions from upwind states. However, the EPA has determined, as explained in the preamble, that expansion of the OTR is unwarranted at this time. For more information on the EPA's interstate transport assessment, please see 81 FR 74504.


Commenter: Delaware Department of Natural Resources

Comment: Commenter asserts that upwind states have been granted NOX waivers under section 182(f), which allows areas to continue to have large sources of NOX emissions uncontrolled, despite significant contributions to nonattainment areas in downwind states. The commenter cites a 2005 NOX waiver the EPA provided to Michigan, in which the EPA stated that the impact of the waiver on downwind nonattainment areas is not a part of the process for evaluating CAA section 182(f) waiver requests.

Response: The agency need not draw any conclusions regarding the interplay between CAA section 182(f) and section 176A in this action. The use of such waivers does not interfere with the agency's or the states' authorities for continuing the longstanding and effective use of the CAA's mandatory good neighbor provision in section 110(a)(2)(D)(i)(I).
Air Quality 

Commenters: Connecticut Department of Energy and Environmental Protection, Connecticut Department of Public Health and Connecticut Economic and Community Development

Comment: The commenter notes the statewide nonattainment of ozone in Connecticut.

Response: The agency does not dispute that there are nonattainment areas in Connecticut for the 2008 ozone NAAQS.


Commenter: Virginia Department of Environmental Quality

Comment: The commenter includes air quality monitoring data for areas in Virginia as confirmation of air quality improvements. 

Response: The agency has considered recent air quality improvements in its final action.


Commenter: West Virginia Department of Environmental Protection

Comment: The commenter believes that West Virginia should not be included in the OTR and states that West Virginia monitors all demonstrate attainment with the 2008 ozone NAAQS.

Response: The EPA agrees that West Virginia should not be added to the OTR at this time; however, the EPA notes that demonstrating attainment of the NAAQS within state does not necessarily speak to interstate impacts to a downwind area in another state. 


Commenter: American Petroleum Institute

Comment: The commenter agrees that the EPA has discretion to add states to a transport region but only if a downwind area is in nonattainment. The commenter asserts that within the OTR only the Greater Connecticut and New York areas continue to be nonattainment and these nonattainment areas have local air quality issues. 

Commenters: North Carolina Department of Environmental Quality, Utility Air Regulatory Group, and Utility Information Exchange of Kentucky

Comment: The commenters believe CAA section 176A is specific to "nonattainment" of the NAAQS and that a 176A petition cannot be granted solely on the basis of an upwind state's linkage to a maintenance receptor. For example, the commenters believe that Kentucky and North Carolina do not significantly contribute to any nonattainment within the OTR, citing the technical analysis for the CSAPR Update. The commenters suggest that while "interference with maintenance" may be applicable for CAA section 110(a)(2)(D)(i)(I), it is not relevant for section 176A.

Response: It is unnecessary to address this issue in this action. The EPA need not adopt here a firm test for the level or nature of the impact to downwind air quality necessary to justify granting a 176A petition. Here, as explained in Section V of the preamble, petitioners' analysis was insufficient to justify addressing either nonattainment or maintenance concerns in the current OTR through expansion of the OTR, given the existence of other programs such as CSAPR Update, which addresses both downwind maintenance and nonattainment issues.
Control Measures 

Commenter: North Carolina Department of Environmental Quality

Comment: The commenter agrees with statements in the EPA's proposal that federal/state rules and programs will result in declining ozone levels across the nation and the OTR. The commenter states their Clean Smokestack Act will continue to limit NOX emissions from coal-fired EGUs and that in response to the State Collaborative on Ozone Transport and various other federal rules, North Carolina confirms that coal-fired EGUs are consistently operating NOX controls year round.

Response: The EPA appreciates North Carolina's progress and continued success to reduce NOX emissions from EGUs within the state. The EPA believes that actions like the Clean Smokestacks Act are helping to reduce ozone concentrations in other states. 


Commenters: Connecticut Department of Energy and Environmental Protection, Connecticut Department of Public Health, Connecticut Economic and Community Development, Delaware Department of Natural Resources and Environmental Control, Massachusetts Department of Environmental Protection, Maryland Department of the Environment, New York State Department of Environmental Conservation, and Rhode Island Department of Environmental Management

Comment: A number of comments opposed EPA's proposal and highlight the benefits of the Ozone Transport Commission. Some commenters reiterate the benefits of RACT, I/M, and NSR. The commenters believe the EPA's reliance on other CAA tools to justify denial is inadequate because the EPA has not analyzed the costs of those tools or acknowledged that the cost per ton of emissions reduced is lower in the non-OTR states than in the OTR states. Some commenters assert that the EPA is overestimating control cost and underselling the ability of sources to meet more stringent limits.

Commenters: Connecticut Department of Energy and Environmental Protection, Connecticut Department of Public Health and Connecticut Economic and Community Development

Comment: The commenters suggest removal of an additional ton of pollution in Connecticut is estimated at $10,000 to $40,000-ton vs removal of the amount of pollution in upwind states at $500 to $1,200 where the commenters believe basic control technologies have not been installed at some facilities.

Response: Petitioners and commenters in support of the petition did not, in the agency's view, provide sufficient evidence supporting the effectiveness or necessity for the control measures sought to be imposed under section 184. The specific cited cost-per-ton figures were not accompanied by supporting evidence or analysis. Even accepting the cost-per-ton numbers for upwind states could be true for some types of control measures, it is by no means clear (and is in fact highly doubtful) that all of the mandatory control requirements that would be required of a new OTR state under section 184 would be at that level of cost-effectiveness. For past interstate transport rule control efforts relying on the preferred policy of using the authority under the good neighbor provision to determine necessary upwind state reductions, the EPA has not only considered the level of controls that are cost-effective over large geographic areas, but also considered the feasibility of achieving those reductions within the timeframe that applied to the particular action and whether those controls would result in over-control resulting from requiring reductions in emissions beyond what those needed for attainment and maintenance of the standard. See also Section V.B of the preamble addressing effectiveness of ozone precursor emissions reductions.


Commenter: Illinois Environmental Regulatory Group

Comment: The commenter includes information identifying the Illinois state measures that reduce NOx and VOC emissions, including the retirements of coal fired EGUs.

Response: The commenter does not provide specific details to support the statement. However, the EPA analysis for rules under CAA section 110 includes information on recent actual emissions, emission reductions from current or future on-the-books regulations and information on shutdowns. The information allows the EPA to analyze impacts downwind and the need and possibilities for additional reductions in upwind areas.


Commenters: Ohio Environmental Protection Agency and Ohio Attorney General

Comment: The commenters note the economic impact of adding states to the OTR. The commenters note the effects of expanding I/M requirements, RACT requirements, and other mandatory OTR measures.  

Response: The EPA recognizes that the control measures under CAA section 184 such as enhanced I/M requirements have associated compliance costs. Petitioners and commenters in support of the petition did not, in the agency's view, provide sufficient evidence supporting the reasonableness, effectiveness, or necessity for the control measures sought to be imposed under CAA section 184 in addressing the specific transport issue identified in the petitioning states.


Commenter: Utility Information Exchange of Kentucky

Comment: The commenter highlights that NOX emission reductions of 60% from utilities in Kentucky from 2003 to 2016.

Response: The EPA notes that aggregate ozone season NOX emissions from units in Kentucky that report to the EPA through Clean Air Markets programs (NOX Budget Trading Program, CAIR and Cross State Air Pollution Rule) were about 63,000 tons in 2003 and 25,000 tons in 2016.


Commenter: Virginia Department of Environmental Quality

Comment: The commenter highlights the potential effect of the CAA section 184 requirements would have on the 124 counties not within the OTR. The commenter concludes expansion is not cost-effective. The commenter suggests controlling NOX emissions is more effective. The commenter asserts that the CAA transport region would require the application of 40 control technology guidelines (CTGs) which reduce VOC. The commenter claims the CTGs are outdated and pose "dubious" environmental benefit. The commenter highlights the lower new source review (NSR) permitting thresholds to facilities to 50 tpy VOC and 100 tpy NOX, including offsets on major NSR at a ratio of 1:1.15. the commenter suggests the requirements create a potential increased workload in title V permitting process with no environmental benefit. The commenter claims that I/M and nonCTG reasonable available control technology determinations may provide environmental benefits but are expensive to staff.

Response: Petitioners and commenters in support of granting the petition did not, in the agency's view, provide sufficient evidence supporting the effectiveness or necessity for the control measures sought to be imposed under section 184. It is not necessary to address the commenter's claims at this time with regards to the effectiveness of CAA section 184 requirements as the EPA is not expanding the scope of the OTR in this action.


Commenter: West Virginia Department of Environmental Protection

Comment: The commenter asserts that EGUs have installed controls over the years or shut down. The commenter believes West Virginia does not have any units with emission rates comparable to the "high" NOX emission rates of the peaking units in the OTR. The commenter requests that West Virginia not be added to the OTR because of EGU emissions comparisons, rates and controls compared to sources in the OTR on high day exceedances. The commenter includes information that shows back trajectories rarely show contribution on high exceedance days.  

Response: While the specific data relating to numbers of units operating on particular days was not included with the comment, making it difficult to fully replicate the commenter's analysis, the EPA does not disagree with the general analysis of unit operation and emission characteristics on the dates specified in West Virginia and in OTR states. 


Effects of Ozone Pollution

Commenters: American Lung Association of the Mid-Atlantic, Chesapeake Bay Foundation, Connecticut Department of Energy and Environmental Protection, Connecticut Department of Public Health, Connecticut Economic and Community Development, Earthjustice, Maryland Department of the Environment and Sierra Club

Comment: The commenters highlight the health effects and costs as a result of ozone pollution. One commenter highlights the benefits that reducing NOX emissions would have on the Chesapeake Bay watershed

Response: The agency does not dispute the well-established health and environmental impacts associated with elevated concentrations of ozone. 


Commenter: FirstEnergy Corp.

Comment: The commenter believes there are better tools, like CAA section 110, CSAPR, CSAPR Update to address ozone transport. The commenter highlights NOX emission reductions from rules like the Pennsylvania RACT rule.

Response: The agency agrees that other statutory provisions such as the good neighbor provision provides a more effective and flexible means of addressing interstate transport of ozone for the 2008 ozone NAAQS. The EPA included impacts of the Pennsylvania's RACT rule in analysis conducted to support the CSAPR Update final rule. For more information on the CSAPR Update please see 81 FR 74504.

Emissions Considerations 

Commenter: Kentucky Energy and Environment Cabinet

Comment: The commenter requests that the EPA find that the technical analysis submitted by the petitioning states is outdated, technically-flawed and fails to support the petition. The commenter identifies concerns with the petition's supporting technical analysis and includes data that shows that emissions of NOX and VOC in Kentucky have decreased by 39% and 17% respectively from 2005 to 2010. The commenter then compares its state emission reduction percentages to the Hartford, Maryland monitor ozone concentration which only decreased by 3% during that same time period. The commenter claims that emissions data from 2010 support that Kentucky does not significantly contribute to nonattainment in Maryland. Further, the commenter goes on to suggest that the ozone problem in the Northeast, particularly in Maryland, is due to local sources. 

Response: The agency is not addressing whether emissions from Kentucky significantly contribute to nonattainment in any other states in this action. While the EPA notes it is incorrect to assume that there is a direct linear correlation with upwind state emission reductions and reductions in ozone concentrations at downwind receptor, the agency agrees that emission reductions achieved pursuant to federal and state programs promulgated pursuant to the good neighbor provision and other CAA authorities have improved air quality in the OTR.


Commenter: Tennessee Department of Environment and Conservation

Comment: The commenter disputes the claim that Tennessee and non-OTR states have not substantially reduced emissions since 2003. The commenter includes emissions and heat input data from the EPA's Clean Air Markets Division to demonstrate, contrary to the assertions of the petition, that non-OTR states have made substantial NOX reductions since 2003, 2008, and 2015. 

Response: The EPA recognizes that all states both upwind of the OTR and within the OTR have reduced their ozone season NOX emissions substantially since 2003. 


Commenter: West Virginia Department of Environmental Protection

Comment: The commenter supports the EPA's proposal to deny the petition but believes there are many other technical reasons to support the EPA's denial. The commenter strongly encourages the EPA to adopt the additional bases for denying the petition. 

Response: The EPA has taken into account air quality information, including current air quality conditions, on-the-books control strategies, and the significant changes in emissions that have occurred over the past several years in concluding to deny the petition.

Other Comments

Commenter: Delaware Department of Natural Resources and Environmental Quality

Comment: The commenter asserts the OTR was not created solely to address ozone transport problems under the 1-hour ozone NAAQS, and EPA should not associate the petition to expand the OTR to a single NAAQS. The commenter contends that each iteration of the EPA's transport rules have identified a larger area to address ozone transport.

Response: The petition, filed in 2013, requested the EPA to expand the OTR on the basis of alleged air quality problems associated with attaining and maintaining the 2008 ozone NAAQS (which is an 8-hour NAAQS), and therefore the EPA appropriately focused its analysis of the petition on the issues associated with interstate transport of ozone associated with that NAAQS. 

Commenters: Ohio Environmental Protection Agency, Ohio Municipal Electric Association and Ohio Attorney General Office

Comment:  The commenters believe that the OTR provisions are no longer an effective tool to address interstate transport. The commenter is concerned that EPA may be setting a precedent by stating that under different circumstance the OTR and CAA section 176A may be an effective tool. One commenter suggests that the 1990 CAA amendments that established the OTR focused on specific ozone precursors and states and deliberately excluded a states such as Ohio. The commenters state that VOC reduction in Ohio would amount to over-control. 

Commenter: American Petroleum Institute 

Comment: The commenter believes expansion of OTR results in over-control because of the mandatory OTR controls cannot be calibrated to elimination of only those amounts of pollutants that make a "significant contribution" to nonattainment in a downwind state; names all the mandatory CAA section 184 controls.

Response: The EPA has determined that expansion of the OTR is unwarranted at this time based on this petition. The EPA is not addressing comments that a petition to expand the OTR, or to establish or modify a transport region for any other pollutant under CAA section 176A, could never be granted due to over-control concerns.


Commenters: Ohio Environmental Protection Agency, Ohio Municipal Electric Association and Ohio Attorney General Office

Comment: Commenters believe Supreme Court decisions in UARG v EPA, 134 S. Ct. 2427 (2014), and Michigan v EPA, 135 S. Ct. 2699 (2015), require the EPA to take comprehensive look at the cost and benefits before going forward with any significant rulemaking including expanding the OTR. 

Response: The agency need not address the question of whether a benefit-cost analysis is needed as a statutory matter in the event it were to grant a section 176A petition. The agency does not believe denial of a 176A petition requires such an analysis. Petitioners generally bear the burden of establishing the merits of their petition, and agencies are accorded considerable deference by courts in acting on petitions for rulemaking so long as they supply a reasonable explanation that accords with the statute. The statute at CAA section 176A does not state that the agency must supply a benefit-cost analysis in acting on a petition under that section.


Commenter: Delaware Department of Natural Resources and Environmental Quality

Comment: The commenter believes if the OTR were expanded, it would allow sources in Delaware to participate in a broader NSR offset market under CAA section 173(c), so long as the "contributes" test is met, which would better align the area with the science regarding the scope of the interstate transport problem.

Response: The degree to which sources in Delaware might benefit from an expanded NSR offset market resulting from an expansion of the OTR under CAA section 184 is speculative. As commenter recognizes, under CAA section 173(c)(1) and guidance specific to the OTC, the NSR "contributes" test must be met and the area from which the offset is coming must have an equal or higher non-attainment status, before offsets could be authorized. 

