[Federal Register Volume 84, Number 202 (Friday, October 18, 2019)]
[Rules and Regulations]
[Pages 56058-56093]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-21207]



[[Page 56057]]

Vol. 84

Friday,

No. 202

October 18, 2019

Part III





 Environmental Protection Agency





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40 CFR Part 52





Response to Clean Air Act Section 126(b) Petition From New York; Final 
Rule

  Federal Register / Vol. 84 , No. 202 / Friday, October 18, 2019 / 
Rules and Regulations  

[[Page 56058]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2018-0170; FRL-10000-58-OAR]
RIN 2060-AU04


Response to Clean Air Act Section 126(b) Petition From New York

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notification of final action on petition.

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SUMMARY: The Environmental Protection Agency (EPA) is denying a Clean 
Air Act (CAA or Act) petition submitted by the State of New York on 
March 12, 2018. The petition requested that the EPA make a finding that 
emissions from a group of hundreds of identified sources in nine states 
(Illinois, Indiana, Kentucky, Maryland, Michigan, Ohio, Pennsylvania, 
Virginia and West Virginia) significantly contribute to nonattainment 
and interfere with maintenance of the 2008 and 2015 ozone national 
ambient air quality standards (NAAQS) in Chautauqua County and the New 
York Metropolitan Area (NYMA) in violation of the good neighbor 
provision. The EPA is denying the petition because the petitioner, New 
York, has not demonstrated, and the EPA did not independently find, 
that the group of identified sources emits or would emit in violation 
of the good neighbor provision for the 2008 or 2015 ozone NAAQS in 
Chautauqua County and the NYMA.

DATES: This final action is effective on October 18, 2019.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OAR-2018-0170. All documents in the docket are 
listed and publicly available at http://www.regulations.gov. Publicly 
available docket materials are also available in hard copy at the Air 
and Radiation Docket and Information Center, EPA/DC, EPA William 
Jefferson Clinton West Building, Room 3334, 1301 Constitution Avenue 
NW, Washington, DC. The Public Reading Room is open from 8:30 a.m. to 
4:30 p.m., Monday through Friday, excluding legal holidays. The 
telephone number for the Public Reading Room is (202) 566-1744 and the 
telephone number for the Air and Radiation Docket and Information 
Center is (202) 566-1742. For additional information about the EPA's 
public docket, visit the EPA Docket Center homepage at: http://www.epa.gov/epahome/dockets.htm.

FOR FURTHER INFORMATION CONTACT: Please direct questions concerning 
this final action to Beth W. Palma, U.S. EPA, Office of Air Quality 
Planning and Standards, Air Quality Policy Division, Mail Code C539-04, 
Research Triangle Park, NC 27711, telephone (919) 541-5432, email at 
palma.elizabeth@epa.gov.

SUPPLEMENTARY INFORMATION: The information in this document is 
organized as follows:

I. General Information
    A. Executive Summary of the EPA's Decision on the CAA Section 
126(b) Petition From New York
    B. The CAA Section 126(b) Petition From New York
    C. Summary of the EPA's May 6, 2019, Proposal
II. Background and Legal Authority
    A. Ground-Level Ozone and the Interstate Transport of Ozone
    B. CAA Sections 110 and 126
    C. The EPA's Historical Approach To Addressing Interstate 
Transport of Ozone Under the Good Neighbor Provision
III. The EPA's Final Response to the CAA Section 126(b) Petition 
From New York
    A. Reasonableness of Applying the Four-Step Interstate Transport 
Framework for This Action
    B. The EPA's Standard of Review for This CAA Section 126(b) 
Petition Regarding the 2008 and 2015 8-Hour Ozone NAAQS
    C. The EPA's Evaluation of Whether the Petition Is Sufficient To 
Support a CAA Section 126(b) Finding
IV. Determinations Under CAA Section 307(b)(1) and (d)
V. Statutory Authority

I. General Information

A. Executive Summary of the EPA's Decision on the CAA Section 126(b) 
Petition From New York

    In March 2018, the State of New York submitted a petition 
requesting that the EPA make a finding pursuant to CAA section 126(b) 
that emissions from approximately 350 facilities in nine states 
significantly contribute to nonattainment and/or interfere with 
maintenance of the 2008 and 2015 ozone NAAQS in violation of CAA 
section 110(a)(2)(D)(i)(I), otherwise known as the good neighbor 
provision. On May 6, 2019, the EPA issued a proposal to deny the CAA 
section 126(b) petition from New York. 84 FR 22787 (May 20, 2019). The 
Agency solicited comments on the proposal and hosted a public hearing 
on June 11, 2019, during which four speakers testified. The EPA also 
received 44 written comments submitted to the docket on the proposed 
denial. This Federal Register notification addresses certain 
significant comments the Agency received. The EPA addressed the 
remaining comments in the separate Response to Comments (RTC) document 
available in the docket for this action.
    As described in further detail in this notification, the EPA is 
finalizing the denial of the CAA section 126(b) petition submitted by 
the State of New York. Generally, the New York petition (and comments 
supportive of the EPA granting this petition) suggests that residents 
of New York are exposed to unhealthy levels of ground-level ozone 
pollution. The petition identifies approximately 350 electric 
generating unit (EGU) facilities and non-EGU facilities emitting, or 
projected to emit, 400 tons per year or more of nitrogen oxides 
(NOX) in nine upwind states and requests that the EPA 
establish permanent and enforceable emissions limitations for the named 
major NOX sources at levels designed to prevent them from 
significantly contributing to nonattainment or interfering with 
maintenance of the 2008 and 2015 ozone NAAQS in New York State. In 
crafting this final action, the EPA has considered public comments on 
its May 6, 2019, proposal to deny this petition.
    Consistent with the EPA's proposal and based on the best data and 
information available to the Agency at this time, the Agency is 
finalizing its denial of this petition. This denial is based on New 
York's failure to meet its statutory burden to demonstrate that the 
group of sources identified in the petition emits or would emit in 
violation of the good neighbor provision for the 2008 or 2015 ozone 
NAAQS with respect to either Chautauqua County or the New York-Northern 
New Jersey-Long Island, New York-New Jersey-Connecticut area 
(hereafter, the New York metropolitan area or NYMA).
    As indicated in the EPA's proposal, the EPA evaluated New York's 
CAA section 126(b) petition consistent with the same four-step 
interstate transport framework that the EPA has used in previous 
regulatory actions addressing regional ozone transport problems. The 
EPA's denial rests on both the first and third steps of this framework. 
With respect to the 2008 and 2015 ozone NAAQS in Chautauqua County, the 
EPA is denying the petition at step 1 of the framework (i.e., whether 
there will be a downwind air quality problem relative to the relevant 
NAAQS) based on the conclusion that the petition does not provide 
sufficient information to indicate that Chautauqua County should be 
considered a nonattainment or maintenance receptor pursuant to the good 
neighbor provision. With respect to the 2008 ozone NAAQS in the NYMA, 
the EPA is also denying the petition at step 1 of the framework based 
on the conclusion that the

[[Page 56059]]

petition does not provide sufficient information to indicate that the 
NYMA should be considered a nonattainment or maintenance receptor 
pursuant to the good neighbor provision. Furthermore, the EPA's own 
independent analysis of available information indicates that there is 
not currently, nor is there projected to be in 2023, an air quality 
problem with respect to either NAAQS in Chautauqua County, and that in 
2023 there is not projected to be any further air quality problem with 
respect to the 2008 ozone NAAQS in the NYMA.\1\ Thus, for these areas 
and NAAQS, the EPA has found that the petition has not met its burden 
at step 1 of the four-step interstate transport framework to 
demonstrate that the group of identified sources either emits or would 
emit pollution in violation of the good neighbor provision. With 
respect to the 2015 ozone NAAQS in the NYMA, the Agency's 2023 modeling 
shows a relevant downwind air quality problem, and, thus, the EPA is 
not denying this portion of the petition with respect to step 1.
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    \1\ The EPA notes that on September 13, 2019, the D.C. Circuit 
issued an opinion remanding the Cross State Air Pollution Rule 
Update (CSAPR Update, 81 FR 74504 (October 26, 2016)) in Wisconsin 
v. EPA, No. 16-1406. The court held that the rule is inconsistent 
with the CAA because it does not fully address upwind states' 
obligations under the good neighbor provision by the relevant 
attainment date for downwind areas. Nonetheless, the EPA is subject 
to a court-ordered deadline to take final action on New York's CAA 
section 126(b) petition by September 20, 2019. As explained in this 
notification, the EPA is finalizing its denial of New York's CAA 
section 126(b) petition, in part, because the petitioner did not 
meet its burden to demonstrate both that there is a relevant 
downwind air quality under the good neighbor provision in a relevant 
future year in either Chautauqua County or the NYMA, and that there 
are cost-effective emissions reductions available at the named 
sources. This basis for denial based on Petitioner's failure to meet 
its burden is independent and severable from any portion of the 
denial based on the EPA's discretionary evaluation of downwind air 
quality in New York using the Agency's 2023 modeling data. The EPA 
may make any necessary or appropriate modifications to this final 
action subsequently to reflect its understanding of the court's 
holding in Wisconsin.
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    The EPA is additionally denying the petition as to all areas for 
the 2008 and 2015 NAAQS at step 3 of the framework (i.e., whether, 
considering cost and air quality factors, emissions from sources in the 
named state(s) will significantly contribute to nonattainment or 
interfere with maintenance of a NAAQS at a receptor in another state). 
The EPA has found that material elements in the petition's assessment 
of whether the sources may be further controlled through implementation 
of cost-effective controls are insufficient and, thus, New York did not 
meet its step 3 burden to demonstrate that the named sources currently 
emit or would emit in violation of the good neighbor provision with 
respect to the relevant ozone NAAQS.\2\
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    \2\ The EPA solicited comment on whether to also deny the 
petition because the petitioner did not sufficiently justify that 
its identification of such a large, undifferentiated number of 
sources located in numerous upwind states constitutes a ``group of 
stationary sources'' within the context of CAA section 126(b). Based 
on the other bases for denial, the EPA does not need to reach the 
question of whether the petitioners' failed to sufficiently justify 
its interpretation of a ``group of stationary sources'' but notes 
that the absence of supporting information for such a determination 
makes the Agency unlikely to side with petitioners on the 
information provided.
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    In making this final decision, the EPA reviewed the petition from 
New York, the public comments received, the relevant statutory 
authorities and other relevant materials. Accordingly, the EPA denies 
the CAA section 126(b) petition from New York.
    The remainder of this notification is organized as follows: The 
General Information part of this notification (Section I) continues 
with a summary of the relevant issues raised in New York's CAA section 
126(b) petition and a summary of the EPA's May 6, 2019, proposed 
action. Section II of this notification provides background material 
and information regarding the EPA's approach to addressing the 
interstate transport of ozone under CAA sections 110(a)(2)(D)(i)(I) and 
126(b). Section III of this notification discusses the EPA's standard 
of review for this action and details the bases for the EPA's final 
action to deny this petition, including responses to significant 
comments received on the proposal.

B. The CAA Section 126(b) Petition From New York

    On March 12, 2018, the State of New York, through the New York 
State Department of Environmental Conservation (NY DEC), submitted a 
CAA section 126(b) petition alleging that emissions from a group of 
specified upwind sources in Illinois, Indiana, Kentucky, Maryland, 
Michigan, Ohio, Pennsylvania, Virginia and West Virginia significantly 
contribute to nonattainment and interfere with maintenance of the 2008 
and 2015 ozone NAAQS in the NYMA and in Chautauqua County in western 
New York.
    The petition contends that, although the Chautauqua County area 
(i.e., the area in and around Jamestown, New York) was at the time of 
petition submittal (and is currently) attaining both the 2008 and the 
2015 ozone NAAQS, the area may have difficulty maintaining its 
attainment status in the future. The petition also explains that the 
NYMA is currently designated nonattainment for the 2008 ozone NAAQS 
and, at the time New York submitted the petition, the area would likely 
be designated nonattainment for the 2015 ozone NAAQS.\3\ The petition 
further asserts that all three states in the multistate NYMA (i.e., New 
York, New Jersey and Connecticut) have surpassed their three-percent-
per-year emissions reductions requirements for the 2008 NAAQS; yet 
certified monitoring data through 2016 and (at the time of the petition 
submittal) preliminary 2017 data indicate that the area is not 
attaining the 2008 NAAQS, with one monitor in Connecticut recording a 
preliminary 2017 design value of 83 parts per billion (ppb).
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    \3\ The EPA had not yet issued final designations at the time 
the petition was submitted. On April 30, 2018, the EPA designated 
New York-Northern New Jersey-Long Island, NY-NJ-CT area (NYMA) as a 
Moderate nonattainment area for the 2015 ozone NAAQS. 83 FR 25776 
(June 4, 2018).
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    The New York petition alleges that emissions from numerous, named 
upwind sources significantly contribute to nonattainment and interfere 
with maintenance of the 2008 and 2015 8-hour ozone NAAQS in New York 
based on two arguments. First, the petition alleges that the EPA's 2017 
contribution modeling conducted in support of the EPA's Cross-State Air 
Pollution Rule (CSAPR) Update \4\ shows that the nine states in which 
these sources are located contribute 1 percent or more of the 2008 8-
hour ozone NAAQS (or 0.75 ppb or more) to ozone concentrations in New 
York. Second, the petition describes a study that allegedly found that 
air transported into Chautauqua County on the worst air quality days 
results in maximum daily ozone concentrations that, on average, are 
within 2 ppb of the 2015 ozone NAAQS and often exceed the standard of 
70 ppb.\5\
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    \4\ 81 FR 74504 (October 26, 2016).
    \5\ The petition discusses the results of a study titled the 
``Dunkirk Monitor Transport Study,'' which presents an analysis of 
back-trajectories used to single out interstate airflow on ``design 
days,'' which the petition defines as days considered in the 
calculation of the design values. The subject days include the 4 
days in each year from 2013 to 2017 with the largest daily maximum 
8-hour ozone concentrations at the Dunkirk monitoring site in 
Chautauqua County, New York. The Dunkirk monitoring site is the 
design value monitoring site in Chautauqua County (i.e., the site 
with the highest design value in the county).
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    When identifying what constitutes significant ozone contributions, 
the petition considers the highest emitting facilities (i.e., EGU and 
non-EGU facilities emitting, or projected to emit, 400 tons per year or 
more of NOX) from the named states and asserts that these 
facilities are expected to have the

[[Page 56060]]

greatest impact on the ability of the NYMA and Chautauqua County to 
attain and maintain the 2008 and 2015 NAAQS.\6\ The petition uses NY 
DEC generated air quality modeling data to show single-day, 8-hour 
average impacts from the group of 400 ton-per-year sources identified 
in any individual state of up to 6.34 ppb in Chautauqua County and 4.97 
ppb in the New York portion of the NYMA nonattainment area.\7\ The 
petition asserts that instances in which the maximum impact from an 
individual state's total combined 400 ton-per-year sources exceeds 0.75 
ppb at a particular monitor indicate significant contribution to 
nonattainment or interference with maintenance of the 2008 ozone NAAQS. 
The petition further asserts that impacts above 0.70 ppb indicate 
significant contribution to nonattainment or interference with 
maintenance of the 2015 ozone NAAQS. NY DEC used its own independent 
modeling to support the assertions in their CAA section 126(b) petition 
because the State ``has significant concerns'' about the assumptions 
and results of the EPA's recently released 2023 air quality modeling 
and its applicability to the CAA section 126(b) petition process.\8\ 
The petition takes particular issue with the EPA's expectation that 
uncontrolled EGUs will greatly reduce their emissions rates in the 
absence of unit-level enforceable limits and expresses the additional 
concern that the EPA may have underestimated the ozone concentration 
results for monitoring sites located near significant water bodies 
based on the treatment of model cells containing a land/water 
interface. The petition also asserts that modeling of 2023 is 
insufficient to support good neighbor state implementation plans (SIPs) 
and cannot be used to support a review of New York's petition because 
CAA section 126(c) explicitly states that compliance must be met ``in 
no case later than three years after the date of [a CAA section 126(b)] 
finding,'' and 2023 is more than 3 years after the deadline by which 
the EPA must act on the NY DEC petition.
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    \6\ The petition identifies which facilities emit 400 tons per 
year of more of NOX based on 2017 EGU projections by the 
Mid-Atlantic Regional Air Management Association. The petition also 
identifies non-EGU sources emitting greater than 400 tons of 
NOX in the 2014 National Emissions Inventory.
    \7\ The petition provides additional detail regarding the 
modeling methodology. Specifically, the petition notes that NY DEC 
used version 5.0.2 of the Community Multiscale Air Quality model 
with the EPA's Weather Research Forecast (WRF) 2011 meteorological 
data to model hourly ozone concentrations during the period May 18 
to July 30 for a 2017 ``baseline'' scenario and additional state-by-
state ``control'' modeling scenarios in which emissions from the 
named sources in a given state were set to zero. The petition 
explains that NY DEC then used the modeled concentrations to 
calculate the 8-hour daily maximum average (MDA8) in each grid cell 
on each day of the modeling period for each modeled scenario. The 
difference in MDA8 concentrations between the 2017 baseline and each 
state zero-out run was used to represent the contributions on each 
day. The NY DEC then selected the largest single-day contribution 
from among the highest ozone concentration days to support their 
analysis of contributions relative to a 1-percent-of-the-NAAQS 
threshold.
    \8\ See the EPA's October 27, 2017 memorandum titled, 
``Supplemental Information on the Interstate Transport State 
Implementation Plan Submissions for the 2008 Ozone National Ambient 
Air Quality Standards under Clean Air Act Section 
110(a)(2)(D)(i)(I)'' that provided future year ozone design values 
for monitoring sites in the U.S. based on updated air quality 
modeling (for 2023) and monitoring data.
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    After asserting that the identified sources within the named upwind 
states significantly contribute to nonattainment or interfere with 
maintenance of the 2008 and 2015 ozone NAAQS in New York, the petition 
further asserts that these named sources can reasonably be retrofitted 
with control equipment or can operate existing controls more frequently 
to reduce NOX emissions. The petition requests that the EPA 
establish permanent and enforceable emissions limitations for the named 
sources at levels designed to prevent them from significantly 
contributing to nonattainment or interfering with maintenance in New 
York State. Specifically, the petition requests that the named sources 
be subject to emissions limits consistent with Reasonably Available 
Control Technology (RACT) as defined by New York State, which bases its 
presumptive limits and facility-specific control analyses on a standard 
of $5,000 per ton of NOX reduced. The petition acknowledges 
that some of the facilities identified in the petition may already 
operate with a NOX emissions rate similar to New York's RACT 
limits. Nonetheless, the petition asks that the EPA establish 
enforceable daily emissions limits during the ozone season to require 
these sources to continue to operate at these rates in the future. The 
petition claims that enforceable emissions limits would prevent 
emissions controls from being turned off, which the petition asserts 
occurs when the sources in the State are collectively emitting well 
below their seasonal CSAPR budgets. Section III.D of the proposal 
provides more detail regarding the content of the New York CAA section 
126(b) petition.
    After receiving New York's CAA section 126(b) petition in March of 
2018, and consistent with CAA section 307(d)(10), the EPA determined 
that the 60-day period for responding to New York's petition was 
insufficient for the EPA to act on the petition. On May 11, 2018, the 
EPA published a document extending the deadline for acting on New 
York's CAA section 126(b) petition to November 9, 2018.\9\ That 
document is in the docket for this rulemaking.
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    \9\ 83 FR 21909 (May 11, 2018).
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C. Summary of the EPA's May 6, 2019, Proposal

    In Section IV of the proposal, the EPA explained its basis for 
proposing to deny the CAA section 126(b) petition from New York. Given 
that ozone is a regional pollutant and that the EPA had recently 
evaluated regional ozone pollution in two recent rulemakings--the CSAPR 
Update \10\ and the Determination Regarding Good Neighbor Obligations 
for the 2008 Ozone National Ambient Air Quality Standard \11\ (the 
Determination Rule)--the EPA proposed to evaluate New York's CAA 
section 126(b) petition consistent with the same four-step interstate 
transport framework (see Section II.C.1 of this action) that the EPA 
has used in previous regulatory actions to evaluate regional ozone 
transport problems.
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    \10\ 81 FR 74504 (October 26, 2016).
    \11\ 83 FR 65878 (December 21, 2018).
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    The EPA identified multiple bases for the proposed denial. The EPA 
noted that the Agency's historical approach to evaluating CAA section 
126(b) petitions first looks at whether a petition independently 
identifies or establishes a technical basis for the requested CAA 
section 126(b) finding. 84 FR 22797. In this regard, the Agency 
proposed to find that several aspects of New York's analyses are 
insufficient to support New York's conclusion that the sources named in 
the petitions emit or would emit in violation of the good neighbor 
provision. First, considering step 1 of the four-step interstate 
transport framework, the EPA proposed to find that New York's petition 
does not provide sufficient information to demonstrate that there is a 
current or expected future downwind nonattainment or maintenance 
problem in Chautauqua County with respect to either the 2008 or the 
2015 ozone NAAQS. Id. at 22800. Similarly, with respect to the NYMA, 
the EPA proposed to find, at step 1, that the New York petition does 
not provide sufficient information to indicate that there will be a 
future nonattainment or maintenance problem with respect to the 2008 
ozone NAAQS. Id. at 22800-01. Second, considering step 3 of the four-
step interstate transport framework, the EPA proposed to find that 
material

[[Page 56061]]

elements in New York's analyses are technically deficient, such that 
the EPA cannot conclude that any source or group of sources in any of 
the named states will significantly contribute to nonattainment or 
interfere with maintenance in Chautauqua County or the NYMA relative to 
the 2008 and 2015 ozone NAAQS. Id. at 22802.
    The EPA further proposed to rely on its own independent analysis to 
evaluate the requested CAA section 126(b) findings at step 1 
considering available air quality monitoring and modeling data. Id. at 
22800. The EPA proposed to find that its independent analysis provides 
no basis to conclude that Chautauqua County will have an air quality 
problem relative to either the 2008 or the 2015 ozone NAAQS. The EPA 
explained that the 2015-2017 design value in Chautauqua County is 68 
ppb, which is below the level of both the 2008 and 2015 ozone 
NAAQS.\12\ Furthermore, the EPA indicated that it had recently 
finalized a determination that the Jamestown, New York Marginal 
nonattainment area (Chautauqua County) has attained the 2008 ozone 
NAAQS.\13\ Additionally, Section IV.B of the proposal explained that 
the EPA's examination in the Determination Rule of the 2023 projected 
design values for Chautauqua County indicates that this area is not 
projected to be in nonattainment or have a maintenance problem in 2023 
for the 2008 ozone NAAQS. The EPA's air quality modeling supporting the 
Determination Rule also indicates that the monitor in Chautauqua County 
is expected to continue to both attain and maintain the 2015 ozone 
NAAQS standard in 2023, with an average 2023 design value of 58.5 ppb 
and a maximum 2023 design value of 60.7 ppb.\14\
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    \12\ The 2015-2017 design value for Chautauqua County in the 
``Jamestown-Dunkirk-Fredonia, NY CBSA'' at AQS site 360130006 is 68 
ppb. Available at https://www.epa.gov/sites/production/files/2018-07/ozone_designvalues_20152017_final_07_24_18.xlsx.
    \13\ See Approval and Promulgation of Air Quality Implementation 
Plans; New York; Determination of Attainment of the 2008 8-Hour 
Ozone National Ambient Air Quality Standard for the Jamestown, New 
York Marginal Nonattainment Area, 83 FR 49492 (October 2, 2018).
    \14\ See 2023 design values for AQS site 360130006 in 
spreadsheet released with the EPA's March 2018 memorandum. Available 
at https://www.epa.gov/sites/production/files/2018-05/updated_2023_modeling_dvs_collective_contributions.xlsx.
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    The EPA also proposed to find that its independent analysis, 
conducted to support the Determination Rule, provides no basis to 
conclude that the NYMA will have a future air quality problem relative 
to the 2008 ozone NAAQS. The EPA's examination of the 2023 projected 
design values for the NYMA indicates that this area is not projected to 
be in nonattainment or have a maintenance problem in 2023 for the 2008 
ozone NAAQS. However, the modeling indicates that the NYMA is projected 
to be in nonattainment in 2023 with respect to the 2015 ozone NAAQS.
    As noted previously, considering step 3 of the four-step interstate 
transport framework, the EPA proposed to find that material elements in 
New York's analyses are technically deficient, such that the EPA cannot 
conclude that any source or group of sources in any of the named states 
will significantly contribute to nonattainment or interfere with 
maintenance in Chautauqua County or the NYMA relative to the 2008 and 
2015 ozone NAAQS. As discussed in Section IV.B of the proposal, the EPA 
did not independently conduct a regional step 3 analysis for any 
sources with respect to the 2015 ozone NAAQS because the EPA interprets 
CAA section 126(b) as placing the burden on the petitioner to establish 
a technical basis for the specific finding requested, and, unlike the 
step 1 analysis, the EPA lacked information and analysis on which it 
could rely for such an independent step 3 analysis.

II. Background and Legal Authority

    This section of the notification discusses background and legal 
authority relevant to this action beginning with an overview of ozone 
formation and interstate transport in Section II.A. Section II.B of 
this notification describes the key statutory provisions under both CAA 
sections 126 and 110(a)(2)(D)(i)(I), including the relationship between 
the good neighbor provision and CAA section 126(b). Section II.C 
summarizes the EPA's historical approach to addressing the interstate 
transport of ozone under the good neighbor provision to include a 
description of the four-step interstate transport framework and the 
EPA's prior regional rulemakings.

A. Ground-Level Ozone and the Interstate Transport of Ozone

    On March 12, 2008, the EPA promulgated a revision to the ground-
level ozone NAAQS, lowering both the primary and secondary standards to 
75 ppb.\15\ On October 1, 2015, the EPA further revised the ground-
level ozone NAAQS to 70 ppb.\16\
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    \15\ See National Ambient Air Quality Standards for Ozone, Final 
Rule, 73 FR 16436 (March 27, 2008).
    \16\ See National Ambient Air Quality Standards for Ozone, Final 
Rule, 80 FR 65292 (October 26, 2015).
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    As discussed in Section III.A of the proposal, ground-level ozone 
is not emitted directly into the air but is a secondary air pollutant 
created by chemical reactions between ozone precursors, chiefly 
NOX and non-methane volatile organic compounds (VOCs), in 
the presence of sunlight. Emissions from mobile sources, EGUs, 
industrial facilities, gasoline vapors, and chemical solvents are some 
of the major anthropogenic sources of ozone precursors. These precursor 
emissions can be transported downwind directly or, after transformation 
in the atmosphere, as ozone. Studies have established that ozone 
formation, atmospheric residence, and transport can occur on a regional 
scale (i.e., across hundreds of miles) over much of the eastern United 
States. Thus, in any given location, ozone pollution levels are 
affected by a combination of local emissions and emissions from upwind 
sources. Numerous observational studies have demonstrated the transport 
of ozone and its precursors and the impact of upwind emissions on high 
concentrations of ozone pollution.\17\ For further discussion of ozone-
formation chemistry and health effects, see the National Ambient Air 
Quality Standards for Ozone, Final Rule, 80 FR 65292 (October 26, 
2015). For further discussion of the regional nature of interstate 
transport of ozone pollution see the Determination Rule, 83 FR 65879-80 
(December 21, 2018).
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    \17\ For example, Bergin, M.S. et al. (2007). Regional air 
quality: local and interstate impacts of NOX and 
SO2 emissions on ozone and fine particulate matter in the 
eastern United States. Environmental Sci & Tech. 41: 4677-4689.
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B. CAA Sections 110 and 126

    CAA sections 126 and 110(a)(2)(D)(i) provide the statutory 
authority for this action. Section 126(b) of the CAA provides, among 
other things, that any state or political subdivision may petition the 
Administrator of the EPA to find that any major source or group of 
stationary sources in an upwind state emits or would emit any air 
pollutant in violation of the prohibition of CAA section 
110(a)(2)(D)(i), referred to as the good neighbor provision of the 
Act.\18\ Petitions submitted pursuant to this section are commonly 
referred to as CAA section 126(b) petitions. Similarly, findings by the 
Administrator, pursuant to this section, that a source or group of

[[Page 56062]]

sources emits air pollutants in violation of the CAA section 
110(a)(2)(D)(i) prohibition are commonly referred to as CAA section 
126(b) findings.
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    \18\ The text of CAA section 126 as codified in the U.S. Code 
cross-references CAA section 110(a)(2)(D)(ii) instead of CAA section 
110(a)(2)(D)(i). The courts have confirmed that this is a 
scrivener's error and that Congress instead intended to cross-
reference CAA section 110(a)(2)(D)(i). See Appalachian Power Co. v. 
EPA, 249 F.3d 1032, 1040-44 (D.C. Cir. 2001).
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    CAA section 126 explains the effect of a CAA section 126(b) finding 
and establishes the conditions under which continued operation of a 
source subject to such a finding may be permitted. Specifically, CAA 
section 126(c) provides that it is a violation of section 126 of the 
Act and of the applicable SIP: (1) For any major proposed new or 
modified source subject to a CAA section 126(b) finding to be 
constructed or operate in violation of the prohibition of CAA section 
110(a)(2)(D)(i) or (2) for any major existing source for which such a 
finding has been made to stay in operation more than 3 months after the 
date of the finding. The statute, however, also gives the Administrator 
discretion to permit the continued operation of a source beyond 3 
months if the source complies with emissions limitations and compliance 
schedules provided by the EPA to bring about compliance with the 
requirements contained in CAA sections 110(a)(2)(D)(i) and 126 as 
expeditiously as practicable, but in any event no later than 3 years 
from the date of the finding.
    Section 110(a)(2)(D)(i) of the CAA requires states to prohibit 
certain emissions from in-state sources if such emissions impact the 
air quality in downwind states. Specifically, CAA sections 110(a)(1) 
and 110(a)(2)(D)(i)(I) require all states, within 3 years of 
promulgation of a new or revised NAAQS, to submit SIPs that contain 
adequate provisions prohibiting any source or other type of emissions 
activity within the state from emitting any air pollutant in amounts 
which will contribute significantly to nonattainment in, or interfere 
with maintenance by, any other state with respect to that NAAQS. As 
described further in Section II.C.2, the EPA has developed several 
regional rulemakings to address the requirements of CAA section 
110(a)(2)(D)(i)(I) for the various ozone NAAQS. The EPA's most recent 
rulemaking, the Determination Rule, finalized a determination that the 
existing CSAPR Update fully addresses certain states' interstate 
transport obligations under CAA section 110(a)(2)(D)(i)(I) for the 2008 
ozone NAAQS. 83 FR 65878 (December 21, 2018).
    Section 110(a)(2)(D)(ii) of the CAA further requires SIPs to 
contain adequate provisions ensuring compliance with the applicable 
requirements of, inter alia, CAA section 126. Thus, where the EPA has 
made a finding pursuant to CAA section 126(b), this provision requires 
states to revise their SIPs to adopt any emissions limitations and 
compliance schedules provided by the EPA under CAA section 126(c).

C. The EPA's Historical Approach To Addressing Interstate Transport of 
Ozone Under the Good Neighbor Provision

    Given that formation, atmospheric residence, and transport of ozone 
can occur on a regional scale (i.e., across hundreds of miles) and that 
many separate areas across the eastern U.S. have struggled to attain 
and maintain the NAAQS, the EPA has historically addressed the 
interstate transport of ozone pursuant to the good neighbor provision 
by promulgating rulemakings that addressed significant contribution and 
interference with maintenance through regional trading programs to 
reduce NOX emissions. Each of these rulemakings followed a 
similar four-step interstate transport framework to evaluate and 
address the extent of the ozone transport problem (i.e., the breadth of 
downwind ozone problems and the contributions from upwind states) and, 
ultimately, to find that downwind states' problems attaining and 
maintaining the ozone NAAQS result from an interconnected system of 
transported pollution emitted by multiple upwind sources located in 
different upwind states combined with downwind (i.e., locally 
generated) ozone.
1. Description of the Four-Step Interstate Transport Framework
    Through the development and implementation of several previous 
rulemakings,\19\ the EPA established the following four-step interstate 
transport framework to address the requirements of the good neighbor 
provision for regional pollutants such as ozone and fine particulate 
matter (PM2.5):
---------------------------------------------------------------------------

    \19\ See Finding of Significant Contribution and Rulemaking for 
Certain States in the Ozone Transport Assessment Group Region for 
Purposes of Reducing Regional Transport of Ozone (also known as the 
NOX SIP Call), 63 FR 57356 (October 27, 1998); Clean Air 
Interstate Rule (CAIR) Final Rule, 70 FR 25162 (May 12, 2005); CSAPR 
Final Rule, 76 FR 48208 (August 8, 2011); CSAPR Update Final Rule, 
81 FR 74504 (October 26, 2016); Determination Rule, 83 FR 65878 
(December 21, 2018).
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    (1) Identify downwind receptors that are expected to have problems 
attaining or maintaining the NAAQS. The EPA historically identified 
downwind areas with air quality problems, referred to as receptors, 
using air quality modeling projections for a future analytic year and, 
where appropriate, considering monitored air quality data.
    (2) Determine which upwind states are linked to these identified 
downwind air quality problems and thus warrant further analysis to 
determine whether their emissions violate the good neighbor provision. 
In the EPA's most recent transport rulemakings for the 1997 and 2008 
ozone NAAQS, as well as the 1997 and 2006 PM2.5 NAAQS, the 
Agency identified such upwind states to be those modeled to contribute 
at or above an air quality threshold relative to the applicable NAAQS.
    (3) For states linked to downwind air quality problems, identify 
upwind emissions (if any) on a statewide basis that will significantly 
contribute to nonattainment or interfere with maintenance of a standard 
at a receptor in another state. In the EPA's prior rulemakings for 
ozone and PM2.5, the Agency identified and apportioned 
emissions reduction responsibility among multiple upwind states linked 
to downwind air quality problems by identifying a uniform level of 
control stringency for certain sources in the state based on cost and 
air quality factors evaluated in a multi-factor test.
    (4) For upwind states that are found to have emissions that will 
significantly contribute to nonattainment or interfere with maintenance 
of the NAAQS downwind, implement the necessary emissions reductions 
within the state. When the EPA has promulgated federal implementation 
plans (FIPs) addressing the good neighbor provision for ozone and 
PM2.5 NAAQS in prior transport rulemakings, the EPA has 
typically required affected sources in upwind states to participate in 
allowance trading programs to achieve the necessary emissions 
reductions.\20\ In addition, the EPA has also offered states the 
opportunity to participate in comparable EPA-operated allowance trading 
programs to achieve the necessary emissions reductions through SIPs.
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    \20\ While the EPA has chosen to implement emissions reductions 
through allowance trading programs for states found to have a 
downwind impact, upwind states can choose to submit a SIP that 
implements such reductions through other enforceable mechanisms that 
meet the requirements of the good neighbor provision, such as the 
enforceable mechanisms that the petitioner apparently favors in its 
petition.
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    Using the four-step framework to evaluate a particular interstate 
transport problem allows the EPA to determine whether upwind states 
actually contribute to a downwind air quality problem, whether and 
which sources can be cost-effectively controlled to address that 
downwind air quality

[[Page 56063]]

problem, what level of emissions should be eliminated to address the 
downwind air quality problem (and thus should be considered 
``significant''), and the means of implementing corresponding emissions 
limits (i.e., source-specific rates or statewide emissions budgets in a 
limited regional allowance trading program). The outcome of this 
assessment varies based on the scope of the air quality problem, the 
availability and cost of controls at sources in upwind states, and the 
estimated impact of upwind emissions reductions on downwind ozone 
concentrations.
2. Prior Regional Rulemakings Under the Good Neighbor Provision
    The EPA's first regional interstate transport rulemaking, the 
NOX SIP Call, addressed the 1979 ozone NAAQS. 63 FR 57356 
(October 27, 1998).\21\ The NOX SIP Call was the result of 
the analytic work and recommendations of the Ozone Transport Assessment 
Group, which was organized and led by states in consultation with the 
EPA and other stakeholders. The EPA used this collaboratively developed 
analysis to conclude in the NOX SIP Call that ``[t]he fact 
that virtually every nonattainment problem is caused by numerous 
sources over a wide geographic area is a factor suggesting that the 
solution to the problem is the implementation over a wide area of 
controls on many sources, each of which may have a small or 
unmeasurable ambient impact by itself.'' 63 FR 57356, 57377 (October 
27, 1998). The NOX SIP Call promulgated statewide emissions 
budgets and required upwind states to adopt SIPs that would decrease 
their NOX emissions to meet these budgets, thereby 
prohibiting the emissions that significantly contribute to 
nonattainment or interfere with maintenance of the ozone NAAQS in 
downwind states. The EPA also promulgated a model rule for a regional 
allowance trading program called the NOX Budget Trading 
Program that states could adopt in their SIPs as a mechanism to achieve 
some or all required emissions reductions. All jurisdictions covered by 
the NOX SIP Call ultimately chose to adopt the 
NOX Budget Trading Program into their SIPs. The 
NOX SIP Call was upheld by the U.S. Court of Appeals for the 
District of Columbia Circuit (D.C. Circuit) in all pertinent respects. 
See Michigan v. EPA, 213 F.3d 663 (2000).
---------------------------------------------------------------------------

    \21\ As originally promulgated, the NOX SIP Call also 
addressed good neighbor obligations under the 1997 8-hour ozone 
NAAQS, but the EPA subsequently stayed the rule's provisions with 
respect to that standard. 65 FR 56245 (September 18, 2000). The EPA 
recently finalized an action rescinding the findings of good 
neighbor obligations with respect to the 1997 ozone NAAQS as a basis 
for the NOX SIP Call. 84 FR 8422 (March 8, 2019).
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    In coordination with the NOX SIP Call rulemaking under 
CAA section 110(a)(2)(D)(i)(I), the EPA also addressed several pending 
CAA section 126(b) petitions submitted by eight northeastern states 
regarding the same air quality issues addressed by the NOX 
SIP Call, specifically interstate ozone transport for the 1979 ozone 
NAAQS. These CAA section 126(b) petitions asked the EPA to find that 
ozone precursor emissions from numerous sources located in 30 states 
and the District of Columbia had adverse air quality impacts on the 
petitioning downwind states. Half of the petitioning states (i.e., 
Connecticut, Maine, New York, and Pennsylvania) requested an allowance 
trading program to reduce NOX emissions and remedy regional 
interstate ozone transport. 63 FR 56297 (October 21, 1998). Based on 
analysis conducted for the NOX SIP Call regarding upwind 
state impacts on downwind air quality, the EPA, in May 1999, made 
technical determinations regarding the claims in the petitions, but did 
not at that time make the CAA section 126(b) findings requested by the 
petitions. 64 FR 28250 (May 25, 1999). In making these technical 
determinations, the EPA concluded that the NOX SIP Call 
would fully address and remediate the claims raised in these petitions 
and that the EPA would, therefore, not need to take separate action to 
remedy any potential violations of the CAA section 110(a)(2)(D)(i) 
prohibition. 64 FR 28252. However, subsequent litigation resulted in a 
judicial stay of the NOX SIP Call and led the EPA to ``de-
link'' the CAA section 126(b) petition response from the NOX 
SIP Call. The EPA made final CAA section 126(b) findings for 12 states 
named in the petitions and the District of Columbia. The EPA found that 
sources in these states emitted in violation of the prohibition in the 
good neighbor provision with respect to the 1979 ozone NAAQS based on 
the affirmative technical determinations made in the May 1999 
rulemaking. To remedy the violation under CAA section 126(c), the EPA 
required affected sources in the upwind states to participate in a 
regional allowance trading program whose requirements were designed to 
be interchangeable with the requirements of the optional NOX 
Budget Trading Program model rule provided under the NOX SIP 
Call. 65 FR 2674 (January 18, 2000). The EPA's action on these CAA 
section 126(b) petitions was upheld by the D.C. Circuit. See 
Appalachian Power Co. v. EPA, 249 F.3d 1032 (D.C. Cir. 2001).
    The EPA next promulgated the Clean Air Interstate Rule (CAIR), 70 
FR 25162 (May 12, 2005), to address interstate transport under the good 
neighbor provision with respect to the 1997 ozone NAAQS, as well as the 
1997 PM2.5 NAAQS. 70 FR 25172. The EPA adopted the same 
approach for quantifying the level of states' significant contribution 
to downwind nonattainment in CAIR as it used in the NOX SIP 
Call, based on the determination in the NOX SIP Call that 
downwind ozone nonattainment is due to the impact of emissions from 
numerous upwind sources and states. 70 FR 25162, 25172 (May 12, 2005). 
The EPA explained that ``[t]ypically, two or more States contribute 
transported pollution to a single downwind area, so that the 
`collective contribution' is much larger than the contribution of any 
single State.'' 70 FR 25186. CAIR included two distinct regulatory 
processes: (1) A rulemaking to define significant contribution (i.e., 
the emissions reduction obligation) under the good neighbor provision 
and provide for submission of SIPs eliminating that contribution, 70 FR 
25162 (May 12, 2005); and (2) a rulemaking to promulgate, where 
necessary, FIPs imposing emissions limitations in the event states did 
not submit SIPs. 71 FR 25328 (April 28, 2006). The FIPs required EGUs 
in affected states to participate in regional allowance trading 
programs, which replaced the previous NOX Budget Trading 
Program.
    In conjunction with the second CAIR rulemaking, which promulgated 
backstop FIPs, the EPA acted on a CAA section 126(b) petition received 
from the State of North Carolina on March 19, 2004, seeking a finding 
that large EGUs located in 13 states were significantly contributing to 
nonattainment and/or interfering with maintenance of the 1997 ozone 
NAAQS and the 1997 PM2.5 NAAQS in North Carolina. Citing the 
analyses conducted to support the promulgation of CAIR, the EPA denied 
North Carolina's CAA section 126(b) petition in full based on 
determinations either that the named states were not adversely 
impacting downwind air quality in violation of the good neighbor 
provision, or that such impacts were fully remedied by implementation 
of the emissions reductions required by the CAIR FIPs. 71 FR 25328, 
25330 (April 28, 2006).
    The D.C. Circuit found that the EPA's approach to CAA section 
110(a)(2)(D)(i)(I) in CAIR was ``fundamentally flawed'' in several

[[Page 56064]]

respects, and the rule was remanded in July 2008 with the instruction 
that the EPA replace the rule ``from the ground up.'' North Carolina v. 
EPA, 531 F.3d 896, 929 (D.C. Cir.), modified on reh'g, 550 F.3d 1176 
(D.C. Cir. 2008). The decision concluded the EPA's analysis and 
compliance mechanisms did not address all elements required by the 
statute. The EPA's separate action denying North Carolina's CAA section 
126(b) petition was not challenged.
    On August 8, 2011, the EPA promulgated CSAPR to replace CAIR. 76 FR 
48208 (August 8, 2011). CSAPR addressed the same (1997) ozone and 
PM2.5 NAAQS as CAIR and additionally addressed interstate 
transport for the 2006 PM2.5 NAAQS by requiring 28 states to 
reduce sulfur dioxide (SO2) emissions, annual NOX 
emissions, and/or ozone season NOX emissions that would 
significantly contribute to other states' nonattainment or interfere 
with other states' ability to maintain these air quality standards. 
Consistent with prior determinations made in the NOX SIP 
Call and CAIR, the EPA again found that emissions from sources in 
multiple upwind states contributed to ozone nonattainment in multiple 
downwind states. Specifically, the EPA found ``that the total 
`collective contribution' from upwind sources represents a large 
portion of PM2.5 and ozone at downwind locations and that 
the total amount of transport is composed of the individual 
contribution from numerous upwind states.'' 76 FR 48237. Accordingly, 
the EPA conducted a regional analysis, calculated emissions budgets for 
affected states, and required EGUs in these states to participate in 
new regional allowance trading programs to reduce statewide emissions 
levels.\22\ CSAPR was subject to nearly 4 years of litigation. 
Ultimately, the Supreme Court upheld the EPA's approach to calculating 
emissions reduction obligations and apportioning upwind state 
responsibility under the good neighbor provision, but also held that 
the EPA was precluded from requiring more emissions reductions than 
necessary to address downwind air quality problems, or ``over-
controlling'' upwind state emissions. See EPA v. EME Homer City 
Generation, L.P., 572 U.S. 489, 521-22 (2014) (EME Homer City).\23\
---------------------------------------------------------------------------

    \22\ The CSAPR trading programs included assurance provisions to 
ensure that emissions are reduced within each individual state, in 
accordance with North Carolina, 531 F.3d at 907-08 (holding the EPA 
must require elimination of emissions from each upwind state that 
contribute significantly to nonattainment and interfere with 
maintenance in downwind areas). Those provisions were also included 
in the CSAPR Update and took effect with the 2017 CSAPR compliance 
periods.
    \23\ On remand from the Supreme Court, the D.C. Circuit further 
affirmed various aspects of the CSAPR, while remanding the rule 
without vacatur for reconsideration of certain states' emissions 
budgets where it found those budgets may over-control emissions 
beyond what was necessary to address the good neighbor requirements. 
EME Homer City Generation, L.P. v. EPA, 795 F.3d 118 (2015) (EME 
Homer City II). The EPA addressed the remand in several rulemaking 
actions in 2016 and 2017.
---------------------------------------------------------------------------

    In 2016, the EPA promulgated the CSAPR Update to address the good 
neighbor provision requirements for the 2008 ozone NAAQS. 81 FR 74504 
(October 26, 2016). The CSAPR Update built upon previous regulatory 
efforts to address the collective contributions of ozone pollution from 
22 states in the eastern U.S. to widespread downwind air quality 
problems. As with previous rulemakings, the EPA evaluated the nature 
(i.e., breadth and interconnectedness) of the ozone problem and 
NOX reduction potential from EGUs, including essentially all 
the EGUs at the facilities named in the New York CAA section 126(b) 
petition.\24\ In the CSAPR Update, the EPA quantified emissions 
reduction obligations for each state based on an analysis of control 
strategies that could be implemented by the upcoming 2017 ozone season, 
which coincided with the (then) upcoming 2018 Moderate area attainment 
date. The EPA implemented those emissions reductions through FIPs which 
required EGUs in affected states to participate in a regional allowance 
trading program to further reduce statewide NOX emissions 
levels. The CSAPR Update is subject to pending legal challenges in the 
D.C. Circuit. Wisconsin v. EPA, No. 16-1406 (D.C. Cir. argued October 
3, 2018).
---------------------------------------------------------------------------

    \24\ The EPA uses the language ``essentially all the EGUs at the 
facilities named . . . .'' (emphasis added) to clarify that the New 
York petition identifies sources at the facility, rather than at the 
unit, level. The CSAPR Update looked at unit-level data and included 
all fossil-fuel-fired boiler or combustion turbine EGUs with a 
capacity (electrical output) greater than 25 megawatts (MW). See 81 
FR 74563 (October 26, 2016).
---------------------------------------------------------------------------

    At the time the EPA finalized the CSAPR Update in 2016, the EPA was 
unable to determine whether the rule fully resolved good neighbor 
obligations with respect to the 2008 ozone NAAQS for most (i.e., 21) of 
the States subject to that action, including those addressed in New 
York's petition (i.e., Illinois, Indiana, Kentucky, Maryland, Michigan, 
Ohio, Pennsylvania, Virginia and West Virginia). The EPA stated that, 
based on its analysis of 2017 air quality at that time, the emissions 
reductions required by the rule ``may not be all that is needed'' to 
address transported emissions.\25\ 81 FR 74521-22 (October 26, 2016). 
The information available at that time suggested that downwind air 
quality problems would remain in 2017 after implementation of the CSAPR 
Update and that upwind states continued to be linked to those downwind 
problems at or above the 1 percent threshold used at step 2 of the 
EPA's analysis. However, in the CSAPR Update, the EPA could not 
determine whether, in step 3 of the four-step interstate transport 
framework, the EPA had quantified all emissions reductions that may be 
considered cost-effective because the rule did not evaluate non-EGU 
ozone season NOX reductions or further EGU control 
strategies (i.e., the implementation of new post-combustion controls) 
that may be achievable on timeframes extending beyond the 2017 analytic 
year used in the EPA's analysis. The Agency recognized that completing 
such an analysis could extend the timeframe for action and prioritized 
the substantial short-term emissions reductions achievable for the 2017 
ozone season. See 81 FR 74521 for additional details.
---------------------------------------------------------------------------

    \25\ The EPA determined that the emissions reductions required 
by the CSAPR Update satisfied the full scope of the good neighbor 
obligation for Tennessee with respect to the 2008 ozone NAAQS. 81 FR 
74551-52 (October 26, 2016).
---------------------------------------------------------------------------

    On December 6, 2018, the EPA finalized a determination that, based 
on the latest available emissions inventory and air quality modeling 
data for a 2023 analytic year, the CSAPR Update fully addresses the 
good neighbor provision requirements for the 2008 ozone NAAQS for 20 
eastern states (among the 22) previously addressed in the CSAPR Update. 
83 FR 65878 (December 21, 2018). The EPA's Determination Rule applied 
the four-step interstate transport framework but did not move beyond an 
analysis at step 1, because the EPA found that there would be no 
remaining nonattainment or maintenance receptors for the 2008 ozone 
NAAQS in the eastern U.S. in 2023. Therefore, with the CSAPR Update 
fully implemented, the EPA finalized in the Determination Rule a 
finding that the 20 states addressed by that action (including eight of 
the nine states named in New York's petition) will not contribute 
significantly to nonattainment in, or interfere with maintenance by, 
any other state regarding the 2008 ozone NAAQS. The EPA had already 
determined that the remaining two states would have no remaining good 
neighbor obligation for the 2008 ozone NAAQS--one in the CSAPR Update 
(Tennessee), 81 FR 74540 (October 26, 2016), and the other in a 
separate SIP approval (Kentucky,

[[Page 56065]]

the ninth state named in New York's petition), 83 FR 33730 (July 17, 
2018), that relied on the same air quality modeling used in the 
Determination Rule. The Determination Rule is subject to pending legal 
challenges in the D.C. Circuit. New York v. EPA, No. 19-1019 (D.C. 
Cir.).
    Most recently, the EPA acted on six CAA section 126(b) petitions 
pertaining to the 2008 and 2015 ozone NAAQS submitted by the States of 
Connecticut, Delaware, and Maryland regarding various sources in five 
upwind states. In denying the petitions, the EPA applied the same four-
step interstate transport framework used in prior rulemakings and 
relied on analysis and determinations made in the CSAPR Update for 
purposes of evaluating the good neighbor obligations with respect to 
the 2008 ozone NAAQS. 83 FR 16064 (April 13, 2018) (Connecticut) 83 FR 
50444 (October 5, 2018) (Delaware and Maryland).\26\ The EPA found that 
the downwind areas were not projected to have problems attaining or 
maintaining the NAAQS (step 1) and/or that the petition failed to 
identify cost-effective emissions reductions for the affected sources 
(step 3), particularly where enforceable emissions limits had already 
been implemented for certain sources in the form of state-wide 
emissions budgets and, thus, the EPA already had addressed their 
significant contribution or interference with maintenance for those 
sources.
---------------------------------------------------------------------------

    \26\ The EPA's denial of the Delaware and Maryland petitions is 
subject to pending legal challenges in the D.C. Circuit. Maryland v. 
EPA, No. 18-1285 (D.C. Cir. filed October 15, 2018).
---------------------------------------------------------------------------

III. The EPA's Final Response to the CAA Section 126(b) Petition From 
New York

    The EPA is finalizing a denial of the CAA section 126(b) petition 
from New York. Section III.A of this notification describes the 
reasonableness of applying the four-step interstate transport framework 
as the standard of review in evaluating New York's CAA section 126(b) 
petition. Section III.B discusses the EPA's general standard of review 
of CAA section 126(b) petitions. Section III.C describes the EPA's 
determination that New York has not demonstrated that the sources named 
in its petition emit or would emit in violation of the good neighbor 
provision such that they will significantly contribute to nonattainment 
or interfere with maintenance of the 2008 or 2015 ozone NAAQS in New 
York. Where the EPA has currently available information to inform an 
independent analysis of New York's petition, we also present this 
information in Section III.C. In Section III, generally, and in the RTC 
document included in the docket for this action, the Agency explains 
the rationale supporting its final action and provides its response to 
significant public comments on the proposed action.

A. Reasonableness of Applying the Four-Step Interstate Transport 
Framework for This Action

    As discussed in Section II.C of this notification, the EPA has 
consistently analyzed ozone transport with the understanding that 
nonattainment and maintenance concerns result from the cumulative air 
quality impacts of contributions from numerous anthropogenic sources 
across several upwind states (as well as from within the downwind 
state). Consistent with this understanding, the EPA has historically 
evaluated ozone transport based, in part, on the relative contribution 
of all anthropogenic sources within a state, as measured against a 
screening threshold, and then identified particular source sectors and 
units for regulatory consideration.\27\ This approach to evaluating 
ozone transport is reasonable because the statute's use of 
``significantly'' as a modifier to ``contribute'' implies a 
relationship (e.g., the impact a source or collection of sources has 
relative to other relevant sources of that pollutant). Therefore, 
although CAA section 126(b) allows downwind states to petition the EPA 
regarding specific sources or groups of sources that they believe are 
contributing to the downwind air quality problems, the EPA believes it 
is reasonable and appropriate to evaluate the emissions from sources 
named in a CAA section 126(b) petition in the context of all relevant 
anthropogenic sources of that pollutant to determine whether emissions 
from the named sources violate the good neighbor provision. In this 
way, the EPA can evaluate whether the petitioner has appropriately 
identified the source or group of sources that should be regulated.
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    \27\ The EPA has used cost as a factor in its multi-factor 
approach for quantifying significant contribution from multiple 
contributing states. Cost is used in a relative (i.e., least-cost 
abatement) approach that also requires examining individual source 
impact and reduction potential in the context of the larger universe 
of contributors.
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    The EPA notes that the four-step framework provides a logical, 
consistent and systematic approach for addressing interstate transport 
for a variety of criteria pollutants under a broad array of national, 
regional and local scenarios. Consequently, the EPA finds it reasonable 
to apply the same four-step interstate transport framework used to 
evaluate regional ozone transport under the good neighbor provision in 
considering a CAA section 126(b) petition addressing the impacts of 
individual sources on downwind attainment and maintenance of the ozone 
NAAQS. As the four-step interstate transport framework is applied to 
evaluate a particular interstate transport problem, the EPA can 
determine whether upwind sources are actually contributing to a 
downwind air quality problem; whether and which sources can be cost 
effectively controlled relative to that downwind air quality problem; 
what level of emissions should be eliminated to address the downwind 
air quality problem and the means of implementing corresponding 
emissions limits (i.e., source-specific rates, or statewide emissions 
budgets in a limited regional allowance trading program). The outcome 
of this assessment will vary based on the scope of the air quality 
problem, the availably and cost of controls at sources in upwind states 
and the relative impact of upwind emissions reductions on downwind 
ozone concentrations.
    The complexity of atmospheric chemistry and nature of ozone 
transport also demonstrate the appropriateness of applying the four-
step interstate transport framework in considering a CAA section 126(b) 
petition. As a result of this complexity, including domestic and 
international as well as anthropogenic and background contributions to 
ozone and its precursors, it is less likely that a single source is 
entirely responsible for impacts to a downwind area. Thus, a 
determination regarding whether this impact is sufficient to 
significantly contribute to nonattainment or interfere with maintenance 
of the NAAQS--in light of other anthropogenic emissions sources 
impacting a downwind area--is necessarily more complicated. The EPA 
therefore evaluates within step 3 of the framework whether upwind 
sources have emissions that significantly contribute to nonattainment 
or interfere with maintenance of the ozone NAAQS based on various 
control, cost and air quality factors, including the magnitude of 
emissions from upwind states, the amount of potential emissions 
reductions from upwind sources, the cost of those potential emissions 
reductions, and the potential air quality impacts of emissions 
reductions.\28\ The

[[Page 56066]]

EPA believes it is reasonable to consider these factors whether 
evaluating ozone transport in the context of a good neighbor SIP under 
CAA section 110 or a CAA section 126(b) petition.
---------------------------------------------------------------------------

    \28\ ``We believe it is important to consider both [cost and air 
quality] factors because circumstances related to different downwind 
receptors can vary and consideration of multiple factors can help 
EPA appropriately identify each state's significant contribution 
under different circumstances . . . . Using both air quality and 
cost factors allows EPA to consider the full range of circumstances 
and state-specific factors that affect the relationship between 
upwind emissions and downwind nonattainment and maintenance 
problems. For example, considering cost takes into account the 
extent to which existing plants are already controlled as well as 
the potential for, and relative difficulty of, additional emissions 
reductions. Therefore, EPA believes that it is appropriate to 
consider both cost and air quality metrics when quantifying each 
state's significant contribution.'' Proposed Federal Implementation 
Plans To Reduce Interstate Transport of Fine Particulate Matter and 
Ozone, 75 FR 45210, 45271 (August 2, 2010) (CSAPR proposal) 
(describing potential disparities between upwind and downwind state 
contributions to identified air quality problems and between levels 
of controls between states).
---------------------------------------------------------------------------

    For any analysis of a CAA section 126(b) petition regarding 
interstate transport of ozone, a regional pollutant with contribution 
from a variety of sources, the EPA reviews whether the particular 
sources identified by the petitioner should be controlled in light of 
the collective impact of emissions on air quality in the area, 
including emissions from other anthropogenic sources. Thus, review of 
the named sources in New York's petition provides a starting point for 
the EPA's evaluation, but does not--as the commenters suggest--complete 
the evaluation to determine whether the named sources emit or would 
emit in violation of the good neighbor provision.
    Several commenters assert that the EPA incorrectly applied the 
four-step interstate transport framework used to address CAA section 
110(a)(2)(D)(i)(I) to the separate provision under CAA section 126(b). 
Specifically, one commenter states that the four-step interstate 
transport framework aligns with the planning requirements under CAA 
section 110(a)(2)(D)(i)(I) because it allows contribution to be 
apportioned by state boundaries particularly at step 2, which considers 
whether an upwind state is linked to the downwind air quality problem 
above an identified air quality threshold. The commenter explains that 
applying such a threshold allows the collective ``significant 
contribution'' from a group of sources located in multiple upwind 
states to be apportioned into ``non-significant contributions'' 
according to state boundaries. The commenter continues by stating that 
the provisions in CAA section 126 apply to source emissions regardless 
of state boundaries, thereby better reflecting the science of air 
pollution transport and allowing a state to petition for, were the EPA 
to grant the petition, the application of emissions reductions 
requirements to a group of stationary sources located in multiple 
upwind states.
    A second commenter notes that the EPA's use of the four-step 
interstate transport within CAA section 126(b) does not facilitate the 
application of the CAA section 126(b) petition mechanism as intended, 
which the commenter articulates as including the use of such petitions 
and the EPA's action thereupon as a precise tool to control specific 
sources (e.g., EGUs), potentially through the imposition of emissions 
limits including shorter averaging times. The commenter notes that the 
good neighbor provision, as the EPA has historically implemented it, 
relies on regional trading programs and robust emissions allowance 
pools, which do not guarantee control of emissions from nearby, upwind 
sources on high electric demand days that are most conducive to 
downwind ozone formulation.
    The EPA disagrees with commenters who assert that its application 
of the four-step interstate transport framework used to address 
requirements under the good neighbor provision is not appropriate to 
address CAA section 126(b) petitions. While either CAA section 126(b) 
or CAA section 110(a)(2)(D)(i)(I) may be applied to address interstate 
transport, as discussed in Section III.B, the cross-reference in CAA 
section 126(b) to the prohibition in CAA section 110(a)(2)(D)(i) means 
that the same substantive standard is used to determine whether there 
is a violation under either section and, therefore, whether emissions 
should be prohibited in either a good neighbor SIP or in a finding 
under CAA section 126(b). Moreover, the EPA also believes its use of 
the four-step interstate transport framework to evaluate a CAA section 
126(b) petition continues to be technically justified, especially as it 
applies to New York's petition addressing the impacts of hundreds of 
sources to alleged ozone nonattainment downwind.
    As discussed earlier, the EPA agrees with commenters that ozone 
nonattainment problems result from the cumulative air quality impacts 
of relatively smaller contributions from numerous anthropogenic sources 
across several upwind states (as well as from within the downwind 
state). Thus, evaluating which upwind states and sources should be held 
responsible for addressing downwind nonattainment presents a ``thorny 
causation problem.'' EME Homer City, 572 U.S. at 514. This is true 
whether the EPA is evaluating the problem in the context of reviewing a 
SIP or promulgating a FIP under CAA section 110(a)(2)(D)(i)(I) or in 
the context of evaluating a petition targeting individual sources under 
CAA section 126(b). The four-step interstate transport framework 
provides a reasonable approach to identifying which upwind states and 
sources among many should bear the responsibility for implementing 
emissions reductions to benefit downwind air quality.
    Thus, the EPA disagrees with commenters asserting that application 
of a statewide air quality threshold at step 2 is inappropriate under 
CAA section 126(b). First, as discussed further in Section III.C of 
this notification, while the EPA is not taking a position regarding 
what air quality threshold is most appropriately applied with respect 
to the 2015 ozone NAAQS, the EPA agrees that its modeling shows that 
upwind states named in the petition are all linked to a projected air 
quality problem in the NYMA using the 1 percent threshold that the EPA 
has used in other recent rulemakings to evaluate step 2 linkages. 
Accordingly, although the EPA is not here deciding whether the 1 
percent threshold is the only appropriate screening level that might be 
applied for good neighbor analysis for the 2015 ozone NAAQS in other 
contexts (such as the EPA's review of SIP submissions \29\ addressing 
2015 ozone NAAQS good neighbor obligations), the EPA has not proposed 
to deny the petition on the basis of any analysis at step 2, and the 
commenter's concern that the use of any statewide air quality threshold 
is ill-suited to a CAA section 126(b) petition is not raised in this 
action.
---------------------------------------------------------------------------

    \29\ See Analysis of Contribution Thresholds for Use in Clean 
Air Act Section 110(a)(2)(D)(i)(I) Interstate Transport State 
Implementation Plan Submissions for the 2015 Ozone National Ambient 
Air Quality Standards (August 2018) (providing analysis to support 
potential use of a 1 ppb threshold in the development of good 
neighbor SIPs for the 2015 ozone NAAQS). Available at https://www.epa.gov/sites/production/files/2018-09/documents/contrib_thresholds_transport_sip_subm_2015_ozone_memo_08_31_18.pdf.
---------------------------------------------------------------------------

    The EPA further notes that both New York's petition and the 
commenters conflate the EPA's use of an air quality threshold at step 2 
with the full analysis used under the four-step interstate transport 
framework as a whole for apportioning responsibility for emissions 
reductions among upwind states and sources. New York's CAA section 
126(b) petition uses a 1 percent threshold to identify states that are 
linked to the downwind air quality problems and asserts that all the 
emissions from the named sources that collectively exceed 1 percent are 
deemed significant. However, this

[[Page 56067]]

misunderstands the EPA's use of the air quality threshold in the 
context of the four-step interstate transport framework. If an upwind 
state's air quality impact to an identified downwind air quality 
problem exceeds the threshold as determined at step 2, the EPA then 
turns to the evaluation of additional cost and air quality factors at 
step 3 to determine what amount of emissions, if any, from an upwind 
state should be considered to significantly contribute to the downwind 
air quality problems. If the collective air quality contribution does 
not exceed the threshold, then emissions from within the state are 
considered not to significantly contribute to the downwind air quality 
problem. Thus, the EPA reasonably uses an air quality threshold at step 
2 of the four-step interstate transport framework as one aspect of the 
resolution of the ``thorny causation'' problem by identifying which 
states' collective impact is sufficiently large to merit further review 
of the emissions reduction potential at sources within the state. As 
the cumulative nature of the ozone problem remains the same whether 
evaluated under CAA section 110(a)(2)(D)(i)(I) or section 126(b), the 
EPA believes that it is reasonable to apply a statewide air quality 
threshold in this case as in the four-step interstate transport 
framework that it has historically used to implement the good neighbor 
provision.
    The EPA also disagrees that its use of the four-step interstate 
transport framework precludes the targeted, source-specific remedy 
provided for by CAA section 126(c). Although the EPA has used regional 
trading programs to address good neighbor obligations in past 
rulemakings under both CAA section 110(a)(2)(D)(i)(I) and CAA section 
126(b), the application of the framework does not dictate that the 
remedy at step 4 necessarily be implemented in a particular manner. 
Thus, the four-step interstate transport framework can be applied in 
the context of CAA section 126(b) to determine whether a source is 
operating in violation of the good neighbor provision with sufficient 
flexibility to permit the application of an appropriately demonstrated 
remedy under CAA section 126(c), whether through a regional trading 
program or source-specific emissions limits.

B. The EPA's Standard of Review for This CAA Section 126(b) Petition 
Regarding the 2008 and 2015 8-Hour Ozone NAAQS

    As discussed in Section II.B of this action, section 126(b) of the 
CAA provides a mechanism for states and other political subdivisions to 
seek abatement of pollution in other states that may be affecting their 
air quality. CAA section 126(b) does not, however, identify a specific 
methodology or specific criteria for the Administrator to apply when 
making a CAA section 126(b) finding or denying a petition. Therefore, 
the EPA has the discretion to identify relevant criteria and develop a 
reasonable approach for evaluating a CAA section 126(b) petition. See, 
e.g., Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-43 (1984); 
Smiley v. Citibank, 517 U.S. 735, 744-45 (1996).
    With respect to the statutory requirements of section 126 and 
section 110(a)(2)(D)(i) of the CAA, the EPA has consistently 
acknowledged that Congress created these provisions as two independent 
statutory tools to address the problem of interstate pollution 
transport. See, e.g., 76 FR 69052, 69054 (November 7, 2011).\30\ The 
fact that Congress did not indicate any preference for one over the 
other suggests that either tool could serve as a legitimate means to 
produce the desired result, which is to mitigate significant 
contribution to nonattainment and interference with maintenance of the 
NAAQS in downwind states. While the provisions in CAA section 
110(a)(2)(D)(i) and section 126 are independent, they are also closely 
linked. A violation of the prohibition in CAA section 110(a)(2)(D)(i) 
is a condition precedent for action under CAA section 126(b) and, 
accordingly, both provisions are reasonably interpreted to construe 
significant contribution to nonattainment and interference with 
maintenance identically, since the identical terms are naturally 
interpreted as meaning the same thing in the two linked provisions. See 
Appalachian Power, 249 F. 3d at 1049-50.
---------------------------------------------------------------------------

    \30\ Courts have also upheld the EPA's position that CAA 
sections 110(a)(2)(D)(i) and section 126 are two independent 
statutory tools to address the same problem of interstate transport. 
See GenOn REMA, LLC v. EPA, 722 F.3d 513, 520-23 (3d Cir. 2013); 
Appalachian Power, 249 F.3d at 1047.
---------------------------------------------------------------------------

    Thus, in addressing a CAA section 126(b) petition for ozone 
transport, the EPA believes it is appropriate to interpret the 
ambiguous terms incorporated by the cross-reference to CAA section 
110(a)(2)(D)(i) (i.e., ``contribute significantly to nonattainment'' 
and ``interfere with maintenance'') \31\ consistent with the EPA's past 
approach to evaluating interstate ozone pollution transport under the 
good neighbor provision, and its interpretation and application of that 
related provision of the statute. As previously discussed, ozone is a 
regional air pollutant and the EPA's previous analyses and regulatory 
actions have evaluated the regional interstate ozone transport problem 
using the four-step interstate transport framework. The EPA most 
recently applied this four-step interstate transport framework in 
promulgating the CSAPR Update and the Determination Rule to address 
interstate transport with respect to the 2008 ozone NAAQS under CAA 
section 110(a)(2)(D)(i)(I). This approach is particularly applicable 
with respect to New York's claims regarding the 2008 ozone NAAQS 
because both rulemakings address projected air quality problems in New 
York and the impacts of upwind states, including those named in the 
petition, on such areas.\32\ Given the specific cross-reference in CAA 
section 126(b) to the substantive prohibition in CAA section 
110(a)(2)(D)(i), the EPA believes any prior findings made under the 
good neighbor provision are informative--if not determinative--for a 
CAA section 126(b) action. Therefore, in this instance, the EPA's 
decision whether to grant or deny the CAA section 126(b) petition 
regarding the 2008 8-hour ozone NAAQS depends on application of the 
four-step interstate transport framework.
---------------------------------------------------------------------------

    \31\ The Supreme Court confirmed that these terms are ambiguous 
in EME Homer City and that the EPA is therefore delegated the 
authority to reasonably interpret the provisions. 572 U.S. at 514-15 
n.18.
    \32\ The EPA similarly evaluated the impact of Kentucky on New 
York's air quality after implementation of the CSAPR Update in 
approving the former state's SIP submission and concluded Kentucky's 
good neighbor obligations for the 2008 ozone NAAQS were fully 
addressed by the CSAPR Update. 83 FR 33730 (July 17, 2018). No legal 
challenges to the EPA's determinations in that SIP action were filed 
within the period for judicial review.
---------------------------------------------------------------------------

    While the EPA previously applied the four-step interstate transport 
framework and interpreted significant contribution and interference 
with maintenance under CAA section 110(a)(2)(D)(i) for the 2008 ozone 
NAAQS via the CSAPR Update and the Determination Rule, the EPA has not 
engaged in a regional rulemaking action to apply the good neighbor 
provision for the 2015 ozone NAAQS. However, the EPA has released 
technical information intended to inform states' development of SIPs to 
address the 2015 ozone standard.\33\ This information included the 
results of air quality modeling to identify potential downwind air 
quality problems in 2023, which we discuss in more detail in

[[Page 56068]]

Section III.C.1 of this document. As part of the memorandum releasing 
the technical information, the EPA acknowledged that states have the 
flexibility to pursue approaches that may differ from the EPA's 
historical approach to evaluating interstate transport in developing 
their good neighbor SIPs.\34\ Nonetheless, the EPA's technical analysis 
and the potential flexibilities identified in the memorandum generally 
followed the basic elements of the EPA's historical four-step 
interstate transport framework. As described previously, CAA section 
126(b) does not identify a specific methodology or specific criteria 
for the Administrator to apply when making a CAA section 126(b) finding 
or denying a petition. Thus, given the EPA's discretion to identify 
relevant criteria and develop a reasonable approach to inform a CAA 
section 126(b) finding, the EPA believes that it continues to be 
appropriate for the Agency to evaluate the claims regarding the 2015 
ozone NAAQS in New York's CAA section 126(b) petition consistent with 
the EPA's four-step interstate transport framework used to evaluate 
other ozone NAAQS.
---------------------------------------------------------------------------

    \33\ See Information on the Interstate Transport State 
Implementation Plan Submissions for the 2015 Ozone National Ambient 
Air Quality Standards under Clean Air Act Section 110(a)(2)(D)(i)(I) 
(March 27, 2018).
    \34\ The EPA has also released two additional memoranda 
providing guidance to states developing good neighbor SIPs for the 
2015 ozone NAAQS. See Analysis of Contribution Thresholds for Use in 
Clean Air Act Section 110(a)(2)(D)(i)(I) Interstate Transport State 
Implementation Plan Submissions for the 2015 Ozone National Ambient 
Air Quality Standards (August 31, 2018); and Considerations for 
Identifying Maintenance Receptors for Use in Clean Air Act Section 
110(a)(2)(D)(i)(I) Interstate Transport State Implementation Plan 
Submissions for the 2015 Ozone National Ambient Air Quality 
Standards (October 19, 2018). All three memoranda are available in 
the docket for this final action and at https://www.epa.gov/airmarkets/memo-and-supplemental-information-regarding-interstate-transport-sips-2015-ozone-naaqs.
---------------------------------------------------------------------------

    Accordingly, because the EPA interprets ``contribute significantly 
to nonattainment'' and ``interfere with maintenance'' to mean the same 
thing under both CAA sections 110(a)(2)(D)(i)(I) and 126(b), the EPA's 
decision whether to grant or deny a CAA section 126(b) petition 
regarding both the 2008 and 2015 ozone NAAQS depends on application of 
the analysis used to address CAA section 110(a)(2)(D)(i)(I). That is, 
the EPA assesses whether there is a downwind air quality problem in the 
petitioning state (i.e., step 1 of the four-step interstate transport 
framework); whether the upwind state where the source subject to the 
petition is located is linked to the downwind air quality problem 
(i.e., step 2); and, if such a linkage exists, whether (balancing 
various cost and air quality factors) there are cost-effective 
emissions reductions available from sources in the upwind state to 
support a conclusion that the sources in the state significantly 
contribute to nonattainment or interfere with maintenance of the NAAQS 
(i.e., step 3). If the EPA makes a CAA section 126(b) finding based on 
its determination that a source or sources will significantly 
contribute to nonattainment or interfere with maintenance, then the EPA 
will implement a remedy under CAA section 126(c) to ensure that the 
violation of the good neighbor provision is addressed through permanent 
and enforceable measures (i.e., step 4).
    In interpreting the phrase ``emits or would emit in violation of 
the prohibition of section [110(a)(2)(D)(i)],'' if the EPA or a state 
has already adopted provisions that eliminate the significant 
contribution to nonattainment or interference with maintenance of the 
NAAQS in downwind states, then there simply is no violation of the CAA 
section 110(a)(2)(D)(i)(I) prohibition. Stated another way, requiring 
additional reductions from upwind sources would result in eliminating 
emissions that do not contribute significantly to nonattainment or 
interfere with maintenance of the NAAQS. Such an action is beyond the 
scope of the prohibition in CAA section 110(a)(2)(D)(i)(I) and, 
therefore, beyond the scope of the EPA's authority to make the 
requested finding under CAA section 126(b). See EME Homer City, 572 
U.S. at 515 n.18, 521-22 (holding the EPA may not require sources in 
upwind states to reduce emissions by more than necessary to eliminate 
significant contribution to nonattainment or interference with 
maintenance of the NAAQS in downwind states under the good neighbor 
provision).
    Thus, it follows that if the EPA approved a state's SIP as 
adequately meeting the requirements of CAA section 110(a)(2)(D)(i)(I) 
for a specific NAAQS, the EPA would not find that a source in that 
state was emitting in violation of the prohibition of CAA section 
110(a)(2)(D)(i)(I) absent new information demonstrating that the SIP is 
now insufficient to address the prohibition for that NAAQS. Similarly, 
if the EPA has promulgated a FIP that fully eliminates emissions that 
significantly contribute to nonattainment or interfere with maintenance 
in a downwind state for a specific NAAQS, the EPA has no basis to find 
that sources in the upwind state are emitting or would emit in 
violation of the CAA section 110(a)(2)(D)(i)(I) prohibition, absent new 
information to the contrary for that NAAQS.
    The EPA notes that the approval of a SIP or promulgation of a FIP 
implementing CAA section 110(a)(2)(D)(i)(I) constitutes a determination 
that a state's emissions are adequately controlled considering the 
specific facts that the EPA analyzed while approving the SIP or 
promulgating the FIP. If a petitioner produces new data or information 
showing a different level of contribution or other facts the EPA did 
not consider when approving the SIP or promulgating the FIP, compliance 
with a SIP or FIP may not be determinative regarding whether the upwind 
sources emit or would emit in violation of the prohibition of CAA 
section 110(a)(2)(D)(i)(I). See 64 FR 28250, 28274 n.15 (May 25, 1999); 
71 FR 25328, 25336 n.6 (April 28, 2006); Appalachian Power, 249 F.3d at 
1067 (later developments can be the basis for another CAA section 126 
petition). Thus, in circumstances where a state is implementing a SIP 
or the EPA is implementing a FIP addressing CAA section 
110(a)(2)(D)(i)(I) for a particular NAAQS, the EPA will evaluate the 
CAA section 126(b) petition to determine if the submitted petition 
raises new information that merits further consideration.
    Turning to the comments on the EPA's proposed standard of review, 
several commenters took issue with the EPA's application of the four-
step interstate transport framework under CAA section 126, arguing that 
in doing so the EPA is ``unlawfully eliminating [CAA] section 126 as an 
independent statutory tool for downwind states.'' Commenters disagreed 
with the EPA's interpretation of the relationship between the good 
neighbor provision under CAA sections 110(a)(2)(D)(i)(I) and 126(b), 
contending that Congress intended CAA section 126(b) petitions to be a 
legal tool to address interstate problems separate and distinct from 
SIP and FIP actions under CAA section 110. Commenters cite to 
legislative history and the Third Circuit's opinion in GenOn, 722 F.3d 
at 520-23, in support of their assertions that CAA section 126 is 
intended to remedy interstate transport problems notwithstanding the 
existence of CAA section 110. Commenters accordingly assert the EPA is 
incorrect in determining that its four-step interstate transport 
approach under CAA section 110(a)(2)(D)(i)(I) is appropriate for 
evaluating under CAA section 126(b) whether an upwind source or group 
of sources will significantly contribute to nonattainment or interfere 
with

[[Page 56069]]

maintenance of the 2008 and the 2015 ozone NAAQS in a petitioning 
downwind state.
    The EPA has consistently acknowledged in prior actions under CAA 
section 126(b) that Congress created the good neighbor provision and 
CAA section 126 as two independent statutory processes to address one 
problem: Interstate pollution transport. See, e.g., 83 FR 26666, 26675 
(June 8, 2018) (proposal for this final action); 76 FR 69052, 69054 
(November 7, 2011) (proposed action for the EPA's final action on New 
Jersey's CAA section 126(b) petition regarding SO2 emissions 
from Portland Generating Station). As the commenters point out, the 
Third Circuit has upheld the EPA's position that CAA sections 
110(a)(2)(D)(i) and 126 are two independent statutory processes to 
address the same problem of interstate transport. See GenOn, 722 F.3d 
at 520-23. However, the commenters misread the court's holding 
regarding the EPA's interpretation of the interplay between the two 
provisions. The Third Circuit spoke to the question of the timing and 
sequence of these processes--specifically, whether the EPA could act on 
a CAA section 126(b) petition in instances where the Agency had not yet 
acted on a CAA section 110 SIP addressing interstate transport for the 
same NAAQS. The Third Circuit also cited to a similar holding by the 
D.C. Circuit in Appalachian Power. Appalachian Power, 249 F.3d at 1047. 
Both courts upheld the EPA's position that it need not wait for the CAA 
section 110 process to conclude before acting on a CAA section 126(b) 
petition, thus affirming that both statutory provisions are independent 
from one another from a timing perspective. But neither court held that 
the EPA was precluded from applying the same analytical framework to 
resolving CAA section 126(b) petitions as it applies to analyze states' 
good neighbor obligations. Here, the Agency has not deferred action on 
New York's petition regarding the 2015 ozone NAAQS, for which good 
neighbor SIPs were due on October 1, 2018, until its action on the good 
neighbor SIPs (for the named upwind states) has concluded. Therefore, 
by acting on New York's CAA section 126(b) petition regarding the 2015 
ozone NAAQS before concluding action on CAA section 110 SIPs, the EPA 
believes it has given CAA section 126(b) independent meaning as 
intended by Congress and the courts.
    Moreover, the D.C. Circuit's opinion in Appalachian Power further 
supports the EPA's interpretation taken in this action: That while the 
Agency need not wait for the CAA section 110 process to conclude before 
acting on a CAA section 126(b) petition, the EPA reasonably imported 
the four-step interstate transport framework under CAA section 110 to 
CAA section 126 by interpreting the substantive requirements of the two 
provisions to be closely linked. The court in Appalachian Power 
specifically considered whether it was appropriate for the EPA to rely 
on findings made under the good neighbor provision in the 
NOX SIP Call rulemaking in granting several CAA section 
126(b) petitions raising similar interstate transport concerns with 
regards to the same NAAQS. Petitioners in that case argued that the EPA 
should instead make a finding that ``the specified stationary sources 
within a given state independently met [the statute's] threshold test 
for effect on downwind nonattainment.'' 249 F.3d at 1049. The court 
found that by referring to stationary sources that emit pollutants ``in 
violation of the prohibition of [CAA section 110(a)(2)(D)(i)],'' 
Congress ``clearly hinged the meaning of [CAA] section 126 on that of 
section 110(a)(2)(D)(i).'' Id. at 1050. The court, therefore, concluded 
that given CAA section 126's silence on what it means for a stationary 
source to violate CAA section 110(a)(2)(D)(i), the EPA's approach of 
relying on findings under CAA section 110(a)(2)(D)(i) was reasonable 
and, therefore, entitled to deference under Chevron, 467 U.S. at 843. 
See Appalachian Power, 249 F.3d at 1050. The EPA's approach to 
addressing New York's CAA section 126(b) petition through the 
application of the four-step interstate transport framework and 
consideration of findings made in the CSAPR Update and the 
Determination Rule is therefore reasonable and consistent with prior 
case law.
    Several commenters assert that the EPA cannot rely on recent 
regional transport rulemakings because they did not fully address good 
neighbor obligations. Commenters assert that the existence of the CSAPR 
Update does not foreclose a state from seeking--or the EPA from 
providing--redress under CAA section 126(b) when the state finds itself 
struggling to meet NAAQS due to significant upwind contributions or 
interference. When the EPA promulgated the CSAPR Update it explicitly 
noted that it only served as a ``partial remedy'' as to the 2008 ozone 
NAAQS. Commenters argue that the fact that New York is continuing to 
experience challenges attaining the 2008 ozone NAAQS demonstrates that 
significant interstate pollution and associated attainment difficulties 
remain after the implementation of the CSAPR Update. Commenters 
therefore assert that the EPA's reliance on the Determination Rule as a 
complete remedy with respect to the 2008 ozone NAAQS is arbitrary and 
capricious because the rule fails to eliminate current and ongoing 
significant contributions by upwind states and sources.
    The EPA agrees that the existence of the CSAPR Update does not 
foreclose redress under CAA section 126(b), but the commenters misstate 
the EPA's basis for evaluating the petition in light of the CSAPR 
Update. Although the EPA explained in the proposal that the 
Determination Rule concluded that the emissions reductions required by 
the CSAPR Update would fully address covered states' good neighbor 
obligations for the 2008 ozone NAAQS, the EPA did not rely on these 
rules (i.e., the CSAPR Update and the Determination Rule) alone to 
propose denial of the petition.\35\ Rather, as described in more detail 
in Section III.C below, the EPA has reviewed the petition consistent 
with its interpretation of CAA section 126(b) and the good neighbor 
provision to see if additional information that was not previously 
considered by the EPA in either the CSAPR Update or the Determination 
Rule would justify imposing the additional control requirements that 
New York requested. As described in Section III.C, the EPA specifically 
considered the relevance of current air quality in New York. However, 
based on its evaluation of the information provided in the petition, 
the EPA has found that the petitioner has not satisfied its burden to 
demonstrate that the sources named in the petition emit or would emit 
in violation of the good neighbor provision with respect to either the 
2008 or 2015 ozone NAAQS.
---------------------------------------------------------------------------

    \35\ Similar to Kentucky, the EPA did not rely on its approval 
of the State's SIP alone to propose denial as to the sources named 
in that state but considered whether the petition raised new 
information not previously considered in that action.
---------------------------------------------------------------------------

C. The EPA's Evaluation of Whether the Petition Is Sufficient To 
Support a CAA Section 126(b) Finding

    This section discusses the approach that the EPA used to review the 
sufficiency of New York's CAA section 126(b) petition and the EPA's 
resulting determination that New York has not provided an adequate 
technical and analytic basis for the EPA to make a finding nor does the 
EPA have available information to support such a finding.
    Consistent with the EPA's approach to evaluating several prior CAA 
section

[[Page 56070]]

126(b) petitions, the EPA interprets CAA section 126(b) as placing an 
burden on the petitioner to establish a technical and analytic basis 
for the specific finding requested. Thus, the EPA first looks to see if 
the petition identifies or contains a sufficient basis to make the 
requested finding. See, e.g., 76 FR 19662, 19666 (April 7, 2011) 
(proposed response to petition from New Jersey regarding SO2 
emissions from the Portland Generating Station); 83 FR 16064, 16070 
(April 13, 2018) (final response to petition from Connecticut regarding 
ozone emissions from the Brunner Island Steam Electric Station); 83 FR 
50444, 50452 (October 5, 2018) (final response to petitions from 
Delaware and Maryland regarding ozone emissions from four EGU 
facilities and 36 individual EGUs, respectively).\36\
---------------------------------------------------------------------------

    \36\ The EPA's response to the Maryland and Delaware petition is 
currently subject to judicial review in the D.C. Circuit. Maryland 
v. EPA, No. 18-1285 (D.C. Cir. filed October 15, 2018).
---------------------------------------------------------------------------

    While the EPA interprets CAA section 126(b) as putting the burden 
on the petitioner, rather than the EPA, to provide a basis or 
justification for making the requested finding, nothing precludes the 
EPA from choosing to conduct an independent analysis on a discretionary 
basis when the Agency determines it would be helpful in evaluating a 
petition. The EPA has chosen to invoke its discretion in prior actions 
on CAA section 126(b) petitions concerning ozone, primarily where the 
Agency already had technical data or findings it could rely on as part 
of its independent analysis. Notably, because the supplemental 
information already existed at the time the EPA acted on those 
petitions, the EPA could leverage such information in its action 
without undertaking new analyses that would naturally take 
significantly more time and resources to develop.\37\ Consistent with 
this position and as described further in this section of the 
notification, the EPA is using supplemental information, when currently 
available, as part of its discretionary independent analysis of New 
York's CAA section 126(b) petition. The results of the following 
analysis support the EPA's determination that New York has not provided 
an adequate technical and analytic basis for the EPA to make a finding, 
nor does the EPA's analysis of supplemental information available to it 
outside of the basis that New York has provided support such a finding.
---------------------------------------------------------------------------

    \37\ See 83 FR 16064 (April 13, 2018); 83 FR 50444 (October 5, 
2018).
---------------------------------------------------------------------------

1. The EPA's Evaluation of New York's Petition Considering Step 1
    As discussed in Section IV.B.1 of the proposal, with respect to 
step 1 of the four-step interstate transport framework, the EPA began 
by evaluating New York's petition to determine whether the State 
identified a downwind air quality problem (nonattainment or 
maintenance) that may be impacted by ozone transport from other states. 
The EPA conducted this evaluation for Chautauqua County and the NYMA 
regarding both the 2008 and 2015 ozone NAAQS.
    As discussed in Section II.C of this notification, the EPA 
typically focuses its analysis regarding potential downwind air quality 
problems on a future analytic year given the forward-looking nature of 
the good neighbor obligation in CAA section 110(a)(2)(D)(i)(I). The 
good neighbor provision requires that states prohibit emissions that 
``will'' significantly contribute to nonattainment or interfere with 
maintenance of the NAAQS in any other state. The EPA reasonably 
interprets this language as permitting states and the EPA in 
implementing the good neighbor provision to prospectively evaluate 
downwind air quality problems and the need for further upwind emissions 
reductions.
    Particularly relevant to this action, the EPA also applied this 
interpretation of ``will'' in the Determination Rule to evaluate 
remaining good neighbor obligations with respect to the 2008 ozone 
NAAQS for the CSAPR Update states, including the nine upwind states 
cited in New York's petition. 83 FR 65889-90. As explained in that 
action, a key decision informing the application of the interstate 
transport framework is the selection of a future analytic year. Several 
court decisions have guided the factors that the EPA considers in 
selecting an appropriate future analytic year for such an analysis. 
First, in North Carolina, the D.C. Circuit held that the timeframe for 
implementation of emissions reductions required by the good neighbor 
provision should be selected by considering the relevant attainment 
dates of downwind nonattainment areas affected by interstate transport 
of air pollution. 531 F.3d at 911-12. Moreover, the Supreme Court and 
the D.C. Circuit have both held that the EPA may not over-control 
upwind state emissions relative to the downwind air quality problems. 
Specifically, the courts found that the Agency may not require 
emissions reductions (at steps 3 and 4 of the interstate transport 
framework) from a state that are greater than necessary to achieve 
attainment and maintenance of the NAAQS in all the downwind areas to 
which that state is linked. See EME Homer City, 572 U.S. at 521-22; EME 
Homer City II, 795 F.3d at 127, 129-30 (on remand from the Supreme 
Court, finding ozone-season NOX budgets for ten states 
invalid because the EPA's modeling showed that the downwind air quality 
problems to which these states were linked would be resolved by the 
time the budgets would be implemented). These court decisions support 
the Agency's choice to use a future analytic year to help ensure that 
any emissions reductions that the EPA may require of sources in upwind 
states neither over- or under-control emissions with respect to the 
EPA's projections as to downwind air quality at the time by which that 
those controls could feasibly be implemented.
    In the Determination Rule, the EPA established the appropriate 
future analytic year for purposes of assessing remaining interstate 
transport obligations for the 2008 ozone NAAQS. 83 FR 65889-890. The 
EPA's analysis considered two primary factors: (1) The applicable 
attainment dates for the 2008 ozone NAAQS; and (2) the timing to 
feasibly implement new NOX control strategies not previously 
addressed in the CSAPR Update. As the applicable attainment dates, the 
EPA explained that the next attainment dates for the 2008 ozone NAAQS 
would be July 20, 2021, for nonattainment areas classified as Serious, 
and July 20, 2027, for nonattainment areas classified as Severe.
    In the Determination Rule, the EPA then evaluated the timeframe 
necessary to implement additional NOX control strategies at 
various sources across the region. 83 FR 65893-901. For EGUs, the EPA 
explained that it was appropriate to consider the timeframe required 
for implementation of selective catalytic reduction (SCR) across the 
region because of the potential for larger emissions reductions as 
compared to selective non-catalytic reduction (SNCR). The EPA 
determined that SCR project development and installation can require up 
to 39 months for an individual power plant installing controls on more 
than one boiler,\38\ and that a minimum of 48 months (4 years) is a 
reasonable time-period needed to complete all necessary steps of SCR 
projects at EGUs on a regional scale, considering the necessary stages 
of post-

[[Page 56071]]

combustion control project planning, shepherding of labor and material 
supply, installation, coordination of outages, testing, and operation. 
The EPA further concluded that SNCR installations, while generally 
having shorter project timeframes (i.e., up to 16 months for an 
individual power plant installing controls on more than one boiler), 
share similar implementation steps with and need to account for the 
same regional factors as SCR installations.\39\ The EPA, therefore, 
concluded that it may reasonably take up to 4 years to install the new 
emissions controls regionwide for EGUs.
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    \38\ See Table 3-1 in Engineering and Economic Factors Affecting 
the Installation of Control Technologies for Multipollutant 
Strategies. EPA Final Report. EPA-600/R-02/073. October 2002. 
Available at https://cfpub.epa.gov/si/si_public_record_report.cfm?Lab=NRMRL&dirEntryId=63473.
    \39\ See the month-by-month evaluation of SNCR installation 
presented in Exhibit A-6 in Engineering and Economic Factors 
Affecting the Installation of Control Technologies for 
Multipollutant Strategies. EPA Final Report. EPA-600/R-02/073. 
October 2002. Available at https://cfpub.epa.gov/si/si_public_record_report.cfm?Lab=NRMRL&dirEntryId=63473. Evaluation 
of implementation timeframes for various control strategies is also 
found in the EPA's CSAPR Update EGU NOX Mitigation 
Strategies Final Rule TSD. See Docket ID No. EPA-HQ-OAR-2015-0500 
(available at http://www.regulations.gov).
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    The EPA further explained that many of the same considerations 
affecting the EPA's analysis of regionwide implementation of controls 
at EGUs would also affect the regionwide implementation of controls at 
non-EGUs, which may be more complex considering the diversity of non-
EGU sources as well as the greater number and smaller size of the 
individual sources. 83 FR 65901-04. The EPA noted that preliminary 
estimates for the implementation of some potential control technologies 
on non-EGUs only account for the time between bid evaluation and 
startup but do not account for additional considerations such as pre-
bid evaluation studies, permitting, and installation of monitoring 
equipment. In addition, these preliminary estimates for implementing 
control technologies do not include the time and resources needed to 
install such technologies on a sector- or region-wide basis. 
Accordingly, the EPA concluded that it was reasonable to assume for 
purposes of the Determination Rule that an expeditious timeframe for 
installing sector- or region-wide controls on non-EGU sources could 
also be 4 years or more.
    Considering the timeframes for regionwide implementation of control 
strategies and the timeframe in which a rulemaking requiring such 
controls would be finalized, the EPA concluded that reductions from 
such control strategies were unlikely to be implemented for a full 
ozone season until 2023. The EPA acknowledged that 2023 is later than 
the attainment date for nonattainment areas classified as Serious (July 
20, 2021), but concluded that it was unlikely emissions control 
requirements could be feasibly promulgated and implemented by that 
earlier date. Moreover, the EPA noted that 2023 was well in advance of 
the subsequent attainment date for areas classified as Severe. 
Accordingly, the EPA determined that 2023 was a reasonable year to 
assess downwind air quality to evaluate any remaining requirements 
under the good neighbor provision for the 2008 ozone NAAQS. 83 FR 
65901-05.
    After selecting the analytic year, the EPA then used the 
Comprehensive Air Quality Model with Extensions (CAMx v6.40) to model 
emissions in 2011 and 2023, based on updates provided to the EPA from 
states and other stakeholders on a January 6, 2017, Notice of Data 
Availability (NODA).40 41 This updated modeling was used in 
the Determination Rule to estimate ozone design values in 2023, as 
described in the Determination Rule Air Quality Modeling Technical 
Support Document (TSD).\42\ The EPA used outputs from the 2011 and 2023 
model simulations to project base period 2009-2013 average and maximum 
ozone design values to 2023 at monitoring sites nationwide. In 
projecting future year design values, the EPA applied its own modeling 
guidance,\43\ which recommends using model predictions from the ``3 x 
3'' array of grid cells surrounding the location of the monitoring 
site.\44\ Considering the comments on the January 2017 NODA and other 
analyses, the EPA also projected 2023 design values based on a modified 
version of the ``3 x 3'' approach for those monitoring sites located in 
coastal areas. Briefly, in this alternative approach, the EPA 
eliminated from the design value calculations those modeling data in 
grid cells that are dominated by water (i.e., more than 50 percent of 
the area in the grid cell is water) and that do not contain a 
monitoring site (i.e., if a grid cell is more than 50 percent water but 
contains an air quality monitor, that cell would remain in the 
calculation).\45\ For each individual monitoring site, the base period 
2009-2013 average and maximum design values, and the 2023 projected 
average and maximum design values (based on both the ``3 x 3'' approach 
and the alternative approach) affecting coastal sites are available in 
Excel format in the docket for this action and in PDF format at https://www.epa.gov/airmarkets/memo-supplemental-information-interstate-transport-sips-2008-ozone-naaqs.
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    \40\ Using the 2023 analytic year also allowed the EPA to begin 
the updated analysis using the data sets originally developed for a 
January 2017 Notice of Data Availability (NODA) (82 FR 1733, January 
6, 2017), which the EPA revised in response to stakeholder feedback. 
Accordingly, the EPA initiated its analysis more quickly than if a 
different year had been chosen, which might have delayed subsequent 
rulemaking actions and therefore emissions reductions.
    \41\ See Notice of Availability of the Environmental Protection 
Agency's Preliminary Interstate Ozone Transport Modeling Data for 
the 2015 Ozone National Ambient Air Quality Standard (NAAQS), 82 FR 
1733 (January 6, 2017). This memorandum also supplements the 
information provided in, ``Supplemental Information on the 
Interstate Transport State Implementation Plan Submissions for the 
2008 Ozone National Ambient Air Quality Standards under Clean Air 
Act Section 110(a)(2)(D)(i)(I).'' Memorandum from Stephen D. Page, 
Director, U.S. EPA Office of Air Quality Planning and Standards, to 
Regional Air Division Directors, Regions 1-10. October 27, 2017. 
Available at https://www.epa.gov/sites/production/files/2017-10/documents/final_2008_o3_naaqs_transport_memo_10-27-17b.pdf.
    \42\ Air Quality Modeling Technical Support Document for the 
Updated 2023 Projected Ozone Design Values. U.S. EPA Office of Air 
Quality Planning and Standards. June 2018. Document developed to 
support the Determination Rule, 83 FR 65878 (December 21, 2018). 
Available at https://www.epa.gov/airmarkets/air-quality-modeling-technical-support-document-updated-2023-projected-ozone-design.
    \43\ ``Draft Modeling Guidance for Demonstrating Attainment of 
Air Quality Goals for Ozone, PM2.5, and Regional Haze.'' 
Memorandum from Richard Wayland, Division Director, Air Quality 
Assessment Division, U.S. EPA Office of Air Quality Planning and 
Standards, to Regional Air Division Directors, Regions 1-10. 
December 3, 2014. Available at https://www3.epa.gov/scram001/guidance/guide/Draft-O3-PM-RH-Modeling_Guidance-2014.pdf.
    \44\ The EPA's modeling uses 12km\2\ grid cells.
    \45\ A model grid cell is identified as a ``water'' cell if more 
than 50 percent of the grid cell is water based on the 2006 National 
Land Cover Database. Grid cells that meet this criterion are treated 
as entirely over water in the WRF modeling used to develop the 2011 
meteorology for the EPA's air quality modeling. (See Air Quality 
Modeling Technical Support Document for the Updated 2023 Projected 
Ozone Design Values. U.S. EPA Office of Air Quality Planning and 
Standards. June 2018. Document developed to support the 
Determination Rule, 83 FR 65878 (December 21, 2018). Available at 
https://www.epa.gov/airmarkets/air-quality-modeling-technical-support-document-updated-2023-projected-ozone-design.)
---------------------------------------------------------------------------

    In the Determination Rule, the EPA followed the same approach for 
identifying receptors based on this modeling as in the CSAPR Update 
rulemaking process. That is, the EPA considered a combination of 
modeling projections and monitoring data to identify receptor sites 
that are projected to have problems attaining or maintaining the 
NAAQS.\46\ Specifically, the EPA identified nonattainment receptors as 
those monitoring sites with current measured values exceeding the NAAQS 
that also have projected (i.e., in 2023) average design values 
exceeding the NAAQS. The EPA also identified maintenance receptors as 
those

[[Page 56072]]

monitoring sites with projected maximum design values exceeding the 
NAAQS. Specifically, maintenance receptors included sites with current 
measured values below the NAAQS with projected average and maximum 
design values exceeding the NAAQS and monitoring sites with projected 
average design values below the NAAQS but with projected maximum design 
values exceeding the NAAQS.
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    \46\ See 81 FR 74530-74532 (October 26, 2016).
---------------------------------------------------------------------------

    Pertinent to this action, the EPA's examination in the 
Determination Rule of the 2023 projected design values for Chautauqua 
County indicates that this area is not projected to be in nonattainment 
or have a maintenance problem in 2023 for either the 2008 or the 2015 
ozone NAAQS. The EPA's examination of the 2023 projected design values 
for the NYMA indicates that this area is not projected to be in 
nonattainment or have a maintenance problem in 2023 for the 2008 ozone 
NAAQS. However, the EPA's modeling indicates that the NYMA is projected 
to be in nonattainment in 2023 with respect to the 2015 ozone NAAQS.
    Because the EPA has already conducted a rulemaking evaluating good 
neighbor obligations for the 2008 ozone NAAQS under CAA section 
110(a)(2)(D)(i)(I) in which the Agency used 2023 as the future analytic 
year and because, as discussed previously, CAA section 126(b) directly 
incorporates the CAA section 110(a)(2)(D)(i) standard, the EPA believes 
it is also appropriate to consider the 2023 modeling conducted for the 
Determination Rule in evaluating whether New York's petition has 
adequately demonstrated that there will be a downwind air quality 
problem with respect to the 2008 ozone NAAQS in Chautauqua County and 
the NYMA.\47\ Moreover, the EPA believes it is appropriate to consider 
the 2023 modeling when evaluating the petition's claims with respect to 
the 2015 ozone NAAQS because the 2023 ozone season aligns with the 
attainment year for the 2015 NAAQS in Moderate ozone nonattainment 
areas, consistent with the D.C. Circuit's instruction in North 
Carolina.\48\ As explained at proposal, while the EPA is not in this 
action reopening the analysis and findings made in the Determination 
Rule with respect to the 2008 ozone NAAQS, the EPA evaluated the 
petition, consistent with the standard of review described in Section 
III.B, to determine whether additional information not considered in 
the Determination Rule should influence the EPA's finding as to whether 
the sources named in New York's petition emit or would emit in 
violation of the prohibition of CAA section 110(a)(2)(D)(i)(I).
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    \47\ See n.1, supra, regarding the potential impact on this 
final action of the September 13, 2019, decision of the D.C. Circuit 
in Wisconsin v. EPA, No. 16-1406.
    \48\ The 2023 ozone season represents the last full season from 
which data can be used to determine attainment with the 2015 ozone 
NAAQS by the August 3, 2024, attainment date for nonattainment areas 
classified as Moderate.
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    The New York petition raises concerns about the assumptions and 
results of the EPA's modeling. Specifically, the petition indicates 
significant concerns with the EPA's expectation that uncontrolled EGUs 
will reduce their emissions rates in the absence of unit-level 
enforceable limits and with the EPA's treatment of model cells 
containing a land/water interface. The petition does not further 
elaborate on the basis for these concerns, and the EPA, therefore, has 
no reason to believe that its 2023 modeling is unreliable. Moreover, 
the EPA already addressed concerns regarding the EGU assumptions in the 
2023 modeling in response to comments raised in the Determination Rule. 
See 83 FR 65886-89 (explaining statutory rationale regarding when 
enforceable emissions limitations are required and responding to 
comments); 83 FR 65913-15 (responding to comments concerning 
projections of EGU emissions in 2023).\49\
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    \49\ The EPA's conclusions regarding the EGU assumptions in the 
2023 modeling are also the subject of judicial review in the D.C. 
Circuit. New York v. EPA, No. 19-1019 (D.C. Cir.).
---------------------------------------------------------------------------

    As described earlier in this section, the EPA also addressed 
concerns regarding the treatment of model cells containing land/water 
interface in the Determination Rule by calculating design values using 
two different methodologies. 83 FR 65917. The petition does not provide 
any new information not already considered by the EPA in the 
Determination Rule as to these issues and therefore, the EPA has no 
basis to reconsider its conclusions finalized in that action.
    The EPA received several comments challenging the conclusion that 
it is appropriate to evaluate air quality in a future year to determine 
whether there is a violation of the good neighbor provision in 
evaluating New York's CAA section 126(b) petition. First, the EPA 
received comments asserting that the EPA's reliance on the term 
``will'' as it appears in the good neighbor provision to justify 
consideration of air quality in a future year is inconsistent with the 
plain language of the CAA. Commenters contend that Congress specified 
that implementation plans under CAA section 110(a)(2)(D)(i) must 
prohibit ``any'' pollution from ``any'' source that will contribute 
significantly to nonattainment and interfere with maintenance, and that 
this includes pollution that will do so between now and 2023.
    The EPA does not agree that analysis of air quality in a future 
year is inconsistent with the statute. The EPA reasonably interprets 
the word ``will'' in the good neighbor provision as permitting states 
and the EPA in implementing the good neighbor provision to 
prospectively evaluate downwind air quality problems and the need for 
further upwind emissions reductions. In the EPA's prior regional 
transport rulemakings, the Agency has routinely evaluated whether 
upwind states ``will'' significantly contribute to nonattainment or 
interfere with maintenance based on projections of air quality in the 
future year in which any emissions reductions would be expected to go 
into effect. For the 1998 NOX SIP Call, the EPA used an 
analytic year of 2007. For the 2005 CAIR, the Agency used analytic 
years of 2009 and 2010 for ozone and PM2.5, respectively. 63 
FR 57450; 70 FR 25241. The EPA applied the same approach in finalizing 
CSAPR in 2011, the CSAPR Update in 2016, and the Determination Rule in 
2018 by evaluating air quality in 2012, 2017 and 2023, respectively. 76 
FR 48211; 81 FR 74537.
    The D.C. Circuit affirmed the EPA's interpretation of ``will'' in 
CAIR, finding the EPA's consideration of future projected air quality 
(in addition to current measured data) to be a reasonable 
interpretation of an ambiguous term. North Carolina, 531 F.3d at 913-
14. The North Carolina court affirmed the EPA's interpretation, 
explaining that ``will'' ``can mean either certainty or indicate the 
future tense'' and held that it is reasonable for the EPA to give 
effect to both potential meanings of the word. Id. Thus, although the 
court acknowledged that the term ``will'' could refer to the certainty 
of an upwind state's impact on a downwind state (i.e., based on current 
measured nonattainment), the court also clearly acknowledged the 
ambiguity of this term and indicated this was not the only reasonable 
interpretation. Given this ambiguity, the D.C. Circuit affirmed that 
the EPA's approach is permissible under the Act.
    While the EPA agrees that the references to ``any'' in CAA section 
110(a)(2)(D)(i) mean that any source of emissions of any air pollutant 
having the requisite impact may be subject to control under that 
provision, the commenter does not explain how this term limits the 
EPA's discretion to

[[Page 56073]]

evaluate of future air quality when evaluating whether such emissions 
have the requisite impact on downwind areas and therefore whether such 
control is necessary or authorized. Rather, as the commenter fails to 
acknowledge, the EPA is only authorized under the good neighbor 
provision to require the prohibition of such emissions in ``amounts 
which will'' improperly impact another state with respect to the NAAQS. 
The Supreme Court has held that this language means that any emissions 
reductions imposed under the good neighbor provision be no greater than 
necessary to address downwind NAAQS, i.e., that the EPA avoid 
unnecessary over-control of emissions from upwind states. See EME Homer 
City, 572 U.S. at 521-22. In interpreting that decision, the D.C. 
Circuit declared the EPA's emissions reduction requirements for certain 
states to be invalid under the good neighbor provision where the EPA 
had information indicating that there will be no downwind air quality 
problems by the time the emissions reductions would have been 
implemented. See EME Homer City II, 795 F.3d at 130. Thus, the EPA does 
not agree that it is obligated to impose emissions reductions if there 
will be no downwind air quality issues to address by the time such 
reductions could be in place.
    Several commenters contend that, by evaluating air quality in a 
future year the EPA fails to give ``emits'' in the phrase ``emits or 
would emit'' under CAA section 126(b) independent meaning, thereby 
unreasonably ignoring existing air quality issues in evaluating CAA 
section 126(b) petitions. Commenters contend that the provision is 
intended to provide relief for both current and future attainment and 
maintenance problems, with one commenter noting that the ``or'' 
conjunction indicates that the criteria for demonstrating a violation 
could be fulfilled either through current or future conditions. Thus, 
the commenters conclude that it is inappropriate for the EPA to rely on 
the word ``will'' in the good neighbor provision to base its analysis 
on future air quality without considering current conditions.
    One commenter further asserts that the EPA's forward-looking 
approach to interpreting the requirements of CAA section 126(b) is 
inconsistent with its prior grant of a CAA section 126(b) petition from 
New Jersey, which was based on the named source's current and ongoing 
emissions.\50\ The commenter cites the Third Circuit's decision which 
upheld the EPA's action on the petition in GenOn, indicating that the 
court noted, in construing the timing provisions of CAA section 126 
``that a statute ought, upon the whole, to be so construed that, if it 
can be prevented, no clause, sentence, or word shall be superfluous, 
void, or insignificant.'' 722 F.3d 513, 520-21 (3d Cir. 2013) (quoting 
TRW Inc. v. Andrews, 122 S. Ct. 441 (2001)).
---------------------------------------------------------------------------

    \50\ Final Response to Petition from New Jersey Regarding 
SO2 Emissions From the Portland Generating Station, 76 FR 
69052 (November 7, 2011) (finding facility in violation of the 
prohibitions of CAA section 110(a)(2)(D)(i)(I) with respect to the 
2010 SO2 NAAQS prior to issuance of designations for that 
standard).
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    The EPA agrees it must give meaning to the statutory terms of CAA 
section 126(b) and has done so here. As an initial matter, certain 
commenters misconstrue the EPA's forward-looking evaluation of air 
quality impacts under CAA section 126(b) as stemming from the phrase 
``would emit'' under this provision. As described in this section, the 
EPA looks to future air quality impacts under CAA section 126(b) 
because of the future-looking reference in the word ``will'' under the 
good neighbor provision, a violation of which is the explicit condition 
precedent for making the requested finding under CAA section 126(b). As 
explained in the EPA's prior actions under CAA section 126(b), the EPA 
reasonably interprets the terms ``emits or would emit'' as referring to 
the named source or sources' operating conditions, not air quality.\51\ 
The EPA interprets the term ``emits'' as referring to a source's 
current emissions levels and ``would emit'' as referring to a source's 
reasonably anticipated future emissions levels. Accordingly, the EPA 
has given ``emits'' meaning independent from ``would emit'' by 
reasonably interpreting the terms as referring to the current and 
future operating conditions of the source or sources named in a CAA 
section 126(b) petition.
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    \51\ See Response to June 1, 2016 Clean Air Act Section 126(b) 
Petition from Connecticut, Final Action, 83 FR 16070 (April 13, 
2018); Response to Clean Air Act Section 126(b) Petitions from 
Delaware and Maryland, Final Action, 83 FR 50453 (October 5, 2018).
---------------------------------------------------------------------------

    Contrary to the commenters' contention, the ``emits'' language is 
not in conflict with the incorporation of the term ``will'' as the 
standard for reviewing CAA section 126(b) petitions. Consistent with 
prior actions under CAA section 110(a)(2)(D)(i)(I), the EPA evaluates 
at step 1 of its analysis whether the downwind area in question will 
have an air quality problem in a relevant future year and at step 2 
whether emissions from the upwind state in which the named source is 
located will impact the downwind area such that sources in the state 
should be subject to further analysis in step 3. If the EPA determines 
that the state will be linked to a downwind air quality problem in a 
relevant future year, it is in step 3 that the EPA evaluates the 
sources' emissions and operating conditions to determine whether the 
source named in the petition can and should be subject to control, and 
thus found to significantly contribute to nonattainment or interfere 
with maintenance of the NAAQS downwind. Thus, the EPA's interpretation 
reasonably gives meaning to both the term ``will'' as incorporated into 
CAA section 126(b) and the ``emits or would emit'' clause in the 
context of the four-step interstate transport framework. Commenters' 
interpretation reads ``will'' out of the good neighbor provision and 
would require the EPA to interpret the ``prohibition'' of CAA section 
110(a)(2)(D)(i)(I) in two contrary ways depending on the statutory 
process--as future-looking in a CAA section 110 analysis and limited to 
current conditions in a CAA section 126 analysis--despite the fact that 
CAA section 126(b) directly incorporates the terms of the good neighbor 
provision. The EPA does not agree that this would be a reasonable 
interpretation of the statutory provisions; at minimum, the EPA 
believes its interpretation is reasonable.
    The EPA applied its same interpretation in acting on New Jersey's 
CAA section 126(b) petition for the Portland Generating Station, which 
was addressed in the Third Circuit's GenOn decision and which 
commenters incorrectly characterize as contrary to the EPA's 
interpretation here. In the EPA's proposed action on that petition, the 
EPA stated that it ``interprets the term `emits or would emit' as a 
reference to the source's current and potential future emissions. . . . 
For the emissions the source `would emit' (i.e., its potential future 
emissions), it is appropriate to consider the level at which the source 
could emit given the existing constraints on its emissions. . . .'' 76 
FR 19671. The EPA's treatment of New Jersey's petition with respect to 
current nonattainment is also not inconsistent with its forward-looking 
evaluation of New York's petition under step 1. The EPA's action on New 
Jersey's petition found that the named source alone caused downwind 
violations of the relevant SO2 NAAQS, and that the modeled 
magnitudes of those violations were seven times the NAAQS. 76 FR 69057. 
Ambient SO2 concentrations mostly vary only

[[Page 56074]]

depending on a specific source's operation, and to the extent a source 
is consistently operating the same way over time, the SO2 
impacts from that source are anticipated to remain the same.\52\ There 
was no indication that the future operation of the source named in New 
Jersey's petition would change in the absence of emissions limits, so 
it was unnecessary for the EPA to evaluate the source's expected 
downwind impact on the SO2 NAAQS in New Jersey in a future 
year as the result would have likely been the same. The historic 
variability of ozone is often influenced by meteorology and other 
factors, which can affect the magnitude of impact on downwind air 
quality from year to year. See CSAPR Update, 81 FR 74504, 74513-14 
(October 26, 2016) (discussing observational studies regarding the 
nature of ozone transport). Moreover, given the numerous sources 
impacting downwind ozone concentrations and the general trend in 
decreasing NOX emissions, current air quality is often not 
indicative of air quality in a future year. Thus, current conditions do 
not necessarily indicate whether there will be an ozone transport 
problem in a future year.
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    \52\ See, e.g., Data Requirements Rule for the 2010 
SO2 NAAQS, 80 FR 51057 (explaining that peak 
concentrations of SO2 are commonly because of one or a 
few sources, peak concentrations are typically near the source, and 
SO2 is not the result of complex atmospheric chemical 
reactions unlike ozone).
---------------------------------------------------------------------------

    Several commenters assert that the EPA may not rely on the 2023 
modeling to evaluate future air quality in assessing New York's 
petition because it does not align with the appropriate attainment 
dates, and in particular, the 2021 Serious area attainment date for the 
2008 ozone NAAQS applicable to the NYMA. Commenters contend that the 
D.C. Circuit has found that the statute unambiguously requires 
compliance with NAAQS attainment deadlines, based on the statutory 
requirement that implementing provisions be ``consistent'' with Title I 
of the CAA. North Carolina v. EPA, 531 F.3d 896, 911-12 (D.C. Cir. 
2008). Commenters therefore contend that the timing of good neighbor 
obligations must be directly tied to actual attainment dates, not to a 
date that merely ``considers'' such dates. Commenters cite the D.C. 
Circuit opinion in Natural Resources Defense Council v. EPA, evaluating 
an attempt by the EPA to extend 2008 ozone NAAQS compliance deadlines 
for several months, to include the 2018 ozone season. 777 F.3d 456, 
458-59 (D.C. Cir. 2014) (NRDC). The court rejected this delay as 
``untethered to Congress' approach'' and held that the EPA was required 
to adhere to the 1997 ozone NAAQS attainment timeline set by the 1990 
Clean Air Act amendments, plumbed to the date of attainment 
designations. Id. at 469.
    The EPA disagrees that it is inappropriate to rely on the 2023 
modeling because it does not align with a particular attainment date. 
As an initial matter, even assuming that a year aligned with the 
Serious area attainment date could be an appropriate analytic year for 
the EPA to consider in evaluating future air quality in New York, the 
commenters have not submitted any information that indicates there will 
be an air quality problem under the 2008 ozone NAAQS in New York by the 
Serious area attainment year of 2021, nor did the petition provide any. 
As discussed in Section III.C of this notification, the petitioner 
bears the burden of establishing a technical basis for the specific 
finding requested and has not done so here. The projected ozone design 
values for 2023 represent the best available data regarding expected 
air quality in New York in any future year. These data were developed 
over the course of multiple years of analytic work, reflecting 
extensive stakeholder feedback and the latest emissions inventory 
updates. The EPA assembled an emissions inventory, performed air 
quality analytics in 2016 and released corresponding data and findings 
in the January 2017 NODA. Subsequent to stakeholder feedback on the 
NODA, the EPA was able to further update its emissions inventories and 
air quality modeling and release results for the 2023 future analytic 
year in October 2017. The EPA has no comparable data available for 
earlier analytic years between 2017 and 2023 that have been through an 
equally rigorous analytic and stakeholder review process, and, thus, 
the 2023 data are the best data currently available for the EPA to 
evaluate New York's claims.
    Moreover, to the extent the commenters are challenging the EPA's 
basis for selecting 2023 as an analytic year to assess good neighbor 
obligations for the 2008 ozone NAAQS in prior rulemaking actions, such 
claims are not properly raised in this rulemaking action. As noted 
earlier in this discussion, the EPA solicited and received public 
comments regarding the bases for selecting the 2023 analytic year in 
the Determination Rule, including the EPA's consideration of attainment 
dates. That action is currently subject to judicial review in the D.C. 
Circuit, New York v. EPA, No. 19-1019 (D.C. Cir.). The EPA did not, in 
this action, reopen for public comment the analyses and findings made 
in the Determination Rule. Rather, the EPA evaluated New York's 
petition to determine whether additional information not considered in 
the Determination Rule should influence the EPA's finding as to whether 
the sources named in New York's petition emit or would emit in 
violation of the prohibition of CAA section 110(a)(2)(D)(i)(I). 
Accordingly, comments regarding the EPA's decision to analyze air 
quality in 2023 in the Determination Rule are not within the scope of 
this action.\53\
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    \53\ The EPA similarly solicited and received public comment on 
the use of a 2023 analytic year in acting on Kentucky's SIP 
submission, which was based on a similar evaluation as that used in 
the Determination Rule. 83 FR 33730 (July 17, 2018). No legal 
challenges to the EPA's determinations in that SIP action were filed 
within the period for judicial review, and comments regarding the 
appropriateness of selecting a 2023 analytic year in that action are 
similarly outside the scope of this rulemaking.
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    Nonetheless, the EPA does not agree that either the text of the 
statute or the court's holding in North Carolina dictates that a future 
analytic year evaluated under the good neighbor provision must be 
identical to the next attainment deadline. The EPA selected a 2023 
analytic year for purposes of evaluating remaining good neighbor 
obligations for the 2008 ozone NAAQS in the Determination Rule 
considering both relevant future attainment dates and the anticipated 
timeframe for implementation of additional emissions reductions across 
the fleet in the region of states being analyzed. For the reasons 
explained below, consideration of these two factors is consistent with 
the statute.
    First, as to the statute, the good neighbor provision does not set 
forth any timeframe for the analysis of downwind air quality or the 
implementation of upwind emissions reductions. On its face, the good 
neighbor provision is therefore ambiguous as to when the upwind 
emissions reductions it calls for must be in place. The EPA 
acknowledges that the good neighbor provision does indicate that the 
prohibition of upwind state emissions must be ``consistent with the 
provisions of [title I],'' and that the D.C. Circuit held in its North 
Carolina decision that the other provisions with which the 
implementation of the good neighbor provision must be consistent 
include the attainment dates in part D of title I of the Act. However, 
the good neighbor provision does not specify what it means to be 
``consistent with'' the other provisions of the Act, and courts have

[[Page 56075]]

routinely held that this phrase is ambiguous. See, e.g., EDF v. EPA, 82 
F.3d 451, 457 (D.C. Cir. 1996) (holding the requirement that 
implementation of transportation control measures be ``consistent 
with'' the applicable implementation plan under section 176 of the CAA 
is ``flexible statutory language,'' which does not require ``exact 
correspondence . . . but only congruity or compatibility,'' thus 
requiring a court to defer to reasonable Agency determinations); 
Natural Resources Defense Council v. Daley, 209 F.3d 747, 754 (D.C. 
Cir. 2000) (finding that statute requiring fishing quotas be 
``consistent with'' a fishery management plan was ambiguous); NL Indus. 
v. Kaplan, 792 F.2d 896, 898-99 (9th Cir. 1986) (statutory phrase 
``consistent with the national contingency plan'' in 42 U.S.C. 
9607(a)(2)(B) ``does not necessitate strict compliance with [national 
contingency plan's] provisions''). Moreover, while CAA section 181 
identifies timeframes for attaining ozone standards in downwind states, 
it does not specify deadlines for good neighbor emissions reductions in 
upwind states.\54\ Therefore, Congress has left a gap for the EPA to 
fill. See Chevron, 467 U.S. at 843. In light of this ambiguity, the 
good neighbor provision cannot be read to require implementation of 
upwind emissions reductions on a specific timeframe, and an analytic 
year used to evaluate potential obligations under the good neighbor 
provision should be considered reasonable provided the EPA has 
demonstrated that the selected analytic year is chosen with 
consideration paid to, and is not inconsistent with, downwind 
attainment dates and other relevant attainment planning requirements in 
title I of the Act.
---------------------------------------------------------------------------

    \54\ It is worth noting that the statutory text of CAA section 
181(a) does not itself establish the attainment dates for the 2008 
or 2015 ozone NAAQS. Rather, the EPA undertakes rulemakings to 
establish the appropriate deadlines after a new or revised ozone 
NAAQS is promulgated. See, e.g., 2008 Ozone NAAQS SIP Requirements 
Rule, 80 FR 12264, 12268 (March 6, 2015); 40 CFR 51.1103 and 
Implementation of the 2015 National Ambient Air Quality Standards 
for Ozone: Nonattainment Area Classifications Approach, Final Rule, 
83 FR 10380 (March 9, 2018); 40 CFR 51.1303.
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    Moreover, the statute does not impose inflexible deadlines for 
attainment. The general planning requirements that apply to 
nonattainment areas under subpart 1 of part D provide that the 
Administrator may extend the default 5-year attainment date by up to 10 
years ``considering the severity of nonattainment and the availability 
and feasibility of pollution control measures.'' CAA section 
172(a)(2)(A). In the case of the ozone NAAQS, this provision is 
overridden by the more specific attainment date provisions of subpart 
2. The general timeframes provided for attainment in ozone 
nonattainment areas in the CAA section 181(a)(1) table may be (and 
often are) modified pursuant to other provisions in CAA section 182, 
considering factors such as measured ozone concentrations and the 
feasibility of implementing additional emissions reductions. For 
example, the 6-year timeframe for attainment of the 2008 ozone NAAQS in 
Moderate areas (the July 2018 attainment date) could be extended under 
certain circumstances to 2020, pursuant to CAA section 181(a)(5). And 
pursuant to CAA section 181(b)(2), when downwind areas are unable to 
implement sufficient reductions via feasible control technologies by 
one attainment date, those areas will be reclassified, or ``bumped up'' 
in classification, and given a new attainment date with additional time 
to attain. With reclassification, the date for an area to attain the 
2008 ozone NAAQS could be extended to 2021, 2027 and 2032, for areas 
classified as Serious, Severe and Extreme, respectively. Each of these 
deadlines could be subject to further extensions of up to 2 years 
pursuant to CAA section 181(a)(5). Part D further defines what control 
strategies states must implement by sources in nonattainment areas by 
each of the applicable attainment dates, incorporating considerations 
of technological feasibility at each stage. See, e.g., CAA section 
172(c)(1), (2) (requiring implementation of reasonably available 
control measures and reasonable further progress in designated 
nonattainment areas); CAA section 182(b)(1)(A), (c)(2)(B) (setting 
explicit reasonable further progress targets for ozone precursors, and 
providing an exception when the SIP includes ``all measures that can 
feasibly be implemented in the area, in light of technological 
achievability'').
    Thus, while the statute indicates that downwind areas should attain 
as expeditiously as practicable, but no later than the attainment dates 
specified in CAA sections 172(a)(2) and 181(a)(1), implementation 
provisions for nonattainment planning lay out myriad exceptions to 
those deadlines, including for circumstances when attainment is simply 
infeasible. See Whitman v. Am. Trucking Ass'ns, Inc., 531 U.S. 457, 
493-94 (2001) (Breyer, J., concurring) (considerations of costs and 
technological feasibility may affect deadlines established for 
attainment in specific areas). The EPA's approach to evaluating upwind 
emissions reductions based on technological feasibility is consistent 
with the requirements imposed on downwind nonattainment areas required 
to implement certain ``reasonable'' controls within the targeted 
timeframe.
    The EPA further disagrees with the comment asserting that the D.C. 
Circuit's North Carolina decision requires the EPA to only use the next 
relevant attainment date in selecting its future analytic year. The 
North Carolina decision faulted the EPA for not considering upcoming 
attainment dates in downwind states when setting compliance deadlines 
for upwind emissions reductions in CAIR, where the EPA had evaluated 
only the feasibility of implementing upwind controls. 531 F.3d at 911-
12. But the court did not hold that the CAA requires that compliance 
deadlines for good neighbor emissions reductions (and thus, the future 
analytic year) be identical to a specific attainment date in downwind 
areas, let alone the next upcoming date. Nor did the court opine that 
the EPA would never be justified in setting compliance dates that fall 
after the next upcoming downwind attainment date or that are based, in 
part, on the feasibility of implementing upwind emissions reductions. 
Indeed, in remanding the rule, the D.C. Circuit acknowledged that 
upwind compliance dates may, in some circumstances, come after 
attainment dates. Id. at 930 (where the attainment date relevant to the 
discussion was 2010, instructing the EPA to ``decide what date, whether 
2015 or earlier, is as expeditious as practicable for states to 
eliminate their significant contributions to downwind nonattainment''). 
Accordingly, the EPA's consideration of anticipated compliance 
timeframes for implementation of NOX control strategies in 
selecting a future analytic year is not inconsistent with North 
Carolina.
    Nor did the court speak to the timeframe for either analysis or 
compliance with respect to the ``interfere with maintenance'' clause of 
the good neighbor provision. While the D.C. Circuit held that the EPA 
must give independent meaning to that clause, the court made clear that 
this obligation applies to the EPA's identification of downwind air 
quality problems that must be addressed by upwind states. 531 F.3d at 
909-11. The court did not speak to the timeframe by which upwind states 
should be required to implement emissions reductions to address such 
areas. On the contrary, the ambiguity in the good neighbor provision 
regarding the relationship of

[[Page 56076]]

upwind state emissions reductions to attainment dates is further 
heightened with respect to downwind areas that the EPA anticipates are 
likely to be in attainment in a future year, some of which may be 
currently attaining the standard (or even designated attainment) \55\ 
but which may have problems maintaining the standard in the future. For 
example, in the EPA's 2017 air quality modeling performed for the CSAPR 
Update, the EPA identified six nonattainment receptors and thirteen 
maintenance receptors. 81 FR 74533. The maintenance receptors were 
areas that the EPA expected were likely to be in attainment based 
either on the modeling projections or current monitored data, but which 
the EPA expected may have problems maintaining attainment of the 
standard under certain circumstances. While many of the maintenance 
receptors were in areas designated nonattainment, the EPA's analysis 
suggests that these areas will be able to demonstrate (and in many 
cases had in fact demonstrated) attainment of the NAAQS by the 
attainment date or otherwise receive a clean data determination that 
relieves the state of further planning obligations.\56\ While the good 
neighbor provision requires states to prohibit emissions that will 
``interfere with maintenance'' of the NAAQS in these areas, there is no 
deadline for maintenance of the standard comparable to an attainment 
date for downwind areas that are designated as nonattainment for a 
specific standard.
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    \55\ For example, in the CSAPR Update, two maintenance receptors 
(in Allegan County, Michigan, and Jefferson County, Kentucky) were 
located in areas designated attainment for the 2008 ozone NAAQS. 40 
CFR 81.318 (Kentucky), 81.323 (Michigan).
    \56\ See, e.g., 80 FR 30941 (June 1, 2015) (determination of 
attainment of Baltimore, MD (Harford receptor)); 81 FR 26697 (May 4, 
2016) (determination of attainment by the attainment date of 
Cincinnati-Hamilton OH-KY-IN (Hamilton receptor)).
---------------------------------------------------------------------------

    Likewise, the court's decision in the NRDC case raised by the 
commenter addressed only the limitations on the EPA's authority to set 
attainment dates for new or revised ozone NAAQS applicable to 
designated nonattainment areas. The court did not speak to the 
requirements imposed under the good neighbor provision or the 
applicability of the attainment dates in subpart 2 to any emissions 
reductions required under that provision in upwind states.
    Regarding the EPA's selection of 2023 as the appropriate future 
analytic year in the Determination Rule, one commenter characterizes 
the EPA's determination that installing sector- or region-wide controls 
on non-EGU sources could be 4 years or more to be a ``speculative and 
unsupported assumption.'' The commenter asserts that the EPA could 
have, but did not, examine the status of controls installed at the 
identified non-EGU sources and did not consider the specific timeframes 
needed for the installation of any additional controls, should they be 
required.
    The EPA disagrees with the commenter's assertions related to the 
timeframe for the installation of controls at non-EGU sources 
identified in New York's petition. First, as noted previously, the EPA 
is relying on the 2023 modeling in this final action as the best 
available future-year data in the absence of any such data provided by 
the petitioner. Commenters had an opportunity to comment on the choice 
of the EPA's selected 2023 modeling year in the Determination Rule, 
which is already the subject of review in the D.C. Circuit. Thus, any 
comments regarding the bases for the EPA's selection of a 2023 analytic 
year in the Determination Rule (or in the EPA's similar action on 
Kentucky's SIP) are outside the scope of this action. Nonetheless, 
commenters here have not explained their assertion that the EPA's 
conclusions regarding the installation time for controls at non-EGUs 
are unsupported or indicated the type of information they believe is 
lacking to support those conclusions; thus, their allegation that the 
conclusions are ``speculative'' is conclusory and unfounded. The EPA 
further disagrees that it had any obligation to further investigate the 
status of non-EGU controls in acting on New York's petition. As 
discussed in Section III.C, the petitioner bears the burden of 
demonstrating that the finding sought in the petition is technically 
and analytically justified. The fact that the EPA has chosen to 
consider modeling data already available to further evaluate New York's 
petition does not shift the burden to the EPA to conduct yet further 
analysis where it was not provided by the petition.
    Moreover, the commenters fail to acknowledge that the EPA's 
preliminary estimates of installation times did not capture all factors 
influencing the time needed to full implement controls at non-EGUs. As 
noted earlier in this section, preliminary estimates for the 
implementation of some potential control technologies on non-EGUs only 
account for the time between bid evaluation and startup but do not 
account for additional considerations such as pre-bid evaluation 
studies, permitting, and installation of monitoring equipment. Further, 
the EPA's preliminary estimates for implementing control technologies 
at non-EGU facilities do not account for the time and resources needed 
to install such technologies on a sector- or region-wide basis. Thus, 
the EPA has no reason to reconsider the installation timeframe for 
controls at non-EGUs identified in the Determination Rule, much less 
shorten that timeframe as suggested by the commenters.
    Commenters further claim that the EPA's reliance on 2023, a date 4 
years in the future, is inconsistent with the maximum 3-year period for 
remedies permitted under CAA section 126(c). Commenters point to the 
EPA's own statements in a prior CAA section 126 action that CAA section 
126(c) establishes a maximum 3-year period for implementation of 
controls regardless of ``the timing of attainment needs downwind.'' 64 
FR at 28279.
    The EPA disagrees with commenters' contention that the 3-year 
deadline for implementing a remedy under CAA section 126(c) suggests 
that the consideration of modeling data from a 2023 analytic year for 
purposes of evaluating New York's CAA section 126(b) petitions is 
inappropriate. As noted earlier, the EPA is considering the 2023 
modeling data as the best available data regarding expected air quality 
in New York in any future year, in the absence of any analysis of 
future air quality for any other year provided by either the petition 
or commenters. Thus, although 2023 is beyond the 3 years provided for 
implementation of emissions limits under CAA section 126(c), the data 
help inform whether there may be an air quality problem relative to 
either the 2008 or 2015 ozone NAAQS going forward.
    Moreover, the choice of 2023 as an analytic year does not preclude 
the implementation of a remedy in an earlier year, including within the 
3-year deadline specified under CAA section 126(c), if the EPA 
identifies a future air quality problem and the necessary finding is 
made as to any sources named in New York's petition. However while CAA 
section 126 contemplates that a source or group of sources may be found 
to have interstate transport impacts, it cannot be determined whether 
such source or sources are in violation of the good neighbor provision 
and whether controls are justified without analyzing emissions from a 
range of sources influencing regional-scale ozone transport, including 
sources not named in the petitions. Analysis of a future year thus 
ensures that any emissions reductions the EPA may require under that 
provision are not in excess of what would be necessary to address

[[Page 56077]]

downwind nonattainment and maintenance problems as they exist by the 
time any emissions limitations would be implemented. Thus, although the 
2023 modeling does not necessarily align with the year in which 
emissions limitations might be implemented under CAA section 126(c), 
were the EPA to make a CAA section 126(b) finding, it represents the 
best available data regarding future ozone concentrations in New York. 
Therefore, the EPA's reasonable choice to rely on its existing 2023 air 
quality modeling for evaluating air quality does not conflict with CAA 
section 126(c), nor does it preclude implementation of a remedy at an 
earlier date if the requisite air quality impact is found.
    Several commenters assert that the EPA cannot rely on the 2023 
modeling to evaluate good neighbor obligations because it relies on 
unenforceable assumptions about sources' voluntary behavior. One 
commenter notes, for example, that the EPA relies on plant retirements 
and fuel switches to natural gas electricity generation, without any 
permit requirements or other emissions limits in place to ensure such 
changes remain in place in 2023. Commenters explain that SIPs are 
required to demonstrate compliance with a federal standard consistent 
with the attainment deadline and contain adopted control measures with 
enforceable emissions limits. By using projected emissions reductions 
that are not bound by enforceable measures in its step 1 analysis, the 
EPA holds itself to a different standard, allowing projected emissions 
reductions to stand in for actual enforceable reductions.
    The EPA does not agree that its reliance on the 2023 modeling data 
is inappropriate or unreliable, even if it includes assumptions 
regarding likely future operating conditions at the sources. Rather, as 
explained below, the modeling provides a reasonable and likely 
conservative estimate of emissions and ozone concentrations in 2023, 
and thus it is both reasonable and consistent with the statute for the 
EPA to rely on the modeling in evaluating the claims in New York's 
petition.
    The EPA disagrees that reliance on the 2023 modeling is 
inconsistent with the statutory requirements of the good neighbor 
provision because the modeling reflects emissions reductions that may 
not be subject to enforceable measures. The good neighbor provision 
instructs the EPA and states to apply its requirements ``consistent 
with the provisions of'' title I of the CAA. The EPA has therefore 
interpreted the requirements of the good neighbor provision, and the 
elements of its four-step interstate transport framework, to apply in a 
manner consistent with the designation and planning requirements in 
title I that apply in downwind states. See North Carolina, 531 F.3d at 
912 (holding that the good neighbor provision's reference to title I 
requires consideration of both procedural and substantive provisions in 
title I). The EPA notes that this consistency instruction follows the 
requirement in the good neighbor provision that plans ``contain 
adequate provisions prohibiting'' certain emissions. The following 
paragraphs will therefore explain the EPA's interpretation of the 
circumstances under which the good neighbor provision requires that 
plans ``prohibit'' emissions through enforceable measures and show that 
this interpretation is consistent with the circumstances under which 
downwind states are required to implement emissions control measures in 
nonattainment areas.
    For purposes of this analysis, the EPA notes specific aspects of 
the title I designations process and attainment planning requirements 
for the ozone NAAQS that provide relevant context for evaluating the 
consistency of the EPA's approach to implementing the good neighbor 
provision in upwind states. This discussion is not intended to suggest 
that the specific requirements of designations and attainment planning 
for downwind states apply to upwind states pursuant to the good 
neighbor provision, but rather to explain why the EPA's approach to 
interpreting the good neighbor provision is reasonable in light of 
relevant, analogous provisions found elsewhere in title I. Cf. EDF v. 
EPA, 82 F.3d 451, 457 (D.C. Cir. 1996) (per curiam) (describing the 
phrase ``consistent with'' as ``flexible statutory language'' which 
does not require ``exact correspondence . . . but only congruity or 
compatibility,'' thus requiring a court to defer to reasonable Agency 
determinations), amended by 92 F.3d 1209 (D.C. Cir. 1996). These 
provisions demonstrate that the EPA's good neighbor approach is 
consistent with other relevant provisions of title I with respect to 
what data are considered in the EPA's analysis and when states are 
required to implement enforceable measures.
    First, areas are initially designated attainment or nonattainment 
for the ozone NAAQS based on actual measured ozone concentrations. See 
CAA section 107(d), 42 U.S.C. 7407(d) (noting that an area shall be 
designated attainment where it ``meets'' the NAAQS and nonattainment 
where it ``does not meet'' the NAAQS (including certain ``nearby'' 
areas, as explained below)). If an area measures a violation of the 
relevant ozone NAAQS, then the area is generally designated 
nonattainment, regardless of what specific factors have influenced the 
measured ozone concentrations or whether such levels are due to 
enforceable emissions limits. In such cases where the an ozone 
nonattainment area is classified as Moderate or higher, the state is 
then required to develop an attainment plan, which generally includes 
the application of various enforceable control measures to sources of 
emissions located in the nonattainment area, consistent with the 
requirements in Part D of title I of the Act.\57\ See generally CAA 
section 182, 42 U.S.C. 7511a. If, however, an area measures compliance 
with the ozone NAAQS, the area is designated attainment (unless it is 
included in the boundaries of a nearby nonattainment area due to its 
contribution to that area's nonattainment, as discussed below), and 
sources in that area generally are not subject to any new enforceable 
control measures under Part D.\58\
---------------------------------------------------------------------------

    \57\ Areas classified as Marginal nonattainment areas are 
required to submit emissions inventories and implement a 
nonattainment new source review permitting program but are not 
generally required to implement controls at existing sources. See 
CAA section 182(a), 42 U.S.C. 7511a(a).
    \58\ CAA section 184 contains the exception to this general 
rule: States that are part of the Ozone Transport Region are 
required to provide SIPs that include specific enforceable control 
measures, similar to those for nonattainment areas, that apply to 
the whole state, even for areas designated attainment for the ozone 
NAAQS. See generally 42 U.S.C. 7511c.
---------------------------------------------------------------------------

    In determining the boundaries of an ozone nonattainment area, the 
CAA requires the EPA to consider whether ``nearby'' areas 
``contribute'' to ambient air quality in the area that does not meet 
the NAAQS. 42 U.S.C. 7407(d). For each monitor or group of monitors 
indicating a violation of the ozone NAAQS, the EPA assesses information 
related to various factors, including current emissions and emissions-
related data from the areas near the monitor(s), for the purpose of 
establishing the appropriate geographic boundaries for the designated 
ozone nonattainment areas. A nearby area may be included within the 
boundary of the ozone nonattainment area only after assessing area-
specific information, including an assessment of whether current 
emissions from that area contribute to the air quality problem 
identified at the violating monitor.\59\ If such a

[[Page 56078]]

determination is made, sources in the nearby area are also subject to 
the applicable Part D control requirements. However, if the EPA 
determines that the nearby area does not contribute to the measured 
nonattainment problem, then the nearby area is not part of the 
designated nonattainment area and sources in that area are not subject 
to such control requirements.
---------------------------------------------------------------------------

    \59\ See Attachment 2 to Area Designations for the 2008 Ozone 
National Ambient Air Quality Standards. Memorandum from Robert J. 
Meyers, Principal Deputy Assistant Administrator, U.S. EPA to 
Regional Administrators. December 4, 2008. Available at https://archive.epa.gov/ozonedesignations/web/pdf/area_designations_for_the_2008_revised_ozone_naaqs.pdf and 
Attachment 3 to Area Designations for the 2015 Ozone National 
Ambient Air Quality Standards. Memorandum from Janet G. McCabe, 
Acting Assistant Administrator, U.S. EPA to Regional Administrators. 
February 25, 2016. Available at https://www.epa.gov/sites/production/files/2016-02/documents/ozone-designations-guidance-2015.pdf.
---------------------------------------------------------------------------

    The EPA's historical approach to addressing the good neighbor 
provision via the four-step interstate transport framework, and the 
approach the EPA continues to apply here, is consistent with title I 
requirements. That is, in steps 1 and 2 of the framework, the EPA (at 
step 1) evaluates whether there is a downwind air quality problem 
(either nonattainment or maintenance), and (at step 2) whether an 
upwind state impacts the downwind area such that it contributes to and 
is therefore ``linked'' to the downwind area. A determination by the 
EPA at step 1 of the good neighbor analysis (that it has not identified 
any downwind air quality problems to which an upwind state could 
contribute) is analogous to the EPA's determination in the designation 
analysis that an area should be designated attainment. Similarly, a 
determination at step 2 of the good neighbor analysis (that, although 
there are downwind air quality problems, an upwind state does not 
sufficiently impact the downwind area such that the state contributes 
to that area's air quality problems and is therefore linked to that 
area) is analogous to the EPA's determination in the designation 
analysis that a nearby area does not contribute to a NAAQS violation in 
another area. Under the good neighbor provision, the EPA can determine 
at either step 1 or 2, as appropriate, that the upwind state will not 
contribute to air quality problems in downwind areas and, thus, that 
the upwind state does not significantly contribute to nonattainment or 
interfere with maintenance of the NAAQS in other states. See, e.g., 
CSAPR Update, 81 FR 74506 (determining that emissions from 14 states do 
not significantly contribute to nonattainment or interfere with 
maintenance of the 2008 ozone NAAQS); CSAPR, 76 FR 48236 (finding that 
states whose impacts on downwind receptors are below the air quality 
threshold do not significantly contribute to nonattainment or interfere 
with maintenance of the relevant NAAQS). Under such circumstances, 
sources in the upwind state are not required to implement any control 
measures under the good neighbor provision, which is analogous to the 
fact that under the designation and attainment regime, sources located 
in areas that are designated attainment (because the area is attaining 
the NAAQS and not contributing to any nearby nonattainment areas) 
generally are not required to implement the control measures found in 
Part D of the Act. Cf. EME Homer City II, 795 F.3d at 130 (determining 
that CSAPR ozone-season NOX budgets for 10 states were 
invalid based on determination that modeling showed no future air 
quality problems); CSAPR Update, 81 FR 74523-24 (removing three states 
from CSAPR ozone season NOX program based on determination 
that states are not linked to any remaining air quality problems for 
the 1997 ozone NAAQS).
    The EPA acknowledges one distinction between the good neighbor and 
designation analyses: The good neighbor analysis relies on future-year 
projections of emissions to calculate ozone concentrations and upwind 
state contributions, compared to the use of current measured data in 
the designations analysis. As described in more detail in Section 
III.C, this approach is a reasonable interpretation of the term 
``will'' in the good neighbor provision, see North Carolina, 531 F.3d 
at 913-14, and interpreting language specific to that provision does 
not create an impermissible inconsistency with other provisions of 
title I. Moreover, the EPA's approach to conducting future-year 
modeling in the good neighbor analysis to identify downwind air quality 
problems and linked states is consistent with its use of current 
measured data in the designations process. The EPA's future-year air 
quality projections consider a variety of factors, including current 
emissions data, anticipated future control measures, economic market 
influences, and meteorology. Some of these factors (e.g., emissions 
data, and meteorology) can affect the NOX emissions levels 
and consequent measured ozone concentrations that inform the 
designations process. Like the factors that affect measured ozone 
concentrations used in the designations process, not all of the factors 
influencing the EPA's modeling projections are or can be subject to 
enforceable limitations on emissions or ozone concentrations. However, 
the EPA believes that considering these factors contributes to a 
reasonable estimate of anticipated future ozone concentrations. See EME 
Homer City II, 795 F.3d at 135 (declining to invalidate the EPA's 
modeling projections ``solely because there might be discrepancies 
between those predictions and the real world''); Chemical Manufacturers 
Association v. EPA, 28 F.3d 1259, 1264 (D.C. Cir. 1994) (``a model is 
meant to simplify reality in order to make it tractable''). Thus, the 
EPA's consideration of these factors in its future-year modeling 
projections used at steps 1 and 2 of the four-step interstate transport 
framework is reasonable and consistent with the use of measured data in 
the designation analysis.\60\
---------------------------------------------------------------------------

    \60\ The EPA notes that the consideration of projected actual 
emissions in the future analytic year--as opposed to allowable 
levels--is also consistent with the statute's instruction that 
states in their SIPs (or the EPA when promulgating a FIP) prohibit 
emissions that ``will'' impermissibly impact downwind air quality. 
This term is reasonably interpreted to mean that the EPA should 
evaluate anticipated actual emissions (based on what sources will 
emit) rather than potential emissions (based on what sources could 
emit).
---------------------------------------------------------------------------

    The EPA notes that there is a further distinction between the CAA 
section 107(d) designations provision and the CAA section 
110(a)(2)(D)(i) good neighbor provision in that the latter provision 
uses different terms to describe the threshold for determining whether 
emissions in an upwind state should be regulated (``contribute 
significantly'') as compared to the standard within the designations 
process for evaluating whether an area ``contributes'' to a violation 
in a nearby area. Thus, at step 3 of the good neighbor analysis the EPA 
evaluates additional factors, including cost and air quality 
considerations, to determine whether emissions from a linked upwind 
state would violate the good neighbor provision. Only if the EPA at 
step 3 determines that the upwind state's emissions would violate the 
good neighbor provision will it proceed to step 4 to require control of 
emissions in the upwind state to address the identified violation. This 
approach to steps 3 and 4 is analogous to the trigger for the 
application of Part D control requirements to sources upon designation 
of an area to nonattainment. Thus, the EPA reasonably interprets the 
good neighbor provision to not require it or the upwind state to 
proceed to step 4 and implement any enforceable measures to 
``prohibit'' emissions unless it identifies a violation of the 
provision at step 3. See, e.g., 76 FR 48262 (finding at step 3 that the 
District of Columbia is not violating the good neighbor

[[Page 56079]]

provision, and therefore will not at step 4 be subject to any control 
requirements in CSAPR, because no cost-effective emissions reduction 
opportunities were identified in the District).
    The EPA further disagrees with the commenters' assertion that the 
incorporation of announced retirements and fuel switches into the 2023 
projections makes the modeling data unreliable. Rather with respect to 
EGU NOX emissions, the EPA's 2023 projections likely reflect 
a more conservative (i.e., higher) NOX emissions estimate 
than comparable alternative methods for projecting future EGU 
emissions. The EPA's 2023 EGU emissions projections used reported 2016 
data, adjusting that data based only on currently known changes in the 
power sector and a change in emissions rate to reflect implementation 
of the CSAPR Update after 2017. As such, the EPA's approach does not 
account for changes that would be estimated to occur due to economic 
and other environmental policy factors. Trends in historic emissions 
data and emissions projections using a variety of methods and models 
suggest that inclusion of these factors would likely further reduce 
future NOX emissions projections.
    Several commenters further assert that, because the EPA is actively 
working to undo several major rules that underpin the 2023 modeling 
results (e.g., the Glider Rule (82 FR 53442 (November 16, 2017)) and 
the Corporate Average Fuel Economy (CAFE) Standards (83 FR 42986 
(August 24, 2018))), the assumptions that underpin the EPA's 2023 
modeling are inaccurate. One commenter specifically notes that, even in 
the absence of a rule change, the EPA announced formal policy to not 
enforce the existing Glider Rule.
    The EPA disagrees that its 2023 projections are unreliable because 
of potential changes to other regulations. The EPA first notes that the 
Agency has not finalized any potential regulatory changes to the Glider 
Rule, the CAFE Standards for light duty vehicles, or the oil and gas 
Control Technique Guidelines (CTG). In general, the mobile source and 
non-EGU emissions inventories do not reflect rulemakings finalized in 
calendar year 2016 or later, nor do they reflect any rules proposed but 
not yet finalized since 2016, as only finalized rules are reflected in 
modeling inventories. The EPA's normal practice is to only include 
changes in emissions from final regulatory actions in its modeling 
because, until such rules are finalized, any potential changes in 
NOX or VOC emissions are speculative.
    In addition, even if emissions were to change as a result of any 
such final rules, commenters have not indicated how these additional 
emissions would affect downwind ozone concentrations Regarding one 
commenter's assertion about the EPA's formal policy to not enforce the 
existing Glider Rule, the EPA notes that its conditional no action 
assurance of non-enforcement of the existing rule was withdrawn by the 
Agency on July 26, 2018.\61\ The withdrawal notice removes any question 
that current requirements are enforceable and enforcement actions may 
be undertaken on a case-by-case basis in the Agency's discretion. 
Therefore, assumptions relating to the Glider Rule as part of the 2023 
modeling remain reasonable.
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    \61\ ``Withdrawal of Conditional No Action Assurance Regarding 
Small Manufacturers of Glider Vehicles,'' Andrew R. Wheeler, Acting 
Administrator, July 26, 2018. Available at https://www.epa.gov/sites/production/files/2018-07/documents/memo_re_withdrawal_of_conditional_naa_regarding_small_manufacturers_of_glider_vehicles_07-26-2018.pdf.
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    The next two sections discuss the EPA's evaluation of and 
conclusions regarding the petition's step 1 analysis for Chautauqua 
County and the NYMA with respect to both the 2008 and 2015 ozone NAAQS.
Chautauqua County
    First, with respect to the 2008 and 2015 ozone NAAQS in Chautauqua 
County, the EPA is finalizing its conclusion that New York's petition 
does not provide sufficient information to indicate that there is a 
current or expected future air quality problem (with respect to either 
nonattainment or maintenance) in the county with respect to either the 
2008 or the 2015 ozone NAAQS. Although the petition correctly indicates 
that the EPA previously designated Chautauqua County as Marginal 
nonattainment under the 2008 ozone NAAQS, the area attained the 2008 
ozone NAAQS by the relevant attainment date.\62\ In addition, the 
county was designated attainment for the more stringent 2015 
standard.\63\ The petition did not demonstrate that there is either a 
present air quality problem or that there will be a future 
nonattainment or maintenance problem in that area for either NAAQS that 
must be addressed under the good neighbor provision. While a prior 
designation of an area as nonattainment may provide useful information 
for purposes of analyzing interstate transport under the good neighbor 
provision, designations themselves are not dispositive of whether a 
downwind area will have an air quality problem in the future.\64\ As 
discussed earlier, the EPA evaluates downwind ozone air quality 
problems for purposes of step 1 of the four-step interstate transport 
framework using observed and modeled air quality concentrations for a 
future analytic year that considers the relevant attainment deadlines 
for the NAAQS and the anticipated compliance timeframe for potential 
control strategies.\65\ New York's CAA section 126(b) petition does not 
include analyses or air quality projections indicating that Chautauqua 
County may be violating or have difficulty maintaining the 2008 or 2015 
ozone NAAQS either currently or in a relevant future analytic year. In 
fact, the petition acknowledges that this area attained the 2008 ozone 
NAAQS by the relevant attainment date. The petition alleges that the 
area remains in danger of exceeding the ozone NAAQS but does not 
provide any evidence to support this assertion. Thus, the petition has 
not established that emissions from the named sources are linked to a 
nonattainment or maintenance problem in Chautauqua County.
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    \62\ See Air Quality Designations for the 2008 Ozone National 
Ambient Air Quality Standards, Final Rule, 77 FR 30137 (May 21, 
2012); Approval and Promulgation of Air Quality Implementation 
Plans; New York; Determination of Attainment of the 2008 8-Hour 
Ozone National Ambient Air Quality Standard for the Jamestown, New 
York Marginal Nonattainment Area, 83 FR 49492 (October 2, 2018).
    \63\ See Air Quality Designations for the 2015 Ozone National 
Ambient Air Quality Standards, Final Rule, 82 FR 54264 (November 16, 
2017).
    \64\ The EPA has consistently taken the position that CAA 
section 110(a)(2)(D)(i)(I) refers to prevention of ``nonattainment'' 
in any area in another state, not only in designated nonattainment 
areas. See, e.g., Clean Air Interstate Rule, 70 FR 25162, 25265 (May 
12, 2005); Cross-State Air Pollution Rule, 76 FR 48208, 48211 
(August 8, 2011); Final Response to Petition from New Jersey 
Regarding SO2 Emissions From the Portland Generating 
Station, 76 FR 69052 (November 7, 2011) (finding facility in 
violation of the prohibitions of CAA section 110(a)(2)(D)(i)(I) with 
respect to the 2010 SO2 NAAQS prior to issuance of 
designations for that standard).
    \65\ 81 FR 74517.
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    While the EPA finds that New York's petition does not on its own 
merit adequately establish the presence of a current or future 
nonattainment or maintenance problem in Chautauqua County, the EPA also 
used currently available air quality data to support an independent 
analysis of step 1 of the four-step interstate transport framework to 
assess whether Chautauqua County will have an air quality problem 
relative to either the 2008 or the 2015 ozone NAAQS. First, both the 
2015-2017 and the 2016-2018 design values in Chautauqua County are 68 
ppb, which is below the levels of both the 2008 and

[[Page 56080]]

2015 ozone NAAQS of 75 ppb and 70 ppb, respectively.\66\
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    \66\ The 2015-2017 and 2016-2018 design value for Chautauqua 
County in the ``Jamestown-Dunkirk-Fredonia, NY CBSA'' at AQS site 
360130006 is 68 ppb. Available at https://www.epa.gov/sites/production/files/2019-07/ozone_designvalues_20162018_final_06_28_19.xlsx.
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    Additionally, the EPA's recent air quality modeling described 
previously indicates that the monitor in Chautauqua County is expected 
to continue to both attain and maintain both standards in 2023, with an 
average 2023 design value of 58.5 ppb and a maximum 2023 design value 
of 60.7 ppb.\67\ Accordingly, the EPA has no basis to conclude that any 
of the sources named in the New York petition are linked to a downwind 
air quality problem in Chautauqua County with regard to the 2008 or the 
2015 ozone NAAQS. In the absence of a downwind air quality problem, the 
EPA has no authority to regulate upwind sources to address air quality 
in Chautauqua County with respect to the 2008 or the 2015 ozone NAAQS.
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    \67\ See 2023 design values for AQS site 360130006 in 
spreadsheet released with the EPA's March 2018 memorandum. Available 
at https://www.epa.gov/sites/production/files/2018-05/updated_2023_modeling_dvs_collective_contributions.xlsx.
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    One commenter asserts that New York demonstrated, by providing 
current, sometimes violating air quality data, that Chautauqua County 
is not attaining the 2008 or 2015 ozone standards. Specifically, the 
commenter notes that New York provided evidence demonstrating that the 
air quality monitor in Dunkirk, New York, located in Chautauqua County, 
sometimes exceeds the 2008 and the 2015 ozone standard with design 
values sometimes reaching 82 ppb.
    The EPA disagrees that the example cited by the commenter provides 
evidence of either a current or future nonattainment or maintenance 
problem in Chautauqua County. As previously indicated, the EPA 
evaluates downwind ozone air quality problems using observed and 
modeled future air quality concentrations. The individual exceedances 
identified by the commenter do not indicate that the area is currently 
in violation of the NAAQS. Appendices P and U to 40 CFR part 50 specify 
the methodologies for calculating the ozone design values for the 2008 
and 2015 ozone NAAQS, respectively, and both are calculated as the 3-
year average of the annual fourth-highest daily maximum 8-hour ozone 
concentration. As noted above, both the 2015-2017 and the 2016-2018 
design values in Chautauqua County, which are calculated consistent 
with these methodologies, demonstrate compliance with both the 2008 and 
2015 ozone NAAQS. While an individual monitor (e.g., the Dunkirk 
monitor) may record individual exceedances of the NAAQS, such as the 82 
ppb value cited by the commenter, an individual exceedance does not 
constitute a violating ``design value,'' which is the value used for 
identifying violations and determining attainment status for regulatory 
purposes.
New York Metropolitan Area
    Second, with respect to the 2008 ozone NAAQS in the NYMA, the EPA 
is finalizing its conclusion that the petition does not provide 
sufficient information to indicate that the NYMA should be considered a 
nonattainment or maintenance receptor pursuant to the good neighbor 
provision. As described in Section I.B of this notification, the 
petition correctly asserts that the NYMA was designated nonattainment 
for the 2008 ozone NAAQS and has failed to attain the NAAQS by the 
attainment deadline. Additionally, the petition points to preliminary 
2015-2017 air quality data (and commenters point to more current final 
2015-2017 design values available after New York submitted its 
petition) indicating that some monitoring sites in the NYMA are above 
the 2008 NAAQS. The EPA notes in this regard that the 2016-2018 design 
values for the NYMA monitoring sites located in New York (and those in 
New Jersey) are attaining the 2008 NAAQS. Although some of the NYMA 
monitors located in Connecticut are above the 2008 NAAQS,\68\ the EPA 
has interpreted CAA section 126(b)'s petition authority as limited to 
states and political subdivisions seeking to address interstate 
transport of pollution impacting downwind receptors within their 
geographical borders. See 83 FR 50460.
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    \68\ See 2016-2018 ozone design value report available at 
https://www.epa.gov/sites/production/files/2019-07/ozone_designvalues_20162018_final_06_28_19.xlsx.
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    As noted in the proposal, an area's current attainment status alone 
is insufficient evidence regarding whether there ``will'' be a 
nonattainment or maintenance problem that must be addressed under 
either the good neighbor provision or CAA section 126. Rather, as 
discussed in Section IV.B of the proposal, the EPA evaluates whether 
there will be downwind nonattainment or maintenance concerns in each 
area with respect to each NAAQS under the good neighbor provision (and, 
thus, also under CAA section 126(b)) using observed and modeled future 
air quality concentrations for a relevant future analytic year. 84 FR 
22799.
    Further, the EPA has additional information related to potential 
projected nonattainment or maintenance problems in the NYMA. The EPA's 
recent air quality projections for 2023, based on the latest available 
emissions inventory, indicate that all monitoring sites in the NYMA 
will attain and maintain the 2008 ozone NAAQS. As discussed in Section 
II.C.2 of this notification, in the Determination Rule, the EPA 
determined based on this data that the CSAPR Update fully addresses the 
good neighbor provision requirements for the 2008 ozone NAAQS for all 
states previously addressed in that rule. This analysis indicates that 
all remaining receptors for the 2008 ozone NAAQS identified in the 
CSAPR Update, including those in the NYMA, are expected to attain and 
maintain that NAAQS in 2023 under step 1 of the four-step interstate 
transport framework, and, therefore, upwind states have no remaining 
obligations under the good neighbor provision. New York has not 
provided any new information that contradicts the EPA's conclusion in 
the Determination Rule that the NYMA will no longer have an air quality 
problem in the future.
    Therefore, the EPA is finalizing its decision to deny New York's 
petition regarding the 2008 ozone NAAQS in the NYMA because New York 
has not demonstrated that there will be a nonattainment or maintenance 
problem in the NYMA in a relevant future year and the EPA's own 
analysis projects that there will be no air quality problems under step 
1. As such, the EPA has no authority to regulate upwind sources to 
address air quality in the NYMA with respect to the 2008 ozone NAAQS.
    Regarding the 2015 ozone NAAQS, based on the EPA's 2023 air quality 
modeling, the EPA has identified a relevant downwind air quality 
problem in the NYMA. The EPA's projections indicate that the average 
design value for five of the six monitoring sites in the NYMA and the 
maximum design values at all six monitoring sites in the NYMA will be 
above the 2015 ozone NAAQS in 2023.\69\ Therefore, although New York 
did not evaluate whether there will be an air quality problem with 
respect to the 2015 ozone NAAQS in a future year, the EPA's independent 
analysis of step 1 of the interstate transport framework

[[Page 56081]]

indicates that the NYMA is projected to have a downwind air quality 
problem relative to the 2015 NAAQS. Thus, the EPA is not denying this 
portion of the petition with respect to step 1 (but is denying the 
petition for other reasons described elsewhere).
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    \69\ The EPA also notes that four of the six monitoring sites 
are in the State of Connecticut and two monitoring sites are in New 
York. Therefore, the EPA's determination as to the 2015 ozone NAAQS 
with respect to step 1 of the framework is only pertinent as to the 
New York monitoring sites.
---------------------------------------------------------------------------

    One commenter asserts that New York demonstrated that the NYMA is 
not attaining the 2008 or 2015 ozone standards. Specifically, the 
commenter notes that certified monitoring data through 2016 and data 
from 2017 indicate that the NYMA did not attain the Moderate attainment 
deadline of July 20, 2018, for the 2008 standard. The commenter also 
identifies data from the 2017 Design Value Report, which demonstrates 
that the NYMA registered a 2015-2017 design value of 83 ppb, which 
significantly exceeds both the 2008 ozone standard of 75 ppb and the 
2015 ozone standard of 70 ppb. The commenter further notes that the EPA 
has designated the NYMA as a Moderate nonattainment area for the 2015 
ozone standard. The commenter further cites the 2015 Ozone NAAQS 
Interstate Transport Assessment Design Values and Contributions Report, 
which projects that a monitor in New York County will exceed the 2015 
ozone standard of 70 ppb with an average design value of 74.4 ppb and a 
maximum design value of 75.5 ppb in 2023. The report also projects that 
a monitor in Queens County will have a maximum design value of 72.0 ppb 
in 2023, which exceeds the 2015 ozone standard of 70 ppb.
    The EPA disagrees with the commenter's assertions regarding the 
status of New York monitors relative to the 2008 ozone NAAQS. As 
discussed earlier in this notification, regarding current air quality, 
the 2016-2018 design values for the NYMA monitoring sites located in 
New York (and those in New Jersey) are attaining the 2008 NAAQS. The 
design value of 83 ppb cited by the commenter reflects inclusion of the 
Connecticut monitors, but the EPA does not agree that such information 
is relevant to a petition submitted by New York.\70\ The specific 
language of CAA section 126(b) does not say that a state may petition 
the EPA for a finding that emissions from a source, or group of 
sources, is impacting downwind receptors in a state other than the 
petitioning state. Rather, the legislative history for this provision 
suggests the provision was meant to address adverse air impacts only in 
the petitioning state.\71\ Given the broader context of CAA section 
126, the EPA reasonably interprets CAA section 126(b)'s petition 
authority to be limited to states and political subdivisions seeking to 
address interstate transport of pollution impacting downwind receptors 
within their geographical borders.
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    \70\ As noted earlier in this notification, the design value is 
the 3-year average of the annual fourth-highest daily maximum 8-hour 
ozone concentration. To be comparable to the 2008 ozone NAAQS, the 
design value must be valid according to Appendix P to 40 CFR part 
50, which specifies minimum data completeness criteria. The design 
value listed for each area is the highest among monitors with valid 
design values. For the NYMA, the highest reading monitor is in 
Connecticut, not New York. The EPA interprets CAA section 126(b)'s 
petition authority to be limited to states and political 
subdivisions seeking to address interstate transport of pollution 
impacting downwind receptors within their geographical borders. 
Therefore, the Connecticut monitoring site is excluded from the 
scope of this petition.
    \71\ When section 126 was added to the CAA, the Senate's 
amendment implementing the basic prohibition on interstate pollution 
stated that: ``Any State or political subdivision may petition the 
Administrator for a finding that a major stationary source in 
another state emits pollutants which would adversely affect the air 
quality in the petitioning State.'' (emphasis added). Clean Air Act 
Amendments of 1977, H.R. 95-564, 95th Cong. at 526 (1977). The House 
concurred with the Senate's amendment to CAA section 126, with 
changes to other portions of the amendment, but did not indicate 
changes to this sentence. Id. The lack of stated changes to this 
component of the Senate's original amendment suggest that Congress 
did not intend for the scope of the petitioning authority to be 
expanded to parties other than a state or political division in 
which downwind air quality is adversely affected.
---------------------------------------------------------------------------

    Further, the EPA's recent air quality projections for 2023, based 
on the latest available emissions inventory, indicate that all 
monitoring sites in the NYMA will attain and maintain the 2008 ozone 
NAAQS. Accordingly, regardless of the current measured data, the EPA 
does not have a basis to conclude that the NYMA will have an air 
quality problem with respect to the 2008 ozone NAAQS in a relevant 
future year that would justify a finding under CAA section 126(b).
2. The EPA's Evaluation of New York's Petition Considering Step 2
    With respect to step 2 of the four-step interstate transport 
framework, the EPA evaluated New York's petition and determined that 
neither the information in the petition nor existing information 
available to the EPA indicates there will be downwind nonattainment or 
maintenance concerns in Chautauqua County with respect to the 2008 and 
2015 ozone NAAQS, or in the NYMA with respect to the 2008 ozone NAAQS. 
For these reasons, the EPA has no basis to proceed to consider whether 
there is a linkage at step 2 of the four-step interstate transport 
framework between the named upwind states and these downwind areas 
regarding the respective NAAQS.
    As previously noted, regarding the 2015 ozone NAAQS, the EPA has 
identified a relevant downwind air quality problem in the NYMA. The 
EPA's recent 2023 air quality modeling supports an assessment that 
emissions from at least some of the States named in the petition are 
linked to a downwind air quality problem at step 2. As the following 
paragraphs explain, the linkages between upwind and downwind states are 
further informed by an air quality screening threshold.
    Historically, at step 2, the EPA has used an air quality screening 
threshold to determine whether a state contributes to a downwind air 
quality problem in amounts that warrant further evaluation as part of a 
multi-factor analysis in step 3. Upwind states that impact a downwind 
receptor by less than the screening threshold do not significantly 
contribute or interfere with maintenance of the NAAQS in the downwind 
area at step 2. The EPA has therefore previously determined, without 
conducting any additional analysis at step 3, that such states do not 
significantly contribute to nonattainment or interfere with maintenance 
of the NAAQS under the good neighbor provision. Upwind states that the 
EPA finds under the step 2 analysis impact a downwind receptor at or 
above the threshold are identified as contributing to a projected 
downwind air quality problem (i.e., they are said to be ``linked'' to 
that downwind receptor) and require additional analysis to determine if 
the contribution is ``significant'' or ``interferes with maintenance.'' 
The EPA then proceeds to the multi-factor step 3 analysis to determine 
what, if any, of the emissions from the linked upwind state 
significantly contribute to nonattainment or interfere with maintenance 
of the NAAQS at the downwind receptor(s).\72\
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    \72\ Note that upwind states that are linked to a downwind 
receptor at step 2 may nevertheless be found to not significantly 
contribute to nonattainment or interfere with maintenance at the 
receptor depending on the outcome of the step 3 analysis.
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    In previous federal actions,\73\ the EPA's analysis of the sum of 
contributions from all linked upwind states (i.e., collective 
contribution)

[[Page 56082]]

concluded that a screening threshold equivalent to 1 percent of the 
1997 and 2008 ozone NAAQS was appropriate at step 2. In an August 31, 
2018, memorandum, the EPA presented the results of an analysis of 
collective contribution for the 2015 ozone NAAQS \74\ using data drawn 
from the results of the EPA's updated 2023 modeling.\75\ This analysis, 
which considered the same factors as the thresholds analyses conducted 
in both the CSAPR and CSAPR Update rulemakings,76 77 
included the evaluation of data pertinent to several potential 
thresholds (i.e., 1 percent of the 2015 ozone NAAQS or 0.70 ppb, 1 ppb 
and 2 ppb) that could be applicable to the development of SIP revisions 
to address the 2015 ozone NAAQS of 70 ppb. The EPA ultimately suggested 
in this memorandum that a threshold of 1 ppb may be appropriate for 
states to use to develop SIP revisions addressing the good neighbor 
provision for the 2015 ozone NAAQS.
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    \73\ In the Cross-State Air Pollution Rule (CSAPR), the EPA used 
0.80 parts per billion (ppb) as the threshold, which is 1 percent of 
the 1997 ozone NAAQS. 76 FR 48208, 48238 (August 8, 2011). Most 
recently, in the Cross-State Air Pollution Rule Update for the 2008 
Ozone NAAQS (CSAPR Update), the EPA used 0.75 ppb as the threshold, 
which is 1 percent of the 2008 ozone NAAQS. 81 FR 74504, 74518 
(October 26, 2016).
    \74\ See Analysis of Contribution Thresholds for Use in Clean 
Air Act Section 110(a)(2)(D)(i)(I) Interstate Transport State 
Implementation Plan Submissions for the 2015 Ozone National Ambient 
Air Quality Standards (August 31, 2018).
    \75\ Information on the Interstate Transport State 
Implementation Plan Submissions for the 2015 Ozone National Ambient 
Air Quality Standards under Clean Air Act Section 110(a)(2)(D)(i)(I) 
(March 2018). https://www.epa.gov/airmarkets/march-2018-memo-and-supplemental-information-regarding-interstate-transport-sips-2015.
    \76\ Air Quality Modeling Technical Support Document for the 
Final Cross State Air Pollution Rule Update (August 2016). https://www.epa.gov/airmarkets/air-quality-modeling-technical-support-document-final-cross-state-air-pollution-rule.
    \77\ Air Quality Modeling Final Rule Technical Support Document 
(for the Final Transport Rule now known as CSAPR; June 2011). 
https://www.epa.gov/csapr/air-quality-modeling-final-rule-technical-support-document.
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    In addition to the 2023 modeling used to identify potential 
downwind air quality problems described in the prior section, the EPA 
has also performed state-level ozone source apportionment modeling to 
provide information regarding the expected contribution of statewide, 
anthropogenic NOX and VOC emissions in each state to 
projected 2023 ozone concentrations. If the EPA applies a 1 percent 
threshold like that used in prior rulemakings (e.g., 0.70 ppb) to the 
results of the contribution modeling, the EPA's analysis indicates that 
all nine upwind states named in the petition are linked to an air 
quality problem in the NYMA for the 2015 ozone NAAQS. If the EPA 
instead applies the alternative 1 ppb threshold, the EPA's analysis 
indicates that the emissions from six (i.e., Maryland, Michigan, Ohio, 
Pennsylvania, Virginia and West Virginia) of the nine states named in 
New York's petition are linked to an air quality problem in the NYMA 
for the 2015 ozone NAAQS, while three states (i.e., Illinois, Indiana 
and Kentucky) are not.
    Some commenters disagree with the EPA's guidance suggesting that 
states may use a 1 ppb threshold instead of a threshold equivalent to 1 
percent of the NAAQS as the threshold to show a linkage between 
emissions from upwind states on air quality in downwind states. As 
explained in the proposal, the EPA's August 31, 2018, memorandum to 
states conveying the results of our analysis of collective contribution 
for the 2015 ozone NAAQS is guidance and not a regulation. It does not 
change or replace any legal requirements in the CAA or implementing 
regulations. At this time, the EPA has not engaged in a good neighbor 
rulemaking action for the 2015 ozone NAAQS that determines which of the 
potential thresholds (e.g., 1 percent of the NAAQS (0.70 ppb) or 1 ppb) 
is appropriate for addressing collective contribution for the 2015 
ozone NAAQS for purposes of New York's petition or for any other 
purposes. Additionally, as previously described, the EPA is also not 
here deciding an appropriate screening level that might be applied for 
future good neighbor analyses for the 2015 ozone NAAQS. The EPA is 
therefore not basing its denial of New York's petition on use of any 
particular threshold at step 2. Rather, the EPA acknowledges that 
emissions from at least some of the named upwind states are linked to 
projected air quality problems in the NYMA for the 2015 ozone NAAQS. 
Therefore, the EPA proceeds assuming, without deciding, that the named 
states are linked at step 2 and, as discussed in more detail in Section 
III.C.3 of this notification, the EPA has evaluated the sufficiency of 
the petition's demonstration with respect to step 3.
3. The EPA's Evaluation of New York's Petition Considering Step 3
    As described in Section II.C.1 of this notification, once an upwind 
state is linked to a downwind air quality problem at steps 1 and 2 of 
the four-step interstate transport framework, the next step is to 
identify the emissions reductions, if any, needed from particular 
sources to eliminate the upwind state's significant contribution to 
nonattainment and interference with maintenance of the NAAQS (i.e., 
step 3 of the four-step interstate transport framework).\78\ In the 
proposal at step 3, the EPA proposed to find that material elements in 
New York's analyses are technically deficient, such that the EPA cannot 
conclude that any source or group of sources in any of the named states 
will significantly contribute to nonattainment or interfere with 
maintenance in Chautauqua County or the NYMA relative to the 2008 and 
2015 ozone NAAQS. Although the EPA already proposed to deny the 
petition as to Chautauqua County (for the 2008 and 2015 ozone NAAQS) 
and NYMA (for the 2008 ozone NAAQS) at step 1 of the four-step 
interstate transport framework, the EPA also proposed to rely on our 
assessment of step 3 as an additional and independent basis for denial 
as to the petition's claims for these areas with respect to both NAAQS. 
For the reasons discussed in this section, the EPA is finalizing its 
conclusion with respect to the adequacy of New York's petition at step 
3.
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    \78\ Contrary to New York's assertion in its petition, 
identification of a linkage between an upwind state and a downwind 
receptor does not conclude the determination regarding whether 
sources in the upwind state will significantly contribute to 
nonattainment or interfere with maintenance of the NAAQS. The 
conclusion that a state's emissions met or exceeded the threshold 
only indicated that further analysis was appropriate to determine 
whether any of the upwind state's emissions met the statutory 
criteria under the good neighbor provision. See EME Homer City, 572 
U.S. at 501-03 (noting upwind states are only obliged to eliminate 
emissions meeting both the step 2 and 3 inquiries).
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Applying Step 3 of the Four-Step Interstate Transport Framework
    As discussed in Section III.A of this notification, the EPA 
maintains that the four-step framework provides a logical, consistent 
and systematic approach for addressing interstate transport for a 
variety of criteria pollutants under a broad array of national, 
regional and local scenarios. The complexity of atmospheric chemistry 
and the nature of ozone transport also demonstrate the appropriateness 
of the four-step interstate transport framework particularly within 
step 3, where upwind sources are evaluated to determine whether they 
have emissions that significantly contribute to nonattainment or 
interfere with maintenance of the ozone NAAQS.
    As discussed in Section II.C.1 of this notification, within step 3 
of the four-step interstate transport framework, the EPA has 
historically considered several factors to determine whether sources in 
linked upwind states have emissions that will significantly contribute 
to nonattainment or interfere with maintenance of the ozone NAAQS. In 
particular, the EPA has generally considered various control, cost, and 
air quality factors and data, including: The types of control 
strategies that can be implemented at sources within the

[[Page 56083]]

upwind states; the costs of implementing such control strategies; the 
amount of potential emissions reductions from implementation of control 
strategies at upwind sources; the potential downwind air quality 
improvements from such emissions reductions and the severity of the 
downwind air quality problem (i.e., whether the air quality problem 
will be resolved through implementation of the emissions reductions). 
See CSAPR, Final Rule, 76 FR 48248-49 and 48254-55; CSAPR Update, Final 
Rule, 81 FR 74519; Ozone Transport Policy Analysis Final Rule TSD, p. 3 
(Docket ID No. EPA-HQ-OAR-2015-0500). The EPA has typically considered 
these various cost and air quality factors in a multifactor analysis to 
identify the appropriate uniform level of emissions controls to apply 
to sources across a region of upwind states that are collectively 
linked to downwind air quality problems and, based on the selected 
level of control, to quantify the emissions (if any) from each upwind 
state that contribute significantly to nonattainment or interfere with 
maintenance in a downwind area.\79\ The quantity of emissions 
identified in step 3 are then controlled through permanent and 
enforceable measures in step 4 of the four-step interstate transport 
framework. In these prior rules, the EPA has selected the level of 
control stringency deemed cost-effective, compared to other levels of 
control stringency considered in the analysis, when these factors are 
balanced together. Assessing multiple factors allows the EPA to 
consider the full range of circumstances and state-specific factors 
that affect the relationship between upwind emissions and downwind 
nonattainment and maintenance problems. For example, the EPA's 
assessment of cost considerations accounts for the existing level of 
controls at sources in upwind states as well as the potential for, and 
relative difficulty of, achieving additional emissions reductions. 
Additionally, assessment of the downwind air quality impacts from the 
potential upwind emissions reductions is essential to determining 
whether various levels of potential control stringency would under- or 
over-control upwind state emissions relative to the identified downwind 
air quality problems. The Supreme Court has found the EPA's approach to 
apportioning emissions reduction responsibility among multiple upwind 
states under these circumstances to be ``an efficient and equitable 
solution to the allocation problem'' presented by the good neighbor 
provision for regional problems like the transport of ozone pollution. 
EME Homer City, 572 U.S. at 519. As discussed extensively in this 
action, the good neighbor provision and CAA section 126(b) petitions 
are closely textually and analytically linked to one another, 
supporting the EPA's view that the considerations set forth above are 
appropriate for the EPA's analysis of such petitions.
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    \79\ For example, in the CSAPR Update, the EPA noted that ozone 
transport occurs on a regional scale, that such transport is 
responsive to changes in NOX emissions, and that 
NOX emissions reductions from EGUs were effective in 
reducing 8-hour peak ozone concentrations during the ozone season. 
81 FR 74505. Accordingly, the EPA selected a uniform control 
stringency to apply to states covered by the rule by identifying the 
emissions reduction potential from EGUs in linked upwind states 
available at various levels of control stringency represented by 
cost, assessed how these potential emissions reductions would affect 
each state's air quality contributions to each receptor, evaluated 
the total change in air quality at each receptor resulting from the 
emissions reductions, and evaluated whether the air quality problems 
at each receptor would be resolved. The EPA applied a similar 
approach in the CSAPR Final Rule. 76 FR 48248.
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    Several commenters assert that it is inappropriate for the EPA to 
consider cost-effectiveness in evaluating CAA section 126(b) petitions, 
because they contend the statute does not contemplate consideration of 
cost-effectiveness in making findings.
    The EPA disagrees that is inappropriate for the EPA to consider 
cost-effectiveness in evaluating CAA section 126(b) petitions. As 
further described in Section II.B, the EPA believes it is appropriate 
to interpret ``contribute significantly to nonattainment'' and 
``interfere with maintenance'' as meaning the same thing under both CAA 
sections 110(a)(2)(D)(i)(I) and 126(b) because, while these two 
provisions provide independent regulatory processes, they are also 
closely linked in that they both address the interstate transport of 
emissions that significantly contribute to nonattainment or interfere 
with maintenance of a NAAQS. Importantly, CAA section 126(b) provides 
no independent standard for determining whether violations exist, but 
instead directly incorporates the CAA section 110(a)(2)(D)(i)(I) 
standard. Accordingly, the EPA's decision whether to grant or deny a 
CAA section 126(b) petition regarding both the 2008 and 2015 ozone 
NAAQS depends on application of the four-step interstate transport 
framework used to interpret CAA section 110, further described in 
Section II.C.1, which includes consideration of cost-effectiveness 
under step 3 to determine whether, and if so in what ``amounts'' under 
the terms of the statute, upwind sources will significantly contribute 
to nonattainment or interfere with maintenance of the NAAQS. Given the 
complexities of evaluating ozone transport, applying the four-step 
interstate transport framework is a logical approach, and has been used 
by the EPA in numerous rulemakings, including in actions on CAA section 
126(b) petitions.\80\
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    \80\ See Finding of Significant Contribution and Rulemaking for 
Certain States in the Ozone Transport Assessment Group Region for 
Purposes of Reducing Regional Transport of Ozone (also known as the 
NOX SIP Call), 63 FR 57356 (October 27, 1998); Clean Air 
Interstate Rule (CAIR) Final Rule, 70 FR 25162 (May 12, 2005); CSAPR 
Final Rule, 76 FR 48208 (August 8, 2011); CSAPR Update for the 2008 
Ozone NAAQS (CSAPR Update) Final Rule, 81 FR 74504 (October 26, 
2016); Determination Regarding Good Neighbor Obligations for the 
2008 Ozone National Ambient Air Quality Standard (the Determination 
Rule), Final Rule, 83 FR 65878 (December 21, 2018); Response to June 
1, 2016 Clean Air Act Section 126(b) Petition from Connecticut, 
Final Action, 83 FR 16070 (April 13, 2018) and Response to Clean Air 
Act Section 126(b) Petitions from Delaware and Maryland, Final 
Action, 83 FR 50453 (October 5, 2018).
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    The EPA has repeatedly found that ozone transport problems are the 
result of individually small impacts from numerous sources that can 
have collectively large impacts on downwind ozone concentrations. 
Considering this ``thorny causation problem,'' EME Homer City, 572 U.S. 
at 514, the EPA must determine how to apportion responsibility for 
emissions reductions across many sources in many states. The EPA has 
considered cost within its step 3 analysis in each of its regional 
ozone transport rulemaking and the Supreme Court has endorsed the use 
of cost in this manner as an ``efficient and equitable'' solution to 
the problem of apportioning upwind emissions reduction responsibility. 
Id. at 519. Thus, in evaluating a CAA section 126(b) petition, it is 
reasonable for the EPA to similarly evaluate whether the petition has 
demonstrated that the sources identified can be cost-effectively 
controlled in determining whether the petition demonstrates that the 
sources are in violation of CAA section 110(a)(2)(D)(i)(I). This is 
particularly true for New York's petition, where the EPA is tasked with 
determining whether approximately 350 facilities (many of which have 
multiple individual emitting units \81\) in nine upwind states are 
operating in violation of the good neighbor provision as alleged in the 
petition.
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    \81\ For example, while the list of facilities in the nine named 
states in New York's petition includes 121 EGU facilities, the 
number of individual EGUs currently in operation at those 121 
facilities is more than double that number.

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[[Page 56084]]

Responsibility for Step 3 Analyses Supporting a CAA Section 126(b) 
Finding
    As discussed earlier, the EPA interprets CAA section 126(b) as 
placing a burden on the petitioner to demonstrate that a finding under 
the provision is justified. The EPA's interpretation of the statute is 
reasonable given that Congress allotted the EPA only 60 days from its 
receipt of a CAA section 126(b) petition to hold a hearing and act on 
that petition. Given the short statutory deadline, it is reasonable for 
the EPA to conclude that Congress did not intend to require the EPA to 
undertake extensive fact-finding or independent analysis as part of its 
action on a petition and instead placed the burden upon the petitioner 
to provide adequate support for a requested finding under CAA section 
126(b), an interpretation affirmed by the courts. See New York v. EPA, 
852 F.2d 574 (D.C. Cir. 1988) (upholding the EPA's interpretation of 
the statutory burden in reviewing the EPA's denial of separate CAA 
section 126(b) petitions filed by Pennsylvania, Maine, and New York 
regarding air quality impacts from numerous sources located in seven 
midwestern states); cf. Citizens Against Ruining the Environment v. 
EPA, 535 F.3d 670 (7th Cir. 2008) (affirming the EPA's similar 
interpretation of the petitioner's burden under CAA section 505(b)(2) 
given the parallel 60-day deadline for the EPA to respond to a title V 
petition). In New York, the D.C. Circuit evaluated the EPA's obligation 
in acting on a CAA section 126(b) petition, determining that the 60-day 
deadline for action meant Congress did not intend for the EPA to 
undertake a ``litany of tasks'' in evaluating the petition and finding 
that denial was proper where the States failed to substantiate the 
claims raised in their petitions. Id. Accordingly, where a CAA section 
126(b) petition does not contain sufficient technical information or 
justification to support the requested finding without the EPA 
undertaking an independent analysis, it is reasonable for the EPA to 
interpret CAA section 126(b) to support a denial of the petition.
    The remedy provision under CAA section 126(c) further supports the 
reasonableness of the EPA's interpretation regarding the petitioner's 
burden. CAA section 126(c) by default requires an existing source to 
cease operation within 3 months if the EPA makes the requested finding 
under CAA section 126(b). The EPA does not believe it was the intent of 
Congress to require sources to shut down entirely absent a sufficient 
demonstration that such an extreme remedy was necessary. This concern 
is exacerbated by the provision of CAA section 126(b) that permits a 
petitioner to target ``groups of sources,'' as New York did in the 
petition that is subject to this action. The EPA does not believe it is 
reasonable to think that Congress could have envisioned that hundreds 
of stationary sources would be required to shut down within 3 months 
without petitioners providing a complete and compelling justification 
for such drastic consequences.\82\ The potential for such an unintended 
consequence further supports the placement of burden on the petitioner 
to demonstrate in the first instance whether the identified sources 
emit or would emit in violation of the good neighbor provision.
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    \82\ While CAA section 126(c) provides in the alternative that 
the EPA may permit continued operation if it establishes emissions 
limitations for the sources subject to the finding within that 3-
month period, this too is a detailed analytic task that requires 
time and resources to develop. As discussed later in this section, 
the EPA concedes that the Agency bears the burden of developing any 
emissions limitations appropriate under CAA section 126(c) once a 
finding under CAA section 126(b) is made, but this does not also 
shift the burden of justifying the finding itself onto the EPA. 
Rather, this further supports the EPA's conclusion that the 
petitioner must bear the burden of providing sufficient 
justification for a CAA section 126(b) finding given that the EPA 
may also need to develop a CAA section 126(c) remedy within the 
short timeframe provided for the EPA's action on a petition.
---------------------------------------------------------------------------

    The breadth of New York's petition demonstrates why the EPA's 
interpretation is particularly reasonable. The petition named 
approximately 350 facilities from several different source sectors 
(both EGU facilities and non-EGU facilities) in nine different upwind 
states and asked the EPA to evaluate and implement source-specific 
emissions limits for each source. While the EPA has air quality 
modeling information relevant to the step 1 and 2 analyses discussed 
earlier, this analysis was already available because the EPA completed 
this modeling effort for separate rulemaking actions and not solely for 
use in evaluating this petition. In contrast, the EPA has not already 
developed the type of multifactor test, collected the needed data for 
the relevant factors, or conducted the analysis that it would normally 
use in step 3 to determine whether the named group of upwind sources 
(or any other sources) emits or would emit in violation of the good 
neighbor provision. The EPA also does not currently have sufficient 
information available that would be necessary to independently conduct 
such an analysis. As noted in the Determination Rule (81 FR 65878), the 
EPA currently lacks the relevant data to conduct such an analysis for 
the multiple non-EGU source categories, including those referred to in 
this petition. Collecting the relevant data and conducting such an 
analysis independently would require the EPA to invest significant time 
and resources and likely to undertake such data collection efforts 
under a formal information collection request.\83\ As discussed in more 
detail in this section, the 60-day deadline provided by Congress for 
action under CAA section 126(b) is evidence that Congress did not 
intend for the EPA to be required to conduct such detailed independent 
analyses before acting on the petitions, especially where a petition 
addresses a large number and variety of sources and seeks tailored 
unit-level remedies, as New York's petition does. While the EPA 
acknowledges that this task may also be resource- and time-intensive 
for a petitioner, the EPA nonetheless interprets the timeframe imposed 
on the EPA in CAA section 126(b) (along with the potentially severe 
consequences under CAA section 126(c) if a finding is made) as evidence 
that the burden is on the petitioner to demonstrate that the statutory 
threshold has been met.
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    \83\ An information collection request (ICR) is a set of 
documents that describes reporting, recordkeeping, survey, or other 
information collection requirements imposed on the public by a 
federal agency. The Paperwork Reduction Act stipulates that every 
federal agency must obtain approval from the Office of Management 
and Budget (OMB) before collecting the same or similar information 
from 10 or more members of the public.
---------------------------------------------------------------------------

    The EPA received several comments generally conceding the 
petitioner bears some burden under CAA section 126(b), but asserting 
that nothing in CAA section 126, including the plain language of this 
provision, contemplates a burden on petitioner to provide information 
about the factors relevant to step 3 or to conduct such an analysis of 
the named sources, as the information regarding the sources that would 
be necessary for the analysis is outside of the petitioning state's 
control. Commenters take issue with the EPA requiring an analysis by 
petitioner describing the downwind air quality impacts of controlling 
the named sources ``relative to other sources,'' asserting that the 
federal government is responsible for managing the petition process in 
a swift manner and bears the burden for conducting intensive analyses 
on groups of sources presented by petitioners. Commenters also contend 
that by placing the burden on petitioners to provide information and 
analyses related to step 3, the EPA is

[[Page 56085]]

inconsistently placing such burden on petitioners in comparison with 
its prior actions on Connecticut's, Delaware's, and Maryland's CAA 
section 126(b) petitions.
    The EPA disagrees with these comments. As an initial matter, the 
plain language of CAA section 126 does not speak to whether the burden 
is on petitioner or the EPA to substantiate the requested finding. By 
contrast, other CAA statutory provisions that provide for a petition 
process clearly speak to the placement of burden for making the 
requisite demonstration for a successful petition. See e.g., CAA 
sections 111(g), 505(b)(2). Accordingly, in the absence of such plain 
language, CAA section 126 is ambiguous as to this issue and the EPA may 
reasonably interpret CAA section 126 in determining the placement of 
burden in the context of acting on a state's petition. As described at 
proposal and consistent with the EPA's historical approach to 
evaluating CAA section 126 petitions, the EPA reasonably interprets the 
statute to place the burden on petitioner to establish a technical 
basis for the specific finding requested given the short statutory 
deadline for acting on CAA section 126 petitions. 84 FR 22797. As the 
commenter acknowledges, the D.C. Circuit determined in reviewing a 
prior EPA action on a CAA section 126(b) petition that, based on the 
60-deadline for action on such a petition, it is reasonable to conclude 
that petitioners bear the burden to make any necessary technical 
demonstration to support a finding. New York, 852 F.2d at 578. What 
commenters do not acknowledge is that the court in that case further 
concluded that Congress did not intend the EPA to be required to 
perform a litany of tasks ``in such a short period of time in the 
absence of the clearest expression.'' Id. at 578.\84\ For these 
reasons, the EPA believes not only that such a ``clearest expression'' 
is absent from CAA section 126(b) but also that in such absence, it is 
at least reasonable to interpret Congressional intent as being to the 
contrary.
---------------------------------------------------------------------------

    \84\ In determining that the 60-day deadline under CAA section 
126(b) is reasonably read to not require the EPA to undertake 
certain tasks, the court acknowledged the 6-month extension 
available under CAA section 307(d)(10) as part of its analysis. New 
York, 852 F.2d at 578 n.2. While the statute separately permits the 
EPA up to 6 additional months to complete the rulemaking processes 
required by CAA section 307(d) when acting on a CAA section 126(b) 
petition, this provision applies to any statutory deadline which 
requires promulgation of an action less than 6 months after a 
proposal is issued. Thus, it cannot be read to independently create 
an obligation for the EPA to conduct detailed technical analyses.
---------------------------------------------------------------------------

    Further by way of analogy, CAA section 505(b)(2) gives the EPA 60 
days to act on a petition requesting the Agency to make an objection to 
a title V permit. While CAA section 505(b)(2) contains an explicit 
demonstration burden on the petitioner, the EPA has interpreted the 
demonstration burden as crucial in part based on the limited nature of 
the 60-day deadline. The EPA has previously described that it relies on 
the petitioner's demonstration in determining whether to make the 
petitioner's requested objection because the 60-day window is 
reasonably read as not requiring the Agency to engage in extensive 
fact-finding or investigation. See In the Matter of Consolidated 
Environmental Management, Inc.--Nucor Steel Louisiana, Partial Order 
Responding to Petitioners' May 3, 2011 & October 3, 2012 Requests that 
the Administrator Object to the Issuance of Title V Operating Permits, 
4-6 (June 19, 2013), available at https://www.epa.gov/sites/production/files/2015-08/documents/nucor_steel_partialresponse2011.pdf. In 
Citizens Against Ruining the Environment v. EPA, the Seventh Circuit 
substantiated this interpretation by noting that, because of the 
limited timeframe Congress gave the EPA to decide whether to object to 
a permit, ``it is reasonable in this context for the EPA to refrain 
from extensive fact-finding.'' Citizens Against Ruining the 
Environment, 535 F.3d at 678. Given the parallel 60-day deadline under 
CAA section 126(b), the EPA believes it equally reasonable to construe 
that under CAA section 126(b), in the absence of a petition containing 
adequate technical information or justification necessary for the EPA 
to determine whether the requested finding is warranted, the EPA is not 
required to undertake its own extensive fact-finding or investigation 
and may deny the petition.\85\
---------------------------------------------------------------------------

    \85\ The EPA notes while there is a parallel 60-day deadline 
under both petition provisions, there is no analogous mechanism for 
the EPA to grant itself an extension for acting on a petition 
submitted under CAA section 505(b)(2) as there is under CAA 
307(d)(10) for CAA section 126(b) petitions. However, unlike CAA 
section 505(b)(2), the Act places additional requirements on the EPA 
to hold a public hearing, pursuant to CAA section 126(b), and to 
engage in a formal rulemaking process under CAA section 307(d), 
including issuance of a proposed action, provision of a public 
comment period and the obligation to formally respond to significant 
adverse comments. Therefore, while an extension is available to the 
EPA for acting on a CAA section 126(b) petition, there are 
additional procedural requirements that the EPA must satisfy during 
this time period that petitions submitted under CAA section 
505(b)(2) do not need to address.
---------------------------------------------------------------------------

    The EPA also disagrees with commenters who suggest that, while New 
York as the petitioning state has the burden to demonstrate the named 
sources are located in upwind states that are linked to downwind 
impacts on New York under steps 1 and 2, petitioning states do not have 
the burden to provide a step 3 analysis, but rather, that it is the 
EPA's burden.
    These comments are based on a fundamental misunderstanding of the 
purpose of steps 2 and 3 of the four-step interstate transport 
framework. Identification of a linkage between an upwind state and a 
downwind receptor at step 2 of the inquiry does not conclude the 
determination regarding whether sources in the upwind state will 
significantly contribute to nonattainment or interfere with maintenance 
of the NAAQS. Rather, the conclusion that a state's emissions met or 
exceeded the threshold only indicated that further analysis, conducted 
in step 3, is appropriate to determine whether any of the upwind 
state's emissions met the statutory criteria under the good neighbor 
provision and if so, in what amounts. The EPA does not draw any 
conclusions regarding whether sources in upwind states are emitting in 
violation of the prohibition of the good neighbor provision until the 
step 3 analysis is concluded. See EME Homer City, 572 U.S. at 501-03 
(noting upwind states are only obliged to eliminate emissions meeting 
both the step 2 and 3 inquiries). Thus, as the EPA has interpreted CAA 
section 126(b) as imposing on the petitioner the burden to demonstrate 
that a finding is warranted, the petitioner only fulfills that burden 
if both a step 2 and step 3 analysis are provided with the petition.
    An interpretation of CAA section 126(b) placing any burden 
regarding a step 3 cost-effectiveness analysis on the EPA, particularly 
for a petition that names approximately 350 facilities with an even 
larger number of individual emitting units, is unreasonable in light of 
the statutory 60-day deadline and contravenes the D.C. Circuit's 
conclusion in New York that Congress did not intend such a task to fall 
on the EPA. Such a task is infeasible within the statutory deadline, 
and thus the EPA believes a much more reasonable interpretation of CAA 
section 126(b) is to place the demonstration burden on the petitioner. 
Contrary to commenter's assertion, the placement of burden to perform a 
step 3 analysis is consistent with the EPA's historical practice in 
reviewing CAA section 126(b) petitions.\86\ While the EPA has, at 
times,

[[Page 56086]]

performed an independent step 3 analysis in evaluating a CAA section 
126(b) petition, it has chosen to do so where it has had existing 
information and analyses available or where the petition identified a 
single source that would require less time to evaluate.\87\ The EPA's 
consideration of existing information and analyses in such 
circumstances does not, however, shift the burden to the EPA to engage 
in fresh fact-finding or analyses in all future petitions.
---------------------------------------------------------------------------

    \86\ Response to June 1, 2016 Clean Air Act Section 126(b) 
Petition from Connecticut, Final Action, 83 FR 16070 (April 13, 
2018) and Response to Clean Air Act Section 126(b) Petitions from 
Delaware and Maryland, Final Action, 83 FR 50453 (October 5, 2018).
    \87\ Response to June 1, 2016 Clean Air Act Section 126(b) 
Petition from Connecticut, Final Action, 83 FR 16070 (April 13, 
2018) and Response to Clean Air Act Section 126(b) Petitions from 
Delaware and Maryland, Final Action, 83 FR 50453 (October 5, 2018) 
and Final Response to Petition from New Jersey Regarding 
SO2 Emissions From the Portland Generating Station, 76 FR 
69052 (November 7, 2011).
---------------------------------------------------------------------------

    The interpretation that the petitioner bears the burden under CAA 
section 126(b) to conduct the step 3 analysis is especially reasonable 
when considering what would otherwise occur if CAA section 126(b) were 
understood to require the EPA to undertake the required technical 
analysis for determining whether a petition's requested finding should 
be made. Notably, New York's petition names numerous sources, including 
more than 220 non-EGU facilities, for which the EPA does not have all 
of the information necessary to conduct a full step 3 analysis (e.g., 
the current operating status of each named facility, the magnitude of 
emissions from each emitting unit within each named facility, the 
existing controls on each of these emissions units, additional control 
options on each emissions unit, the cost of each potential control 
option, the emissions reductions potential resulting from the 
installation of controls, and potential air quality impacts of 
emissions reductions).
    Because the EPA does not independently have sufficient information 
about these sources to perform an analysis under the four-step 
interstate transport framework that it can use to supplement or stand 
in for New York's analysis, the EPA has not done so here. For a 
petition that names numerous sources, as New York's petition does, an 
alternative interpretation of burden under CAA section 126(b) would 
require the EPA to conduct a time- and resource-intensive analysis of 
whether all of this multitude of sources have cost-effective emissions 
reductions available under step 3, in addition to the mandatory notice-
and-comment process, all within 60 days (or up to an additional 6 
months, invoking the extension provision in CAA section 307(d)(10)) to 
meet its statutory deadline to take action on the petition.\88\ If the 
EPA had insufficient time to conduct such an independent analysis, the 
commenters contention would have severe consequences. Essentially, the 
commenters suggest that the EPA is, in the absence of its own step 3 
analysis, nonetheless required to make the requested finding simply 
because the States in which the named sources are located are linked to 
a downwind air quality problem at step 2. This would further mean that 
all of the named sources would be required to shut down within 3 months 
of the finding--a result the petitioner has not requested. Moreover, 
this means that a CAA section 126(b) petitioner could choose to target 
any source in any linked upwind state--regardless of its particular 
size, source characteristics, or downwind impacts--and demand that the 
EPA require the source to shut down simply because it is located in the 
linked state. As discussed in in this section, such results could not 
have been intended by Congress in promulgating the petition process in 
CAA section 126.
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    \88\ The EPA also notes that as a matter of administrative law 
in the context of when an agency declines to undertake rulemaking, 
the Supreme Court has found that ``an agency has broad discretion to 
choose how best to marshal its limited resources and personnel to 
carry out its delegated responsibilities.'' Massachusetts v. EPA, 
549 U.S. 497, 527 (2007). This principle is especially salient when 
an agency has limited time statutorily for determining whether 
rulemaking is necessary.
---------------------------------------------------------------------------

    The burden on New York to perform a step 3 analysis may appear to 
be high in this case, but CAA section 126 does not place any deadline 
on petitioners for submitting such a petition and thus provides time 
for petitioners to perform such an analysis, contrary to the deadline 
placed on the EPA in acting on it. Moreover, the apparent weight of the 
burden in this case is the natural result of the petitioner's decision 
to name approximately 350 facilities (each, potentially with multiple 
emissions units) from 9 states, which essentially amounts to seeking a 
regional action.
    Certain commenters further suggest that their approach, which would 
require the EPA to bear the burden for conducting extensive analyses on 
groups of sources presented by petitioners, is supported by legislative 
history cited by the Third Circuit in its GenOn decision, wherein the 
court noted that the federal government is the entity that ``can and 
must provide the technical information and enforcement assistance that 
States and localities need.'' 722 F.3d at 523 (quoting S.Rep. No. 95-
127, at 10 (1977), reprinted in 3 1977 Legislative History of the Clean 
Air Act Amendments of 1977, at 1450)). The EPA disagrees with 
commenters' characterization of both this legislative history and the 
court's opinion in GenOn. The legislative history quoted is part of a 
section titled ``General Statement'' providing an overview of 
initiatives and issues informing the Senate Committee's report on the 
1977 Clean Air Act Amendments as a whole and is not specific to CAA 
section 126. Though the EPA agrees it has a fundamental and important 
role in providing technical information and enforcement assistance as 
part of implementing the Act, the legislative history does not speak to 
this role specifically in the context of CAA section 126.
    Additionally, to the extent the commenter is suggesting that the 
Third Circuit in GenOn cited to this legislative history to support the 
interpretation that an investigative burden lies with the EPA in acting 
on a CAA section 126(b) petition, the EPA disagrees. The court in that 
case addressed the question of whether the EPA could act on a CAA 
section 126(b) petition in instances where the Agency had not yet acted 
on a CAA section 110 SIP addressing interstate transport for the same 
NAAQS. In this context of determining the appropriate timing of acting 
on a CAA section 126(b) petition, the court cited this legislative 
history in pointing out that the EPA, as the federal regulator, was 
intended to intervene when states failed to adhere to the air pollution 
control process, and thus the EPA is not obligated to wait for the 
states to address and resolve interstate transport of pollution through 
the SIP process before acting on a CAA section 126(b) petition. The 
court did not speak to who has the burden of substantiating a requested 
finding, particularly when the EPA does not have sufficient information 
regarding sources named in the petition. Notably, as the Third Circuit 
discussed, the obligation to act quickly under CAA section 126(b) 
``petition process is intended to expedite, not delay, resolution of 
interstate pollution conflicts.'' GenOn, 722 F.3d at 523 (quoting 
H.R.Rep. No. 95-294, at 331 (1977), reprinted in 4 1977 Legislative 
History of the Clean Air Act Amendments of 1977, at 2797). The 
swiftness Congress intended in acting on a CAA section 126(b) petition 
conflicts with requiring the EPA to acquire and develop new information 
as part of taking such swift action. Therefore, the legislative history 
supports the EPA's reasonable

[[Page 56087]]

interpretation of CAA section 126(b) as placing the burden for 
substantiating the requested finding on petitioner.
    Several commenters also assert that New York met its burden under 
CAA section 126(b) and that considerations regarding the cost-
effectiveness of controls at step 3 are only appropriate under CAA 
section 126(c), under which the EPA bears the burden to develop a 
remedy for a finding made under CAA section 126(b). Commenters 
characterize the EPA's reliance on the D.C. Circuit's decision New York 
as placing the burden on petitioning states to support both findings 
under CAA section 126(b) and the remedy under CAA section 126(c). 
According to commenters, the court did not hold that the EPA had no 
burden to undertake any tasks or analysis within the limited timeframe 
for action on a CAA section 126(b) petition. Rather, according to 
commenter, the court only found that the EPA had no affirmative duty to 
review all existing state implementation plans for a relevant NAAQS and 
determine if they contained adequate provisions for compliance with 
each upwind state's good neighbor provision obligations. Commenters 
additionally state the EPA's prior action on New Jersey's CAA section 
126 petition to control emissions from the Portland Generating Station 
contradicts the EPA's position that it is New York's responsibility as 
petitioner to analyze and define the remedy.
    The EPA disagrees that, by requiring the petitioner under CAA 
section 126(b) to provide an analysis of step 3 under CAA section 
126(b), it is shifting the burden to petitioners to develop the remedy 
under CAA section 126(c). As described in Section II.C.1, in examining 
petitions filed under CAA section 126(b), the EPA has reasonably 
applied the four-step interstate transport framework used for analyzing 
whether there is significant contribution to nonattainment, or 
interference of maintenance of the ozone NAAQS under CAA section 
110(a)(2)(D)(i) because those same terms are incorporated into CAA 
section 126(b). The four-step interstate transport framework includes a 
multi-factor analysis of the availability of cost-effective controls 
under step 3. As discussed earlier, this step 3 analysis is an 
essential part of making the determination of whether sources 
significantly contribute to nonattainment or interfere with maintenance 
under the good neighbor provision, and thus whether a finding is 
justified under CAA section 126(b). While the result of a step 3 
analysis can be a quantification of the amount of emissions that 
constitute the state's significant contribution (or interference with 
maintenance) under the good neighbor provision, the imposition of a 
federally enforceable emissions limitation to reduce that amount of 
emissions does not occur at step 3, but rather occurs under step 4. 
Thus, the analysis of cost-effective emissions reductions at step 3 is 
an essential part of making the significant contribution or 
interference of maintenance finding required under CAA section 126(b).
    Accordingly, the EPA treats the conclusions drawn at step 3 as 
distinct from the remedy imposed at step 4 under CAA section 
110(a)(2)(D)(i)(I), and similarly acknowledges and treats CAA section 
126(b) and 126(c) as separate provisions, contrary to commenters 
suggesting otherwise. In the EPA's regional rulemakings for ozone 
transport pursuant to CAA section 110, if through the first three steps 
under the four-step interstate transport framework the EPA has 
determined there are cost-effective controls available at sources 
located in upwind states impacting downwind states above a certain 
threshold, then the EPA has determined that there is significant 
contribution to nonattainment or interference with maintenance, at 
which point the Agency imposed federally enforceable emissions 
limitations on those sources under step 4. For example, at step 3 in 
the CSAPR Update, the EPA evaluated available NOX emissions 
reductions by applying uniform levels of control stringency, 
represented by cost, in order to quantify the amount of emissions that 
constituted each upwind state's significant contribution to 
nonattainment or interference with maintenance and then established 
NOX emissions budgets necessary to prohibit that level of 
emissions. At step 4 in the CSAPR Update, the EPA promulgated federally 
enforceable allowance trading programs to implement the NOX 
emissions budgets calculated under step 3. 81 FR 74504, 74519-21. 
Notably in the CSAPR Update, by contrast, where the EPA has found a 
state has no cost-effective controls at step 3, even if the state is 
linked to downwind impacts under steps 1 and 2, the EPA has not imposed 
emissions limits at step 4. Id. at 74553.\89\ Therefore, to the extent 
a CAA section 126(b) petition (and the EPA's independent analysis to 
the extent there is such analysis) applies steps 1, 2, and 3 of the 
four-step interstate transport framework to successfully show an upwind 
source, or group of sources, is having downwind impacts in violation of 
the good neighbor provision, then the EPA would make such a finding 
under CAA section 126(b) and fulfill its duty under CAA section 126(c) 
either by imposing the prescribed remedy under subsection (c)(1) (e.g., 
an existing source must cease operation within 3 months) or by 
promulgating federally enforceable emissions limitations under 
subsection (c)(2) to bring the upwind source(s) into compliance with 
the good neighbor provision. The fulfillment of this obligation by the 
EPA under CAA section 126(c) is consistent with step 4 of the four-step 
interstate transport framework, and therefore the EPA is not improperly 
shifting its burden of developing a remedy to the petitioner under CAA 
section 126(b). Rather, because the EPA finds that New York as 
petitioner did not meet its burden under CAA section 126(b) of showing 
significant contribution to nonattainment or interference with 
maintenance through application of steps 1 through 3, the EPA did not 
make the requested finding and, consequently, did not trigger its 
obligation to impose emissions limitations under CAA section 126(c).
---------------------------------------------------------------------------

    \89\ See also 76 FR 48262 (finding no limits necessary in the 
District of Columbia to satisfy good neighbor requirements for the 
1997 ozone, 1997 PM2.5, or 2006 PM2.5 NAAQS 
because the EPA identified no available cost-effective emissions 
reductions).
---------------------------------------------------------------------------

    Furthermore, contrary to commenters' assertions, the EPA has not 
interpreted the D.C. Circuit's holding in New York as placing the 
burden on petitioning states to fully develop the remedy under CAA 
section 126(c). The EPA acknowledges that the imposition of federally 
enforceable emissions limitations (analogous to step 4 of the four-step 
interstate transport framework) is its own obligation under CAA section 
126(c). Therefore, the EPA is not relying on the New York decision to 
support a proposition it does not hold. However, the EPA further 
disagrees with commenter's narrow reading of New York as simply finding 
that the EPA had no affirmative duty to review all existing state 
implementation plans for a relevant NAAQS and determine if they 
contained adequate provisions for compliance with each upwind state's 
obligations under the good neighbor provision. While the specific 
argument the petitioners in New York advanced was that a CAA section 
126(b) petition triggered an obligation for the EPA to investigate 
whether the good neighbor SIPs for all of the States named in the 
petition are in compliance with CAA section 110(a)(2)(D)(i)(I), the 
court's logic in addressing this argument applies to the broader 
question of the EPA's obligation in reviewing a CAA

[[Page 56088]]

section 126(b) petition. Specifically, the court in New York held that 
it is reasonable to conclude Congress did not intend for the EPA to 
undertake a series of procedural and substantive actions to evaluate 
CAA section 110 SIPs in order to act on a CAA section 126(b) petition, 
premised on the short 60 day-deadline. 852 F.2d at 578 (holding 
Congress did not intend for the EPA to be required to perform ``an 
entire array of investigative duties'' in reviewing a CAA section 
126(b) petition). Gathering source-specific information about 
approximately 350 sources and then conducting a regional cost-
effectiveness analysis of them is likely more (or at least as) 
burdensome than the review of existing SIPs that the New York court 
said the EPA does not have to do in reviewing a CAA section 126(b) 
petition. Therefore, the EPA's interpretation of the burden in CAA 
section 126(b) in this case, as it applies to the time and resources 
required to conduct a step 3 analysis, is consistent with the 
interpretation endorsed by the New York court.
    The EPA also disagrees with commenters' contention that its prior 
action on a CAA section 126(b) petition from New Jersey regarding 
SO2 emissions from the Portland Generating Station in 
Pennsylvania contradicts the EPA's position in the present action that 
the burden lies with petitioner to analyze step 3. Rather, as the EPA 
clearly stated in its proposed response to New Jersey's petition, the 
EPA first looks to see if the petition identifies or contains a 
sufficient basis to make the requested finding. The EPA went on to 
state that, nonetheless, it may decide to conduct independent technical 
analyses when such analyses are helpful in evaluating the basis for a 
potential CAA section 126(b) finding or developing a remedy if a 
finding is made. The EPA invoked this discretion to perform an 
independent analysis in acting on New Jersey's petition. However, the 
invocation of such discretion in acting on New Jersey's petition does 
not contradict the EPA's position that the burden is on the petitioner 
to provide an analysis under step 3. The EPA concluded in the New 
Jersey action, as it does again here, that the discretionary 
independent analysis is not compelled by statute. 76 FR 19662, 19666 
(April 7, 2011).
    Additionally, the EPA disagrees with commenters' assertions that 
the EPA's past action on New Jersey's CAA section 126(b) petition shows 
it is now incorrectly conflating CAA section 110(a)(2)(D)(i) with CAA 
section 126. In analyzing New Jersey's CAA section 126(b) petition and 
the technical analysis the State submitted in support of the requested 
finding, the EPA in fact imported similar factors as those outlined in 
the four-step interstate transport framework used under CAA section 110 
to evaluate the petition's analysis contending the identified source 
was emitting in violation of the good neighbor provision. Furthermore, 
in acting on New Jersey's petition, the EPA treated step 3 as distinct 
from step 4. Similar to step 1, the EPA first concluded that based on 
the petition's technical analysis, the petitioning downwind state had 
an air quality problem for the 2010 SO2 NAAQS. Similar to 
step 2, the Agency determined that, based on the petition's analysis, 
emissions from the named source in the upwind state alone were 
sufficient not just to contribute to, but to cause a violation of the 
NAAQS in the petitioning state. As such, the EPA's analysis of the 
petition's technical showing functionally comprised a step 3 analysis 
by determining under CAA section 126(b) that the facility should be 
regulated because of the magnitude of its contribution and the relative 
lack of other contributing sources. Because the EPA determined that the 
petition made demonstrations equivalent to steps 1 through 3 and 
established that the named source was emitting in violation of the good 
neighbor provision, the EPA essentially reached step 4 by imposing 
federally enforceable source-specific rate limits pursuant to CAA 
section 126(c) to eliminate the source's significant contribution. See 
Final Response to Petition From New Jersey Regarding SO2 
Emissions from the Portland Generating Station, 76 FR 69052 (November 
7, 2011).
Information and Analyses Considered Within Step 3
    As the EPA interprets the substantive standard under CAA section 
126(b) consistent with its interpretation of the good neighbor 
provision in CAA section 110(a)(2)(D)(i), it is reasonable for the EPA 
to consider the same type of factors whether evaluating ozone transport 
in the context of a good neighbor SIP under CAA section 110 or a 
section 126(b) petition. Thus, based on the EPA's interpretation of CAA 
section 126(b) as placing the burden on petitioner, the EPA reviewed 
New York's petition to determine whether it has provided sufficient 
information to support a determination based on some type of analysis 
of cost and air quality factors, either the same as or similar to, 
those that the EPA evaluated in past rulemakings addressing regional 
ozone transport under the good neighbor provision. The EPA notes that 
it considered these factors in the NOX SIP Call, CAIR, 
CSAPR, and the CSAPR Update, so it was clear that the EPA considers 
such an analysis to be necessary to determine, under CAA section 
126(b), whether upwind sources will significantly contribute to 
nonattainment or interfere with maintenance of the ozone NAAQS in New 
York. For example, in the CSAPR update, the EPA implemented emissions 
reductions found to be cost-effective at EGUs (including within the 
upwind states identified in New York's petition) by the 2017 ozone 
season, but it did not evaluate potential control strategies available 
on a longer implementation timeframe or at non-EGUs. 81 FR 74521-22. 
The EPA has not conducted a regional step 3 analysis for any sources 
with respect to the 2015 ozone NAAQS, but nonetheless believes 
consideration of the same type of cost and air quality factors could be 
reasonable for evaluating upwind state obligations under the good 
neighbor provision for that standard.
    The EPA's review of the petition indicates that New York has not 
sufficiently developed or evaluated the cost and air quality factors 
that the EPA has generally relied on in step 3; has not described and 
conducted any sort of multifactor analysis to determine whether cost-
effective controls are available at the named sources considering these 
factors; and has not provided any alternative analysis that would 
support a conclusion at step 3 that the named sources will 
significantly contribute to nonattainment or interfere with maintenance 
of the NAAQS. The petition, therefore, has not adequately supported its 
conclusion that the sources named in its petition will significantly 
contribute to nonattainment or interfere with maintenance of either the 
2008 or the 2015 ozone NAAQS. The petition simply applies a uniform 
approach beginning with a review of the entire anthropogenic emissions 
inventory and then identifying facilities that appear to have larger 
emissions than other facilities (at least 400 tons of NOX 
per year) without supporting why the named facilities either can or 
should make certain reductions. As the EPA indicated in the proposal, 
the petition could have included one or more of the following potential 
analyses to evaluate, compare and identify ``significant'' emissions 
from of the named sources, consistent with the EPA's past practice in 
evaluating regional ozone transport: (i) Verifying that the named 
sources whose emissions are those from the

[[Page 56089]]

most recent emissions inventory continue to emit NOX at the 
same rate or continue to operate; (ii) describing or quantifying 
potentially available emissions reductions from the named sources 
(i.e., the control technologies/techniques and the costs of those 
control technologies/techniques); (iii) describing the downwind air 
quality impacts of controlling the named sources relative to other 
sources; or (iv) providing information on the relative cost of the 
available emissions reductions and whether they are less expensive than 
other reductions from other sources. In the absence of this or any such 
similar analyses, the petition has not demonstrated, based on 
information available at this time, that the sources named in the 
petition should be required to make further emissions reductions under 
the good neighbor provision.
    The petition also has not demonstrated how to weigh these relevant 
cost and air quality factors to determine an appropriate level of 
control for the named sources. Instead, the petition simply asserts 
that upwind sources should be subject to a comparable level of control 
as sources in downwind states, i.e., the $5,000/ton level of control 
sources in New York are subjected to for purposes of RACT. While 
information regarding costs of controls in the downwind area may be 
useful when evaluating upwind emissions reduction potential, such 
information is not determinative of the appropriate level of upwind 
control. As the EPA explained at proposal, nothing in the text of the 
good neighbor provision indicates that upwind states are required to 
implement RACT, which is a requirement that applies to most areas 
designated nonattainment, see CAA section 172(c)(1) (nonattainment 
areas generally), 182(b)(2) (ozone nonattainment areas classified as 
Moderate), nor does the provision require uniformity of control 
strategies imposed in both upwind and downwind states. Rather, the good 
neighbor provision indicates that states are required to prohibit those 
emissions which ``contribute significantly to nonattainment'' or 
``interfere with maintenance'' of the NAAQS in a downwind state, terms 
that the Supreme Court has found to be ambiguous. See EME Homer City, 
572 U.S. at 489.\90\ The EPA has always considered cost under the good 
neighbor provision as part of a multifactor analysis based on the facts 
and circumstances of the air quality problem at the time of each 
evaluation, but the EPA has never set upwind control obligations based 
solely on the level of controls imposed for purposes of RACT in 
downwind nonattainment areas, as the petition suggests the EPA do here. 
The EPA believes that such a multifactor analysis that considers 
relevant cost and air quality factors is important for any evaluation 
of a CAA section 126(b) petition regarding interstate transport of 
ozone (a regional pollutant with contribution from a variety of 
sources), as the EPA reviews whether the particular sources identified 
in the petition should be controlled considering the costs and 
collective impact of emissions on air quality in the area, including 
emissions from other anthropogenic sources. The petition fails to 
conduct any comparable analysis. Review of the named sources in New 
York's petition may provide a starting point for such an analysis but 
does not complete the analysis or even provide the type of data that 
would be necessary for the EPA to conduct such an analysis to determine 
whether the named sources emit or would emit in violation of the good 
neighbor provision.
---------------------------------------------------------------------------

    \90\ EME Homer City also held that the EPA is precluded from 
requiring more emissions reductions than necessary to address 
downwind nonattainment and maintenance issues. 572 U.S. at 521-22. 
The petition also fails to demonstrate that the imposition of RACT-
level controls on all named upwind sources will not result in the 
type of over-control forbidden by the Supreme Court under the good 
neighbor provision.
---------------------------------------------------------------------------

    The petition also suggests that upwind sources should be subject to 
a comparable level of control as sources in downwind states, in part, 
because it asserts that, while the CSAPR program provides the legal and 
technical basis for states to eliminate their significant contributions 
to excessive ozone pollution, the EPA has failed to implement a full, 
federal-level remedy to completely address the issue of transported 
ozone, instead issuing EGU NOX ozone season emissions 
budgets as a partial remedy for interstate transport for the 2008 ozone 
NAAQS. The petition asserts that, according to the analyses in the 
CSAPR Update, after application of the rule's NOX budgets, 
the EPA's modeling still projected multiple remaining nonattainment and 
maintenance receptors in the NYMA, including monitoring sites in 
Fairfield and New Haven Counties in the Connecticut portion of the 
area, which would continue to project nonattainment in 2017.
    While the EPA acknowledged in the CSAPR Update that the FIPs may 
only be a partial remedy for interstate transport for the 2008 ozone 
NAAQS, the EPA subsequently promulgated the Determination Rule, in 
which the EPA concluded that the existing CSAPR Update fully addresses 
the interstate transport obligations under CAA section 
110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS for certain states, 
including eight of the States named in New York's petition (Illinois, 
Indiana, Maryland, Michigan, Ohio, Pennsylvania, Virginia and West 
Virginia), because the downwind air quality problems projected in 2017 
would be resolved in 2023. 83 FR 65878 (December 21, 2018). The EPA 
also approved a SIP from Kentucky which similarly determined that the 
CSAPR Update FIP would fully satisfy the State's good neighbor 
obligation with respect to the 2008 ozone NAAQS (83 FR 33730). Thus, 
the EPA has now determined through this set of actions that the 
emissions reductions required under the CSAPR Update fully address the 
good neighbor requirements with respect to the 2008 ozone NAAQS for all 
the States named in the petition. For the reasons explained in this 
section, the petition has failed to demonstrate that it is necessary to 
implement additional, source-specific, unit-level emissions limits at 
any of the sources named in the petition to ensure reductions are being 
achieved under the CSAPR Update.
    Several commenters contend that it is unreasonable to have expected 
New York to address many of the step 3 considerations that the EPA 
outlined in the proposal. One commenter claims that the EPA's position 
that New York's petition needed to provide analyses describing the 
downwind air quality impacts of controlling the named sources 
``relative to other sources'' is an unreasonable requirement for a CAA 
section 126(b) petition. The commenter asserts that the need for a 
comparative demonstration is particularly unreasonable here because the 
petition already encompasses all large upwind stationary sources 
collectively linked to New York's downwind nonattainment and/or 
maintenance problems. The commenter further states that New York has no 
ability to obtain more specific cost figures for the sources named in 
the petition. The commenter asserts that the EPA either has such 
information or can obtain it when developing the remedy under CAA 
section 126(c).
    Another commenter states that the EPA undertook comprehensive EGU 
and non-EGU control analyses in 2016 as part of its CSAPR Update 
efforts, which resulted in two detailed TSDs that considered 
availability of controls, associated costs, and installation times. The 
EPA further noted in the non-EGU TSD that ``the EPA continues to assess 
the role of NOX emissions from non-

[[Page 56090]]

EGU sources to downwind nonattainment problems.'' The commenter asserts 
that given its authority to gather data, its existing research on both 
EGU and non-EGU NOX control technologies, and the 8 months 
afforded it by the CAA to act on a petition, the EPA has had adequate 
time to conduct the analysis and define emissions limits for petitioned 
units that would effectuate the remedy requested by the petition.
    The EPA disagrees with the commenters' assertions. As discussed in 
Section II.C of this notification, the EPA has repeatedly found that 
ozone transport problems are the result of individually small impacts 
from numerous sources in upwind states that can have collectively large 
impacts on downwind ozone concentrations. Apportioning responsibility 
for emissions reductions across many sources in many states is a key 
outcome of applying the four-step interstate transport framework, 
which, considering various cost and air quality factors under step 3, 
identifies a rational basis for determining that emissions reductions 
should be required under the good neighbor provision from certain 
sources rather than others. This source comparison necessarily involves 
identifying the current operating status of each named facility, the 
magnitude of emissions from each emitting unit within each named 
facility, the existing controls on each of these emissions units, 
additional control options on each emissions unit, the cost of each 
potential control option, the emissions reductions potential resulting 
from the installation of controls, and potential air quality impacts of 
emissions reductions. Without this information, the EPA cannot 
determine whether the sources named in the New York petition have 
available or cost-effective emissions reductions either as compared to 
one another or as compared to other, unnamed sources in the same upwind 
states or in other states. Moreover, the EPA cannot determine whether 
it would be appropriate to regulate any of the hundreds of sources 
named in New York's petition without such information.
    While the EPA initiated analyses of emissions reduction potential 
available at EGUs and non-EGUs conducted in support of the CSAPR 
Update, the analyses were limited in scope, as described in Section 
II.C. Since finalizing that rule, the EPA has not gathered significant 
additional information or completed additional analyses regarding the 
availability of additional controls beyond that which is included in 
the EGU and non-EGU TSDs identified by the commenter because the EPA 
has not needed this information to support any current EPA-initiated 
federal ozone rulemakings. The EPA maintains that the petitioner bears 
the burden of establishing a technical basis for the specific finding 
requested and has not done so here.
    On the contrary, commenters supporting the petition had the 
opportunity to, but did not, provide such analyses during the public 
comment period on the proposed action. Rather, multiple different 
commenters supporting denial of the petition provided corrections or 
supplemental information indicating that the operational status and/or 
emissions information provided in the New York petition were incorrect, 
further suggesting that granting the petition as to certain units would 
be unjustified on the facts before the Agency. Generally, commenters 
opposing the denial did not provide information regarding the 
installation or cost of controls or the potential emissions reductions 
available. In the absence of such analyses and information, the 
petition has not demonstrated, based on information available at this 
time, that the sources named in the petition should be required to make 
further emissions reductions pursuant to CAA section 126(b). The 
existence of two EPA technical support documents on controls for EGUs 
and non-EGUs mentioned by commenters does not contradict this 
conclusion.
    Several commenters contend that the petition adequately met the 
step 3 requirements because New York demonstrated that there are 
available, cost-effective emissions reductions from the named upwind 
sources. Commenters assert that New York has done so by showing that 
certain named upwind sources that have average emissions rates over 
0.15 lb/mmBtu, the emissions rate that is consistent with New York's 
RACT requirement, and that setting an enforceable NOX 
emissions limit equivalent to New York's NOX RACT 
requirements at a cost of $5,000/ton of NOX reduced could be 
met in many cases by operating existing controls. Commenters further 
assert that the EPA has failed to explain why it would not be cost 
effective to implement NOX controls at the group of sources 
identified in the petition. Commenters point to the legislative history 
of CAA section 126(b) as demonstrating an important part of the impetus 
to add CAA section 126(b) was to help equalize control costs between 
upwind and downwind states,\91\ and state that New York is only seeking 
to require upwind sources to comply with requirements it already 
imposes on its own in-state sources.
---------------------------------------------------------------------------

    \91\ Specifically, commenters quote the following, ``In the 
absence of interstate abatement procedures, those plants in States 
with more stringent control requirements are at a distinct economic 
and competitive disadvantage. [CAA section 126(b)] is intended to 
equalize the positions of the States with respect to interstate 
pollution by making a source at least as responsible for polluting 
another State as it would be for polluting its own State.'' S.Rep. 
No. 95-127, at 42 (1977), reprinted in 3 1977 Legislative History of 
the Clean Air Act Amendments of 1977, at 42).
---------------------------------------------------------------------------

    The EPA disagrees that the petition's proposal that New York's RACT 
standard be applied to the identified sources provides enough 
information for the EPA to conclude, at step 3, that each of the 
sources will significantly contribute to nonattainment or interfere 
with maintenance in the NYMA. While New York proposes a uniform level 
of cost and control (at $5,000/ton and 0.15 lb/mmBtu), neither New York 
nor the commenters provide an explanation for why that is an 
appropriate level of control to use to define significant contribution 
under the good neighbor provision and CAA section 126(b). As discussed 
earlier, the fact that the sources have a collective impact over an air 
quality threshold at step 2 does not address whether the sources have 
cost-effective emissions reductions at step 3.
    For example, the petition provides no information demonstrating 
that the 0.15 lb/mmBtu rate is achievable at all sources, whether at 
$5,000 or at other costs. While the commenter suggests that some 
sources might meet that limit through operation of existing controls, 
neither the commenter nor the petition demonstrates that all of the 
approximately 350 sources could meet that proposed rate at the proposed 
$5,000/ton threshold. Thus, the EPA cannot conclude that the proposed 
rate is cost-effective for the suite of sources. Moreover, the petition 
does not identify which sources have existing controls that can be 
operated to meet that rate, meaning the EPA could not even grant the 
petition as to certain sources without identifying or generating 
additional information. Furthermore, commenters assert that some of the 
sources are already meeting the rate, suggesting that even under the 
petition's own approach that these sources are not significantly 
contributing to any air quality problems in New York. It is therefore 
left to the EPA to determine not only which sources have the emissions 
that constitute the alleged significant contribution, but also which

[[Page 56091]]

sources the petition even correctly names.
    Moreover, a conclusion that the emissions rate proposed by New York 
is cost-effective at $5,000 per ton of NOX removed ignores 
the critical question of what relevant ozone improvements would be 
achieved at the downwind area at that cost threshold or considering any 
other potential control strategies. Determinations about what 
constitutes reasonably available control technology ``evaluat[e] 
whether implementation of certain controls within a nonattainment area 
will be effective at addressing a local air quality problem relative to 
the cost of such controls.'' 83 FR at 50470. What controls are required 
locally in nonattainment areas is a different question from whether 
emissions from upwind states, which travel longer distances and have 
different downwind impacts, ``significantly contribute'' to downwind 
nonattainment under the good neighbor provision. As the D.C. Circuit 
held in North Carolina, the good neighbor provision does not permit the 
EPA to simply ``pick a cost for a region and deem `significant' any 
emissions that sources can eliminate more cheaply.'' 531 F.3d at 918. 
Rather, the EPA must ``achieve something measurable toward the goal of 
prohibiting sources `within the State' from contributing significantly 
to downwind nonattainment'' and ``explain how the objectives in section 
110(a)(2)(D)(i)(I) relate to its choice of . . . emissions caps.'' In 
the context of a section 126(b) petition, this is the petitioner's 
burden in the first instance.
    The EPA further disagrees that the cited legislative history 
supports the petition's and commenters' conclusion that the upwind 
states should impose controls commensurate with New York's RACT. 
Although indicating that CAA section 126 was intended to increase the 
equity between the States with respect to taking responsibility for 
impacts on air quality problems, nowhere did Congress indicate that 
upwind states were required to impose the same level of control as 
downwind states in all cases. If Congress had intended this result, the 
statute could have been written in this manner. Instead, Congress 
referenced CAA section 110(a)(2)(D)(i), which also fails to include a 
specific control level and instead uses the ambiguous terms 
``significant contribution'' and ``interference with maintenance'' to 
describe the amount of emissions upwind states are required to control, 
and CAA section 126(b) simply incorporated that standard.
    Moreover, the concept of ``equity'' is particularly difficult to 
define in the context of ozone transport, given that downwind ozone 
concentrations are affected by individually small impacts from 
emissions of hundreds and thousands of sources. First, as to the number 
of sources potentially impacted, states with nonattainment areas are 
generally required to implement RACT at major sources located only 
within the boundaries of the nonattainment area or within the Ozone 
Transport Region (OTR). However, the petition's and commenters' 
argument suggests that the same controls should be imposed on all major 
sources throughout upwind states so long as the state has a linkage at 
or above the step 2 threshold \92\--a much higher burden than the 
statute imposes on local emissions within the home state of a 
nonattainment area.\93\ Second, there is no uniform threshold for 
determining what rate and cost represent RACT. The process for 
identifying RACT considers a variety of factors and can vary from 
nonattainment area to nonattainment area, from state to state, and 
indeed from source to source. Thus, it is not necessarily ``equitable'' 
to rely on a single state's conclusion as to what constitutes RACT for 
its mix of sources in order to define ``significant contribution'' for 
a suite of different sources in numerous distant upwind states. Rather, 
as the Supreme Court concluded, the EPA's use of cost to evaluate 
different types of control strategies and select a level of control for 
a region is itself ``equitable,'' and achieves the intention reflected 
in the legislative history, because it ``subjects to stricter 
regulation those States that have done relatively less in the past to 
control their pollution.'' EME Homer City, 572 U.S. at 519.
---------------------------------------------------------------------------

    \92\ Notably, the factors used to identify areas contributing to 
a measured violation in the designation process are more complex 
than the simple air quality threshold used in the EPA's four-step 
interstate transport framework. In-state sources are not necessarily 
subject to RACT based solely on a similarly low air quality impact.
    \93\ The EPA recognizes that states like New York are required, 
as members of OTR, to impose RACT at major sources statewide, but 
commenters have not argued that the good neighbor provision requires 
incorporation of OTR level controls in any state impacting a 
downwind air quality problem; nor could they. The statute provides a 
separate provision at CAA section 176A for determining whether it is 
appropriate to add additional states to the OTR and thus subject 
them to the additional requirements applicable to such states. The 
EPA already considered and rejected a petition submitted under this 
provision to expand the OTR and subject more states to these 
requirements, which the D.C. Circuit affirmed. New York v. EPA, 921 
F.3d 257 (D.C. Cir. 2019). Congress's decision to include only 
certain states in the OTR was an acknowledgement that there might be 
inequities.
---------------------------------------------------------------------------

    One commenter asserts that data indicate that certain facilities 
named in New York's CAA section 126(b) petition could be controlled. 
Specifically, the commenter notes that the Brunner Island Power Plant 
completed installation of a natural gas line in 2017, but that 2018 
emissions data reveal the facility fired coal on approximately 32 days 
in the ozone season, of which nine were days when the ozone standard 
was exceeded in New York State. The commenter further notes that the 
EPA found in denying Maryland and Delaware's CAA section 126(b) 
petitions that the CSAPR Update was controlling emissions from the EGUs 
named in the petition and from EGUs collectively in the named upwind 
states that impact ozone concentrations in Maryland and Delaware. But 
2018 ozone season emissions data from those sources (also named in New 
York's petition) reveal that NOX emissions continue to 
exceed the levels that would have resulted if existing controls were 
operated as the EPA assumed in the modeling for the Determination Rule 
(at a 0.10 lb/mmBtu rate). The commenter provides data for the units 
named in the Maryland and Delaware petitions intended to demonstrate 
that they could have reduced NOX emissions over the course 
of the ozone season using the 0.15 lb/mmBtu rate requested in New 
York's petition, while also noting that several units already meet or 
approach that limit.
    The commenter asserts that additional facilities in New York's 
petition have similarly been operating with 2018 ozone season 
NOX emissions rates higher than the requested 0.15 lb/mmBtu 
rate, even though ``state-of-the-art'' emissions controls are widely 
available and assumed by the EPA to be installed in its 2023 modeling. 
The comment provides a table with data for six individual sources, 
intended to provide a representative sample of the unoptimized 
facilities across the region, and then cites to the CSAPR Update where 
the EPA said that ``state-of-the-art combustion controls such as low-
NOX burners and over-fire air can be installed quickly'' and 
at an estimated cost of installation of only $500 to $1,200 per ton of 
NOX removed. The commenter asserts that an analysis of 
emissions data reveals that if facilities were to operate at a 0.15 lb/
mmBtu NOX rate, they would have each reduced their 
NOX emissions by over 100 tons, considering only the days 
during the 2018 ozone season in which New York monitors exceeded the 
NAAQS.
    The EPA disagrees with the commenter's assertion that there is 
sufficient information to grant the petition as to the sources 
identified in New York's petition. As an initial matter, simply 
providing data regarding

[[Page 56092]]

how individual units operated in 2018, including those units named in 
the prior Delaware and Maryland CAA section 126(b) petitions, does not 
demonstrate either that the units are able to achieve the 0.15 lb/mmBtu 
rate proposed by the New York petition or, to the extent this is 
technically achievable, that the measures necessary for the sources to 
operate at that rate would be cost-effective considering the types of 
factors the EPA typically evaluates in step 3 of the four-step 
interstate transport framework. In fact, the commenter concedes that 
certain units for which it provides data already meet the proposed 
limit, which further undermines any conclusion that these units should 
be further controlled under CAA section 126(b).
    The EPA further notes, as it did in its denial of the Delaware and 
Maryland petitions, that the EPA has already taken regulatory action to 
control emissions from the sources noted in the comment.\94\ As 
described in the CSAPR Update (81 FR 74540-41), control strategies 
involving turning on and fully operating existing SCR control equipment 
and installing state-of-the-art combustion controls were accounted for 
in setting state budgets to address the good neighbor requirements for 
the 2008 ozone NAAQS for states in the eastern U.S.\95\ Recent measured 
emissions data suggest that those emissions reductions were either 
successfully achieved at the particular units, or commensurate 
reductions were achieved from other units within the state, as 
demonstrated by all states meeting the state budgets (accounting for 
the year-to-year variability associated with the assurance levels) and 
relatively low emissions rates seen at large numbers of units across 
the region (see Excel documents titled, 
``2017_csapr_budgets_emissions_and_assurance_levels_11-1-18_3.xlsx'', 
``2018_csapr_assurance_provision_0.xlsx'', and ``2017 NOX 
Rates for 274 coal units'' in the docket for this action for additional 
details).\96\
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    \94\ See 83 FR 50464-70.
    \95\ See the CSAPR Update technical support document, EGU 
NOX Mitigation Strategies Final Rule TSD for additional 
details.
    \96\ 2017 CSAPR Budgets Emissions and Assurance Levels 
Spreadsheet and 2017 CSAPR Budgets Emissions and Assurance Levels 
Spreadsheet available in the docket and at https://www.epa.gov/csapr/csapr-assurance-provision.
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    The EPA notes that the petitioner and commenters have provided some 
unit-level emissions data for a few units (see comment available at 
EPA-HQ-OAR-2018-0170-0084, Tables 1 and 2) showing some daily emissions 
rates exceeding the commenter's proposed 0.15 lb/mmBtu rate. However, 
the fact that a source may have higher emissions on a particular day is 
not determinative of whether a unit is not fully operating its control 
equipment and can achieve a lower rate, as there are many reasons why 
lower rates may not always be achievable on every day (e.g., at low 
hourly utilization rates there are engineering limitations for flow and 
temperature for an SCR to operate, see Short-Term Emissions Limits 
Document in the docket for this action for additional details). 
Similarly, based on unit configuration, technical engineering design 
efficiency, and the exact nature of the fuel utilized, not all 
combustion control or post-combustion control equipment is technically 
capable of achieving a best emissions rate, or fleet-average best rate, 
under all operating conditions.\97\
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    \97\ See National Electric Energy Data System excel document in 
the docket.
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    As noted by the commenter, the EPA has explained that certain 
combustion controls (e.g., low-NOX burners (LNB) and over-
fire air) can be installed quickly and at costs of $500 to $1,200 tons 
on average, neither the petition nor the commenter has demonstrated 
that there are emissions reductions achievable from these strategies at 
all the units named in the petition. Rather, as shown in the CSAPR 
Update Rule EGU NOX Mitigation Strategies TSD, there is 
limited EGU reduction potential in the CSAPR Update region (including 
all states named in the petition) as most sources have already 
installed state of the art combustion controls.\98\ Moreover, these 
controls may, or may not, be able to achieve the rate identified by the 
commenter of 0.15 lb/mmBtu, and even for those that can the unit-
specific cost may not match the fleetwide average cost discussed 
earlier. The commenter's calculations of alleged emissions reduction 
potential from meeting the proposed rate ignore unit-specific technical 
considerations and corresponding cost by assuming that all facilities 
could have lowered emissions to a 0.15 lb/mmBtu NOX 
emissions rate through combustion control upgrade or post-combustion 
control optimization. The commenter does not present complete 
engineering and cost analysis that speaks to whether these units can, 
and cost-effectively, operate at the proposed level. Moreover, they do 
not explain how any potential reductions identified at these sources 
are more cost-effective than mitigation efforts at other upwind 
sources.
---------------------------------------------------------------------------

    \98\ See EGU NOX Mitigation Strategies Final Rule 
Technical Support Document, August 2016.
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    Commenters also misconstrue the EPA's use of 0.10 lb/mmBtu as a 
rate ceiling rather than a fleet-average when discussing the 
assumptions underlying the modeling used in the Determination Rule. The 
EPA specifically noted that 0.10 lb/mmBtu was representative of a 
fleet-average for units that were not already operating their controls 
prior to the implementation of the CSAPR Update. It did not reflect a 
unit-level rate ceiling or cut-off for SCR operation at all units. In 
the CSAPR Update, the EPA determined that, based on an aggregation of 
unit-level emissions rates, an average fleet-wide emissions rate of 
0.10 lb/mmBtu would represent the optimized operation of SCR controls 
that were not already being operated and optimized, and set statewide 
emissions budgets based on this assumption. 81 FR 74543. In concluding 
that this rate would be appropriate for calculating emissions reduction 
potential from implementation of this control strategy, the EPA 
recognized that some units would have optimized rates above that level 
and some below that level. 81 FR 74543. Thus, the fact that some units 
are operating above 0.10 lb/mmBtu is not indicative that the sources 
have additional cost-effective emissions reductions available.
    Thus, although the petition and the commenter have identified 
certain sources operating at rates higher than that proposed by New 
York in its petition, this is not sufficient information to demonstrate 
that the sources can or should be further controlled, and thus does not 
support a finding that such sources significantly contribute to 
nonattainment or interfere with maintenance of either the 2008 or 2015 
ozone NAAQS in New York.
Conclusion
    For the reasons described in this section, the EPA is finalizing a 
determination that material elements in New York's assessment of step 3 
are insufficient, such that the EPA cannot conclude that any source or 
group of sources in any of the named states will significantly 
contribute to nonattainment or interfere with maintenance in Chautauqua 
County or the NYMA relative to the 2008 and 2015 ozone NAAQS. Thus, the 
EPA is finalizing its denial of the petition as to all named sources in 
all the named upwind states because New York has not met its burden to 
demonstrate that the sources emit or would emit in violation of the 
good neighbor provision with respect to either the 2008 or 2015 ozone 
NAAQS. Although the EPA already has identified a sufficient basis to 
deny the petition as to Chautauqua County (for the 2008 and 2015 ozone 
NAAQS) and NYMA (for the 2008 ozone

[[Page 56093]]

NAAQS) at step 1 of the four-step interstate transport framework, the 
EPA is also relying on our assessment of step 3 as an additional and 
independent basis for denial as to the petition's claims for these 
areas.
4. Group of Stationary Sources
    The EPA does not need, in this final action, to make any finding or 
determination for New York's CAA section 126(b) petition with respect 
to the scope of ``group of stationary sources.'' In the proposal, the 
EPA solicited comment on whether to deny New York's petition based on 
the petition's insufficient justification that such a large, 
undifferentiated number of sources located in numerous upwind states 
constituted a ``group of stationary sources'' within the context of CAA 
section 126(b). The proposal offered that a ``group of stationary 
sources'' could mean stationary sources within a geographic region, 
sources identified by a specific North American Industry Classification 
System (NAICS) Code, sources emitting over a defined threshold and/or 
any combination of these or other defining characteristics. The EPA 
received comments both supporting and opposing a petition denial based 
on whether the petition adequately demonstrated that the sources 
identified in the petition constitute a ``group of stationary 
sources.'' Based on the other bases for denial, the EPA does not need 
to reach the question of whether the petitioners' failed to 
sufficiently justify its interpretation of a ``group of stationary 
sources'' but notes that the absence of supporting information for such 
a determination makes the Agency unlikely to side with petitioners on 
the information provided.

IV. Determinations Under CAA Section 307(b)(1) and (d)

    Section 307(b)(1) of the CAA indicates which Federal Courts of 
Appeal have venue for petitions of review of final actions by the EPA. 
This section provides, in part, that petitions for review must be filed 
in the Court of Appeals for the District of Columbia Circuit if: (i) 
The Agency action consists of ``nationally applicable regulations 
promulgated, or final action taken, by the Administrator;'' or (ii) 
such action is locally or regionally applicable, but ``such action is 
based on a determination of nationwide scope or effect and if in taking 
such action the Administrator finds and publishes that such action is 
based on such a determination.''
    To the extent a court finds this action to be locally or regionally 
applicable, the EPA has found that this action is based on a 
determination of ``nationwide scope and effect'' within the meaning of 
CAA section 307(b)(1). This action addresses emissions impacts from 
sources located in nine states, located in multiple EPA Regions and 
federal judicial circuits. This final action is also based on a common 
core of factual findings and analyses concerning the transport of 
pollutants between the different states.
    For these reasons, to the extent a court finds this action to be 
locally or regionally applicable, the Administrator has determined that 
this final action is based on a determination of nationwide scope and 
effect for purposes of CAA section 307(b)(1).Thus, pursuant to CAA 
section 307(b), any petitions for review of this final action must be 
filed in the Court of Appeals for the District of Columbia Circuit 
within 60 days from the date such final action is published in the 
Federal Register.
    In addition, pursuant to sections 307(d)(1)(N) and 307(d)(1)(V) of 
the CAA, the Administrator has determined that this action is subject 
to the provisions of CAA section 307(d). CAA section 307(d)(1)(N) 
provides that section 307(d) applies to, among other things, ``action 
of the Administrator under CAA section 126 of this title (relating to 
interstate pollution abatement).'' 42 U.S.C. 7407(d)(1)(N). Under CAA 
section 307(d)(1)(V), the provisions of CAA section 307(d) also apply 
to ``such other actions as the Administrator may determine.'' 42 U.S.C. 
7407(d)(1)(V). The Agency has complied with procedural requirements of 
CAA section 307(d) through this rulemaking effort.

V. Statutory Authority

    42 U.S.C. 7410, 7426, 7601.

    Dated: September 20, 2019.
Andrew R. Wheeler,
Administrator.
[FR Doc. 2019-21207 Filed 10-17-19; 8:45 am]
 BILLING CODE 6560-50-P


