[Federal Register Volume 87, Number 35 (Tuesday, February 22, 2022)]
[Proposed Rules]
[Pages 9484-9498]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-02946]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

EPA-R02-OAR-2021-0673; EPA-HQ-OAR-2021-0663; FRL-9424-01-R2]


Air Plan Disapproval; New York and New Jersey; Interstate 
Transport of Air Pollution for the 2015 8-Hour Ozone National Ambient 
Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the 
Environmental Protection Agency (EPA) is proposing to disapprove State 
Implementation Plan (SIP) submittals from New York and New Jersey 
regarding interstate transport for the 2015 8-hour ozone national 
ambient air quality standards (NAAQS). This provision requires that 
each state's SIP contain adequate provisions to prohibit emissions from 
within the state from significantly contributing to nonattainment or 
interfering with maintenance of the NAAQS in other states. The ``good 
neighbor'' or ``interstate transport'' requirement is part of the 
broader set of ``infrastructure'' requirements, which are designed to 
ensure that the structural components of each state's air quality 
management program are adequate to meet the state's responsibilities 
under the CAA. This disapproval, if finalized, will establish a 2-year 
deadline for the EPA to promulgate a Federal Implementation Plan (FIP) 
to address the relevant interstate transport requirements, unless the 
EPA approves a subsequent SIP submittal that meets these requirements. 
Disapproval does not start a mandatory sanctions clock.

DATES: Comments: Written comments must be received on or before April 
25, 2022.

ADDRESSES: You may send comments, identified as Docket No. EPA-R02-OAR-
2021-0673 to the Federal eRulemaking Portal at https://www.regulations.gov following the online instructions for submitting 
comments.
    Instructions: All submissions received must include the Docket ID 
No. for this rulemaking. Comments received may be posted without change 
to https://www.regulations.gov, including any personal information 
provided. For detailed instructions on sending comments and additional 
information on the rulemaking process, see the ``Public Participation'' 
heading of the SUPPLEMENTARY INFORMATION section of this document. Out 
of an abundance of caution for members of the public and our staff, the 
EPA Docket Center and Reading Room are open to the public by 
appointment only to reduce the risk of transmitting COVID-19. Our 
Docket Center staff also continues to provide remote customer service 
via email, phone, and webform. For further information on the EPA 
Docket Center services and the current status, please visit us online 
at https://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: Kenneth Fradkin, Environmental 
Protection Agency, Region 2, 290 Broadway, 25th Floor, New York, NY 
10007-1866, (212) 637-3702, or by email at [email protected].

SUPPLEMENTARY INFORMATION: Public Participation: Submit your comments,

[[Page 9485]]

identified by Docket ID No. EPA-R02-OAR-2021-0673 at https://www.regulations.gov. Once submitted, comments cannot be edited or 
removed from the docket. The EPA may publish any comment received to 
its public docket. Do not submit to the EPA's docket at https://www.regulations.gov any information you consider to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Multimedia submissions (audio, video, etc.) must 
be accompanied by a written comment. The written comment is considered 
the official comment and should include discussion of all points you 
wish to make. The EPA will generally not consider comments or comment 
contents located outside of the primary submission (i.e., on the web, 
cloud, or other file sharing system).
    There are two dockets supporting this action, EPA-R02-OAR-2021-0673 
and EPA-HQ-OAR-2021-0663. Docket No. EPA-R02-OAR-2021-0673 contains 
information specific to New York and New Jersey, including the notice 
of proposed rulemaking. Docket No. EPA-HQ-OAR-2021-0663 contains 
additional modeling files, emissions inventory files, technical support 
documents, and other relevant supporting documentation regarding 
interstate transport of emissions for the 2015 8-hour ozone NAAQS which 
are being used to support this action. All comments regarding 
information in either of these dockets are to be made in Docket No. 
EPA-R02-OAR-2021-0673. For additional submission methods, please 
contact Kenneth Fradkin, Environmental Protection Agency, 290 Broadway, 
25th Floor, New York, 10007-1866, (212) 637-3702, or by email at 
[email protected]. For the full EPA public comment policy, 
information about CBI or multimedia submissions, and general guidance 
on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets. Due to public health concerns related to COVID-
19, the EPA Docket Center and Reading Room are open to the public by 
appointment only. Our Docket Center staff also continues to provide 
remote customer service via email, phone, and webform. For further 
information and updates on the EPA Docket Center services, please visit 
us online at https://www.epa.gov/dockets.
    The EPA continues to carefully and continuously monitor information 
from the Centers for Disease Control and Prevention (CDC), local area 
health departments, and our Federal partners so that we can respond 
rapidly as conditions change regarding COVID-19.
    The index to the docket for this action, Docket No. EPA-R02-OAR-
2021-0673, is available electronically at www.regulations.gov. While 
all documents in the docket are listed in the index, some information 
may not be publicly available due to docket file size restrictions or 
content (e.g., CBI).
    Throughout this document, ``we,'' ``us,'' and ``our'' means the 
EPA.

I. Background

A. Description of Statutory Background

    On October 1, 2015, the EPA promulgated a revision to the ozone 
NAAQS (2015 8-hour ozone NAAQS), lowering the level of both the primary 
and secondary standards to 0.070 parts per million (ppm).\1\ Section 
110(a)(1) of the CAA requires states to submit, within 3 years after 
promulgation of a new or revised standard, SIP submissions meeting the 
applicable requirements of section 110(a)(2).\2\ One of these 
applicable requirements is found in CAA section 110(a)(2)(D)(i)(I), 
otherwise known as the ``interstate transport'' or ``good neighbor'' 
provision, which generally requires SIPs to contain adequate provisions 
to prohibit in-state emissions activities from having certain adverse 
air quality effects on other states due to interstate transport of 
pollution. There are two so-called ``prongs'' within CAA section 
110(a)(2)(D)(i)(I). A SIP for a new or revised NAAQS must contain 
adequate provisions prohibiting any source or other type of emissions 
activity within the state from emitting air pollutants in amounts that 
will significantly contribute to nonattainment of the NAAQS in another 
state (prong 1) or interfere with maintenance of the NAAQS in another 
state (prong 2). The EPA and states must give independent significance 
to prong 1 and prong 2 when evaluating downwind air quality problems 
under CAA section 110(a)(2)(D)(i)(I).\3\
---------------------------------------------------------------------------

    \1\ National Ambient Air Quality Standards for Ozone, Final 
Rule, 80 FR 65292 (October 26, 2015). Although the level of the 
standard is specified in the units of ppm, ozone concentrations are 
also described in parts per billion (ppb). For example, 0.070 ppm is 
equivalent to 70 ppb.
    \2\ SIP revisions that are intended to meet the applicable 
requirements of section 110(a)(1) and (2) of the CAA are often 
referred to as infrastructure SIPs and the applicable elements under 
section 110(a)(2) are referred to as infrastructure requirements.
    \3\ See North Carolina v. EPA, 531 F.3d 896, 909-11 (D.C. Cir. 
2008).
---------------------------------------------------------------------------

B. Description of the EPA's Four Step Interstate Transport Regulatory 
Process

    The EPA is using the 4-step interstate transport framework (or 4-
step framework) to evaluate the states' SIP submittals addressing the 
interstate transport provision for the 2015 8-hour ozone NAAQS. The EPA 
has addressed the interstate transport requirements of CAA section 
110(a)(2)(D)(i)(I) with respect to prior ozone NAAQS in several 
regional regulatory actions, including the Cross-State Air Pollution 
Rule (CSAPR), which addressed interstate transport with respect to the 
1997 ozone NAAQS as well as the 1997 and 2006 fine particulate matter 
standards,\4\ and the Cross-State Air Pollution Rule Update (CSAPR 
Update) \5\ and the Revised CSAPR Update, both of which addressed the 
2008 ozone NAAQS.\6\
---------------------------------------------------------------------------

    \4\ See Federal Implementation Plans: Interstate Transport of 
Fine Particulate Matter and Ozone and Correction of SIP Approvals, 
76 FR 48208 (Aug. 8, 2011).
    \5\ Cross-State Air Pollution Rule Update for the 2008 Ozone 
NAAQS, 81 FR 74504 (Oct. 26, 2016).
    \6\ In 2019, the D.C. Circuit Court of Appeals remanded the 
CSAPR Update to the extent it failed to require upwind states to 
eliminate their significant contribution by the next applicable 
attainment date by which downwind states must come into compliance 
with the NAAQS, as established under CAA section 181(a). Wisconsin 
v. EPA, 938 F.3d 303, 313 (D.C. Cir. 2019). The Revised CSAPR Update 
for the 2008 Ozone NAAQS, 86 FR 23054 (April 30, 2021), responded to 
the remand of the CSAPR Update in Wisconsin and the vacatur of a 
separate rule, the ``CSAPR Close-Out,'' 83 FR 65878 (December 21, 
2018), in New York v. EPA, 781 F. App'x. 4 (D.C. Cir. 2019).
---------------------------------------------------------------------------

    Through the development and implementation of the CSAPR rulemakings 
and prior regional rulemakings pursuant to the interstate transport 
provision,\7\ the EPA, working in partnership with states, developed 
the following 4-step interstate transport framework to evaluate a 
State's obligations to eliminate interstate transport emissions under 
the interstate transport provision for the ozone NAAQS: (1) Identify 
monitoring sites that are projected to have problems attaining and/or 
maintaining the NAAQS (i.e., nonattainment and/or maintenance 
receptors); (2) identify states that impact those air quality problems 
in other (i.e., downwind) states sufficiently such that the states are 
considered ``linked'' and therefore warrant further review and 
analysis; (3) identify the emissions reductions necessary (if any), 
applying a multifactor analysis, to eliminate each linked upwind 
state's significant contribution to nonattainment or interference with 
maintenance of the NAAQS at the locations identified in Step 1; and (4) 
adopt permanent and

[[Page 9486]]

enforceable measures needed to achieve those emissions reductions.
---------------------------------------------------------------------------

    \7\ In addition to the CSAPR rulemakings, other regional 
rulemakings addressing ozone transport include the ``NOX 
SIP Call,'' 63 FR 57356 (October 27, 1998), and the ``Clean Air 
Interstate Rule'' (CAIR), 70 FR 25162 (May 12, 2005).
---------------------------------------------------------------------------

C. Background on the EPA's Ozone Transport Modeling Information

    In general, the EPA has performed nationwide air quality modeling 
to project ozone design values which are used in combination with 
measured data to identify nonattainment and maintenance receptors. To 
quantify the contribution of emissions from specific upwind states on 
2023 ozone design values for the identified downwind nonattainment and 
maintenance receptors, the EPA performed nationwide, state-level ozone 
source apportionment modeling for 2023. The source apportionment 
modeling provided contributions to ozone at receptors from precursor 
emissions of anthropogenic nitrogen oxides (NOX) and 
volatile organic compounds (VOCs) in individual upwind states.
    The EPA has released several documents containing projected ozone 
design values, contributions, and information relevant to evaluating 
interstate transport with respect to the 2015 8-hour ozone NAAQS. 
First, on January 6, 2017, the EPA published a notice of data 
availability (NODA) in which we requested comment on preliminary 
interstate ozone transport data including projected ozone design values 
and interstate contributions for 2023 using a 2011 base year 
platform.\8\ In the NODA, the EPA used the year 2023 as the analytic 
year for this preliminary modeling because that year aligns with the 
expected attainment year for Moderate ozone nonattainment areas for the 
2015 8-hour ozone NAAQS.\9\ On October 27, 2017, we released a 
memorandum (October 2017 memorandum) containing updated modeling data 
for 2023, which incorporated changes made in response to comments on 
the NODA, and noted that the modeling may be useful for states 
developing SIPs to address interstate transport obligations for the 
2008 ozone NAAQS.\10\ On March 27, 2018, we issued a memorandum (March 
2018 memorandum) noting that the same 2023 modeling data released in 
the October 2017 memorandum could also be useful for identifying 
potential downwind air quality problems with respect to the 2015 8-hour 
ozone NAAQS at Step 1 of the 4-step interstate transport framework.\11\ 
The March 2018 memorandum also included the then newly available 
contribution modeling data for 2023 to assist states in evaluating 
their impact on potential downwind air quality problems for the 2015 8-
hour ozone NAAQS under Step 2 of the 4-step interstate transport 
framework.\12\ The EPA subsequently issued two more memoranda in August 
and October 2018, providing additional information to states developing 
interstate transport SIP submissions for the 2015 8-hour ozone NAAQS 
concerning, respectively, potential contribution thresholds that may be 
appropriate to apply in Step 2 of the 4-step interstate transport 
framework, and considerations for identifying downwind areas that may 
have problems maintaining the standard at Step 1 of the 4-step 
interstate transport framework.\13\
---------------------------------------------------------------------------

    \8\ See Notice of Availability of the Environmental Protection 
Agency's Preliminary Interstate Ozone Transport Modeling Data for 
the 2015 8-hour Ozone National Ambient Air Quality Standard (NAAQS), 
82 FR 1733 (January 6, 2017).
    \9\ 82 FR at 1735.
    \10\ See Information on the Interstate Transport State 
Implementation Plan Submissions for the 2008 Ozone National Ambient 
Air Quality Standards under Clean Air Act Section 
110(a)(2)(D)(i)(I), October 27, 2017, available in Docket ID No. 
EPA-HQ-OAR-2021-0663.
    \11\ See Information on the Interstate Transport State 
Implementation Plan Submissions for the 2015 Ozone National Ambient 
Air Quality Standards under Clean Air Act Section 
110(a)(2)(D)(i)(I), March 27, 2018 (``March 2018 memorandum''), 
available in Docket ID No. EPA-HQ-OAR-2021-0663.
    \12\ The March 2018 memorandum, however, provided, ``While the 
information in this memorandum and the associated air quality 
analysis data could be used to inform the development of these SIPs, 
the information is not a final determination regarding states' 
obligations under the good neighbor provision. Any such 
determination would be made through notice-and-comment rulemaking.''
    \13\ See Analysis of Contribution Thresholds for Use in Clean 
Air Act Section 110(a)(2)(D)(i)(I) Interstate Transport State 
Implementation Plan Submissions for the 2015 Ozone National Ambient 
Air Quality Standards, August 31, 2018) (``August 2018 
memorandum''), and Considerations for Identifying Maintenance 
Receptors for Use in Clean Air Act Section 110(a)(2)(D)(i)(I) 
Interstate Transport State Implementation Plan Submissions for the 
2015 Ozone National Ambient Air Quality Standards, October 19, 2018, 
available in Docket ID No. EPA-HQ-OAR-2021-0663.
---------------------------------------------------------------------------

    Since the release of the modeling data shared in the March 2018 
memorandum, the EPA performed updated modeling using a 2016-based 
emissions modeling platform (i.e., 2016v1). This emissions platform was 
developed under the EPA/Multi-Jurisdictional Organization (MJO)/state 
collaborative project.\14\ This collaborative project was a multi-year 
joint effort by the EPA, MJOs, and states to develop a new, more recent 
emissions platform for use by the EPA and states in regulatory modeling 
as an improvement over the dated 2011-based platform that the EPA had 
used to project ozone design values and contribution data provided in 
the 2017 and 2018 memoranda. The EPA used the 2016v1 emissions to 
project ozone Design values and contributions for 2023. On October 30, 
2020, in the Notice of Proposed Rulemaking for the Revised CSAPR 
Update, the EPA released and accepted public comment on 2023 modeling 
that used the 2016v1 emissions platform.\15\ Although the Revised CSPAR 
Update addressed transport for the 2008 ozone NAAQS, the projected 
design values and contributions from the 2016v1 platform are also 
useful for identifying downwind ozone problems and linkages with 
respect to the 2015 ozone NAAQS.\16\
---------------------------------------------------------------------------

    \14\ The results of this modeling, as well as the underlying 
modeling files, are included in Docket ID No. EPA-HQ-OAR-2021-0663.
    \15\ See 85 FR 68964, 68981.
    \16\ See the Air Quality Modeling Technical Support Document for 
the Final Revised Cross-State Air Pollution Rule Update included in 
the Headquarters Docket ID No. EPA-HQ-OAR-2021-0663.
---------------------------------------------------------------------------

    Following the final Revised CSAPR Update, the EPA made further 
updates to the 2016 emissions platform to include mobile emissions from 
the EPA's Motor Vehicle Emission Simulator MOVES3 model \17\ and 
updated emissions projections for electric generating units (EGUs) that 
reflect the emissions reductions from the Revised CSAPR Update, recent 
information on plant closures, and other sector trends. The construct 
of the updated emissions platform, 2016v2, is described in the 
Emissions Modeling technical support document (TSD) for this proposed 
rule. The EPA performed air quality modeling of the 2016v2 emissions 
using the most recent public release version of the Comprehensive Air 
Quality Model with Extensions (CAMx) photochemical modeling, version 
7.10.\18\ The EPA now proposes to primarily rely on modeling based on 
the updated and newly available 2016v2 emissions platform in evaluating 
these submissions with respect to Steps 1 and 2 of the 4-step 
interstate transport framework. By using the updated modeling results, 
the EPA is using the most current and technically appropriate 
information for this proposed rulemaking. Section III of this notice 
and the Air Quality Modeling TSD for 2015 Ozone NAAQS Transport SIP 
Proposed Actions included in Docket ID No. EPA-HQ-OAR-2021-0663 for 
this proposal contains additional detail on the EPA's 2016v2 modeling. 
In this notice, the EPA is

[[Page 9487]]

accepting public comment on this updated 2023 modeling, which uses a 
2016v2 emissions platform. Comments on the EPA's air quality modeling 
should be submitted in the Regional docket for this action, Docket No. 
EPA-R02-OAR-2021-0673. Comments are not being accepted in Docket EPA-
HQ-OAR-2021-0663.
---------------------------------------------------------------------------

    \17\ Additional details and documentation related to the MOVES3 
model can be found at https://www.epa.gov/moves/latest-version-motor-vehicle-emission-simulator-moves.
    \18\ Ramboll Environment and Health, January 2021, www.camx.com.
---------------------------------------------------------------------------

    In some cases, states may rely on the results of EPA modeling and/
or alternative modeling performed by states or Multi-Jurisdictional 
Organizations (MJOs) to evaluate downwind air quality problems and 
contributions as part of their submissions. New York and New Jersey 
have done so, and so we have evaluated the use of that alternative 
modeling in Section III.

D. The EPA's Approach to Evaluating Interstate Transport SIPs for the 
2015 8-Hour Ozone NAAQS

    The EPA proposes to apply a consistent set of policy judgments 
across all states for purposes of evaluating interstate transport 
obligations and the approvability of interstate transport SIP 
submittals for the 2015 8-hour ozone NAAQS. These policy judgments 
reflect consistency with relevant case law and past agency practice as 
reflected in the CSAPR and related rulemakings. Nationwide consistency 
in approach is particularly important in the context of interstate 
ozone transport, which is a regional-scale pollution problem involving 
many smaller contributors. Effective policy solutions to the problem of 
interstate ozone transport going back to the NOX SIP Call 
have necessitated the application of a uniform framework of policy 
judgments in order to ensure an ``efficient and equitable'' approach. 
See EME Homer City Generation, LP v. EPA, 572 U.S. 489, 519 (2014).
    In the March, August, and October 2018 memoranda, the EPA 
recognized that states may be able to establish alternative approaches 
to addressing their interstate transport obligations for the 2015 8-
hour ozone NAAQS that vary from a nationally uniform framework. The EPA 
emphasized in these memoranda, however, that such alternative 
approaches must be technically justified and appropriate in light of 
the facts and circumstances of each particular state's submittal. In 
general, the EPA continues to believe that deviation from a nationally 
consistent approach to ozone transport must be substantially justified 
and have a well-documented technical basis that is consistent with 
relevant case law. Where states submitted SIPs that rely on any such 
potential ``flexibilities'' as may have been identified or suggested in 
the past, the EPA will evaluate whether the state adequately justified 
the technical and legal basis for doing so.
    The EPA notes that certain concepts included in an attachment to 
the March 2018 memorandum require unique consideration, and these ideas 
do not constitute agency guidance with respect to transport obligations 
for the 2015 ozone NAAQS. Attachment A to the March 2018 memorandum 
identified a ``Preliminary List of Potential Flexibilities'' that could 
potentially inform SIP development.\19\ However, the EPA made clear in 
that Attachment that the list of ideas were not suggestions endorsed by 
the Agency but rather ``comments provided in various forums'' on which 
the EPA sought ``feedback from interested stakeholders.'' \20\ Further, 
Attachment A stated, ``EPA is not at this time making any determination 
that the ideas discussed below are consistent with the requirements of 
the CAA, nor are we specifically recommending that states use these 
approaches.'' \21\ Attachment A to the March 2018 memorandum, 
therefore, does not constitute agency guidance, but was intended to 
generate further discussion around potential approaches to addressing 
ozone transport among interested stakeholders. To the extent states 
sought to develop or rely on these ideas in support of their SIP 
submittals, the EPA will thoroughly review the technical and legal 
justifications for doing so.
---------------------------------------------------------------------------

    \19\ March 2018 memorandum, Attachment A.
    \20\ Id. at A-1.
    \21\ Id.
---------------------------------------------------------------------------

    The remainder of this section describes the EPA's proposed 
framework with respect to analytic year, definition of nonattainment 
and maintenance receptors, selection of contribution threshold, and 
multifactor control strategy assessment.
1. Selection of Analytic Year
    In general, the states and the EPA must implement the interstate 
transport provision in a manner ``consistent with the provisions of 
[title I of the CAA.]'' CAA section 110(a)(2)(D)(i). This requires, 
among other things, that these obligations are addressed consistently 
with the timeframes for downwind areas to meet their CAA obligations. 
With respect to ozone NAAQS, under CAA section 181(a), this means 
obligations must be addressed ``as expeditiously as practicable'' and 
no later than the schedule of attainment dates provided in CAA section 
181(a)(1).\22\ Several D.C. Circuit court decisions address the issue 
of the relevant analytic year for the purposes of evaluating ozone 
transport air-quality problems. On September 13, 2019, the D.C. Circuit 
issued a decision in Wisconsin v. EPA, remanding the CSAPR Update to 
the extent that it failed to require upwind states to eliminate their 
significant contribution by the next applicable attainment date by 
which downwind states must come into compliance with the NAAQS, as 
established under CAA section 181(a). 938 F.3d at 313.
---------------------------------------------------------------------------

    \22\ For attainment dates for the 2015 8-hour ozone NAAQS, refer 
to CAA section 181(a), 40 CFR 51.1303, and Additional Air Quality 
Designations for the 2015 Ozone National Ambient Air Quality 
Standards, 83 FR 25776 (June 4, 2018, effective Aug. 3, 2018).
---------------------------------------------------------------------------

    On May 19, 2020, the D.C. Circuit issued a decision in Maryland v. 
EPA that cited the Wisconsin decision in holding that the EPA must 
assess the impact of interstate transport on air quality at the next 
downwind attainment date, including Marginal area attainment dates, in 
evaluating the basis for the EPA's denial of a petition under CAA 
section 126(b). Maryland v. EPA, 958 F.3d 1185, 1203-04 (D.C. Cir. 
2020). The court noted that ``section 126(b) incorporates the Good 
Neighbor Provision,'' and, therefore, ``EPA must find a violation [of 
section 126] if an upwind source will significantly contribute to 
downwind nonattainment at the next downwind attainment deadline. 
Therefore, the agency must evaluate downwind air quality at that 
deadline, not at some later date.'' Id. at 1204 (emphasis added). The 
EPA interprets the court's holding in Maryland as requiring the states 
and the Agency, under the good neighbor provision, to assess downwind 
air quality as expeditiously as practicable and no later than the next 
applicable attainment date,\23\ which is now the Moderate area 
attainment date under CAA section 181 for ozone nonattainment. The 
Moderate area attainment date for the 2015 8-hour ozone NAAQS is August 
3, 2024.\24\ The EPA believes that 2023 is now the appropriate year for 
analysis of interstate transport obligations for the

[[Page 9488]]

2015 8-hour ozone NAAQS because the 2023 ozone season is the last 
relevant ozone season during which achieved emissions reductions in 
linked upwind states could assist downwind states with meeting the 
August 3, 2024 Moderate area attainment date for the 2015 8-hour ozone 
NAAQS.
---------------------------------------------------------------------------

    \23\ We note that the court in Maryland did not have occasion to 
evaluate circumstances in which the EPA may determine that an upwind 
linkage to a downwind air quality problem exists at Steps 1 and 2 of 
the interstate transport framework by a particular attainment date, 
but for reasons of impossibility or profound uncertainty the Agency 
is unable to mandate upwind pollution controls by that date. See 
Wisconsin, 938 F.3d at 320. The D.C. Circuit noted in Wisconsin that 
upon a sufficient showing, these circumstances may warrant 
flexibility in effectuating the purpose of the interstate transport 
provision.
    \24\ See CAA section 181(a); 40 CFR 51.1303; Additional Air 
Quality Designations for the 2015 Ozone National Ambient Air Quality 
Standards, 83 FR 25776 (June 4, 2018, effective Aug. 3, 2018).
---------------------------------------------------------------------------

    The EPA recognizes that the attainment date for nonattainment areas 
classified as Marginal for the 2015 8-hour ozone NAAQS was August 3, 
2021. Under the Maryland holding, any necessary emissions reductions to 
satisfy interstate transport obligations should have been implemented 
by no later than this date. At the time of the statutory deadline to 
submit interstate transport SIPs (October 1, 2018), many states relied 
upon the EPA modeling of the year 2023, and no state provided an 
alternative analysis using a 2021 analytic year (or the prior 2020 
ozone season). However, the EPA must act on SIP submittals using the 
information available at the time it takes such action. In this 
circumstance, the EPA does not believe it would be appropriate to 
evaluate states' obligations under CAA section 110(a)(2)(D)(i)(I) as of 
an attainment date that is wholly in the past, because the Agency 
interprets the interstate transport provision as forward looking. See 
86 FR at 23074; see also Wisconsin, 938 F.3d at 322. Consequently, in 
this proposal the EPA will use the analytical year of 2023 to evaluate 
each state's CAA section 110(a)(2)(D)(i)(I) SIP submission with respect 
to the 2015 8-hour ozone NAAQS.
2. Step 1 of the 4-Step Interstate Transport Framework
    In Step 1, the EPA identifies monitoring sites that are projected 
to have problems attaining and/or maintaining the NAAQS in the 2023 
analytic year. Where the EPA's analysis shows that a site does not fall 
under the definition of a nonattainment or maintenance receptor, that 
site is excluded from further analysis under the EPA's 4-step 
interstate transport framework. For sites that are identified as a 
nonattainment or maintenance receptor in 2023, we proceed to the next 
Step of our 4-step interstate transport framework by identifying the 
upwind state's contribution to those receptors.
    The EPA's approach to identifying ozone nonattainment and 
maintenance receptors in this action is consistent with the approach 
used in previous transport rulemakings. The EPA's approach gives 
independent consideration to both the ``contribute significantly to 
nonattainment'' and the ``interfere with maintenance'' prongs of CAA 
section 110(a)(2)(D)(i)(I), consistent with the D.C. Circuit's 
direction in North Carolina v. EPA.\25\
---------------------------------------------------------------------------

    \25\ See North Carolina v. EPA, 531 F.3d 896, 910-11 (D.C. Cir. 
2008) (holding that the EPA must give ``independent significance'' 
to each prong of CAA section 110(a)(2)(D)(i)(I)).
---------------------------------------------------------------------------

    For the purpose of this proposal, the EPA identifies nonattainment 
receptors as those monitoring sites that are projected to have average 
design values that exceed the NAAQS and that are also measuring 
nonattainment based on the most recent monitored design values. This 
approach is consistent with prior transport rulemakings, such as the 
CSAPR Update, where the EPA defined nonattainment receptors as those 
areas that both currently measure nonattainment and that the EPA 
projects will be in nonattainment in the future analytic year (i.e., 
2023).\26\
---------------------------------------------------------------------------

    \26\ See 81 FR 74504 (October 26, 2016). This same concept, 
relying on both current monitoring data and modeling to define 
nonattainment receptor, was also applied in CAIR. See 70 FR at 
25241, 25249 (January 14, 2005); see also North Carolina, 531 F.3d 
at 913-14 (affirming as reasonable EPA's approach to defining 
nonattainment in CAIR).
---------------------------------------------------------------------------

    In addition, in this proposal, the EPA identifies a receptor to be 
a ``maintenance'' receptor for purposes of defining interference with 
maintenance, consistent with the method used in the CSAPR and upheld by 
the D.C. Circuit in EME Homer City Generation, L.P. v. EPA, 795 F.3d 
118, 136 (D.C. Cir. 2015).\27\ Specifically, the EPA identified 
maintenance receptors as those receptors that would have difficulty 
maintaining the relevant NAAQS in a scenario that takes into account 
historical variability in air quality at that receptor. The variability 
in air quality was determined by evaluating the ``maximum'' future 
design value at each receptor based on a projection of the maximum 
measured design value over the relevant period. The EPA interprets the 
projected maximum future design value to be a potential future air 
quality outcome consistent with the meteorology that yielded maximum 
measured concentrations in the ambient data set analyzed for that 
receptor (i.e., ozone conducive meteorology). The EPA also recognizes 
that previously experienced meteorological conditions (e.g., dominant 
wind direction, temperatures, air mass patterns) promoting ozone 
formation that led to maximum concentrations in the measured data may 
reoccur in the future. The maximum design value gives a reasonable 
projection of future air quality at the receptor under a scenario in 
which such conditions do, in fact, reoccur. The projected maximum 
design value is used to identify upwind emissions that, under those 
circumstances, could interfere with the downwind area's ability to 
maintain the NAAQS.
---------------------------------------------------------------------------

    \27\ See 76 FR 48208 (August 8, 2011). CSAPR Update and Revised 
CSAPR Update also used this approach. See 81 FR 74504 (October 26, 
2016) and 86 FR 23054 (April 30, 2021).
---------------------------------------------------------------------------

    Recognizing that nonattainment receptors are also, by definition, 
maintenance receptors, the EPA often uses the term ``maintenance-only'' 
to refer to those receptors that are not nonattainment receptors. 
Consistent with the concepts for maintenance receptors, as described 
above, the EPA identifies ``maintenance-only'' receptors as those 
monitoring sites that have projected average design values above the 
level of the applicable NAAQS, but that are not currently measuring 
nonattainment based on the most recent official design values. In 
addition, those monitoring sites with projected average design values 
below the NAAQS, but with projected maximum design values above the 
NAAQS are also identified as ``maintenance only'' receptors, even if 
they are currently measuring nonattainment based on the most recent 
official design values.
3. Step 2 of the 4-Step Interstate Transport Framework
    In Step 2 the EPA quantifies the contribution of each upwind state 
to each receptor in the 2023 analytic year. The contribution metric 
used in Step 2 is defined as the average impact from each state to each 
receptor on the days with the highest ozone concentrations at the 
receptor based on the 2023 modeling. If a state's contribution value 
does not equal or exceed the threshold of 1 percent of the NAAQS (i.e., 
0.70 ppb for the 2015 8-hour ozone NAAQS), the upwind state is not 
``linked'' to a downwind air quality problem, and the EPA, therefore, 
concludes that the state does not significantly contribute to 
nonattainment or interfere with maintenance of the NAAQS in the 
downwind states. However, if a state's contribution equals or exceeds 
the 1 percent threshold, the state's emissions are further evaluated in 
Step 3, considering both air quality and cost as part of a multi-factor 
analysis, to determine what, if any, emissions might be deemed 
``significant'' and, thus, must be eliminated under CAA section 
110(a)(2)(D)(i)(I). The EPA is proposing to rely in the first instance 
on the 1 percent threshold for the purpose of evaluating a state's 
contribution to nonattainment or maintenance of the 2015 8-hour ozone 
NAAQS (i.e., 0.70 ppb) at downwind receptors. This is consistent with 
the Step 2 approach that

[[Page 9489]]

the EPA applied in CSAPR for the 1997 ozone NAAQS, which has 
subsequently been applied in the CSAPR Update when evaluating 
interstate transport obligations for the 2008 ozone NAAQS. The EPA 
continues to find 1 percent to be an appropriate threshold. For ozone, 
as the EPA found in the Clean Air Interstate Rule (CAIR), CSAPR, and 
CSAPR Update, a portion of the nonattainment problems from 
anthropogenic sources in the U.S. results from the combined impact of 
relatively small contributions from many upwind states, along with 
contributions from in-state sources and, in some cases, substantially 
larger contributions from a subset of particular upwind states. The 
EPA's analysis shows that much of the ozone transport problem being 
analyzed in this proposed rule is still the result of the collective 
impacts of contributions from many upwind states. Therefore, 
application of a consistent contribution threshold is necessary to 
identify those upwind states that should have responsibility for 
addressing their contribution to the downwind nonattainment and 
maintenance problems to which they collectively contribute. Continuing 
to use 1 percent of the NAAQS as the screening metric to evaluate 
collective contribution from many upwind states also allows the EPA 
(and states) to apply a consistent framework to evaluate interstate 
emissions transport under the interstate transport provision from one 
NAAQS to the next. See 81 FR at 74518. See also 86 FR at 23085 
(reviewing and explaining rationale from CSAPR, 76 FR at 48237-38, for 
selection of the 1 percent threshold).
    The EPA's August 2018 memorandum recognized that in certain 
circumstances, a state may be able to establish that an alternative 
contribution threshold of 1 ppb is justifiable. Where a state relies on 
this alternative threshold, and where that state determined that it was 
not linked at Step 2 using the alternative threshold, the EPA will 
evaluate whether the state provided a technically sound assessment of 
the appropriateness of using this alternative threshold based on the 
facts and circumstances underlying its application in the particular 
SIP submission.
4. Step 3 of the 4-Step Interstate Transport Framework
    Consistent with the EPA's longstanding approach to eliminating 
significant contribution or interference with maintenance, at Step 3, 
states linked at Steps 1 and 2 are generally expected to prepare a 
multifactor assessment of potential emissions controls. The EPA's 
analysis at Step 3 in prior Federal actions addressing interstate 
transport requirements has primarily focused on an evaluation of cost-
effectiveness of potential emissions controls (on a marginal cost-per-
ton basis), the total emissions reductions that may be achieved by 
requiring such controls (if applied across all linked upwind states), 
and an evaluation of the air quality impacts such emissions reductions 
would have on the downwind receptors to which a state is linked; other 
factors may potentially be relevant if adequately supported. In 
general, where the EPA's or alternative air quality and contribution 
modeling establishes that a state is linked at Steps 1 and 2, it will 
be insufficient at Step 3 for a state merely to point to its existing 
rules requiring control measures as a basis for approval. In general, 
the emissions-reducing effects of all existing emissions control 
requirements are already reflected in the air quality results of the 
modeling for Steps 1 and 2. If the state is shown to still be linked to 
one or more downwind receptor(s), states must provide a well-documented 
evaluation determining whether their emissions constitute significant 
contribution or interference with maintenance by evaluating additional 
available control opportunities by preparing a multifactor assessment. 
While the EPA has not prescribed a particular method for this 
assessment, the EPA expects states at a minimum to present a sufficient 
technical evaluation. This would typically include information on 
emissions sources, applicable control technologies, emissions 
reductions, costs, cost effectiveness, and downwind air quality impacts 
of the estimated reductions, before concluding that no additional 
emissions controls should be required.\28\
---------------------------------------------------------------------------

    \28\ As examples of general approaches for how such an analysis 
could be conducted for their sources, states could look to the CSAPR 
Update, 81 FR 74504, 74539-51; CSAPR, 76 FR 48208, 48246-63; CAIR, 
70 FR 25162, 25195-229; or the NOX SIP Call, 63 FR 57356, 
57399-405. See also Revised CSAPR Update, 86 FR 23054, 23086-23116. 
Consistently across these rulemakings, the EPA has developed 
emissions inventories, analyzed different levels of control 
stringency at different cost thresholds, and assessed resulting 
downwind air quality improvements.
---------------------------------------------------------------------------

5. Step 4 of the 4-Step Interstate Transport Framework
    At Step 4, states (or the EPA) develop permanent and federally 
enforceable control strategies to achieve the emissions reductions 
determined to be necessary at Step 3 to eliminate significant 
contribution to nonattainment or interference with maintenance of the 
NAAQS. For a state linked at Steps 1 and 2 to rely on an emissions 
control measure at Step 3 to address its interstate transport 
obligations, that measure must be included in the state's SIP so that 
it is permanent and federally enforceable. See CAA section 110(a)(2)(D) 
(``Each such [SIP] shall . . . contain adequate provisions. . . .''). 
See also CAA 110(a)(2)(A); Committee for a Better Arvin v. U.S. E.P.A., 
786 F.3d 1169, 1175-76 (9th Cir. 2015) (holding that measures relied on 
by state to meet CAA requirements must be included in the SIP).

II. SIP Submissions Addressing Interstate Transport of Air Pollution 
for the 2015 8-Hour Ozone NAAQS

A. New York

    On September 25, 2018, the New York State Department of 
Environmental Conservation (NYSDEC) submitted a revision to its SIP 
addressing the infrastructure SIP requirements for the 2015 ozone 
NAAQS, including the interstate transport obligations pursuant to the 
good neighbor provision. The EPA finalized approval of elements of New 
York's submittal, except for the portion of the SIP submittal 
addressing the good neighbor provision, on June 23, 2021.\29\
---------------------------------------------------------------------------

    \29\ 86 FR 35034 (July 1, 2021).
---------------------------------------------------------------------------

    In New York's SIP submittal, the State followed the 4-step 
framework for determining its good neighbor obligations. New York 
provided air quality modeling (Steps 1 and 2) and a list of already-
enacted and ``on-the-way'' state air pollution control measures to 
conclude that New York satisfied its good neighbor obligations for the 
2015 ozone NAAQS (under Step 3). The State did not reach Step 4 of the 
framework as it concluded that the State did not need additional 
emissions reductions at Step 3 to eliminate significant contribution.
    At Step 1, New York identified nonattainment and maintenance 
receptors based on the EPA's 2023 projection modeling shared in the EPA 
March 2018 memorandum. New York identified nonattainment receptors at 
the Stratford (receptor ID 90013007) and Westport (receptor ID 
90019003) monitoring sites in Fairfield County, in Connecticut, in 2023 
and identified maintenance receptors at the Greenwich (receptor ID 
900190017) and New Haven (receptor ID 90099002) monitoring sites in 
Fairfield and New Haven Counties, in Connecticut, respectively, in 
2023.

[[Page 9490]]

    New York submitted state-by-state contribution modeling for 2023 
based on CAMx modeling performed by the Maryland Department of the 
Environment (MDE). New York coupled 2023 Community Multiscale Air 
Quality (CMAQ) projection modeling with MDE's CAMx contribution 
modeling to show that New York was linked to the Stratford, Westport, 
Greenwich, and New Haven monitoring sites in Connecticut using a 1 
percent of the NAAQS threshold (0.70 ppb for the 2015 8-hour ozone 
NAAQS). Based on this information, New York conceded that it was linked 
to four Connecticut receptors at Step 2.
    New York asserted that, despite its contributions, the State had 
met its good neighbor obligations through the implementation and 
enforcement of stringent NOX and VOC control measures that 
the State asserted go well beyond the EPA presumptive cost threshold in 
the CSAPR Update for highly cost-effective emissions reductions, and 
through the ongoing adoption and revision of additional control 
measures to further ensure the reduction of ozone in both New York 
State and downwind areas.
    New York cited its Reasonably Available Control Technology (RACT) 
rules, which have been required on major sources of NOX 
throughout the State since 1995, and have been periodically updated (in 
1999, 2004, and 2010) to keep up with advances in control technology. 
New York indicated that the State's RACT presumptive emissions limits 
and facility-specific emissions limits are based on inflation-adjusted 
control cost valued at $5,500 per ton of NOX reduced, which 
New York indicated was consistent with typical costs to install 
selective catalytic reduction (SCR) units, and above the EPA's $1,400 
per ton control cost threshold used for the CSAPR Update that reflected 
the cost of turning on already-existing SCR controls at EGUs. New York 
also noted that the State's EGU NOX emissions rates are 
among the lowest in the country, as reflected in its CSAPR Update ozone 
season emissions budget, which is lower than all other states with the 
exception of New Jersey and Maryland. New York indicated that its 
$5,500 RACT control cost also applied to non-EGUs.
    New York also stated in the September 2018 submittal that it was in 
various stages of the rulemaking process for additional measures to 
further control NOX and VOC emissions from EGU, non-EGU, 
area, and mobile sources.
    Additional NOX reductions would be obtained, according 
to the State, through the following regulatory updates that were, at 
the time of the submittal, under development by the State: Establishing 
new NOX limits for simple cycle combustion turbines (or 
``peaking'' \30\ units), which New York noted would benefit the New 
York Metropolitan Area on hot summer days that are most conducive to 
ozone formation (i.e., high electric demand days) (6 NYCRR Part 227); 
establishing NOX limits for distributed generation sources 
(6 NYCRR Part 222); applying NOX RACT requirements to 
municipal waste combustors (6 NYCRR Part 219); requiring new 
installation, recordkeeping and reporting requirements for aftermarket 
catalytic converters (Part 218); and the adoption of the CSAPR Update 
trading program (6 NYCRR Part 243).
---------------------------------------------------------------------------

    \30\ Simple cycle combustion turbines, also known as peaking 
units (peakers), run to meet electric load during periods of peak 
electricity demand. These peakers typically operate during periods 
of elevated temperature when electric demand increases. Older simple 
cycle combustion turbines sometimes have no or only low-level 
NOX emission controls.
---------------------------------------------------------------------------

    New York's submittal also indicates that it will further control 
area-source VOC emissions through updates to State VOC RACT regulations 
for Oil and Gas (6 NYCRR Part 203); Architectural and Industrial 
Maintenance Coatings (6 NYCRR Part 205); Solvent Metal Cleaning 
Processes (Part 226); Motor Vehicle and Mobile Equipment Refinishing 
and Recoating Operations (6 NYCRR Part 228, Subpart 228-1); Gasoline 
Dispensing Sites and Transport Vehicles (6 NYCRR Part 230); and 
Consumer Products (6 NYCRR Part 235).
    In its submittal to the EPA, New York commented that the State's 
mobile on-road sector alone (without considering other state emissions) 
``significantly impacted downwind monitors, with 2023 contributions as 
high as 4.64 ppb at the Greenwich, Connecticut monitor'' (receptor ID 
90010017), based on CAMx modeling conducted by the University of 
Maryland.\31\
---------------------------------------------------------------------------

    \31\ See Appendix C of New York's submittal.
---------------------------------------------------------------------------

    New York stated that the on-road sector is controlled through the 
inspection/maintenance and anti-idling standards in 6 NYCRR Part 217, 
``Motor Vehicle Emissions,'' and the implementation of the California 
Low-Emission Vehicle Standards under 6 NYCRR Part 218, ``Emission 
Standards for Motor Vehicles and Motor Vehicle Engines.''

B. New Jersey

    On May 13, 2019, New Jersey submitted a SIP revision that addressed 
infrastructure SIP requirements for the 2015 ozone NAAQS,\32\ including 
its interstate transport obligations pursuant to the good neighbor 
provision. Except for the portion of the SIP submittal addressing the 
good neighbor provision for the 2015 8-hour ozone NAAQS, the EPA will 
act on the portion of the submittal addressing the remaining 
infrastructure SIP elements for the 2015 8-hour ozone NAAQS in a 
separate action at a later date.
---------------------------------------------------------------------------

    \32\ The SIP submittal also addressed the good neighbor 
provision for the 2008 ozone NAAQS, which EPA acted on in a separate 
action. The EPA proposed disapproval on October 26, 2021, at 86 FR 
60602 (November 3, 2021).
---------------------------------------------------------------------------

    In New Jersey's SIP submittal, the State followed the 4-step 
framework based on a 2023 analytic year for evaluating its significant 
contribution. New Jersey provided air quality modeling (Steps 1 and 2), 
and a list of its adopted and implemented air pollution control 
measures, to demonstrate that it satisfied its transport obligations 
for the 2015 8-hour ozone NAAQS (under Step 3). The State did not reach 
Step 4 of the framework as it concluded that the State did not need 
additional emissions reductions to eliminate significant contribution 
at Step 3.
    At Step 1, New Jersey identified areas that the State potentially 
significantly contributed to in other states based on 2023 regional 
modeling \33\ conducted under the coordination of the Ozone Transport 
Commission (OTC) modeling Committee. The OTC modeling used CAMx 
modeling, version 6.3, to project emissions to 2023 (using a 2011 base 
year). OTC used the Eastern Regional Technical Advisory Committee 
(ERTAC) EGU Projection Tool to estimate emissions from the EGU sector.
---------------------------------------------------------------------------

    \33\ OTC modeling included in Appendix I of NJ submittal.
---------------------------------------------------------------------------

    New Jersey identified four nonattainment and four maintenance 
receptors in the OTC/MANE-VU 12 kilometer (km) modeling domain utilized 
in the OTC modeling.\34\ The nonattainment receptors were located at 
the Westport \35\ (receptor ID 90019003) monitoring site in Fairfield 
County, in Connecticut; the Susan Wagner (receptor ID 360850067) and 
Babylon (receptor ID 36103002) monitoring sites in Richmond and Suffolk 
Counties,

[[Page 9491]]

respectively, in New York; and the Edgewood (receptor ID 240251001) 
monitoring site in Harford County, Maryland. The maintenance receptors 
were located at the Greenwich (receptor ID 90010017), New Haven 
(receptor ID 90099002) and Stratford (receptor ID 90013007) monitoring 
sites in Fairfield, New Haven, and Fairfield Counties, in Connecticut, 
respectively; and the Queens College (receptor ID 360810124) in Queens 
County, in New York.
---------------------------------------------------------------------------

    \34\ OTC modeling generally followed the EPA approach for 
identifying nonattainment and maintenance receptors. Monitors in the 
Eastern U.S. were projected as nonattainment (an average design 
value greater than or equal to 71 ppb) or maintenance only (a 
maximum design value greater than or equal to 71 ppb) of the 2015 
Ozone NAAQS in 2023. The EPA's approach for identifying ozone 
nonattainment and maintenance receptors is defined in section I.D.2.
    \35\ Referenced as the Sherwood Island site in the New Jersey 
submittal.
---------------------------------------------------------------------------

    New Jersey relied on the OTC 2023 regional modeling using CAMx to 
determine the nonattainment and maintenance sites that it was linked to 
as a potential significant contributor based on its contribution above 
1 percent of the NAAQS (0.70 ppb for the 2015 8-hour ozone NAAQS). The 
OTC modeling showed that New Jersey was linked above the 1 percent 
threshold to four receptors, including two nonattainment receptors at 
the Westport monitoring site in Connecticut and at the Susan Wagner and 
Babylon monitoring sites in New York. Additionally, the modeling 
demonstrated that New Jersey was linked to maintenance receptors 
located at the Greenwich, New Haven, and Stratford monitoring sites in 
Connecticut and the Babylon monitoring site in New York.
    New Jersey asserted that considering air quality, emissions 
reductions from the State's adopted measures, and the cost 
effectiveness of those measures, no additional emissions reductions 
from New Jersey are necessary to address its good neighbor obligations 
to downwind nonattainment and maintenance areas.
    New Jersey noted that from 1990 to 2017, annual NOX and 
VOC emissions in New Jersey have each decreased approximately 77 
percent. From 2011 to 2017, annual NOX and VOC emissions 
decreased 31 percent and 17 percent, respectively. From 2002 to 2017, 
for point sources in the State, NOX was reduced by 81 
percent and VOC emissions were reduced by 63 percent. New Jersey also 
noted that its point source emissions represent only about 8 percent of 
New Jersey's total NOX emissions, while mobile sources were 
approximately 43 percent.
    New Jersey stated that there has been a significant decreasing 
trend in 8-hour ozone design values in New Jersey, approximately 40 
percent from 1988 to 2017 and 13 percent from 2011 to 2017. According 
to the State, the significant decrease demonstrates the impact of New 
Jersey control measures.
    New Jersey provided a list \36\ of its post-2002 adopted 
NOX and VOC control measures, including estimated cost-
effectiveness (dollar ($) per ton of NOX reduced or VOC 
reduced), and the EPA's approval date \37\ for many of the measures. 
New Jersey notes that the State has met Reasonably Available Control 
Measures (RACM) and RACT requirements and has gone beyond RACM/RACT by 
adopting control measures more stringent than Federal rules and rules 
adopted by other states. Furthermore, New Jersey states that its rules 
are implemented statewide and not limited to the Northern New Jersey-
New York-Connecticut ozone nonattainment area. New Jersey highlighted 
several of its control measures:
---------------------------------------------------------------------------

    \36\ Table 5 of the SIP submittal.
    \37\ Control measures that the State identified as ``USEPA 
Approval Pending'' have been approved by the EPA as follows: The EPA 
finalized approval of the CTGs for Fiberglass Boat Manufacturing 
Materials; Industrial Cleaning Solvents; Miscellaneous Metal and 
Plastic Parts Coatings; Paper, Film, and Foil Coatings; and Natural 
Gas Engines and Turbines. 83 FR 50506 (October 9, 2018). The EPA 
approved revisions to New Jersey's I/M rules. 83 FR 21174 (May 9, 
2018). The EPA finalized approval of New Jersey's Vapor Recovery 
2017 Stage I and Refueling. 85 FR 36748 (June 18, 2020).

--Power generation rules, including requirements for high electric 
demand days (HEDD) when ozone concentrations are highest. New Jersey 
estimates NOX emissions reduction during HEDD to be over 60 
tons from a baseline without the rules;
--municipal waste combustor controls;
--stationary reciprocating internal combustion engines (RICE) controls 
(as low as 37 kW) used for distributed generation or demand response 
(DG/DR), which the State noted are often operated on hot summer days 
that often coincide with high ozone days;
--mobile source controls including New Jersey's Low Emission Vehicle 
Program (NJ LEV) (based on California's program), which requires a 
certain percentage of Zero Emission Vehicles in the State, as well as 
its rules for vehicle idling and heavy-duty vehicle inspection and 
maintenance using on-board diagnostics technology; and
--various NOX and VOC measures to address the EPA Control 
Techniques Guideline (CTG), NOX Alternative Control 
Technique (ACT) categories, and updated controls at gasoline dispensing 
facilities including California Air Resources Board (CARB) enhanced 
vapor recovery certified Phase I vapor recovery systems, dripless 
nozzles, and low permeation hoses.

    New Jersey also asserts that it has implemented its control 
measures before the attainment deadlines for downwind nonattainment 
areas. New Jersey provides the example of the New Jersey power 
generation and HEDD rules being effective in 2015 or earlier. New 
Jersey further asserts that, when determining New Jersey's significant 
contribution to interstate transport, the State should not be penalized 
for its early adoption of appropriate and effective rules in advance of 
and more stringent than other states.
    In the State's evaluation of cost effectiveness, New Jersey claims 
that it has gone beyond the measures of other nearby and upwind states 
and previously established the EPA cost effectiveness thresholds. The 
State notes that the cost-effectiveness values associated with many of 
its adopted rules are several times greater than the threshold of 
$1,400 per ton NOX reduced set for upwind states in the 
CSAPR Update. For example, according to the State's list of existing 
NOX and VOC control measures \38\ included in its SIP 
submittal, the control measures for turbines operating during HEDD had 
a cost effectiveness of $44,000 per ton NOX reduced; the 
control measures for oil-fired boilers operating during HEDD had a cost 
effectiveness up to $18,000 per ton NOX reduced; and, for 
natural gas compressor engines and turbines rules adopted in 2017, the 
rules have a cost effectiveness up to $26,020 per ton NOX 
reduced, with SCR costs up to $18,983 per ton NOX reduced.
---------------------------------------------------------------------------

    \38\ Table 5 of the New Jersey SIP submittal.
---------------------------------------------------------------------------

III. EPA Evaluation

    The EPA is proposing to find that the New York SIP revision 
submitted on September 25, 2018, and the New Jersey SIP revision 
submitted on May 13, 2019, do not meet the States' obligations with 
respect to prohibiting emissions that contribute significantly to 
nonattainment or interfere with maintenance of the 2015 8-hour ozone 
NAAQS in any other state based on the EPA's evaluation of the SIP 
submissions using the 4-step interstate transport framework. Both 
States conceded that they are linked to nonattainment and maintenance 
receptors in another state at Steps 1 and 2 of the 4-step interstate 
transport framework-which is confirmed by the EPA's most recent 
modeling. However, neither state conducted an adequate Step 3 analysis 
to conclude that either state's SIP contains adequate measures to 
prohibit significant contribution or interference with maintenance. 
Both states conclude that their existing (or certain ``on-the-way'') 
control measures are already sufficient to meet good neighbor 
obligations. However, for this argument to provide

[[Page 9492]]

support for their conclusions, an analysis as to why no additional 
control measures are justified is needed. Neither state provided such 
an analysis in their respective SIP submittals. Therefore, as discussed 
below, the EPA proposes to disapprove both New York's and New Jersey's 
good neighbor SIP submittals for the 2015 8-hour ozone NAAQS.

A. New York

1. Results of the EPA's Step 1 and Step 2 Modeling and Findings for New 
York
    As described in section I, the EPA performed air quality modeling 
using the 2016v2 emissions platform to project design values and 
contributions for 2023. These data were examined to determine if New 
York contributes at or above the threshold of 1 percent of the 2015 8-
hour ozone NAAQS (0.70 ppb) to any downwind nonattainment or 
maintenance receptor. As shown in Table 1, the data \39\ indicate that 
in 2023, emissions from New York contribute greater than 1 percent of 
the standard to nonattainment or maintenance-only receptors in 
Stratford, Connecticut (receptor ID 90013007), Westport, Connecticut 
(receptor ID 90019003), Greenwich, Connecticut (receptor ID 90010017), 
New Haven, Connecticut (receptor ID 90099002), and Bucks County, 
Pennsylvania (receptor ID 480170012).\40\
---------------------------------------------------------------------------

    \39\ Design values and contributions at individual monitoring 
sites nationwide are provide in the file: 
2023_DVs_Contributions_2016v2_Platform which is included in docket 
ID No. EPA-HQ-OAR-2021-0663.
    \40\ These modeling results are consistent with the results of a 
prior round of 2023 modeling using the 2016v1 emissions platform 
which became available to the public in the fall of 2020 in the 
Revised CSAPR Update, as noted in Section I.

                      Table 1--New York Linkage Results Based on EPA Updated 2023 Modeling
----------------------------------------------------------------------------------------------------------------
                                                                   2023 Average    2023 Maximum      New York
         Receptor ID               Location       Nonattainment/   design value    design value    contribution
                                                   maintenance         (ppb)           (ppb)           (ppb)
----------------------------------------------------------------------------------------------------------------
90013007.....................  Stratford, CT...  Nonattainment..            74.2            75.1           13.56
90019003.....................  Westport, CT....  Nonattainment..            76.1            76.4           14.36
90010017.....................  Greenwich, CT...  Nonattainment..            73.0            73.7           16.81
90099002.....................  New Haven, CT...  Nonattainment..            71.8            73.9           11.54
420170012....................  Bucks County, PA  Maintenance....            70.7            72.2            1.80
----------------------------------------------------------------------------------------------------------------

2. Evaluation of Information Provided by New York Regarding Step 1
    At Step 1 of the 4-step interstate transport framework, New York 
relied on EPA modeling released in the March 2018 memorandum to 
identify nonattainment and maintenance receptors in 2023. As described 
previously in this notice, the EPA has recently updated this modeling 
using the most current and technically appropriate information. The EPA 
proposes to primarily rely on the EPA's most recent modeling to 
identify nonattainment and maintenance receptors in 2023.
3. Evaluation of Information Provided by New York Regarding Step 2
    As described previously in this notice, the EPA has recently 
updated modeling to identify upwind state contributions to 
nonattainment and/or maintenance receptors in 2023. In this proposal, 
the EPA relies on the Agency's most recently available modeling to 
identify upwind contributions and ``linkages'' to downwind air quality 
problems in 2023 using a threshold of 1 percent of the NAAQS. As shown 
in Table 1, updated EPA modeling identifies New York's maximum 
contribution to a downwind nonattainment or maintenance receptor is 
greater than 1 percent of the standard (i.e., 0.70 ppb).
    Although New York relied on alternative modeling to the EPA's 
modeling at Step 2, New York acknowledged in its SIP submission that it 
is linked above 1 percent of the NAAQS to one or more downwind 
receptors in 2023. Because the alternative modeling relied on by the 
State also demonstrates that a linkage exists between the State and 
downwind receptors at Step 2, the EPA need not conduct a comparative 
assessment of the alternative modeling; the State concedes that it is 
linked. New York's analysis corroborates the conclusion in the EPA's 
most recent modeling. The EPA therefore will proceed to Step 3 of the 
4-step interstate transport framework to assess arguments the State 
presented as to why, despite this linkage, the State should not be 
considered to significantly contribute to nonattainment or interfere 
with maintenance of the NAAQS in any other state such that additional 
emissions reductions are required.
4. Evaluation of Information Provided Regarding Step 3
    At Step 3 of the 4-step interstate transport framework, a state's 
emissions are further evaluated, in light of multiple factors, 
including air quality and cost considerations, to determine what, if 
any, emissions significantly contribute to nonattainment or interfere 
with maintenance and, thus, must be eliminated under CAA section 
110(a)(2)(D)(i)(I). To effectively evaluate which emissions in the 
state should be deemed ``significant'' and therefore prohibited, states 
generally should prepare an accounting of sources and other emissions 
activity and assess potential, additional emissions reduction 
opportunities and resulting downwind air quality improvements. The EPA 
has consistently applied this general approach (i.e., Step 3 of the 4-
step interstate transport framework) when identifying emissions 
contributions that the Agency has determined to be ``significant'' (or 
interfere with maintenance) in each of its prior Federal, regional 
ozone transport rulemakings, and this interpretation of the statute has 
been upheld by the Supreme Court. See EME Homer City, 572 U.S. 489, 519 
(2014). While the EPA has not directed states that they must conduct a 
Step 3 analysis in precisely the manner the EPA has done in its prior 
regional transport rulemakings, state implementation plans addressing 
the obligations in CAA section 110(a)(2)(D)(i)(I) must prohibit ``any 
source or other type of emissions activity within the State'' from 
emitting air pollutants which will contribute significantly to downwind 
air quality problems. Thus, states must complete something similar to 
the EPA's analysis (or an alternative approach to defining 
``significance'' that comports with the

[[Page 9493]]

statute's objectives) to determine whether and to what degree emissions 
from a state should be ``prohibited'' to eliminate emissions that will 
``contribute significantly to nonattainment in, or interfere with 
maintenance of,'' the NAAQS in any other state. New York did not 
conduct such an analysis in its SIP submission. Although in this action 
we are relying on the results of the EPA's most recent air quality 
modeling results for receptor identification and contributions, we will 
continue to evaluate the analysis provided by New York at Step 3 to 
assess whether the analysis provided adequately supports New York's 
conclusion, and whether the analysis could apply to the linkages 
identified by the EPA at Step 2.
    As previously indicated in section II.A, New York asserted in its 
September 2018 submittal that, despite its contributions, the State had 
met its good neighbor obligations through the implementation and 
enforcement of stringent NOX and VOC control measures that 
go beyond the EPA's presumptive cost threshold in the CSAPR Update for 
highly cost-effective emissions reductions, and through the ongoing 
adoption and revision of additional control measures to further ensure 
the reduction of ozone in both New York and downwind areas.
    The State's submittal, however, did not contain a demonstration at 
Step 3 that the State was adequately controlling its emissions for the 
purposes of the good neighbor provision, particularly because New York 
conceded in its submission that its emissions were linked to 
Connecticut receptors at Steps 1 and 2. The SIP submittal pointed to 
the State's existing NOX RACT measures with presumptive and 
facility-specific emission limits based on $5,500 per ton of 
NOX reduced, as well as ongoing state and local emission 
control efforts to conclude New York is already meeting its good 
neighbor obligations for the 2015 8-hour ozone NAAQS. However, the 
State's submittal does not include a sufficient examination or a 
technical justification that could support the conclusion that the 
State has no further good neighbor obligations for the 2015 8-hour 
ozone NAAQS. In particular, the State did not conduct in its submittal 
an analysis of potential additional emissions-reduction measures to 
further reduce its impact on the identified downwind receptors. For 
example, New York did not include in its submission an accounting of 
sources and other emissions activity in the State along with an 
analysis of potential NOX emissions control technologies, 
their associated costs, estimated emissions reductions, and downwind 
air quality improvements. Nor does the submittal include an analysis of 
whether such potential additional control technologies or measures 
could reduce the impact of New York's emissions on out of state 
receptors. Though there is not a prescribed method for a Step 3 
analysis, EPA has consistently applied Step 3 of the good neighbor 
framework through a more rigorous evaluation of potential additional 
control technologies or measures than what was provided in the SIP 
submission. Identifying a range of various emissions control measures 
that have been or may be enacted at the state or local level, without 
analysis of the impact of those measures on the out of state receptors, 
is not analytically sufficient. In general, the air quality modeling 
that the EPA has conducted (as well the modeling relied on by New York 
in its submittal) already accounts for ``on-the-books'' emissions 
control measures. Both sets of modeling clearly establish continued 
linkage from New York to downwind receptors in 2023 at Steps 1 and 2, 
despite those emissions control efforts.
    New York's September 2018 submittal referenced regulatory updates 
that New York asserted were in development and would provide for 
additional NOX and VOC reductions. The EPA notes that New 
York has since adopted many of these regulatory updates.\41\ New York 
adopted 6 NYCRR Part 227, Subpart 227-3, ``Ozone Season Oxides of 
Nitrogen (NOX) Emission Limits for Simple Cycle and 
Regenerative Combustion Turbines,'' with a State effective date of 
January 16, 2020, that lowered allowable NOX emissions from 
peaking units during the ozone season on high electric demand days, 
with compliance dates of May 1, 2023 (100 ppmvd \42\ limit), and May 1, 
2025 (25 ppmvd limit for gas and 42 ppmvd limit for oil).\43\ New York 
adopted a regulation, 6 NYCRR Part 222, ``Distributed Generation 
Sources,'' with a State effective date of March 25, 2020, that 
established NOX emissions control requirements for 
distributed generation and price responsive generation sources \44\ 
with compliance dates of May 1, 2021 and May 1, 2025.\45\ New York 
adopted revisions, with a State effective date of March 13, 2020, to 
NYCRR Part 219, including adoption of a new Subpart 219-10, 
``Reasonably Available Control Technology (RACT) For Oxides of Nitrogen 
(NOX) At Municipal and Private Solid Waste Incineration 
Units,'' which established NOX limits for municipal waste 
combustors with a compliance date of March 14, 2021.\46\ New York 
adopted revisions to NYCRR Part 218, subpart 218-7, ``Aftermarket 
Parts,'' with a State effective date of March 14, 2020, which required 
cleaner California certified aftermarket catalytic converters offered 
for sale or installed in New York State beginning January 1, 2023.\47\ 
New York adopted revisions, with a State effective date of January 11, 
2020, to 6 NYCRR Part 205, ``Architectural and Industrial Maintenance 
Coatings,'' with compliance effective January 1, 2021,\48\ requiring 
more stringent VOC limits for coatings.\49\ New York adopted revisions, 
with a State effective date of November 1, 2019, to 6 NYCRR Part 226, 
``Solvent Metal Cleaning Processes,'' establishing VOC content limits 
for cleaning solvents used in operations not covered by other 
regulations, beginning November 1, 2020.\50\ New York adopted revisions 
to 6 NYCRR Part 230, with a State effective date of February 11, 2021, 
``Gasoline Dispensing Sites and Transport Vehicles,'' and 6 NYCRR Part 
235, ``Consumer Products.'' Updates to NYCRR Part 230 include 
additional VOC control requirements for facilities during gasoline 
transfer operations beginning February 5, 2021.\51\ Updates to Part 
235, which require compliance by January 1, 2022, include revising and

[[Page 9494]]

establishing VOC contents for consumer products.\52\
---------------------------------------------------------------------------

    \41\ New York regulations are available at https://www.dec.ny.gov/regulations/regulations.html.
    \42\ The NOX emission limits are on a part per 
million dry volume basis (ppmvd), corrected to 15 percent oxygen.
    \43\ New York submitted the updated regulation for SIP approval 
to the EPA on May 18, 2020. The EPA finalized approval on August 3, 
2021. 86 FR 43956 (August 11, 2021).
    \44\ Distributed generation (DG) sources are engines used by 
host sites to supply electricity outside that supplied by 
distribution utilities. This on-site generation of electricity by DG 
sources is used by a wide range of commercial, institutional, and 
industrial facilities. DG applications range from supplying 
electricity during blackouts to supplying all a facility's 
electricity demand year-round. NY's DG rule applies to sources 
enrolled in demand response programs sponsored by the New York 
Independent System Operator or transmission utilities as well as 
sources used during times when the cost of electricity supplied by 
utilities is high (i.e., price-responsive generation sources).
    \45\ New York submitted the updated regulation for SIP approval 
to the EPA on October 15, 2020.
    \46\ New York submitted the updated regulation for SIP approval 
to the EPA on February 23, 2021.
    \47\ As of December 1, 2021, New York had not submitted a 
revised version of subpart 218-7 to the EPA for SIP approval.
    \48\ The compliance date for the sale of products is January 1, 
2021. The sell-through provision allows for product manufactured 
before January 1, 2021, to be sold through May 1, 2023.
    \49\ New York submitted the updated regulation for SIP approval 
to the EPA on October 15, 2020.
    \50\ New York submitted the updated regulation for SIP approval 
to the EPA on November 5, 2019. The EPA finalized approval on April 
19, 2020. 85 FR 28490 (May 13, 2020).
    \51\ New York submitted the updated regulation for SIP approval 
to the EPA on March 3, 2021.
    \52\ New York submitted the updated regulation for SIP approval 
to the EPA on March 3, 2021.
---------------------------------------------------------------------------

    Additionally, New York adopted a revised version of 6 NYCRR Part 
243, ``CSAPR NOX Ozone Season Group 2 Trading Program,'' 
with a State effective date of January 2, 2019, in order to allow New 
York to allocate CSAPR allowances to regulated entities in New York 
under an abbreviated SIP.\53\ However, the EPA notes that although New 
York's revised Part 243 replaced the EPA's default allocation 
procedures for the control periods in 2021 and beyond under the CSAPR 
Update FIP, the revised state rules did not create any enforceable 
emission limitations and did not replace the enforceable emission 
limitations set forth in the additional trading program provisions 
established under the CSAPR Update FIP. Moreover, the allowance 
allocations provisions adopted in Part 243 (as well as the additional 
trading program provisions established under the CSAPR Update) are no 
longer in effect for New York's sources because those provisions have 
been replaced as to the State's sources by the new trading program 
provisions established under the Revised CSAPR Update.\54\
---------------------------------------------------------------------------

    \53\ CSAPR provided a process for the submission and approval of 
SIP revisions to replace certain provisions of the CSAPR FIPs while 
the remaining FIP provisions continue to apply. This type of CSAPR 
SIP is termed an abbreviated SIP.
    \54\ The regulations implementing the Revised CSAPR Update 
provide that, for states subject to the Revised CSAPR Update and 
with respect to control periods after 2020, the EPA will no longer 
administer state trading program provisions approved under SIP 
revisions addressing the CSAPR Update's trading program. See 40 CFR 
52.38(b)(16)(ii).
---------------------------------------------------------------------------

    In any case, in both the CSAPR Update and the more recent Revised 
CSAPR Update, the EPA found, in spite of the nominal stringency of New 
York's control programs, additional emissions reductions were 
achievable from EGUs in the State. This was true even under the level 
of control stringency the EPA determined appropriate to eliminate 
significant contribution for the 2008 ozone NAAQS. Further, the EPA has 
not established a benchmark cost-effectiveness threshold for good 
neighbor obligations for the 2015 ozone NAAQS, and New York in its 
submittal has not conducted an analysis to establish one for EPA to 
evaluate. Additionally, while New York's existing control measures have 
undoubtedly reduced the amount of transported ozone pollution to other 
states and have contributed to the downward emissions trends and 
improving air quality in the State, in light of continuing contribution 
to out of state receptors from the State at Steps 1 and 2 despite these 
measures, New York's SIP submission failed to provide an adequate 
analysis at Step 3.
    As of December 1, 2021, New York had not yet adopted revisions to 6 
NYCRR Part 203, ``Oil and Gas Sector,'' \55\ or NYCRR Part 228, Subpart 
228-1, ``Motor Vehicle and Mobile Equipment Refinishing and Recoating 
Operation.''
---------------------------------------------------------------------------

    \55\ New York filed a notice of proposed rulemaking on April 20, 
2021. See https://www.dec.ny.gov/regulations/122829.html.
---------------------------------------------------------------------------

    The EPA also notes that New York's 6 NYCRR Part 227, Subpart 227-3, 
which was approved into the SIP after EPA's receipt of this September 
2018 submittal, and which implements NOX limits on 
combustion turbines that operate as peaking units, will not be fully 
phased in until 2025, which is past the August 3, 2024 Moderate area 
attainment date for the 2015 ozone NAAQS. Additionally, New York said 
that the State's mobile on-road sector alone significantly impacted 
downwind monitors and noted that it controls its mobile emissions 
through its inspection/maintenance (I/M) and anti-idling standards. 
However, New York did not explain the role its I/M and anti-idling 
standards play in eliminating its significant contribution.
    The EPA acknowledges that New York's RACT presumptive emissions 
limits and facility-specific emissions limits are based on an 
inflation-adjusted control cost valued at $5,500 per ton of 
NOX reduced.
    In general, however, the listing of existing or ``on-the-way'' 
control measures, whether approved into the State's SIP or not, does 
not substitute for a complete Step 3 analysis under the EPA's 4-step 
framework to define ``significant contribution.'' New York's submittal 
does not include an assessment of the overall effects of these 
measures, when the reductions would be achieved, and what the overall 
resulting air quality effects would be observed at identified out-of-
state receptors. The State's submittal does not include an evaluation 
of additional potential emissions control opportunities, or their costs 
or impacts, or attempt to analyze whether, if applied more broadly 
across linked states, the emissions reductions would constitute the 
elimination of significant contribution on a regional scale. The 
State's submittal did not contain an explanation as to whether any 
faster or more stringent emissions reductions that may be available 
were prohibitively costly or infeasible. Although the EPA acknowledges 
states are not necessarily bound to follow its own analytical framework 
at Step 3, we note that the State did not attempt to determine or 
justify an appropriate uniform cost-effectiveness threshold for the 
more stringent 2015 ozone NAAQS, nor did the State offer an alternative 
to this analytical framework for determining ``significant 
contribution'' in its submittal. This would have been similar to the 
approach to defining significant contribution that the EPA has applied 
in prior rulemakings such as CSAPR and the CSAPR Update.
    Further, the EPA's modeling already accounts for ``on-the-books'' 
control measures, and the State has not explained which of its measures 
were not already included in the EPA's modeling and thus deserve to be 
further credited as reducing the impact of the State's emissions beyond 
what the EPA's air quality modeling has already accounted for. In light 
of continuing contribution to out of state receptors from the State (at 
Steps 1 and 2) despite these measures, New York's SIP submission failed 
to evaluate the availability of any additional controls to improve 
downwind air quality at nonattainment and maintenance receptors at Step 
3.
    Finally, under the Wisconsin decision, states and the EPA may not 
delay implementation of measures necessary to address good neighbor 
requirements beyond the next applicable attainment date without a 
showing of impossibility or necessity. See 938 F.3d at 320. In those 
cases where the measures identified by the State had implementation 
timeframes beyond the next relevant attainment dates the submission did 
not offer a demonstration of impossibility of earlier implementation of 
those control measures.\56\ Similarly, the State's submittal is 
insufficient to the extent the implementation timeframes for identified 
control measures were left unidentified, unexplained, or too uncertain 
to permit the EPA to form a judgment as to whether the timing 
requirements for good neighbor obligations have been met.
---------------------------------------------------------------------------

    \56\ While Wisconsin was decided after the state made its 
submission, EPA must evaluate the SIP based on the information 
available at the time of its action, including any relevant changes 
in caselaw or other requirements. States are generally free to 
withdraw and resubmit their SIP submissions in light of intervening 
changes in the law. The State of New York has not done so in this 
case.
---------------------------------------------------------------------------

5. Evaluation of Information Provided Regarding Step 4
    Step 4 of the 4-step interstate transport framework calls for 
development of permanent and

[[Page 9495]]

federally enforceable control strategies to achieve the emissions 
reductions determined to be necessary at Step 3 to eliminate 
significant contribution to nonattainment or interference with 
maintenance of the NAAQS. New York identified a number of measures that 
were either in development or anticipated to occur in the future (See 
section III.4).\57\ However, the State had not revised its SIP to 
include these emission reductions to ensure the reductions were 
permanent and enforceable. Although New York has subsequently adopted 
many of the measures identified in section III.4, several measures have 
not been approved into the SIP, either because the State failed to 
submit (e.g., 6 NYCRR Part 218, Subpart 218-7, ``Aftermarket Parts) or 
the EPA has not yet finalized approval into the SIP. Therefore, the 
emission reductions associated with those rules are not permanent and 
enforceable. As a result, EPA proposes to disapprove New York's 
submittal on the separate, additional basis that New York has not 
included permanent and enforceable emissions reductions in its SIP as 
necessary to meet the obligations of 110(a)(2)(d)(i)(I).
---------------------------------------------------------------------------

    \57\ Pointing to anticipated upcoming emission reductions, even 
if they were not included in the analysis at Steps 1 and 2, is not 
sufficient as a Step 3 analysis, for the reasons discussed in 
Section III.A.4. In this section, we explain that to the extent such 
anticipated reductions are not included in the SIP and rendered 
permanent and enforceable, reliance on such anticipated reductions 
is also insufficient at Step 4.
---------------------------------------------------------------------------

6. Conclusion
    Based on the EPA's evaluation of New York's' SIP submission, the 
EPA is proposing to find that the portion of New York's September 25, 
2018 SIP submission addressing CAA section 110(a)(2)(D)(i)(I) does not 
meet the State's interstate transport obligations for the 2015 8-hour 
ozone NAAQS, because it fails to contain the necessary provisions to 
eliminate emissions in amounts that will contribute significantly to 
nonattainment or interfere with maintenance of the NAAQS in any other 
state.

B. New Jersey

1. Results of the EPA's Step 1 and Step 2 Modeling and Findings for New 
Jersey
    As described in section I, the EPA performed air quality modeling 
using the 2016v2 emissions platform to project design values and 
contributions for 2023. These data were examined to determine if New 
Jersey contributes at or above the threshold of 1 percent of the 2015 
8-hour ozone NAAQS (0.70 ppb) to any downwind nonattainment or 
maintenance receptor. As shown in Table 2, the data \58\ indicate that 
in 2023 emissions from New Jersey contribute greater than 1 percent of 
the standard to nonattainment or maintenance-only receptors in 
Stratford, Connecticut (receptor ID 90013007), Westport, Connecticut 
(receptor ID 90019003), Greenwich, Connecticut (receptor ID 90010017), 
Madison, Connecticut (receptor ID 90099002), and Bucks County, 
Pennsylvania (receptor ID 480170012).\59\
---------------------------------------------------------------------------

    \58\ Design values and contributions at individual monitoring 
sites nationwide are provide in the file: 
2023_DVs_Contributions_2016v2_Platform which is included in docket 
ID No. EPA-HQ-OAR-2021-0663.
    \59\ These modeling results are consistent with the results of a 
prior round of 2023 modeling using the 2016v1 emissions platform 
which became available to the public in the fall of 2020 in the 
Revised CSAPR Update, as noted in Section I. That modeling showed 
that New Jersey had a maximum contribution greater than 0.70 ppb to 
at least one nonattainment or maintenance-only receptor in 2023. 
These modeling results are included in the file ``Ozone Design 
Values And Contributions Revised CSAPR Update.xlsx'' in docket EPA-
HQ-OAR-2021-0663.

                     Table 2--New Jersey Linkage Results Based on EPA Updated 2023 Modeling
----------------------------------------------------------------------------------------------------------------
                                                                   2023 Average    2023  Maximum    New Jersey
         Receptor ID               Location       Nonattainment/   design value    design value    contribution
                                                   maintenance         (ppb)           (ppb)           (ppb)
----------------------------------------------------------------------------------------------------------------
90013007.....................  Stratford, CT...  Nonattainment..            74.2            75.1            7.43
90019003.....................  Westport, CT....  Nonattainment..            76.1            76.4            8.85
90010017.....................  Greenwich, CT...  Nonattainment..            73.0            73.7            6.90
90099002.....................  Madison, CT.....  Nonattainment..            71.8            73.9            5.67
420170012....................  Bucks County, PA  Maintenance....            70.7            72.2            5.79
----------------------------------------------------------------------------------------------------------------

2. Evaluation of Information Provided by New Jersey Regarding Step 1
    As noted in section II.B., New Jersey submitted OTC modeling that 
identified nonattainment and maintenance receptors in 2023. Although 
the State used a different modeling approach (utilizing 2011 based 
modeling and the ERTAC EGU Projection tool), than the EPA's modeling, 
which used a 2016-based emissions platform developed under an EPA/MJO/
state collaborative project, New Jersey's alternative modeling also 
identified a number of nonattainment and maintenance receptor sites in 
2023. See page 9 of the May 30, 2019 SIP submission. New Jersey 
determined that there were nonattainment or maintenance problems at 
eight locations in Connecticut, New York, and Maryland, which exceeded 
the 5 locations in Connecticut and Pennsylvania that the EPA determined 
to have nonattainment or maintenance problems. Based on both the New 
Jersey and the EPA modeling, nonattainment and maintenance receptors 
are projected in 2023 at Step 1. Thus, even under the alternative 
modeling of 2023, New Jersey acknowledges in its submittal the 
existence of several nonattainment and maintenance receptors.
3. Evaluation of Information Provided by the State Regarding Step 2
    Although New Jersey relied on alternative modeling to the EPA's 
modeling at Step 2, New Jersey acknowledged in its SIP submission that 
it is linked above 1 percent of the NAAQS (0.70 ppb for the 2015 8-hour 
ozone NAAQS) to one or more downwind receptors in 2023. Because the 
alternative modeling relied on by the State also demonstrates that a 
linkage exists between the State and downwind receptors at Step 2, the 
EPA need not conduct a comparative assessment of the alternative 
modeling; the State concedes that it is linked. New Jersey's analysis 
corroborates the conclusion in the EPA's most recent modeling. The EPA 
therefore will proceed to Step 3 of the 4-step interstate transport 
framework to assess arguments the State presented as to why, despite 
this linkage, the State should not be considered to significantly 
contribute to nonattainment or interfere with maintenance of the NAAQS 
in any other

[[Page 9496]]

state such that additional emissions reductions are required.
4. Evaluation of Information Provided Regarding Step 3
    At Step 3 of the 4-step interstate transport framework, a state's 
emissions are further evaluated, in light of multiple factors, 
including air quality and cost considerations, to determine what, if 
any, emissions significantly contribute to nonattainment or interfere 
with maintenance and, thus, must be eliminated under CAA section 
110(a)(2)(D)(i)(I).
    To effectively evaluate which emissions in the state should be 
deemed ``significant'' and therefore prohibited, states generally 
should prepare an accounting of sources and other emissions activity 
and assess potential, additional emissions reduction opportunities and 
resulting downwind air quality improvements. The EPA has consistently 
applied this general approach (i.e., Step 3 of the 4-step interstate 
transport framework) when identifying emissions contributions that the 
Agency has determined to be ``significant'' (or interfere with 
maintenance) in each of its prior Federal, regional ozone transport 
rulemakings, and this interpretation of the statute has been upheld by 
the Supreme Court. See EME Homer City, 572 U.S. 489, 519 (2014). While 
the EPA has not directed states that they must conduct a Step 3 
analysis in precisely the manner the EPA has done in its prior regional 
transport rulemakings, state implementation plans addressing the 
obligations in CAA section 110(a)(2)(D)(i)(I) must prohibit ``any 
source or other type of emissions activity within the State'' from 
emitting air pollutants which will contribute significantly to downwind 
air quality problems. Thus, states must complete something similar to 
the EPA's analysis (or an alternative approach to defining 
``significance'' that comports with the statute's objectives) to 
determine whether and to what degree emissions from a state should be 
``prohibited'' to eliminate emissions that will ``contribute 
significantly to nonattainment in, or interfere with maintenance of,'' 
the NAAQS in any other state. New Jersey did not conduct such an 
analysis in its SIP submission.
    As previously noted, New Jersey asserted in its May 2019 submittal 
that considering air quality, the emissions reductions from New 
Jersey's adopted measures, and the cost effectiveness of those 
measures, no additional emissions reductions from New Jersey are 
necessary to address its good neighbor obligations to downwind 
nonattainment and maintenance areas. New Jersey stated that control 
measures were adopted and implemented before attainment deadlines and 
go beyond previously established the EPA cost effectiveness thresholds. 
New Jersey also provided information documenting the emissions 
reductions that have been made throughout the State beginning in 2002 
with corresponding improvements in air quality in New Jersey to 
demonstrate the impact of New Jersey's control measures.
    New Jersey's submittal, however, did not contain a demonstration at 
Step 3 that the State was adequately controlling its emissions for 
purposes of the good neighbor provision, particularly because the State 
conceded in its submission that it was potentially significantly 
contributing to eight receptors in 2023 at Steps 1 and 2. The SIP 
submittal pointed to the State's existing NOX and VOC 
control measures that were adopted by the State to conclude New Jersey 
is already meeting its good neighbor obligations for the 2015 8-hour 
ozone NAAQS. However, the State's submittal does not include a 
sufficient examination or a technical justification that could support 
the conclusion that the State has no further good neighbor obligations 
for the 2015 8-hour ozone NAAQS. In particular, the State did not 
conduct in its submittal an analysis of potential additional emissions-
reduction measures to further reduce its impact on the identified 
downwind receptors. For example, New Jersey did not include in its 
submission an accounting of individual emissions units at facilities in 
the State along with an analysis of potential NOX emissions 
control technologies, their associated costs, estimated emissions 
reductions, and downwind air quality improvements. Nor does the 
submittal include an analysis of whether such potential, additional 
control technologies or measures could reduce the impact of New 
Jersey's emissions on out of state receptors. Though there is not a 
prescribed method for a Step 3 analysis, the EPA has consistently 
applied Step 3 of the good neighbor framework through a more rigorous 
evaluation of potential additional control technologies or measures 
than what New Jersey provided in its submission. Identifying a range of 
various emissions control measures that have been or may be enacted at 
the state level, without analysis of the impact of those measures on 
the out of state receptors, is not analytically sufficient. In general, 
the air quality modeling that EPA has conducted (as well the modeling 
relied on by New Jersey in its submittal) already accounts for ``on-
the-books'' emissions control measures. Both sets of modeling clearly 
establish continued linkage from New Jersey to downwind receptors in 
2023 at Steps 1 and 2, despite those emissions control efforts.
    The EPA acknowledges that the State's control measures listed in 
the State's SIP submittal may be nominally more stringent than the EPA 
cost-thresholds used for the CSAPR Update or Revised CSAPR Update. But 
those cost-thresholds were for the 2008 ozone NAAQS (a less stringent 
NAAQS than the 2015 ozone NAAQS). Further, in the Revised CSAPR Update, 
the EPA found that despite the nominal stringency of New Jersey's 
control programs, additional emissions reductions were achievable from 
EGUs in the State, even under the level of control stringency the EPA 
determined appropriate to eliminate significant contribution for the 
2008 ozone NAAQS. In any case, the EPA has not established a benchmark 
cost-effectiveness threshold for good neighbor obligations for the 2015 
ozone NAAQS, and New Jersey in its submittal has not conducted an 
analysis to establish one for the EPA to evaluate. Additionally, while 
New Jersey's existing control measures have undoubtedly reduced the 
amount of transported ozone pollution to other states and have 
contributed to the downward emissions trends and improving air quality 
in the State as shown in the State's SIP submittal, in light of 
continuing contribution to out of state receptors from the State at 
Steps 1 and 2 despite these measures, New Jersey's SIP submission 
failed to provide an adequate analysis at Step 3.
    We therefore propose that New Jersey was required to analyze 
emissions from the sources and other emissions activity from within the 
state to determine whether its contributions were significant, and we 
propose to disapprove its submission because New Jersey failed to do 
so.
5. Evaluation of Information Provided Regarding Step 4
    Step 4 of the 4-step interstate transport framework calls for 
development of permanent and federally enforceable control strategies 
to achieve the emissions reductions determined to be necessary at Step 
3 to eliminate significant contribution to nonattainment or 
interference with maintenance of the NAAQS. As mentioned previously, 
New Jersey's SIP submission did not contain an evaluation of additional 
emission control opportunities (or establish that no additional 
controls are required),

[[Page 9497]]

thus, no information was provided at Step 4. As a result, EPA proposes 
to disapprove New Jersey's submittal on the separate, additional basis 
that the State has not developed permanent and enforceable emissions 
reductions necessary to meet the obligations of CAA section 
110(a)(2)(d)(i)(I).
6. Conclusion
    Based on the EPA's evaluation of New Jersey's SIP submission, the 
EPA is proposing to find that the portion of New Jersey's May 13, 2019 
SIP submission addressing CAA section 110(a)(2)(D)(i)(I) does not meet 
the State's interstate transport obligations for the 2015 8-hour ozone 
NAAQS, because it fails to contain the necessary provisions to 
eliminate emissions in amounts that will contribute significantly to 
nonattainment or interfere with maintenance of the NAAQS in any other 
state.

IV. Proposed Action

    We are proposing to disapprove the portion of New York's and New 
Jersey's SIP submissions pertaining to interstate transport of air 
pollution which will significantly contribute to nonattainment or 
interfere with maintenance of the 2015 8-hour ozone NAAQS in other 
states. Under CAA section 110(c)(1), disapproval, if finalized, would 
establish a 2-year deadline for the EPA to promulgate a FIP for New 
York and New Jersey to address interstate transport requirements for 
the 2015 8-hour ozone NAAQS, unless the EPA approves a SIP that meets 
these requirements. Disapproval does not start a mandatory sanctions 
clock for New York and New Jersey. The remaining elements of New York's 
September 25, 2018 submission, and New Jersey's May 13, 2019 submission 
are not addressed in this action and either have been or will be acted 
on in separate rulemakings.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget for 
review.

B. Paperwork Reduction Act (PRA)

    This proposed action does not impose an information collection 
burden under the PRA because it does not contain any information 
collection activities

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action merely proposes to disapprove a SIP submission as not meeting 
the CAA.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. The action imposes no enforceable duty on any state, 
local or tribal governments or the private sector.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175. This action does not apply on any Indian 
reservation land, any other area where the EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction, or non-reservation areas of 
Indian country. Thus, Executive Order 13175 does not apply to this 
action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. This action is not subject to 
Executive Order 13045 because it merely proposes to disapprove a SIP 
submission as not meeting the CAA.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution or Use

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    The EPA believes the human health or environmental risk addressed 
by this action will not have potential disproportionately high and 
adverse human health or environmental effects on minority, low-income 
or indigenous populations. This action merely proposes to disapprove a 
SIP submission as not meeting the CAA.

K. CAA Section 307(b)(1)

    Section 307(b)(1) of the CAA governs judicial review of final 
actions by the EPA. This section provides, in part, that petitions for 
review must be filed in the D.C. Circuit: (i) When the agency action 
consists of ``nationally applicable regulations promulgated, or final 
actions taken, by the Administrator,'' or (ii) when such action is 
locally or regionally applicable, if ``such action is based on a 
determination of nationwide scope or effect and if in taking such 
action the Administrator finds and publishes that such action is based 
on such a determination.'' For locally or regionally applicable final 
actions, the CAA reserves to the EPA complete discretion whether to 
invoke the exception in (ii).\60\
---------------------------------------------------------------------------

    \60\ In deciding whether to invoke the exception by making and 
publishing a finding that an action is based on a determination of 
nationwide scope or effect, the Administrator takes into account a 
number of policy considerations, including his judgment balancing 
the benefit of obtaining the D.C. Circuit's authoritative 
centralized review versus allowing development of the issue in other 
contexts and the best use of agency resources.
---------------------------------------------------------------------------

    The EPA anticipates that this proposed rulemaking, if finalized, 
would be ``nationally applicable'' within the meaning of CAA section 
307(b)(1) because it would take final action on SIP submittals for the 
2015 ozone NAAQS for two states, which are located in two different 
Federal judicial circuits. It would apply uniform, nationwide 
analytical methods, policy judgments, and interpretation with respect 
to the same CAA obligations, i.e., implementation of good neighbor 
requirements under CAA section 110(a)(2)(D)(i)(I) for the 2015 ozone 
NAAQS for states across the country, and final action would be based on 
this common core of determinations, described in further detail below.
    If the EPA takes final action on this proposed rulemaking, in the 
alternative,

[[Page 9498]]

the Administrator intends to exercise the complete discretion afforded 
to him under the CAA to make and publish a finding that the final 
action (to the extent a court finds the action to be locally or 
regionally applicable) is based on a determination of ``nationwide 
scope or effect'' within the meaning of CAA section 307(b)(1). Through 
this rulemaking action (in conjunction with a series of related actions 
on other SIP submissions for the same CAA obligations), the EPA 
interprets and applies section 110(a)(2)(d)(i)(I) of the CAA for the 
2015 ozone NAAQS based on a common core of nationwide policy judgments 
and technical analysis concerning the interstate transport of 
pollutants throughout the continental U.S. In particular, the EPA is 
applying here (and in other proposed actions related to the same 
obligations) the same, nationally consistent 4-step framework for 
assessing good neighbor obligations for the 2015 ozone NAAQS. The EPA 
relies on a single set of updated, 2016-base year photochemical grid 
modeling results of the year 2023 as the primary basis for its 
assessment of air quality conditions and contributions at Steps 1 and 2 
of that framework. Further, the EPA proposes to determine and apply a 
set of nationally consistent policy judgments to apply the 4-step 
framework. The EPA has selected a nationally uniform analytic year 
(2023) for this analysis and is applying a nationally uniform approach 
to nonattainment and maintenance receptors and a nationally uniform 
approach to contribution threshold analysis.\61\ For these reasons, the 
Administrator intends, if this proposed action is finalized, to 
exercise the complete discretion afforded to him under the CAA to make 
and publish a finding that this action is based on one or more 
determinations of nationwide scope or effect for purposes of CAA 
section 307(b)(1).\62\
---------------------------------------------------------------------------

    \61\ A finding of nationwide scope or effect is also appropriate 
for actions that cover states in multiple judicial circuits. In the 
report on the 1977 Amendments that revised section 307(b)(1) of the 
CAA, Congress noted that the Administrator's determination that the 
``nationwide scope or effect'' exception applies would be 
appropriate for any action that has a scope or effect beyond a 
single judicial circuit. See H.R. Rep. No. 95-294 at 323, 324, 
reprinted in 1977 U.S.C.C.A.N. 1402-03.
    \62\ The EPA may take a consolidated, single final action on all 
the proposed SIP disapproval actions with respect to obligations 
under CAA section 110(a)(2)(D)(i)(I) for the 2015 ozone NAAQS. 
Should EPA take a single final action on all such disapprovals, this 
action would be nationally applicable, and the EPA would also 
anticipate, in the alternative, making and publishing a finding that 
such final action is based on a determination of nationwide scope or 
effect.
---------------------------------------------------------------------------

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Ozone.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: January 31, 2022.
Lisa Garcia,
Regional Administrator, Region 2.
[FR Doc. 2022-02946 Filed 2-18-22; 8:45 am]
BILLING CODE 6560-50-P


