83_FR_50638 83 FR 50444 - Response to Clean Air Act Section 126(b) Petitions From Delaware and Maryland

83 FR 50444 - Response to Clean Air Act Section 126(b) Petitions From Delaware and Maryland

ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 83, Issue 194 (October 5, 2018)

Page Range50444-50473
FR Document2018-20854

The Environmental Protection Agency (EPA) is denying four petitions submitted by the state of Delaware and one petition submitted by the state of Maryland under Clean Air Act (CAA or Act) section 126(b). The petitions were submitted between July and November 2016. Each of Delaware's four petitions requested that the EPA make a finding that emissions from individual sources in Pennsylvania or West Virginia are significantly contributing to Delaware's nonattainment of the 2008 and 2015 8-hour ozone national ambient air quality standards (NAAQS). Maryland's petition requested that the EPA make a finding that emissions from 36 electric generating units in Indiana, Kentucky, Ohio, Pennsylvania, and West Virginia are significantly contributing to ozone levels that exceed the 2008 8-hour ozone NAAQS in Maryland, and, therefore, are interfering with nonattainment and maintenance of the 2008 ozone NAAQS. The EPA is denying the petitions based on the best information available to the agency at this time, and particularly in light of an existing regulation already addressing emissions from these facilities: The Cross-State Air Pollution Rule Update for the 2008 ozone NAAQS (CSAPR Update). The EPA's denial finds that Delaware has not demonstrated that the named sources emit or would emit in violation of the CAA's ``good neighbor'' provision. Further, the agency's independent analysis indicates that the identified sources in Delaware's and Maryland's petitions do not currently emit and are not expected to emit pollution in violation of the good neighbor provision for either the 2008 or 2015 ozone NAAQS.

Federal Register, Volume 83 Issue 194 (Friday, October 5, 2018)
[Federal Register Volume 83, Number 194 (Friday, October 5, 2018)]
[Notices]
[Pages 50444-50473]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-20854]



[[Page 50443]]

Vol. 83

Friday,

No. 194

October 5, 2018

Part II





 Environmental Protection Agency





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Response to Clean Air Act Section 126(b) Petitions From Delaware and 
Maryland; Notice

Federal Register / Vol. 83 , No. 194 / Friday, October 5, 2018 / 
Notices

[[Page 50444]]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OAR-2018-0295; FRL-9984-32-OAR]
RIN 2060-AT40, 2060-AT39, 2060-AT38, 2060-AT37, 2060-AT36


Response to Clean Air Act Section 126(b) Petitions From Delaware 
and Maryland

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of final action on petition.

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SUMMARY: The Environmental Protection Agency (EPA) is denying four 
petitions submitted by the state of Delaware and one petition submitted 
by the state of Maryland under Clean Air Act (CAA or Act) section 
126(b). The petitions were submitted between July and November 2016. 
Each of Delaware's four petitions requested that the EPA make a finding 
that emissions from individual sources in Pennsylvania or West Virginia 
are significantly contributing to Delaware's nonattainment of the 2008 
and 2015 8-hour ozone national ambient air quality standards (NAAQS). 
Maryland's petition requested that the EPA make a finding that 
emissions from 36 electric generating units in Indiana, Kentucky, Ohio, 
Pennsylvania, and West Virginia are significantly contributing to ozone 
levels that exceed the 2008 8-hour ozone NAAQS in Maryland, and, 
therefore, are interfering with nonattainment and maintenance of the 
2008 ozone NAAQS. The EPA is denying the petitions based on the best 
information available to the agency at this time, and particularly in 
light of an existing regulation already addressing emissions from these 
facilities: The Cross-State Air Pollution Rule Update for the 2008 
ozone NAAQS (CSAPR Update). The EPA's denial finds that Delaware has 
not demonstrated that the named sources emit or would emit in violation 
of the CAA's ``good neighbor'' provision. Further, the agency's 
independent analysis indicates that the identified sources in 
Delaware's and Maryland's petitions do not currently emit and are not 
expected to emit pollution in violation of the good neighbor provision 
for either the 2008 or 2015 ozone NAAQS.

DATES: This final action is effective on October 5, 2018.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OAR-2018-0295. All documents in the docket are 
listed and publicly available at http://www.regulations.gov. Although 
listed in the index, some information is not publicly available, i.e., 
Confidential Business Information or other information whose disclosure 
is restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically in the docket or in hard copy at the 
EPA Docket Center, William Jefferson Clinton (WJC) West Building, Room 
3334, 1301 Constitution Avenue NW, Washington, DC. The Public Reading 
Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, 
excluding legal holidays. The telephone number for the Public Reading 
Room is (202) 566-1744, and the telephone number for the Office of Air 
and Radiation Docket and Information Center is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Questions concerning this final action 
should be directed to Mr. Lev Gabrilovich, U.S. Environmental 
Protection Agency, Office of Air Quality Planning and Standards, Air 
Quality Policy Division, Mail Code C539-01, Research Triangle Park, NC 
27711, telephone (919) 541-1496; email at [email protected].

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

I. Executive Summary of the EPA's Decision on CAA Section 126(b) 
Petitions From Delaware and Maryland
II. Background
    A. Ozone and Public Health
    B. The CAA Section 126(b) Petitions From Delaware
    C. The CAA Section 126(b) Petition From Maryland
    D. Summary of the EPA's May 31, 2018, Proposal
    E. Historical Regional Analyses of Good Neighbor Obligations 
Related to Ozone
III. CAA Sections 126 and 110 and Standard of Review for This Action
    A. Statutory Authority Under CAA Sections 126 and 
110(a)(2)(D)(i)(I)
    B. Reasonableness of Applying the Four-Step Transport Framework 
for This Action
IV. The EPA's Final Response to Delaware's and Maryland's CAA 
Section 126(b) Petitions
    A. The EPA's Evaluation of Whether the Petitions Are Sufficient 
To Support a CAA Section 126(b) Finding
    B. The EPA's Independent Analysis of the Petitions Consistent 
With the CSAPR Update
V. Determinations Under CAA Section 307(b)(1)
VI. Statutory Authority

I. Executive Summary of the EPA's Decision on CAA Section 126(b) 
Petitions From Delaware and Maryland

    In 2016, the states of Delaware and Maryland submitted a total of 
five petitions requesting that the EPA make findings pursuant to CAA 
section 126(b) that emissions from numerous upwind sources 
significantly contribute to nonattainment and/or interfere with 
maintenance of the ozone NAAQS in violation of CAA section 
110(a)(2)(D)(i)(I), otherwise known as the ``good neighbor'' provision. 
Delaware submitted four petitions, each alleging good neighbor 
violations by individual sources located in Pennsylvania or West 
Virginia with respect to the 2008 and 2015 ozone NAAQS. Maryland 
submitted a single petition alleging good neighbor violations by 36 
electric generating units (EGUs) in five states with respect to the 
2008 ozone NAAQS. On May 31, 2018, the EPA issued a proposal to deny 
all five CAA section 126(b) petitions. 83 FR 26666 (June 8, 2018). The 
agency solicited comments on the proposal and hosted a public hearing 
on June 22, 2018, where nine speakers testified. The EPA also received 
117 written comments submitted to the docket on the proposed denial. 
This Federal Register notice addresses certain significant comments the 
agency received. The remaining comments are addressed in the Response 
to Comments (RTC) document available in the docket for this action.
    As described in further detail in this notice, the EPA is 
finalizing the denial of the CAA section 126(b) petitions submitted by 
the states of Delaware and Maryland. Generally, the Delaware and 
Maryland petitions (and commenters who were supportive of the EPA's 
granting these petitions) suggest that Delaware and Maryland residents 
are exposed to unhealthy levels of ground-level ozone pollution. They 
identify certain EGUs in upwind states, most with post-combustion 
nitrogen oxides (NOX) controls,\1\ that historically were 
not optimally operating for pollution abatement. The petitions ask EPA 
to impose federally enforceable short-term, rate-based emissions limits 
on these EGUs to ensure that the NOX controls are optimally 
operated. The EPA proposed to deny these petitions in May of 2018, and 
has considered public

[[Page 50445]]

comments on that proposal in crafting this final action.
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    \1\ In the case of one facility, Brunner Island Steam Generating 
Station in Pennsylvania, Delaware cites, the facility's ability to 
combust natural gas in electricity generation and thereby reduce 
NOX relative to combusting coal at the facility.
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    Consistent with the EPA's proposal and based on the best data 
available to the agency at this time, the agency is finalizing its 
denial of these petitions. The EPA's denial for Delaware is based on 
its findings that air quality modeling of ozone levels in 2017 from the 
Cross-State Air Pollution Rule Update for the 2008 Ozone NAAQS \2\ 
(CSAPR Update) and more recent air quality modeling of ozone levels in 
2023 show no air quality problems in the state with regard to the 2008 
and 2015 ozone NAAQS, respectively. For both the Delaware and Maryland 
petitions, the EPA's denial is also based on the fact that the agency 
has already evaluated the ozone transport issues and NOX 
control strategies raised in the petitions and finalized the CSAPR 
Update to implement the NOX control strategies achievable in 
states upwind of Delaware and Maryland, including at the specific EGUs 
named in both Delaware's and Maryland's petitions. 81 FR 74504. 
Although the CSAPR Update only explicitly addressed the 2008 ozone 
NAAQS, the EPA's conclusion in that action as to the control strategies 
available at the named sources is relevant to its analysis of 
Delaware's and Maryland's petitions with regard to both the 2008 ozone 
NAAQS (addressed in all five petitions) and the 2015 ozone NAAQS 
(addressed in the Delaware petitions) because the EPA's determination 
that the cost-effective control strategy is already being implemented 
at the named sources in the context of the CSAPR allowance trading 
program applies regardless of which NAAQS is being addressed, as 
explained below.
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    \2\ 81 FR 74504 (October 26, 2016).
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    Because the CSAPR Update is a final rule in which the EPA has 
evaluated substantially the same environmental issues and concerns as 
those that Delaware and Maryland raise in their CAA section 126(b) 
petitions, the agency has reviewed those petitions in light of, among 
other factors, the CSAPR Update record analysis and the findings made 
therein. In doing so, the EPA found that the named EGUs do not have 
further cost-effective \3\ NOX reduction potential beyond 
the level of NOX control stringency already finalized in the 
CSAPR Update emissions budgets. In other words, the agency determines 
that the CSAPR Update appropriately quantified the cost-effective 
NOX reduction potential from the EGUs named in the CAA 
section 126(b) petitions and the EPA does not find any further 
NOX reductions that may be available from these EGUs at more 
stringent levels of NOX control to be cost effective 
considering additional relevant factors such as NOX 
reduction potential and air quality impacts.
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    \3\ In the CSAPR Update, the EPA evaluated several levels of EGU 
NOX control stringency and represented those levels using 
an estimated marginal cost per ton of NOX reduced. The 
final CSAPR Update action selected the level of control stringency 
that included operating and optimizing existing SCR post-combustion 
controls, installing state-of-the-art NOX combustion 
controls, and shifting generation to existing units with lower 
NOX emission rates within the same state. This level of 
NOX control stringency was represented by a marginal cost 
of $1,400 per ton. In other words, the agency considered these 
NOX reduction strategies to be cost effective at marginal 
cost of $1,400 per ton. The EPA selected this level of control 
stringency by applying a multi-factor test, which indicated that 
this level of control stringency maximized NOX reductions 
and air quality improvement relative to cost, as compared to the 
other control levels evaluated.
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    Further, the EPA finds that the CSAPR Update is, in fact, 
controlling emissions from the named EGUs specifically and from all 
EGUs collectively in the named upwind states that impact ozone 
concentrations in Delaware and Maryland. Based on the 2017 ozone season 
emissions data, the CSAPR Update reduced regional ozone season 
NOX emissions by approximately 77,000 tons (21 percent) from 
2016 levels. Additionally, the average 2017 ozone season NOX 
emissions rate across the EGUs named in the Delaware or Maryland 
petitions was 0.116 pounds/one million British thermal units (lbs/
mmBtu) compared with average rates of 0.257 and 0.208 lbs/mmBtu in 2015 
and 2016, respectively. Thus, the best data that the agency has 
available at this time--2017 emissions data--indicate that the CSAPR 
Update ozone season allowance trading program is reducing summer-time 
NOX emissions and these data suggest that the units named in 
the CAA section 126(b) petitions are collectively controlling their 
NOX emissions consistent with the NOX control 
strategies identified in the petitions.
    The agency does not at this time find adequate technical or legal 
grounds for granting the Delaware or Maryland CAA section 126(b) 
petitions in light of the existing and effective CSAPR Update 
regulation. The agency, therefore, denies these petitions due to the 
lack of further cost-effective controls relative to the emissions 
reductions already required by the CSAPR Update and based on the best 
available information--2017 emissions data--indicating that the CSAPR 
Update is being appropriately implemented to reduce NOX 
emissions regionally and from the named EGUs. The EPA also notes 
several technical deficiencies in the Delaware analyses. As further 
described in this notice, the EPA is, therefore, denying Delaware's 
petitions based on the petitioner's failure to meet its burden under 
CAA section 126(b) to establish a basis for the finding requested. The 
EPA additionally is denying both Delaware's and Maryland's petitions 
based on the agency's own independent analysis of the interstate 
transport of ozone pollution conducted for the CSAPR Update, which 
rebuts several assertions in these petitions, as well as additional 
technical analysis regarding current unit operations. Finally, the EPA 
is also denying Delaware's petitions for the 2015 ozone NAAQS based on 
its own recent analyses projecting emissions levels to a relevant 
future year, which found no expected nonattainment or maintenance 
problems in Delaware for that NAAQS. In making this final decision, the 
EPA reviewed the incoming petitions, the public comments received, the 
relevant statutory authorities, and other relevant materials. 
Accordingly, the EPA denies the CAA section 126(b) petitions from 
Delaware and Maryland.
    The remainder of this notice is organized as follows: Section II of 
this notice provides background information, a summary of the relevant 
issues raised in Delaware's and Maryland's CAA section 126(b) 
petitions, and a summary of the EPA's May 31, 2018, proposed action; 
Section III of this notice provides information regarding the EPA's 
approach to addressing the interstate transport of ozone and the 
statutory authority under CAA sections 110(a)(2)(D)(i) and 126(b); and 
Section IV of this notice details the basis for the EPA's final action 
to deny these petitions, including responses to significant comments 
received on the proposal.

II. Background

A. Ozone and Public Health

    Ground-level ozone is not emitted directly into the air but is a 
secondary air pollutant created by chemical reactions between 
NOX and volatile organic compounds (VOCs) in the presence of 
sunlight. These precursor emissions can be transported downwind 
directly or, after transformation in the atmosphere, as ozone. As a 
result, ozone formation, atmospheric residence, and transport can occur 
on a regional scale (i.e., hundreds of miles). For further discussion 
of ozone-formation chemistry, the regional nature of interstate 
transport of ozone pollution, and health effects, see the CSAPR Update, 
81 FR 74513-14.

[[Page 50446]]

    On March 12, 2008, the EPA promulgated a revision to the ozone 
NAAQS, lowering both the primary and secondary standards to 75 parts 
per billion (ppb).\4\ On October 1, 2015, the EPA further revised the 
ground-level ozone NAAQS to 70 ppb.\5\
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    \4\ See National Ambient Air Quality Standards for Ozone, Final 
Rule, 73 FR 16436 (March 27, 2008).
    \5\ See National Ambient Air Quality Standards for Ozone, Final 
Rule, 80 FR 65292 (October 26, 2015).
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B. The CAA Section 126(b) Petitions From Delaware

    In 2016, the state of Delaware, through the Delaware Department of 
Natural Resources and Environmental Control (Delaware), submitted four 
petitions alleging that emissions from the Conemaugh Generating Station 
(Conemaugh), the Homer City Generating Station (Homer City), and the 
Brunner Island Steam Generating Station (Brunner Island) in 
Pennsylvania, and the Harrison Power Station (Harrison) in West 
Virginia, significantly contribute to exceedances of the 2008 and 2015 
8-hour ozone NAAQS in the state of Delaware.\6\
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    \6\ See Petitions from the state of Delaware under CAA section 
126(b) requesting that the EPA find that Conemaugh, Homer City, 
Brunner Island, and Harrison are emitting air pollutants in 
violation of the provisions of CAA section 110(a)(2)(D)(i) of the 
CAA with respect to the 2008 and the 2015 ozone NAAQS, available in 
the docket for this action.
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    The petitions identify a total of 59 exceedance days in Delaware 
for the 2008 ozone NAAQS in the six ozone seasons between 2010 and 
2015. Furthermore, Delaware contends that if the 2015 8-hour ozone 
NAAQS had been in effect during this period, Delaware would have 
experienced a total of 113 exceedance days in those ozone seasons. As 
discussed in Section III.D of the proposal, each of the Delaware 
petitions alleges that an individual source significantly contributes 
to nonattainment of the 2008 and 2015 8-hour ozone NAAQS in Delaware 
based on two common arguments. First, all four petitions allege that 
the EPA's modeling conducted in support of the CSAPR Update shows that 
the states in which these sources are located contribute one percent or 
more of the 2008 8-hour ozone NAAQS to ozone concentrations in 
Delaware. Second, all four petitions point to additional modeling to 
support these same claims. The Brunner Island and Harrison petitions 
cite an August 6, 2015 technical memorandum from Sonoma Technology, 
Inc. (STI), which describes contribution modeling results. The 
Conemaugh and Homer City petitions cite to October 24, 2016 modeling 
documentation from the Comprehensive Air Quality Model with Extensions 
(CAMx), but Delaware did not submit this documentation with its 
petitions or otherwise provide it to the EPA. Based on the August 6, 
2015 technical memorandum from STI and the October 24, 2016 CAMx 
modeling documentation, the petitions claim that all four named sources 
had modeled contributions above one percent of the 2008 8-hour ozone 
NAAQS to locations in Delaware on select days during the 2011 ozone 
season.\7\
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    \7\ See 83 FR 26670.
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    All four petitions contend that the absence of short-term 
NOX emissions limits cause the named sources to 
significantly contribute to Delaware's nonattainment of the 2008 and 
2015 ozone NAAQS. The petitions ask the EPA to implement short-term 
NOX emissions limits as a remedy under CAA section 126(c) to 
ensure optimal operation at these units. The petitions identify 
existing regulatory programs aimed at limiting NOX emissions 
at the sources but argue that these programs are not effective at 
preventing emissions from significantly contributing to downwind air 
quality problems in Delaware. In the case of Brunner Island, Homer 
City, and Conemaugh, Delaware argues that the Pennsylvania regulations 
addressing the reasonable available control technology (RACT) 
requirements for NOX \8\ include a 30-day averaging period 
for determining compliance with emissions rates, which will allow the 
facilities to emit above the rate limit on specific days while still 
meeting the 30-day average limit. Furthermore, the state argues that, 
although all four facilities named in their petitions have been subject 
to several NOX emissions allowance trading programs that 
effectively put a seasonal NOX emissions mass cap on the 
fleet of subject units, the subject units are not required to limit 
their NOX emissions over any particular portion of the ozone 
season as long as they are able to obtain sufficient NOX 
allowances to cover each unit's actual ozone season NOX mass 
emissions. The state alleges that the sources have, therefore, been 
able to comply with the allowance trading program requirements without 
having to make any significant reductions in their ozone season average 
NOX emissions rates.
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    \8\ Additional RACT Requirements for Major Sources of NOX and 
VOC; 25 Pa Code 129.96-100 (also known as the ``RACT II rule'').
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    Notably, each of the facilities is equipped with combustion and/or 
post-combustion controls. Harrison is equipped with low NOX 
burners (LNBs), overfire air (OFA), and selective catalytic reduction 
(SCR) for control of NOX emissions at all three coal-fired 
units. Homer City is equipped with LNBs, OFA, and SCR for control of 
NOX emissions at all three coal-fired units. Conemaugh is 
equipped with LNBs, close-coupled and separated overfire air (CC/SOFA), 
and SCR for control of NOX emissions at both coal-fired 
units. Brunner Island is equipped with LNBs and combustion air controls 
and has the ability to burn coal, gas, or both to provide steam to its 
generators. Delaware acknowledges that Brunner Island can use natural 
gas as fuel at all three units, lowering the units' NOX 
emissions, but argues that Brunner Island's ability to also use coal 
indicates that, without a short-term NOX emissions limit, 
the units will continue to significantly contribute to nonattainment or 
interfere with maintenance of the ozone NAAQS in Delaware. In the case 
of Conemaugh, Harrison, and Homer City, Delaware similarly contends 
that current NOX emissions regulations applicable to sources 
in Pennsylvania and West Virginia do not prevent significant 
contribution to Delaware's nonattainment of the ozone NAAQS. As 
indicated in this notice, these EGUs all have SCR to control 
NOX emissions. Delaware argues that a review of emissions 
rates since the SCRs were installed indicates that the SCRs were at 
times turned off or operated at reduced levels of effectiveness in the 
ozone season. Thus, in Delaware's view, these sources also need a 
short-term NOX emissions limit to implement effective and 
consistent NOX control operation. For more information on 
the sources identified in the petitions, see Sections III.D and III.E 
of the proposal.
    Subsequent to receiving the petitions, the EPA published notices 
extending the statutory deadline for the agency to take final action on 
all four of Delaware's CAA section 126(b) petitions. CAA section 126(b) 
of the Act requires the EPA to either make a finding or deny a petition 
within 60 days of receipt of the petition and after holding a public 
hearing. However, any action taken by the EPA under CAA section 126(b) 
is subject to the procedural requirements of CAA section 307(d). See 
CAA section 307(d)(1)(N). CAA section 307(d) requires the EPA to 
conduct notice-and-comment rulemaking, including issuance of a notice 
of proposed action, a period for public comment, and a public hearing 
before making a final determination whether to make the requested 
finding. In light of the time required for notice-and-comment 
rulemaking, CAA section 307(d)(10) provides for a time extension,

[[Page 50447]]

under certain circumstances, for rulemakings subject to the CAA section 
307(d) procedural requirements. In accordance with CAA section 
307(d)(10), the EPA determined that the 60-day period for action on 
Delaware's petitions would be insufficient for the EPA to complete the 
necessary technical review, develop an adequate proposal, and allow 
time for notice and comment, including an opportunity for public 
hearing. In 2016, the EPA published notices extending the deadlines to 
act on all four of Delaware's petitions by 6 months. The notices 
extending these deadlines can be found in the docket for this 
rulemaking.

C. The CAA Section 126(b) Petition From Maryland

    On November 16, 2016, the state of Maryland, through the Maryland 
Department of the Environment, submitted a CAA section 126(b) petition 
alleging that emissions from 36 EGUs significantly contribute to ozone 
levels that exceed the 2008 ozone NAAQS in Maryland and, therefore, 
significantly contribute to nonattainment and interfere with 
maintenance of the NAAQS.\9\ These sources are coal-fired EGUs located 
in Indiana, Kentucky, Ohio, Pennsylvania, and West Virginia, which 
Maryland notes are states that EPA has already determined are 
significantly contributing to nonattainment in Maryland under the 2008 
ozone NAAQS. Maryland indicates that all of these sources have SCR or 
selective non-catalytic reduction (SNCR) to control NOX 
emissions. In addition, Maryland's technical support document discusses 
modeling conducted by the University of Maryland, which claims to show 
that ozone concentrations would be reduced if these EGUs were to 
optimize running their SCR and SNCR controls. Maryland argues that 
these projected reductions in ozone concentrations at Maryland monitors 
demonstrate that optimizing the post-combustion controls at the 36 
units with SCR or SNCR would allow Maryland to attain, or come very 
close to attaining, the 2008 8-hour ozone NAAQS. Maryland also provides 
the results of control optimization modeling scenarios which project 
the ozone impacts of optimizing emissions controls in 2018. Maryland 
suggests, by way of using its own state regulation as an example, that 
optimizing controls means operating controls consistent with 
technological limitations, manufacturers' specifications, good 
engineering and maintenance practices, and good air pollution control 
practices for minimizing emissions.
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    \9\ See Petition to the United States Environmental Protection 
Agency Pursuant to Section 126 of the Clean Air Act for Abatement of 
Emissions from 36 Coal-Fired Electric Generating Units at 19 Plants 
in Five States that Significantly Contribute to Nonattainment of, 
and Interfere with Maintenance of, the 2008 Ozone National Ambient 
Air Quality Standard in the State of Maryland, available in the 
docket for this action.
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    The petition further alleges that Maryland's proposed remedy--
discussed further below--will influence how areas in Maryland and other 
Mid-Atlantic states are designated under the new 2015 ozone NAAQS. 
According to Maryland, the proposed remedy, if implemented in 2017, 
would most likely allow the Baltimore area and the Washington, DC, 
multi-state area, which includes portions of Maryland, to both be 
designated attainment for the 2015 ozone NAAQS.
    Maryland alleges that, although the 36 named EGUs have existing 
post-combustion control mechanisms that should prevent significant 
contribution, the facilities have either ceased to operate the controls 
regularly during the ozone season or have chosen to operate them in a 
sub-optimal manner. Maryland presents an analysis based on 2005-2015 
ozone-season data to support this contention.\10\ Maryland argues that 
whether controls are optimally run can be determined by comparing 
current ozone season average emissions rates to the lowest ozone season 
average emissions rate achieved either after 2005 or after the unit 
installed SCR or SNCR, whichever is later. Maryland further alleges 
that NOX emissions rates at the 36 EGUs have increased 
significantly since the SCR and SNCR installation and initial testing, 
indicating that these EGUs are not operating their post-combustion 
controls efficiently on each day of the ozone season.
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    \10\ Maryland Petition, Appendix A, Part 2, available in the 
docket for this action.
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    Maryland also submitted a number of technical memoranda to support 
its argument. Maryland submitted analyses of control technology 
optimization for coal-fired EGUs in eastern states, which they contend 
demonstrate that NOX emissions rates at specific EGUs are 
well above what is considered representative of an EGU running post-
combustion controls efficiently; that 2015 and 2016 EPA data show that 
many EGUs have not been running their post combustion controls as 
efficiently as they have in the past during the ozone season; and that 
the EPA should, therefore, ensure these controls are operating during 
the 2017 ozone season by including requirements that each named EGU to 
minimize emissions by optimizing existing control technologies, 
enforced through use of a 30-day rolling average rate.\11\
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    \11\ See id.
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    Maryland also submitted the following documents: A review of its 
own NOX regulations for coal fired EGUs; \12\ a study 
conducted by Maryland and the University of Maryland regarding regional 
ozone transport research and analysis efforts in Maryland; \13\ an 
August 6, 2015 STI report alleging that source apportionment modeling 
indicates that emissions from Brunner Island (a source not specifically 
addressed in Maryland's petition) contribute significantly to ozone 
formation in Pennsylvania and neighboring states during the modeled 
ozone season; \14\ a list of recommended language for the EPA to 
include in federal orders related to the named EGUs to remedy 
significant contribution; \15\ and an evaluation of cost savings 
Maryland alleges the units have incurred in 2014 by not fully running 
their controls compared with the cost of running their controls at full 
efficiency.\16\
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    \12\ Id. Appendix B.
    \13\ Id. Appendix C.
    \14\ Id. Appendix D.
    \15\ Id. Appendix E.
    \16\ Id. Appendix F.
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    Maryland supplemented its petition with several further appendices 
submitted in 2017. Maryland submitted an additional optimization 
analysis comparing NOX emissions rates in 2006, 2015, and 
2016 for EGUs listed in its petition; \17\ an analysis comparing 2016 
ozone season average emissions rates to the lowest demonstrated ozone 
season average emissions rates between 2005 and 2015 at 369 coal-fired 
EGUs in 29 states identified as the Eastern Modeling Domain; \18\ an 
analysis comparing of average emissions data at 21 units in 
Pennsylvania in the first quarter of 2017 to the lowest demonstrated 
ozone season average emissions rate between 2005-2016; \19\ and 
additional photochemical modeling conducted by the University of 
Maryland regarding the impact of the 36 named EGUs in the five upwind 
states on ozone concentrations in Maryland, which concludes that 
emissions from these units significantly contribute to ozone 
concentrations in Maryland and, therefore, contribute to nonattainment 
and interfere with the maintenance of the 8-hour ozone NAAQS.\20\
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    \17\ Id. Supplemental Appendix A.
    \18\ Id. Supplemental Appendix B.
    \19\ Id. Supplemental Appendix C.
    \20\ Id. Supplemental Appendix D.
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    Maryland's petition requests a remedy that will compel the named 
EGUs to

[[Page 50448]]

optimize their SCR and SNCR. Maryland indicates that its petition is 
focused on ensuring controls are run at the units every day of the 
ozone season. According to Maryland, the CSAPR Update, earlier federal 
allowance trading programs, and many state regulations allow for longer 
compliance periods, which means that controls do not necessarily need 
to be run effectively every day to comply with these requirements. 
Maryland claims that this has resulted in situations where sources in 
the five upwind states have not run their controls efficiently on many 
days with high ozone, and, therefore, these sources are impacting 
Maryland in violation of CAA section 110(a)(2)(D)(i)(I). Maryland also 
claims that, on some of those days, the 36 EGUs in these states emitted 
in the aggregate over 300 more tons of NOX than they would 
have if they had run their control technologies efficiently. 
Additionally, Maryland states that these days are often the same days 
where downwind ozone levels are likely to be highest because of hot, 
ozone-conducive weather. Maryland supports its claim by alleging that 
over the entire ozone season, the relief requested in its petition 
could result in very large reductions. Maryland contends that in 2015, 
approximately 39,000 tons of NOX reductions could have been 
achieved in the ozone season if the 36 EGUs had simply run their 
controls efficiently. Therefore, Maryland states that, based on the 
EPA's past approaches to establishing significant contributions based 
on cost-effective controls, the NOX emissions from these 36 
EGUs must be abated on each day of the ozone season starting in May of 
2017.
    Maryland contends that emissions at the 36 named EGUs can be 
reduced at reasonable cost, or with potentially no actual new costs to 
the EGUs at all,\21\ because this requested remedy rests on the use of 
existing control equipment. Maryland suggests two methods to ensure 
optimized use of controls at these sources. First, Maryland requests 
that the EPA include language in federal and state regulations or 
operating permits requiring the owners or operators of the relevant 
EGUs to use all installed pollution control technology consistent with 
technological limitations, manufacturers' specifications, good 
engineering and maintenance practices, and good air pollution control 
practices. Second, Maryland requests that the EPA enforce this 
requirement by comparing each unit's maximum 30-day rolling average 
emissions rate to the unit's lowest reported ozone emissions rate. 
Maryland also requests that this remedy be implemented by 2017 to help 
areas in Maryland achieve attainment in time to inform area 
designations in the state for the 2015 ozone NAAQS.
---------------------------------------------------------------------------

    \21\ Although Maryland suggests emissions could potentially be 
reduced with no actual new costs to the EGUs, Maryland does not 
provide further information supporting its suggestion that zero-cost 
reductions may be available. To the contrary, Maryland states that 
the cost per ton range would be from $670 to $1,000, depending on 
whether the SCR systems are in partial operation or totally idled. 
See Maryland Petition Appendix F, available in the docket for this 
action.
---------------------------------------------------------------------------

    Consistent with CAA section 307(d), as discussed in Section III.D 
of the proposal, the EPA determined that the 60-day period for 
responding to Maryland's petition is insufficient for the EPA to 
complete the necessary technical review, develop an adequate proposal, 
and allow time for notice and comment, including an opportunity for 
public hearing, on a proposed finding regarding whether the 36 EGUs 
identified in the petition significantly contribute to nonattainment or 
interfere with maintenance of the 2008 ozone NAAQS in Maryland. On 
January 3, 2017, the EPA published a notice extending the deadline for 
acting on Maryland's CAA section 126(b) petition to July 15, 2017.\22\
---------------------------------------------------------------------------

    \22\ 82 FR 22 (January 3, 2017).
---------------------------------------------------------------------------

D. Summary of the EPA's May 31, 2018, Proposal

    In Section IV of the proposal, the EPA explained its bases for 
proposing to deny the CAA section 126(b) petitions from Delaware and 
Maryland. Given that ozone is a regional pollutant and that the EPA had 
recently evaluated regional ozone pollution in the CSAPR Update, the 
EPA proposed to evaluate the petition consistent with the same four-
step regional analytic framework--described in more detail in the 
following section--that the EPA has used in previous regulatory actions 
to evaluate regional interstate ozone transport. Within this framework, 
the EPA also proposed to evaluate whether the sources named in the 
petitions emit or would emit in violation of the good neighbor 
provision based on both current and future anticipated emissions 
levels. The EPA identified multiple bases for the proposed denial.
    The EPA noted that the agency's historical approach to evaluating 
CAA section 126(b) petitions looks first to see whether a petition, 
standing alone, identifies or establishes a technical basis for the 
requested CAA section 126(b) finding. 83 FR 26674. In this regard, the 
agency proposed to find that several aspects of Delaware's analyses are 
insufficient to support Delaware's conclusion that the four sources 
named in the petitions emit or would emit in violation of the good 
neighbor provision. First, the EPA proposed to find that Delaware does 
not provide sufficient information to indicate that there is a current 
or expected future downwind air quality problem in the state with 
respect to either the 2008 and 2015 ozone NAAQS. Id. at 26676. Second, 
the EPA proposed to find that the emissions information Delaware relies 
upon for its air quality modeling is not representative of current or 
future projected emissions levels at the named EGUs. Id. Third, the EPA 
proposed to find that Delaware's analyses regarding ozone contributions 
to modeled and/or measured ozone levels are unclear and, therefore, 
insufficient to support Delaware's position that the named sources are 
significantly contributing to nonattainment or interfering with 
maintenance of the NAAQS on specific days. Id. The EPA also proposed to 
find that material elements of the analysis provided in Maryland's 
petition are technically deficient. Id. at 26677.
    The EPA further proposed to rely on its own independent analysis to 
evaluate the requested CAA section 126(b) findings. Id. First, the EPA 
proposed to find that its independent analysis provides no basis to 
conclude that any of the sources named by Delaware are linked to a 
downwind air quality problem with regard to the 2008 ozone NAAQS in 
steps one and two of the four-step framework. The EPA explained that, 
based on the modeling conducted in support of the CSAPR Update, 
Delaware was not projected to have any nonattainment or maintenance 
receptors in 2017 with respect to the 2008 ozone NAAQS, and, therefore, 
the states named in Delaware's petitions are not linked to a downwind 
air quality problem in the state under that standard. Id. at 26678. 
Furthermore, both to confirm the projections in the CSAPR Update 
modeling and in response to the petition's assertion that current air 
quality data show that Delaware has a downwind problem for the 2008 
ozone NAAQS, the EPA examined Delaware's 2014-2016 design values and 
found that no monitors were violating the 2008 ozone NAAQS. Id. The EPA 
also proposed to find that available future year modeling data do not 
suggest that Delaware will have air quality problems by the relevant 
attainment date for the 2015 ozone NAAQS.
    Second, the EPA evaluated whether there are further cost-effective 
NOX emissions reductions available at the specific sources 
named in the petitions,

[[Page 50449]]

consistent with step three of the four-step framework. For units in the 
Delaware and Maryland petitions already equipped with SCRs, the EPA 
proposed to determine that the CSAPR Update emissions budgets already 
reflect emissions reductions associated with the turning on and 
optimizing of existing SCR controls at the EGUs that are the subject of 
the petitions for the 2008 ozone NAAQS, which is the same control 
strategy identified in the petitions as being both feasible and cost 
effective. Id. at 26679. Therefore, the EPA proposed to determine that 
all identified cost-effective emission reductions have already been 
implemented with respect to these sources, and therefore that those 
sources neither emit nor would emit in violation of the good neighbor 
provision for the 2008 NAAQS. The EPA proposed to determine that this 
conclusion is also appropriate with regard to the 2015 ozone NAAQS for 
those sources addressed in the Delaware petitions because the EPA's 
determination that the cost-effective control strategy is already being 
implemented applies regardless of which NAAQS is being addressed. In 
other words, because the strategy of optimizing existing controls 
relative to the 2008 ozone NAAQS has already been implemented via the 
CSAPR Update for the sources Delaware named for the 2015 NAAQS, the EPA 
proposed there are no additional control strategies available to 
further reduce NOX emissions at these sources to address 
this standard. Id.
    To the extent that the Delaware and Maryland petitions also 
identify sources without SCR, the EPA also proposed to deny the 
petitions. Maryland cited two sources operating selective non-catalytic 
reduction post-combustion controls (SNCR). The EPA proposed to deny 
Maryland's petition with respect to these sources based on its 
conclusion in the CSAPR Update that fully operating with SNCR is not a 
cost-effective NOX emission reduction strategy with respect 
to addressing transport obligations for the 2008 ozone NAAQS. The EPA, 
therefore, proposed to find that these sources do not emit and would 
not emit in violation of the good neighbor provision with respect to 
the 2008 ozone NAAQS. Additionally, one of Delaware's petitions alleges 
significant contribution from the Brunner Island facility, which 
currently has neither SCR nor SNCR installed. The EPA proposed to 
determine that an independent step three analysis still provides a 
basis for denying Delaware's Brunner Island petition. The EPA explained 
that the facility primarily burned natural gas with a low 
NOX emission rate in the 2017 ozone season and that the EPA 
reasonably expects the facility to continue operating primarily by 
burning natural gas in future ozone seasons. Id. at 26680. As such, the 
EPA proposed to deny the Brunner Island petition because the agency 
found that there are no additional feasible and cost-effective 
NOX emission reductions available at Brunner Island.

E. Historical Regional Analyses of Good Neighbor Obligations Related to 
Ozone

    As explained in the proposal, given that formation, atmospheric 
residence, and transport of ozone occur on a regional scale (i.e., 
hundreds of miles) over much of the eastern United States, the states 
and the EPA have historically addressed interstate transport of ozone 
pursuant to the good neighbor provision through a series of regional 
rulemakings focused on the reduction of NOX emissions. These 
rulemakings have included findings that downwind states' problems 
attaining and maintaining the ozone NAAQS result, in part, from the 
contribution of pollution from multiple upwind sources located in 
different upwind states. Specifically, to support each historical 
action, an evaluation of the extent of the ozone transport problem 
(i.e., the breadth of downwind ozone problems and the contributions 
from upwind states) was performed. Historically, these assessments have 
found interstate ozone transport to be an interconnected system of 
upwind and downwind ozone transport such that a regional trading 
program would be effective at implementing the CAA's good neighbor 
requirements.\23\
---------------------------------------------------------------------------

    \23\ The Supreme Court has also concurred with the EPA's 
assessment regarding the complexity and interconnectivity 
underpinning ozone transport. See EPA v. EME Homer City Generation, 
L.P., 134 S. Ct. 1584, 1593-94 (2014).
---------------------------------------------------------------------------

1. Description of the Four-Step Transport Framework
    The EPA has promulgated several transport rulemakings that have 
addressed the good neighbor provision, including four addressing 
interstate transport with respect to various ozone NAAQS. Each of these 
rulemakings essentially followed the same four-step transport framework 
to quantify and implement emission reductions necessary to address the 
interstate transport requirements of the good neighbor provision. These 
steps are:
    (1) Identifying downwind air quality problems relative to the 
NAAQS. The EPA has identified downwind areas with air quality problems 
(referred to as ``receptors'') considering monitored air quality data, 
where appropriate, and air quality modeling projections to a future 
compliance year. The EPA has focused its analysis on a future year in 
light of the forward-looking nature of the good neighbor obligation in 
CAA section 110(a)(2)(D)(i)(I). Specifically, the statute requires that 
states prohibit emissions that ``will'' significantly contribute to 
nonattainment or interfere with maintenance of the NAAQS in any other 
state. The EPA has reasonably interpreted this language as permitting 
states and the EPA in implementing the good neighbor provision to 
prospectively evaluate downwind air quality problems and the need for 
further upwind emissions reductions. See North Carolina v. EPA, 531 
F.3d 896, 913-14 (D.C. Cir. 2008) (affirming as reasonable the EPA's 
interpretation of ``will'' to refer to future, projected ozone 
concentrations). The agency has thus identified areas expected to be in 
nonattainment with the NAAQS and those areas that may struggle to 
maintain the NAAQS;
    (2) Determining which upwind states are linked to these identified 
downwind air quality problems and warrant further analysis to determine 
whether their emissions violate the good neighbor provision. In the 
EPA's most recent transport rulemakings for the 2008 ozone NAAQS, the 
agency identified such upwind states to be those modeled to contribute 
at or above a threshold equivalent to one percent of the applicable 
NAAQS;
    (3) For upwind states linked to downwind air quality problems, 
identifying on a statewide basis emissions (if any) that will 
significantly contribute to nonattainment or interfere with maintenance 
of a standard, based on cost and air quality factors evaluated in a 
multi-factor test. In all four of the EPA's prior rulemakings for 
ozone, the agency apportioned emission reduction responsibility among 
multiple upwind states linked to downwind air quality problems using 
several particular cost- and air quality-based factors to quantify the 
reduction in a linked upwind state's emissions that the rulemaking 
would require pursuant to the good neighbor provision; and
    (4) For states that are found to have emissions that significantly 
contribute to nonattainment or interfere with maintenance of the NAAQS 
downwind, implementing the necessary emission reductions within the 
state. When the EPA has promulgated federal implementation plans (FIPs) 
addressing the good neighbor provision for the ozone NAAQS in prior 
transport rulemakings, the EPA has typically required affected sources 
in upwind states to participate in allowance trading

[[Page 50450]]

programs to achieve the necessary emission reductions.\24\ In addition, 
the EPA has also offered states the opportunity to participate in 
similar EPA-operated allowance trading programs to achieve the 
necessary emission reductions through state implementation plans 
(SIPs).
---------------------------------------------------------------------------

    \24\ While the EPA has chosen to implement emission reductions 
through allowance trading programs for states found to have a 
downwind impact, upwind states can choose to submit a SIP that 
implements such reductions through other enforceable mechanisms that 
meets the requirements of the good neighbor provision, such as the 
enforceable mechanisms that petitioners apparently favor and argue 
for in their petition.
---------------------------------------------------------------------------

2. Prior Regional Rulemakings Under the Good Neighbor Provision
    The EPA's first regional rulemaking regarding interstate transport, 
the NOX SIP Call, addressed the 1979 ozone NAAQS. 63 FR 
57356 (October 27, 1998). The NOX SIP Call was the result of 
the analytic work and recommendations of the Ozone Transport Assessment 
Group (OTAG), which was organized by and led by states in consultation 
with the EPA and other stakeholders. The EPA used this collaboratively 
developed analysis to conclude in the NOX SIP Call that 
``[t]he fact that virtually every nonattainment problem is caused by 
numerous sources over a wide geographic area is a factor suggesting 
that the solution to the problem is the implementation over a wide area 
of controls on many sources, each of which may have a small or 
unmeasurable ambient impact by itself.'' 63 FR 57356, 57377 (October 
27, 1998). The NOX SIP Call promulgated statewide emission 
budgets and required upwind states to adopt SIPs that would decrease 
their NOX emissions by a sufficient amount to meet these 
budgets, thereby prohibiting the emissions that significantly 
contribute to nonattainment or interfere with maintenance of the ozone 
NAAQS in downwind states. The EPA also promulgated a model rule for a 
regional allowance trading program called the NOX Budget 
Trading Program that states could adopt in their SIPs as a mechanism to 
achieve some or all of the required emission reductions. All of the 
jurisdictions covered by the NOX SIP Call ultimately chose 
to adopt the NOX Budget Trading Program into their SIPs. The 
NOX SIP Call was upheld by the U.S. Court of Appeals for the 
District of Columbia Circuit (D.C. Circuit) in all pertinent respects. 
See Michigan v. EPA, 213 F.3d 663 (2000).
    In coordination with the NOX SIP Call rulemaking under 
CAA section 110(a)(2)(D)(i)(I), the EPA also addressed several pending 
CAA section 126(b) petitions submitted by eight northeastern states 
regarding the same air quality issues addressed by the NOX 
SIP Call (i.e., interstate ozone transport for the 1979 ozone NAAQS). 
These CAA section 126(b) petitions asked the EPA to find that ozone 
emissions from numerous sources located in 22 states and the District 
of Columbia had adverse air quality impacts on the petitioning downwind 
states. Half of the petitioning states requested that the 
NOX reductions to address regional interstate ozone 
pollution transport be implemented using an allowance trading 
program.\25\ Based on analysis conducted for the NOX SIP 
Call regarding upwind state impacts on downwind air quality, the EPA in 
May 1999 made technical determinations regarding the claims in the 
petitions, but did not at that time make the CAA section 126(b) 
findings requested by the petitions. 64 FR 28250 (May 25, 1999). In 
making these technical determinations, the EPA concluded that the 
NOX SIP Call would fully address and remediate the claims 
raised in these petitions, and that the EPA would, therefore, not need 
to take separate action to remedy any potential violations of the CAA 
section 110(a)(2)(D)(i) prohibition. 64 FR 28252. However, subsequent 
litigation over the NOX SIP Call led the EPA to ``de-link'' 
the CAA section 126(b) petition response from the NOX SIP 
Call, and the EPA made final CAA section 126(b) findings for 12 states 
named in the petitions and the District of Columbia. The EPA found that 
sources in these states emitted in violation of the prohibition in the 
good neighbor provision with respect to the 1979 ozone NAAQS based on 
the affirmative technical determinations made in the May 1999 
rulemaking. In order to remedy the violation under CAA section 126(c), 
the EPA required affected sources in the upwind states to participate 
in a regional allowance trading program whose requirements were 
designed to be interchangeable with the requirements of the optional 
NOX Budget Trading Program model rule provided under the 
NOX SIP Call. 65 FR 2674 (January 18, 2000). The EPA's 
action on these CAA section 126(b) petitions was upheld by the D.C. 
Circuit. See Appalachian Power Co. v. EPA, 249 F.3d 1032 (D.C. Cir. 
2001).
---------------------------------------------------------------------------

    \25\ Connecticut, Maine, New York, and Pennsylvania requested an 
allowance trading program to reduce NOX emissions and 
remedy regional interstate ozone transport. 63 FR 56297.
---------------------------------------------------------------------------

    The EPA next promulgated the Clean Air Interstate Rule (CAIR), 70 
FR 25162 (May 12, 2005) to address interstate transport under the good 
neighbor provision with respect to the 1997 ozone NAAQS, as well as the 
1997 fine particulate matter (PM2.5) NAAQS. 70 FR 25172. The 
EPA adopted the same framework for quantifying the level of states' 
significant contribution to downwind nonattainment in CAIR as it used 
in the NOX SIP Call, based on the determination in the 
NOX SIP Call that downwind ozone nonattainment is due to the 
impact of emissions from numerous upwind sources and states. 70 FR 
25162, 25172 (May 12, 2005). The EPA explained that ``[t]ypically, two 
or more States contribute transported pollution to a single downwind 
area, so that the `collective contribution' is much larger than the 
contribution of any single State.'' 70 FR 25186. CAIR included two 
distinct regulatory processes: (1) A rulemaking to define significant 
contribution (i.e., the emission reduction obligation) under the good 
neighbor provision and provide for submission of SIPs eliminating that 
contribution, 70 FR 25162 (May 12, 2005); and (2) a rulemaking to 
promulgate, where necessary, FIPs imposing emission limitations in the 
event states did not submit SIPs. 71 FR 25328 (April 28, 2006). The 
FIPs required EGUs in affected states to participate in regional 
allowance trading programs, which replaced the previous NOX 
Budget Trading Program.
    In conjunction with the second CAIR rulemaking, which promulgated 
backstop FIPs, the EPA acted on a CAA section 126(b) petition received 
from the state of North Carolina on March 19, 2004, seeking a finding 
that large EGUs located in 13 states were significantly contributing to 
nonattainment and/or interfering with maintenance of the 1997 ozone 
NAAQS and the 1997 PM2.5 NAAQS in North Carolina. Citing the 
analyses conducted to support the promulgation of CAIR, the EPA denied 
North Carolina's CAA section 126(b) petition in full based on 
determinations either that the named states were not adversely 
impacting downwind air quality in violation of the good neighbor 
provision, or that such impacts were fully remedied by implementation 
of the emission reductions required by the CAIR FIPs. 71 FR 25328, 
25330 (April 28, 2006).
    The D.C. Circuit found that EPA's approach to CAA section 
110(a)(2)(D)(i)(I) in CAIR was ``fundamentally flawed'' in several 
respects, and the rule was remanded in July 2008 with the instruction 
that the EPA replace the rule ``from the ground up.'' North Carolina, 
531 F.3d at 929.

[[Page 50451]]

The decision did not find fault with the EPA's general multi-step 
framework for addressing interstate ozone transport, but rather 
concluded the EPA's analysis and compliance mechanisms did not address 
all elements required by the statute. The EPA's separate action denying 
North Carolina's CAA section 126(b) petition was not challenged.
    On August 8, 2011, the EPA promulgated CSAPR to replace CAIR. 76 FR 
48208 (August 8, 2011). CSAPR addressed the same (1997) ozone and 
PM2.5 NAAQS as CAIR and, in addition, addressed interstate 
transport for the 2006 PM2.5 NAAQS by requiring 28 states to 
reduce sulfur dioxide (SO2) emissions, annual NOX 
emissions, and/or ozone season NOX emissions that would 
significantly contribute to other states' nonattainment or interfere 
with other states' ability to maintain these air quality standards. 
Consistent with prior determinations made in the NOX SIP 
Call and CAIR, the EPA again found that multiple upwind states 
contributed to downwind ozone nonattainment in multiple downwind 
states. Specifically, the EPA found ``that the total `collective 
contribution' from upwind sources represents a large portion of 
PM2.5 and ozone at downwind locations and that the total 
amount of transport is composed of the individual contribution from 
numerous upwind states.'' 76 FR 48237. Accordingly, the EPA conducted a 
regional analysis, calculated emission budgets for affected states, and 
required EGUs in these states to participate in new regional allowance 
trading programs to reduce statewide emission levels.\26\ CSAPR was 
subject to nearly 4 years of litigation. Ultimately, the Supreme Court 
upheld the EPA's approach to calculating emission reduction obligations 
and apportioning upwind state responsibility under the good neighbor 
provision, but also held that the EPA was precluded from requiring more 
emission reductions than necessary to address downwind air quality 
problems, or ``over-controlling'' upwind state emissions. See EPA v. 
EME Homer City Generation, L.P., 134 S. Ct. 1584, 1607-09 (2014) (EME 
Homer City).\27\
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    \26\ The CSAPR trading programs included assurance provisions to 
ensure that emissions are reduced within each individual state, in 
accordance with North Carolina, 531 F.3d at 907-08 (holding the EPA 
must actually require elimination of emissions from sources that 
contribute significantly to nonattainment and interfere with 
maintenance in downwind areas). Those provisions were also included 
in the CSAPR Update and went into effect with the 2017 CSAPR 
compliance periods.
    \27\ On remand from the Supreme Court, the D.C. Circuit further 
affirmed various aspects of the CSAPR, while remanding the rule 
without vacatur for reconsideration of certain states' emissions 
budgets where it found those budgets may over-control emissions 
beyond what was necessary to address the good neighbor requirements. 
EME Homer City Generation, L.P. v. EPA, 795 F.3d 118 (2015) (EME 
Homer City II). The EPA addressed the remand in several rulemaking 
actions in 2016 and 2017.
---------------------------------------------------------------------------

    Most recently, the EPA promulgated the CSAPR Update to address the 
good neighbor provision requirements for the 2008 ozone NAAQS. 81 FR 
74504 (October 26, 2016). The CSAPR Update built upon previous 
regulatory efforts in order to address the collective contributions of 
ozone pollution from 22 states in the eastern United States to 
widespread downwind air quality problems. As was also the case for the 
previous rulemakings, the EPA evaluated the nature (i.e., breadth and 
interconnectedness) of the ozone problem and NOX reduction 
potential from EGUs, including those sources named in the Delaware and 
Maryland CAA section 126(b) petitions. The CSAPR Update is described in 
more detail in Section IV.B of this final action.
    In finalizing the CSAPR Update, the EPA found that it was at that 
time unable to determine whether the rule fully resolved good neighbor 
obligations for most of the states subject to that action, including 
those addressed in Delaware's and Maryland's petitions (Indiana, 
Kentucky, Ohio, Pennsylvania and West Virginia), and noted that, based 
on its analysis at that time, the emission reductions required by the 
rule ``may not be all that is needed'' to address transported 
emissions.\28\ 81 FR 74521 through 74522. The EPA noted that the 
information available at that time suggested that downwind air quality 
problems would remain in 2017 after implementation of the CSAPR Update 
and that upwind states continued to be linked to those downwind 
problems at or above the one-percent threshold. However, in the CSAPR 
Update the EPA could not determine whether, in step three of the four-
step framework, the EPA had quantified all emission reductions that may 
be considered cost effective because the rule did not evaluate non-EGU 
ozone season NOX reductions and further EGU control 
strategies (i.e., the implementation of new post-combustion controls) 
that were achievable on timeframes extending beyond the 2017 analytic 
year.
---------------------------------------------------------------------------

    \28\ The EPA determined that the emission reductions required by 
the CSAPR Update satisfied the full scope of the good neighbor 
obligation for Tennessee with respect to the 2008 ozone NAAQS. 81 FR 
74551-22.
---------------------------------------------------------------------------

    On July 10, 2018, the EPA proposed to find that, based on the 
latest available emissions inventory and air quality modeling data for 
a 2023 analytic year, the CSAPR Update fully addresses the good 
neighbor provision requirements for the 2008 ozone NAAQS for the 20 
eastern states (among the 22) previously addressed in the CSAPR Update. 
83 FR 31915. The EPA's proposed determination was premised on the 
finding that there would be no remaining nonattainment or maintenance 
receptors for the 2008 ozone NAAQS in the eastern U.S. in 2023. The 
proposed determination applied the four-step CSAPR framework but did 
not progress past step one since no air quality receptors were 
identified. Therefore, with the CSAPR Update fully implemented, the EPA 
has proposed to find that states are not expected to contribute 
significantly to nonattainment in, or interfere with maintenance by, 
any other state with regard to the 2008 ozone NAAQS. EPA is currently 
reviewing comments on the proposed rule and anticipates taking final 
action by December 2018. The remaining two states were determined to 
have no remaining good neighbor obligation for the 2008 ozone NAAQS in 
the CSAPR Update (Tennessee), 81 FR 74540 (October 26, 2016), and in a 
separate SIP approval (Kentucky), 81 FR 33730 (July 17, 2018).

III. CAA Sections 126 and 110 and Standard of Review for This Action

    The following subsections describe both the statutory authority and 
the EPA's standard of review for the final action on Delaware's and 
Maryland's CAA section 126(b) petitions. Section III.A of this notice 
describes the EPA's authority and interpretation of key terms under 
both CAA sections 126 and 110(a)(2)(D)(i)(I), including the 
relationship between the good neighbor provision and CAA section 
126(b). Section III.B of this notice describes the reasonableness of 
applying the four-step framework and certain prior findings under the 
CSAPR Update as the standard of review in evaluating Delaware's and 
Maryland's CAA section 126(b) petitions.

A. Statutory Authority Under CAA Sections 126 and 110(a)(2)(D)(i)(I)

    The statutory authority for this action is provided by CAA sections 
126 and 110(a)(2)(D)(i). Section 126(b) of the CAA provides that any 
state or political subdivision may petition the Administrator of the 
EPA to find that any major source or group of stationary sources in an 
upwind state emits or would emit any air pollutant in violation of the 
prohibition of CAA

[[Page 50452]]

section 110(a)(2)(D)(i).\29\ Petitions submitted pursuant to this 
section are commonly referred to as CAA section 126(b) petitions. 
Similarly, findings by the Administrator, pursuant to this section, 
that a source or group of sources emits air pollutants in violation of 
the CAA section 110(a)(2)(D)(i) prohibition are commonly referred to as 
CAA section 126(b) findings.
---------------------------------------------------------------------------

    \29\ The text of CAA section 126 as codified in the U.S. Code 
cross-references CAA section 110(a)(2)(D)(ii) instead of CAA section 
110(a)(2)(D)(i). The courts have confirmed that this is a 
scrivener's error and the correct cross-reference is to CAA section 
110(a)(2)(D)(i). See Appalachian Power Co. v. EPA, 249 F.3d 1032, 
1040-44 (D.C. Cir. 2001).
---------------------------------------------------------------------------

    CAA section 126(c) explains the effect of a CAA section 126(b) 
finding and establishes the conditions under which continued operation 
of a source subject to such a finding may be permitted. Specifically, 
CAA section 126(c) provides that it is a violation of section 126 of 
the Act and of the applicable SIP: (1) For any major proposed new or 
modified source subject to a CAA section 126(b) finding to be 
constructed or operate in violation of the prohibition of CAA section 
110(a)(2)(D)(i); or (2) for any major existing source for which such a 
finding has been made to stay in operation more than 3 months after the 
date of the finding. The statute, however, also gives the Administrator 
discretion to permit the continued operation of a source beyond 3 
months if the source complies with emission limitations and compliance 
schedules provided by the EPA to bring about compliance with the 
requirements contained in CAA sections 110(a)(2)(D)(i) and 126 as 
expeditiously as practicable, but in any event no later than 3 years 
from the date of the finding.
    Section 110(a)(2)(D)(i) of the CAA, referred to as the good 
neighbor provision of the Act, requires states to prohibit certain 
emissions from in-state sources if such emissions impact the air 
quality in downwind states. Specifically, CAA sections 110(a)(1) and 
110(a)(2)(D)(i)(I) require all states, within 3 years of promulgation 
of a new or revised NAAQS, to submit SIPs that contain adequate 
provisions prohibiting any source or other type of emissions activity 
within the state from emitting any air pollutant in amounts which will 
contribute significantly to nonattainment in, or interfere with 
maintenance by, any other state with respect to that NAAQS. As 
described in the prior section, the EPA has developed a number of 
regional rulemakings to address CAA section 110(a)(2)(D)(i)(I) for the 
various ozone NAAQS. Notably, the EPA's most recent rulemaking, the 
CSAPR Update, was promulgated to address interstate transport under 
section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS and required 
implementation of specific emission budgets starting in 2017. 81 FR 
74504.
    The EPA's historical approach to evaluating CAA section 126(b) 
petitions evaluates whether a petition establishes a sufficient basis 
for the requested CAA section 126(b) finding. See, e.g., 76 FR 19662, 
19666 (April 7, 2011) (proposed response to petition from New Jersey 
regarding SO2 emissions from the Portland Generating 
Station); 83 FR 16064, 16070 (April 13, 2018) (final response to 
petition from Connecticut regarding ozone emissions from Brunner 
Island). The EPA first evaluates the technical analysis in the petition 
to see if that analysis, standing alone, is sufficient to support a CAA 
section 126(b) finding. The EPA focuses on the analysis in the petition 
because the statute does not require the EPA to conduct an independent 
technical analysis to evaluate claims made in CAA section 126(b) 
petitions. The petitioner, thus, bears the burden of establishing, as 
an initial matter, a technical basis for the specific finding 
requested. The EPA has no obligation to prepare an analysis to 
supplement a petition that fails, on its face, to include an initial 
technical demonstration. Such a petition, or a petition that fails to 
identify the specific finding requested, can be denied as insufficient. 
Nonetheless, the EPA has the discretion to conduct independent analyses 
when helpful in evaluating the basis for a potential CAA section 126(b) 
finding or developing a remedy if a finding is made.
    With respect to the statutory requirements of both section 
110(a)(2)(D)(i) and section 126 of the CAA, the EPA has consistently 
acknowledged that Congress created these provisions as two independent 
statutory processes to address the problem of interstate pollution 
transport. See, e.g., 76 FR 69052, 69054 (November 7, 2011). Congress 
provided two separate statutory processes without indicating any 
preference for one over the other, suggesting it viewed either approach 
as a legitimate means to produce the desired result. While either 
provision may be applied to address interstate transport, they are also 
closely linked in that a violation of the prohibition in CAA section 
110(a)(2)(D)(i) is a condition precedent for action under CAA section 
126(b) and, critically, significant contribution to nonattainment and 
interference with maintenance are construed identically for purposes of 
both provisions (since the identical terms are naturally interpreted as 
meaning the same thing in the two linked provisions). See Appalachian 
Power, 249 F.3d at 1049-50.
    While section 126(b) of the CAA provides a mechanism for states and 
other political subdivisions to seek abatement of pollution in other 
states that may affect their air quality, it does not identify specific 
criteria or a specific methodology for the Administrator to apply when 
deciding whether to make a CAA section 126(b) finding or deny a 
petition. Therefore, the EPA has discretion to identify relevant 
criteria and develop a reasonable methodology for determining whether a 
CAA section 126(b) finding should be made. Thus, in addressing a CAA 
section 126(b) petition that addresses ozone transport, the EPA 
believes it is appropriate to interpret these ambiguous terms 
consistent with the EPA's historical approach to evaluating interstate 
ozone pollution transport under the good neighbor provision, and its 
interpretation and application of that related provision of the 
statute. This approach is particularly applicable to the Delaware and 
Maryland petitions because the EPA recently finalized and began 
implementation of the CSAPR Update, which evaluated and addresses 
interstate ozone pollution transport, inclusive of the named states' 
impacts on Delaware and Maryland. As described further in Section II of 
this notice, ozone is a regional air pollutant and previous EPA 
analyses and regulatory actions have evaluated the regional interstate 
ozone transport problem using a four-step analytic framework. The EPA 
most recently applied this four-step framework in promulgating the 
CSAPR Update to address interstate transport with respect to the 2008 
ozone NAAQS under CAA section 110(a)(2)(D)(i)(I) and believes it may be 
generally useful in analyzing the 2015 ozone NAAQS. Given the specific 
cross-reference in CAA section 126(b) to the substantive prohibition in 
CAA section 110(a)(2)(D)(i), the EPA believes any prior findings made 
under the good neighbor provision are informative--if not 
determinative--for a CAA section 126(b) action. Therefore, in this 
instance, the EPA's decision whether to grant or deny the CAA section 
126(b) petitions regarding both the 2008 8-hour ozone and 2015 ozone 
NAAQS depends on application of the four-step framework. The 
application of the four-step framework to the EPA's analysis of 
Maryland's and Delaware's CAA section 126(b) petitions regarding the 
2008

[[Page 50453]]

ozone NAAQS is, therefore, legally appropriate given the EPA has 
previously interpreted (and addressed) significant contribution and 
interference with maintenance under CAA section 110(a)(2)(D)(i) under 
this framework via the CSAPR Update.
    Unlike the 2008 ozone NAAQS, the EPA has not to date engaged in a 
rulemaking action regarding the good neighbor provision for the 2015 
ozone NAAQS. However, the EPA has recently released technical 
information intended to assist states' efforts in development of SIPs 
to address this standard.\30\ As part of the memo releasing the 
technical information, the EPA acknowledged that states have 
flexibility to pursue approaches that may differ from the EPA's 
historical approach to evaluating interstate transport in developing 
their good neighbor SIPs. Nonetheless, the EPA's technical analysis and 
the potential flexibilities identified in the memo generally followed 
the basic elements of the EPA's historical four-step framework. Thus, 
in light of the EPA's discretion to identify relevant criteria and 
develop a reasonable methodology for determining whether a CAA section 
126(b) finding should be made, the EPA continues to evaluate the claims 
regarding the 2015 ozone NAAQS for the specific sources named in in 
Delaware's CAA section 126(b) petitions consistent with the EPA's four-
step framework. To the extent that the EPA made determinations in 
either the CSAPR Update or other analytic exercises that are pertinent 
to the evaluation of the 2015 ozone NAAQS under the four-step framework 
for the sources named in the petitions, it is appropriate to consider 
that relevant information as well.\31\
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    \30\ 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), available in the docket for 
this proposed action. By operation of statute, states are required 
to submit to the EPA their SIPs to address the good neighbor 
provision for the 2015 ozone NAAQS in October 2018.
    \31\ As discussed further in Section IV.B.1 of this notice, in 
the CSAPR Update the EPA found that it was not at that time able to 
determine whether the Update fully resolved good neighbor 
obligations for the 2008 ozone NAAQS for most of the states subject 
to that action, including those addressed in Delaware's and 
Maryland's petitions (Indiana, Kentucky, Ohio, Pennsylvania, and 
West Virginia), and noted that the emission reductions required by 
the rule may not be all that is needed to address transported 
emissions. 81 FR 74521. The EPA is not making a final determination 
regarding any remaining good neighbor obligation for those states as 
part of this action, other than with respect to emissions from the 
sources named in the petition with respect to the particular NAAQS 
at issue. (Any determination made in this final rule is only with 
respect to the sources specifically named in Delaware's and 
Maryland's petitions for the applicable NAAQS.) However, the EPA 
notes that in a separate, pending action, the EPA has proposed to 
determine that the CSAPR Update fully addresses certain states' good 
neighbor obligations regarding the 2008 ozone NAAQS. See 83 FR 31915 
(July 10, 2018).
---------------------------------------------------------------------------

    The EPA notes that Congress did not specify how the EPA should 
determine that a major source or group of stationary sources ``emits or 
would emit'' any air pollutant in violation of the prohibition of CAA 
section 110(a)(2)(D)(i)(I) under the terms of CAA section 126(b). The 
EPA also believes, given the more regional, rather than localized, 
impact of NOX emissions on downwind ozone concentrations, it 
is reasonable and appropriate at each step to consider whether the 
facility ``emits or would emit'' in light of the facility's current or 
reasonably anticipated future operating conditions. Therefore, the EPA 
interprets the phrase ``emits or would emit'' in the context of acting 
on Delaware's and Maryland's petitions to mean that a source may 
``emit'' in violation of the good neighbor provision if, based on 
current emission levels, the upwind state in which the source is 
located contributes to downwind air quality problems and the individual 
source may be further controlled as determined through a multi-factor 
test that includes consideration of cost-effective controls, technical 
feasibility, and air quality factors. Similarly, in evaluating the 
sources named under these petitions, a source ``would emit'' in 
violation of the good neighbor provision if, based on reasonably 
anticipated future emission levels (accounting for existing 
conditions), the upwind state in which the source is located 
contributes to downwind air quality problems and the individual source 
could be further controlled as determined through a multi-factor test 
that includes consideration of cost-effective controls, technical 
feasibility, and air quality factors. Consistent with this 
interpretation, the EPA has, therefore, evaluated, in this notice, 
whether the sources cited in the petitions emit or would emit in 
violation of the good neighbor provision based on both current and 
anticipated future emission levels.
    In interpreting the phrase ``emits or would emit in violation of 
the prohibition of section [110(a)(2)(D)(i)],'' if the EPA or a state 
has already adopted adequate provisions that eliminate the significant 
contribution to nonattainment or interference with maintenance of the 
NAAQS in downwind states, then there simply is no violation of the CAA 
section 110(a)(2)(D)(i)(I) prohibition, and, hence, no grounds to grant 
a CAA section 126(b) petition. Put another way, requiring additional 
reductions would result in eliminating emissions that do not contribute 
significantly to nonattainment or interfere with maintenance of the 
NAAQS, an action beyond the scope of the prohibition in CAA section 
110(a)(2)(D)(i)(I) and, therefore, beyond the scope of the EPA's 
authority to make the requested finding under CAA section 126(b). See 
EME Homer City, 134 S. Ct. at 1604 n.18, 1608-09 (holding the EPA may 
not over-control by requiring sources in upwind states to reduce 
emissions by more than necessary to eliminate significant contribution 
to nonattainment or interference with maintenance of the NAAQS in 
downwind states under the good neighbor provision).
    Thus, for example, if the EPA has already approved a state's SIP as 
adequate to meet the requirements of CAA section 110(a)(2)(D)(i)(I), 
the EPA has no basis to find that a source in that state emits or would 
emit in violation of the prohibition of CAA section 110(a)(2)(D)(i)(I) 
absent new information demonstrating that the SIP is now insufficient 
to address the prohibition. Similarly, if the EPA has promulgated a FIP 
that it has determined fully eliminates emissions that significantly 
contribute to nonattainment or interfere with maintenance in a downwind 
state, the EPA has no basis to find that sources in the upwind state 
are emitting or would emit in violation of the CAA section 
110(a)(2)(D)(i)(I) prohibition, absent new information to the contrary.
    The EPA notes that the approval of a SIP or promulgation of a FIP 
implementing CAA section 110(a)(2)(D)(i)(I) means that a state's 
emissions are adequately prohibited for the particular set of facts 
analyzed under approval of a SIP or promulgation of a FIP. If a 
petitioner produces new data or information showing a different level 
of contribution or other facts not considered when the SIP or FIP was 
promulgated, compliance with a SIP or FIP may not be determinative 
regarding whether the upwind sources would emit in violation of the 
prohibition of CAA section 110(a)(2)(D)(i)(I). See 64 FR 28274 n.15; 71 
FR 25336 n.6; Appalachian Power, 249 F.3d at 1067 (later developments 
can provide the basis for another CAA section 126(b) petition). Thus, 
in circumstances where a SIP or FIP addressing CAA section 
110(a)(2)(D)(i)(I) is being implemented, the EPA will evaluate the CAA 
section 126(b) petition to determine if it raises new information that 
merits further consideration.
    Several commenters disagreed with the EPA's interpretation of the

[[Page 50454]]

relationship between the good neighbor provision under CAA section 
110(a)(2)(D)(i)(I) and section 126(b), contending that Congress 
intended CAA section 126(b) petitions to be a legal tool to address 
interstate problems separate and distinct from SIP and FIP actions 
under CAA section 110. Commenters cite to legislative history and the 
D.C. Circuit's opinion in Appalachian Power in support of their 
assertions that CAA section 126 is intended to remedy interstate 
transport problems notwithstanding the existence of CAA section 110. 
Commenters accordingly assert the EPA is incorrect in determining that 
its four-step approach under CAA section 110(a)(2)(D)(i)(I) is 
appropriate for evaluating under CAA section 126(b) whether an upwind 
source or group of sources will significantly contribute to 
nonattainment or interfere with maintenance of the 2008 and the 2015 
ozone NAAQS in a petitioning downwind state.
    The EPA has consistently acknowledged in prior actions under CAA 
section 126(b) that Congress created the good neighbor provision and 
CAA section 126 as two independent statutory processes to address one 
problem: Interstate pollution transport. See, e.g., 83 FR 26666, 26675 
(June 8, 2018) (proposal for this final action); 76 FR 69052, 69054 
(November 7, 2011) (proposed action for the EPA's final action on New 
Jersey's CAA section 126(b) petition regarding SO2 emissions 
from Portland Generating Station). As the commenters point out, courts 
have upheld the EPA's position that CAA sections 110(a)(2)(D)(i) and 
126 are two independent statutory processes to address the same problem 
of interstate transport. See GenOn REMA, LLC v. EPA, 722 F.3d 513, 520-
23 (3d Cir. 2013); Appalachian Power, 249 F.3d at 1047. However, the 
commenters misread the courts' holding regarding the EPA's 
interpretation of the interplay between the two provisions. Both the 
D.C. Circuit and Third Circuit spoke to the question of the timing of 
these processes--specifically, whether the EPA could act on a CAA 
section 126(b) petition in instances where the agency had not yet acted 
on a CAA section 110 SIP addressing interstate transport for the same 
NAAQS. Both courts upheld the EPA's position that it need not wait for 
the CAA section 110 process to conclude in order to act on a CAA 
section 126(b) petition, thus affirming that both statutory provisions 
are independent from one another from a timing perspective. Here, the 
agency has not deferred action on Delaware's petitions regarding the 
2015 ozone NAAQS, for which good neighbor SIPs are not due until 
October 2018, until its action on the good neighbor SIPs (for the named 
upwind states) has concluded. Therefore, by taking action in this 
instance on Delaware's section 126(b) petitions regarding the 2015 
ozone NAAQS before action under section 110 has been concluded, the EPA 
believes it has given CAA section 126(b) independent meaning as 
intended by Congress and the courts.
    The D.C. Circuit's opinion in Appalachian Power, which commenters 
specifically point to, further supports the EPA's interpretation taken 
in this action: That while the agency need not wait for the CAA section 
110 process to conclude before taking action on a CAA section 126(b) 
petition, the EPA reasonably interprets the substantive requirements of 
the two provisions to be closely linked. The court in Appalachian Power 
specifically considered whether it was appropriate for the EPA to rely 
on findings made under the good neighbor provision in the 
NOX SIP Call rulemaking in granting several CAA section 
126(b) petitions raising similar interstate transport concerns with 
regards to the same NAAQS. Petitioners in that case argued that the EPA 
should instead make a finding that ``the specified stationary sources 
within a given state independently met [the statute's] threshold test 
for effect on downwind nonattainment.'' 249 F.3d at 1049. The court 
found that by referring to stationary sources that emit pollutants ``in 
violation of the prohibition of [CAA section 110(a)(2)(D)(i)],'' 
Congress ``clearly hinged the meaning of section 126 on that of section 
110(a)(2)(D)(i).'' Id. at 1050. The court, therefore, concluded that 
given CAA section 126's silence on what it means for a stationary 
source to violate CAA section 110(a)(2)(D)(i), the EPA's approach of 
relying on findings under CAA section 110(a)(2)(D)(i) was reasonable 
and, therefore, entitled to deference under Chevron U.S.A. Inc. v. 
Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984). Id. 
The EPA's approach to addressing the CAA section 126(b) petitions 
considered the Appalachian Power case is consistent with the EPA's 
application of the four-step framework and consideration of findings 
made in the CSAPR Update in acting on Maryland's and Delaware's CAA 
section 126(b) petitions.
    Commenters also contend that the EPA is erecting a ``new barrier'' 
to CAA section 126(b) petitions by requiring a petitioner to disprove 
the validity of the SIP or FIP in place for a source. However, the 
commenters mischaracterize the EPA's position. As described, where a 
SIP or FIP is already in place to address the prohibition in CAA 
section 110(a)(2)(D)(i)(I), the EPA has already made a determination 
that sources subject to that SIP or FIP have been adequately addressed 
for purposes of interstate transport. A petitioner need not demonstrate 
that the EPA's original determination underlying the SIP or FIP is 
flawed. Rather, the EPA has recognized that circumstances may change 
after the EPA makes its determination under CAA section 110, in which 
case it is incumbent upon the petitioner in the first instance to 
provide information demonstrating that the named sources is unlawfully 
impacting the petitioning state in spite of the SIP or FIP, in light of 
newly available information. The EPA disagrees that this is a ``new'' 
position the agency is taking regarding the linkage between good 
neighbor SIPs and FIPs and CAA section 126(b) petition. As described 
earlier in this section, the EPA has interpreted CAA section 126(b) to 
impose this burden on petitioners in each section 126(b) petition 
addressed by the agency in the last two decades. See, e.g., 64 FR 28274 
n.15 (action on eight states' petitions for the 1979 ozone NAAQS); 71 
FR 25336 n.6 (action on North Carolina's petition for the 1997 ozone 
NAAQS).

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

    As discussed in Section II of this notice, the EPA has consistently 
analyzed ozone transport with the understanding that nonattainment and 
maintenance concerns result from the cumulative air quality impacts of 
contributions from numerous anthropogenic sources across several upwind 
states (as well as from within the downwind state). Consistent with 
this understanding, the EPA has evaluated ozone transport based in part 
on the relative contribution of all anthropogenic sources within a 
state, as measured against to a screening threshold, and then 
identified particular source sectors and units for regulatory 
consideration.\32\ This approach to evaluating ozone transport is 
reasonable because the statute's use of ``significantly'' as a modifier 
to ``contribute'' implies a relationship, e.g.,

[[Page 50455]]

the impact a source or collection of sources has relative to other 
relevant sources of that pollutant. Therefore, although CAA section 
126(b) allows downwind states to petition the EPA regarding specific 
sources or groups of sources that they believe are contributing to the 
downwind air quality problems, the EPA believes it is reasonable and 
appropriate to evaluate the emissions from sources named in a petition 
in the context of all relevant anthropogenic sources of that pollutant 
to determine whether or not emissions from the named sources are in 
violation of the good neighbor provision.
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    \32\ The EPA has used cost as a factor in its multi-factor 
approach for quantifying significant contribution from multiple 
contributing states. Cost is used in a relative (i.e., least-cost 
abatement) approach that also requires examining individual source 
impact and reduction potential in the context of the larger universe 
of contributors.
---------------------------------------------------------------------------

    The EPA notes that the four-step framework provides a logical, 
consistent, and systematic approach for addressing interstate transport 
for a variety of criteria pollutants under a broad array of national, 
regional, and local scenarios. Consequently, the EPA finds it 
reasonable to apply the same four-step transport framework used to 
evaluate regional ozone transport under the good neighbor provision in 
considering a CAA section 126(b) petition addressing the impacts of 
individual sources on downwind attainment and maintenance of the ozone 
NAAQS. As the four-step framework is applied to evaluate a particular 
interstate transport problem, the EPA can determine whether upwind 
sources are actually contributing to a downwind air quality problem; 
whether and which sources can be cost effectively controlled relative 
to that downwind air quality problem; what level of emissions should be 
eliminated to address the downwind air quality problem; and the means 
of implementing corresponding emission limits (i.e., source-specific 
rates, or statewide emission budgets in a limited regional allowance 
trading program). The outcome of this assessment will vary based on the 
scope of the air quality problem, the availably and cost of controls at 
sources in upwind states, and the relative impact of upwind emission 
reductions on downwind ozone concentrations. For a more localized 
pollutant like SO2, the use of the four-step framework could 
result in a finding that emissions from a unit were significantly 
contributing to nonattainment, or interfering with maintenance, under 
the first three steps, which may lead the agency in step four to 
require unit-specific compliance requirements (such as an emission 
rate).\33\
---------------------------------------------------------------------------

    \33\ For an example of such a case, the EPA's action on a prior 
CAA section 126(b) petition regarding SO2 emissions from 
the Portland Generating Station in Pennsylvania analyzed similar 
factors as those outlined the four-step transport framework to 
evaluate whether the identified source was emitting in violation of 
the good neighbor provision. The EPA concluded that the petitioning 
downwind state had an air quality problem (step one) for the 2010 
SO2 NAAQS. The agency determined that emissions from the 
named source in the upwind state alone were sufficient not just to 
contribute to (step two), but to cause a violation of the NAAQS in 
the petitioning state. As such, the agency determined that the 
facility should be regulated because of the magnitude of its 
contribution and the relative lack of other contributing sources 
(step three). To address this impact, the EPA imposed federally 
enforceable source-specific rate limits to eliminate the source's 
significant contribution (step four). See Final Response to Petition 
From New Jersey Regarding SO2 Emissions from the Portland 
Generating Station, 76 FR 69052 (November 7, 2011).
---------------------------------------------------------------------------

    The complexity of atmospheric chemistry and the interconnected, 
long-distance nature of ozone transport also demonstrates the 
appropriateness of the four-step framework. As a result of this 
complexity, including domestic and international as well as 
anthropogenic and background contributions to ozone and its precursors, 
it is less likely that a single source is entirely responsible for 
impacts to a downwind area. For example, several commenters assert that 
the emissions from all of the sources named in the Maryland petition 
contribute 0.656 ppb to the Edgewood receptor in Maryland--an amount 
that is insufficient to itself cause nonattainment. Thus, a 
determination regarding whether this impact is sufficient to 
significantly contribute to nonattainment or interfere with maintenance 
of the NAAQS--in light of other anthropogenic emission sources 
impacting a downwind area--is necessarily more complicated. However, 
the EPA evaluates within step three of the framework whether upwind 
sources have emissions that significantly contribute to nonattainment 
or interfere with maintenance of the ozone NAAQS based on various 
control, cost, and air quality factors, including the magnitude of 
emissions from upwind states, the number of potential emission 
reductions from upwind sources, the cost of those potential emission 
reductions, and the potential air quality impacts of emission 
reductions.\34\ The EPA believes it is reasonable to consider these 
factors whether evaluating ozone transport in the context of a good 
neighbor SIP under CAA section 110 or a section 126(b) petition.
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    \34\ ``We believe it is important to consider both [cost and air 
quality] factors because circumstances related to different downwind 
receptors can vary and consideration of multiple factors can help 
EPA appropriately identify each state's significant contribution 
under different circumstances. [. . .] Using both air quality and 
cost factors allows EPA to consider the full range of circumstances 
and state-specific factors that affect the relationship between 
upwind emissions and downwind nonattainment and maintenance 
problems. For example, considering cost takes into account the 
extent to which existing plants are already controlled as well as 
the potential for, and relative difficulty of, additional emissions 
reductions. Therefore, EPA believes that it is appropriate to 
consider both cost and air quality metrics when quantifying each 
state's significant contribution.'' Proposed Federal Implementation 
Plans To Reduce Interstate Transport of Fine Particulate Matter and 
Ozone, 75 FR 45210, 45271 (August 2, 2010) (CSAPR proposal) 
(describing potential disparities between upwind and downwind state 
contributions to identified air quality problems and between levels 
of controls between states).
---------------------------------------------------------------------------

    The EPA has already conducted such an analysis for all sources 
named in Delaware and Maryland's petitions via the CSAPR Update. The 
EPA determined that the upwind states named by the petitioners emitted 
in violation of the good neighbor provision with respect to downwind 
states. The EPA, therefore, found that EGUs in these states, including 
the named sources, collectively needed to make reductions at a cost 
level commensurate with operating and optimizing existing SCR controls 
(among other NOX reduction strategies included in the CSAPR 
Update). Based on the nature of ozone formation, the many receptors 
throughout the region, the many source sectors and numerous sources, 
and because EGUs had readily available low-cost and impactful emission 
reductions available, the EPA found that a limited allowance trading 
program would achieve emission reductions commensurate with applying 
these cost-effective controls. As discussed in more detail in Section 
IV of this notice, petitioners and commenters have not demonstrated, 
based on information available at this time, either that the particular 
sources named by petitioners should be required to make further 
emission reductions under the good neighbor provision in light of their 
contributions relative to other sources that are not named in the 
petitions, or that source-specific unit-level emission rates are 
necessary to ensure reductions are being achieved under the CSAPR 
Update. As further described in Section IV.B of this notice, the EPA's 
independent analysis finds that, contrary to the petitioners' and 
commenters' assertions, the CSAPR Update allowance trading program has 
been sufficient and successful in reducing regional emissions of ozone 
and emissions across the named EGUs.
    For any analysis of a CAA section 126(b) petition regarding 
interstate transport of ozone, a regional pollutant with contribution 
from a variety of sources, the EPA reviews whether the particular 
sources identified by the petitioner should be controlled in light of 
the collective impact of emissions on

[[Page 50456]]

air quality in the area, including emissions from other anthropogenic 
sources. Thus, review of the named sources in the Delaware and Maryland 
petitions provides a starting point for the EPA's evaluation, but does 
not--as the commenters suggest--complete the evaluation to determine 
whether the named sources emit or would emit in violation of the good 
neighbor provision.

IV. The EPA's Final Response to Delaware's and Maryland's CAA Section 
126(b) Petitions

    The EPA is finalizing denials of the Maryland petition and all four 
of the Delaware petitions. Section IV.A of this notice describes the 
EPA's determination that Delaware has not demonstrated that the sources 
named in their petitions emit or would emit in violation of the good 
neighbor provision such that they will significantly contribute to 
nonattainment or interfere with maintenance of the 2008 or 2015 ozone 
NAAQS in Delaware. Section IV.B of this notice describes the EPA's 
independent analysis of the sources named in both states' petitions and 
concludes based on such analysis that there is no basis to find that 
the named sources emit or would emit pollution in violation of the good 
neighbor provision with respect to the 2008 ozone NAAQS (Delaware and 
Maryland) or the 2015 ozone NAAQS (Delaware only). In this section, and 
in the RTC document included in the docket for this action, the agency 
explains the rationale supporting its final action and provides its 
response to significant public comments on the proposed action.

A. The EPA's Evaluation of Whether the Petitions Are Sufficient To 
Support a CAA Section 126(b) Finding

1. Delaware's Petition Is Not Sufficient on Its Own Merit To Support a 
CAA Section 126(b) Finding
    The EPA finds that Delaware's conclusions are not supported by the 
petitions' assessments based on several technical deficiencies. First, 
with respect to the 2008 ozone NAAQS, the EPA is finalizing its 
conclusion that Delaware does not provide sufficient information to 
indicate that there is a current or expected future air quality problem 
in the state. While the Delaware petitions identify individual 
exceedances of the ozone standard in the state between the 2000 and 
2016 ozone seasons, this does not demonstrate that there is a resulting 
nonattainment or maintenance problem. Ozone NAAQS violations, as 
opposed to exceedances, are determined based on the fourth-highest 
daily maximum ozone concentration, averaged across 3 consecutive 
years.\35\ In contrast, exceedances represent, in the case of the 2008 
and 2015 ozone NAAQS, an 8-hour measurement above the level of the 
NAAQS. Violations, rather than exceedances, are the relevant metric for 
identifying nonattainment and maintenance problems. A design value is a 
statistic that describes the air quality status of a given location 
relative to the level of the NAAQS. Thus, individual exceedances at 
monitors do not by themselves indicate that a state is not attaining or 
maintaining the NAAQS. In prior transport rulemakings, the EPA 
identified both nonattainment and maintenance receptors based on air 
quality model projections of measured design values. In the CSAPR 
Update, the EPA identified nonattainment receptors as those with an 
average projected design value above the NAAQS and with current 
measured nonattainment. The EPA identified maintenance receptors as 
those monitors with a ``maximum'' future design value above the NAAQS 
in order to take into account historic variability in air quality at 
the monitor. See 81 FR 74531.
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    \35\ See 80 FR 65296 (October 26, 2015) for a detailed 
explanation of the calculation of the 3-year 8-hour average and the 
methodology set forth in 40 CFR part 50, appendix U.
---------------------------------------------------------------------------

    Several commenters have argued that Delaware is not attaining or 
maintaining the 2008 ozone NAAQS because there are areas in Delaware 
that are designated nonattainment for that standard. However, a 
nonattainment designation, which was first issued for the 2008 ozone 
NAAQS in 2012, does not by itself indicate that a state is currently 
failing to attain or struggling to maintain the NAAQS, or that it will 
have problems attaining or maintaining the standard in the future. The 
courts have confirmed that the EPA's authority to find that a source or 
state is in violation of the good neighbor provision is constrained to 
circumstances where an actual air quality problem has been identified. 
See EME Homer City, 134 S. Ct. at 1608-09 (holding the EPA cannot 
require more emission reductions than necessary to address downwind air 
quality problems); EME Homer City II, 795 F.3d 118 at 129-30 (D.C. Cir. 
2015) (holding state emission budgets invalid where air quality 
modeling projected no downwind air quality problems). Delaware has not 
demonstrated that there is a current or expected future air quality 
problem in the state, nor did any commenters provide evidence of a 
current or anticipated future violation of the 2008 ozone NAAQS. As 
discussed in Section IV.B of this notice, the EPA's review of current 
and projected future air quality in Delaware indicates that the state 
is attaining and will maintain the 2008 ozone NAAQS. Accordingly, 
Delaware's petition provides insufficient evidence of a requisite air 
quality problem with respect to the 2008 ozone NAAQS within the state.
    With respect to the 2015 ozone NAAQS, Delaware argues that if that 
NAAQS had been in effect from 2011 through 2016, Delaware monitors 
would have recorded more exceedances than they did under the 2008 ozone 
NAAQS. However, again, the identification of individual exceedances 
does not speak to whether there are current violations of the standard. 
Additionally, as discussed further in Section II of this notice, the 
EPA evaluates downwind ozone air quality problems for purposes of step 
one of the four-step framework using modeled future air quality 
concentrations for a year that considers the relevant attainment 
deadlines for the NAAQS, based on its interpretation of the term 
``will'' in the good neighbor provision.\36\ The petitions do not 
provide any analysis indicating that Delaware may violate or have 
difficulty maintaining 2015 ozone NAAQS in a year associated with the 
relevant attainment dates for that standard.
---------------------------------------------------------------------------

    \36\ 81 FR 74517.
---------------------------------------------------------------------------

    Several commenters allege that the EPA incorrectly identified 
technical deficiencies in Delaware's petition regarding whether there 
is an air quality problem in Delaware. The commenters also submitted 
additional data that they contend demonstrates current violations in 
the state. However, comments related to the 2008 ozone NAAQS either 
identified violating monitors outside of Delaware or identified further 
individual exceedances in Delaware without demonstrating that they 
contributed to a violating design value. The commenters have not 
submitted information that conclusively shows current or future 
violations of the 2008 ozone NAAQS within the state of Delaware. For 
the 2015 ozone NAAQS, the commenters identified current violating 
monitors in Delaware but did not identify any projected air quality 
violations in a future year associated with the relevant attainment 
dates. Commenters did not correct any of the technical deficiencies the 
EPA identified in Delaware's petitions. Thus, the EPA is concluding, as 
proposed, that the petition does not adequately identify a relevant air 
quality problem related to the 2008 or 2015 ozone NAAQS.
    Second, with respect to step two of the four-step framework, 
material

[[Page 50457]]

elements of Delaware's analysis regarding the contributions from the 
Brunner Island, Harrison, Homer City, and Conemaugh EGUs to air quality 
in Delaware are deficient and, therefore, the conclusions that the 
petitions draw are not supported by the technical assessment. As noted 
earlier, all four petitions rely upon air quality modeling that uses 
2011 emissions to quantify the contribution from each of the four named 
sources to locations in Delaware on individual days in 2011. However, 
2011 emissions are generally much higher than, and therefore not 
representative of, current or future projected emissions levels at 
these EGUs and in the rest of the region--levels that the EPA believes 
are most relevant to determining whether a source ``emits or would 
emit'' in violation of the good neighbor provision.\37\ Thus, the 2011 
modeling does not provide representative data regarding contributions 
that would result from either current or future emission levels from 
these EGUs. When evaluating a CAA section 126(b) petition, it is 
important and consistent with the language of the section to rely on 
current and relevant data known at the time the agency takes action. 
Were the EPA to act based on outdated or non-representative information 
solely because it was provided in a petition, that action could be 
arbitrary and unreasonable and could, for example, impose controls or 
emission limitations that are not appropriately tailored to the nature 
of the problem at the time of the EPA's final action or at the time 
when such controls or limitations would actually be implemented. This 
could result in unnecessary over-control (or under-control) of 
emissions, beyond (or short of) what is required to address the good 
neighbor provision, in violation of the Supreme Court's holding in EME 
Homer City, 134 S. Ct. at 1608-09.
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    \37\ As an example of how emissions have changed between 2011 
and a recent historical year, the EPA notes that Pennsylvania's 2017 
EGU NOX ozone season emissions were 79 percent below 2011 
levels. One of the named sources, Brunner Island, is located in 
Pennsylvania and reduced its individual ozone season NOX 
emissions by 88 percent in 2017 relative to 2011 levels. (https://www.epa.gov/ampd). Additional emissions data from 2011 and a recent 
historical year is included in the docket, which also shows that 
2011 emissions are generally higher than emissions in recent years. 
See 2011 to 2017 NOX Comparisons, Ozone Season, available 
in the docket for this action.
---------------------------------------------------------------------------

    Further, the analyses provided by Delaware regarding the alleged 
impacts of the four sources on downwind air quality include some 
information on the frequency and magnitude of ozone impacts, but the 
information provided does not account for the form of the 2008 or 2015 
ozone standards--which indicates that a NAAQS violation occurs when the 
fourth highest daily maximum value in a calendar year at a specific 
monitor exceeds the standard--and, thus, is not informative of whether 
there is a nonattainment issue in the state. Specifically, Delaware 
does not identify the numeric modeled and/or measured ozone levels on 
the same days identified in Delaware's petitions with modeled 
impacts.\38\ For example, Delaware's Homer City petition identifies 
modeled contributions from emissions at that source to three downwind 
monitoring sites in Delaware on July 18, 2011. However, the petition 
fails to identify whether there were measured and/or modeled 
exceedances of the ozone NAAQS on that particular day at those sites. 
Delaware's Harrison and Brunner Island petitions identify the days the 
contributions were modeled to occur, but not the specific monitoring 
sites where Delaware claims emissions from these sources impact air 
quality. Moreover, these two petitions do not provide information on 
whether the contributions were to design values that actually exceed 
the ozone NAAQS. Delaware's Conemaugh petition identifies 2011 
contributions on days when some Delaware monitors exceeded the 2008 
NAAQS, but the petition does not specify which monitors were impacted 
on those days. The petition therefore does not provide information to 
show that the modeled contributions occurred at monitoring sites that 
were exceeding either the 2008 or 2015 ozone NAAQS. Commenters did not 
provide additional information clarifying these deficiencies.
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    \38\ Existing EPA analyses of interstate ozone pollution 
transport focus on contributions to high ozone days at the specific 
downwind receptor in order to evaluate the impact on nonattainment 
and maintenance at the receptor. For example, in the CSAPR Update 
modeling, ozone contributions were calculated using data for the 
days with the highest future year modeled ozone concentrations. For 
the 2008 ozone NAAQS, only the highest measured ozone days from each 
year are considered for the calculation of ozone design values (the 
values that determine whether there is a measured NAAQS violation). 
Measured ozone values that are far below the level of the NAAQS do 
not cause an exceedance or violation of the NAAQS. For this reason, 
only ozone contributions to days that are among the highest modeled 
ozone days at the receptor are relevant to determining if a state or 
source is linked to downwind nonattainment or maintenance issues.
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    For the reasons described in this section, Delaware's analyses in 
its four petitions do not allow the EPA to conclude that there is a 
current or future nonattainment or maintenance problem in Delaware 
based on violations of the NAAQS, nor that the named sources are 
improperly impacting downwind air quality on days when such violations 
would be expected. Therefore, the EPA does not have a basis to grant 
Delaware's petition with respect to either the 2008 or 2015 ozone NAAQS 
based on data and analyses provided in the petitions.
2. The EPA's Analysis of the Technical Sufficiency of Maryland's 
Petition
    The EPA is not finalizing its proposed finding that Maryland's 
petitions are technically deficient, but is finalizing the denial based 
on the EPA's independent assessment there are no additional cost-
effective reductions relative to the CSAPR Update for the sources named 
in Maryland's petition. This topic is discussed in more detail in 
Section IV.B of this notice.

B. The EPA's Independent Analysis of the Petitions Consistent With the 
CSAPR Update

    As discussed in Section III.A of this notice, the EPA may decide to 
conduct independent analyses when evaluating the basis for a potential 
CAA section 126(b) finding or when developing a remedy if a finding is 
made. Because the CSAPR Update recently evaluated interstate ozone 
pollution transport, including considering the air quality and EGU 
emissions described in the Delaware and Maryland 126(b) petitions, the 
EPA evaluated the petitions and comments received on the proposal in 
light of the agency's existing regulatory program, and the underlying 
analysis on which it is based. This constitutes the EPA's independent 
analysis for certain aspects of the petitions. The agency also 
evaluated additional technical information that became available after 
the CSAPR Update was finalized to independently evaluate other aspects 
of the petitions.
    This section begins by explaining the relationship between the 
CSAPR Update and the EPA's independent analysis of the petitions. The 
subsequent subsections discuss the EPA's rationale for denying the 
petitions with respect to the named sources.
1. CSAPR Update as Context
    The EPA promulgated the CSAPR Update to address the good neighbor 
provision requirements for the 2008 ozone NAAQS. 81 FR 74504. The final 
CSAPR Update built upon previous regulatory efforts in order to address 
the collective contributions of ozone pollution from 22 states in the 
eastern United States to widespread downwind air quality problems. As 
was also the case for the previous rulemakings, the EPA evaluated the 
nature (i.e., breadth and interconnectedness) of the ozone problem and 
NOX reduction potential

[[Page 50458]]

from EGUs, including those sources named in the Delaware and Maryland 
CAA section 126(b) petitions.
    Of particular relevance to this action, the EPA determined in the 
CSAPR Update that emissions from the states identified in Maryland's 
petition were linked in steps one and two of the four-step framework to 
maintenance receptors for the 2008 ozone NAAQS in Maryland based on air 
quality modeling projections to 2017. 81 FR 74538 through 74539. With 
respect to Delaware, the CSAPR Update modeling revealed no monitors in 
the state with a projected average or maximum design value above the 
level of the 2008 ozone NAAQS in 2017.\39\ Thus, the EPA in step one of 
the four-step framework did not identify any downwind air quality 
problems in Delaware with respect to the 2008 ozone NAAQS and, 
therefore, did not determine that emissions from any of the states 
identified in the state's four petitions would be linked to Delaware.
---------------------------------------------------------------------------

    \39\ See Air Quality Modeling Technical Support Document for the 
Final Cross-State Air Pollution Rule Update. Available at https://www.epa.gov/airmarkets/air-quality-modeling-technical-support-document-final-cross-state-air-pollution-rule.
---------------------------------------------------------------------------

    For states linked to downwind air quality problems in Maryland, the 
agency identified certain emissions from large EGUs as significantly 
contributing to nonattainment and/or interfering with maintenance of 
the NAAQS based on cost and air-quality factors. Considering these 
factors, the EPA found there were cost-effective emission reductions 
that could be achieved within upwind states at a level of control 
stringency available at a marginal cost of $1,400 per ton of 
NOX reduced. This level of control stringency represented 
ozone season NOX reductions that could be achieved in the 
2017 analytic year and included the potential for operating and 
optimizing existing SCR post-combustion controls; installing state-of-
the-art NOX combustion controls; and shifting generation to 
existing units with lower NOX emission rates within the same 
state. 81 FR 74551. The CSAPR Update quantified an emission budget for 
each state based on that level of control potential. The EPA found that 
these emission budgets were necessary to achieve the required emission 
reductions and mitigate impacts on downwind states' air quality in time 
for the July 2018 moderate area attainment date for the 2008 ozone 
NAAQS.
    The CSAPR Update finalized enforceable measures necessary to 
achieve the emission reductions in each state by requiring power plants 
in covered states, including the sources identified in Maryland and 
Delaware's petitions, to participate in the CSAPR NOX Ozone 
Season Group 2 allowance trading program, with more detailed assurance 
provisions applying to each covered state to ensure that they will be 
required to collectively limit their emissions, beginning with the 2017 
ozone season. The CSAPR trading programs and the EPA's prior emission 
trading programs (e.g., the NOX Budget Trading Program 
associated with the NOX SIP Call) have provided a proven, 
cost-effective implementation framework for achieving emission 
reductions. This implementation approach was shaped by previous 
rulemakings and reflects the evolution of these programs in response to 
court decisions and practical experience gained by states, industry, 
and the EPA.
    As discussed in more detail later, the EPA has considered the CSAPR 
Update and related technical information in evaluating the section 
126(b) petitions. This includes a review of the air quality modeling 
conducted for the CSAPR Update to evaluate projected nonattainment and 
maintenance concerns in each petitioning states in steps one and two of 
the four-step framework. The EPA has also considered the control 
strategies evaluated and implemented in the CSAPR Update to conclude, 
in step three, that the EPA has already implemented emission reductions 
associated with operation of existing SCRs at the named sources and 
that the EPA has already concluded that the operation of existing SNCR 
at two other named sources is not a cost-effective control strategy 
under the good neighbor provision.
2. The EPA's Step One and Two Analyses for Delaware and Maryland
    As part of the EPA's independent analysis, the agency considered 
Delaware's and Maryland's petitions in light of recent agency analysis 
which applied steps one and two of the four-step framework. The EPA 
found that the named sources are not contributing to nonattainment or 
interfering with maintenance of Delaware's air quality for either the 
2008 or 2015 ozone NAAQS, and that the sources named in Maryland's 
petition warranted further analysis of significant contribution to 
nonattainment and interference with maintenance for the 2008 ozone 
NAAQS in step three.
a. The EPA's Step One Analyses for Delaware
    While the EPA, as discussed in Section IV.A of this notice, finds 
that Delaware's petitions do not on their own merits adequately 
establish the presence of a current or future nonattainment or 
maintenance problem in Delaware, the EPA also independently examined 
whether there is an air quality problem under the 2008 and 2015 ozone 
NAAQS (step one). As described in the following sections, the EPA finds 
that the named sources in Delaware's petitions are not, and will not 
be, emitting in violation of the good neighbor provision with respect 
to Delaware for either the 2008 or 2015 ozone NAAQS. The EPA also 
conducted a further independent assessment of the sources named in 
Delaware's petitions with respect to step three of the framework, 
discussed later in this notice, which further supports the EPA's denial 
of the Delaware petitions.
(1) The EPA's Independent Analysis Regarding Delaware's Step One Claims 
With Respect to the 2008 Ozone NAAQS
    The EPA first looked to modeling conducted in 2016 that projects 
ozone concentrations at air quality monitoring sites in 2017, which was 
conducted for purposes of evaluating step one of the four-step 
framework for the 2008 ozone NAAQS as part of the CSAPR Update.\40\ 
This modeling indicated that Delaware was not projected to have any 
nonattainment or maintenance receptors in 2017 with respect to the 2008 
ozone NAAQS. See 83 FR 26678. Furthermore, the EPA examined Delaware's 
2014-2016 design values, and found that no areas in Delaware had a 
design value that violated the 2008 ozone NAAQS. See id. An examination 
of the recently released 2015-2017 design values showed the same 
result.\41\ Accordingly, the EPA has no basis to conclude that any of 
the sources named by Delaware in its petitions are linked to a downwind 
air quality problem in the state with regard to the 2008 ozone NAAQS. 
In the absence of a downwind air quality problem, the EPA has no 
authority to regulate upwind sources to address air quality in Delaware 
with respect to the 2008 ozone NAAQS.
---------------------------------------------------------------------------

    \40\ Air Quality Modeling Technical Support Document for the 
Final Cross-State Air Pollution Rule Update (August 2016). Available 
at https://www.epa.gov/sites/production/files/2017-05/documents/aq_modeling_tsd_final_csapr_update.pdf.
    \41\ See 2017 Design Value Reports, available at https://www.epa.gov/sites/production/files/2018-07/ozone_designvalues_20152017_final_07_24_18.xlsx.

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[[Page 50459]]

(2) The EPA's Independent Analysis Regarding Delaware's Step One Claims 
With Respect to the 2015 Ozone NAAQS
    Additionally, the EPA independently examined whether there will be 
a downwind air quality problem in Delaware with regard to the 2015 
ozone NAAQS. The modeling conducted in support of the CSAPR Update 
shows one monitor--monitor ID 100051003 in Sussex County--with a 
maximum 2017 projected design value (which the EPA has typically used 
to help identify maintenance receptors) above the 2015 ozone NAAQS.\42\ 
Measured data show that two monitors exceeded the 2015 ozone NAAQS 
based on the 2014-2016 design values,\43\ and three monitors show 
exceedances of the 2015 ozone NAAQS based on the 2015-2017 design 
values.\44\ However, as described in Section II.B of this notice, the 
EPA evaluates downwind ozone air quality problems for the purposes of 
Step one of the four-step framework using modeled future air quality 
concentrations for a year that EPA selects in consideration of the 
relevant attainment deadlines for the NAAQS. Thus, the 2017 modeling 
data and the recent measured data are not necessarily indicative of a 
downwind air quality problem that would necessitate the control of 
upwind sources to address air quality in Delaware with respect to the 
2015 ozone NAAQS.
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    \42\ In prior transport rulemakings, the EPA identified both 
nonattainment and maintenance receptors based on air quality model 
projections of measured design values. In the CSAPR Update, the EPA 
identified nonattainment receptors as those with an average 
projected design value above the NAAQS and with current measured 
nonattainment. The EPA identified maintenance receptors as those 
monitors with a ``maximum'' future design value above the NAAQS in 
order to take into account historic variability in air quality at 
the monitor. See 81 FR 74531.
    \43\ See 2016 Design Value Reports, available at https://www.epa.gov/air-trends/air-quality-design-values#report. The 
official designations for these areas and information relied upon 
for those designations are contained in the EPA's designation 
actions for the 2015 ozone NAAQS. See 82 FR 54232 (November 16, 
2017) and the docket for Additional Air Quality Designations for the 
2015 Ozone National Ambient Air Quality Standards, EPA-HQ-OAR-2017-
0548, and accompanying technical support documents.
    \44\ See 2017 Design Value Reports, available at https://www.epa.gov/sites/production/files/2018-07/ozone_designvalues_20152017_final_07_24_18.xlsx.
---------------------------------------------------------------------------

    Recent analyses projecting emission levels to a future year 
indicate that no air quality monitors in Delaware are projected to have 
nonattainment or maintenance problems with respect to the 2015 ozone 
NAAQS by 2023, which is the last year of ozone season data that will be 
considered in order to determine whether downwind nonattainment areas 
classified as moderate have attained the standard by the relevant 2024 
attainment date.\45\ Therefore, consistent with the EPA's 
interpretation of the term ``will'' in the good neighbor provision 
discussed in Section III of this notice, available future year 
information does not indicate Delaware will have air quality concerns 
by the attainment date for the 2015 ozone NAAQS that EPA has determined 
is relevant for purposes of this analysis. Accordingly, the EPA does 
not have a basis to regulate upwind sources to address air quality in 
Delaware with respect to the 2015 ozone NAAQS.
---------------------------------------------------------------------------

    \45\ 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, 2017), available in the docket for this proposed action.
---------------------------------------------------------------------------

(3) Responses to Comments Regarding the EPA's Independent Analysis for 
Step One Under the 2008 and 2015 Ozone NAAQS
    Commenters asserted that the EPA's conclusion that Delaware does 
not have current or future nonattainment or maintenance problems for 
the 2008 and 2015 ozone NAAQS is unreasonable in light of technical 
information in the record they claim demonstrates otherwise. Commenters 
further state that New Castle County, Delaware, was designated 
nonattainment as part of the multistate Philadelphia nonattainment area 
under both the 2008 and 2015 ozone NAAQS, and that the most recent 
design values for three monitors in New Castle County exceeded the 70 
ppb 2015 ozone standard.
    As an initial matter, the EPA disagrees with the way the commenters 
characterize an air quality problem in relation to CAA section 126(b). 
The EPA's statutory authority extends to addressing emissions that 
significantly contribute to nonattainment or interfere with maintenance 
of the NAAQS. Commenters' focus on individual high ozone days does not 
account for the form of the 2008 or 2015 ozone standards (under which a 
violation occurs when the fourth-highest reading in a calendar year at 
a specific monitor exceeds the NAAQS) and thus is not informative of 
whether there is a nonattainment or maintenance issue. Thus, the 
petitioners and commenters raise contentions are ultimately misaligned 
with the EPA's logical approach of identifying downwind air quality 
problems for purposes of CAA sections 110(a)(2)(D)(i)(I) and 126(b) in 
a manner that is consistent with the form of the standard.
    As described earlier, the EPA has evaluated air quality monitoring 
and modeling data for the 2008 ozone NAAQS, and found no current or 
anticipated future violations of the 2008 ozone NAAQS (in the form of 
the standard) at receptors within the state of Delaware. While the EPA 
evaluated modeling data for future projections of air quality for both 
the 2008 and 2015 ozone NAAQS consistent with the forward-looking 
nature of the good neighbor provision, monitoring data regarding 
current violations is a relevant analytic tool for the 2008 ozone NAAQS 
considering the attainment date for the standard has already passed. 
However, because the relevant attainment date for the 2015 ozone NAAQS 
has not yet passed, it is appropriate to evaluate future anticipated 
air quality in step one of determining whether sources must be 
controlled under the good neighbor provision. The EPA evaluated air 
quality modeling data for receptors located within the state of 
Delaware and found that, while there are monitors that are currently 
violating the 2015 ozone NAAQS, the data indicate no future air quality 
problem for this NAAQS by the relevant 2024 attainment date for that 
standard. Thus, although commenters state that current ambient 
monitoring data in Delaware for 2018 shows that three of Delaware's 
monitors (all in New Castle County) are exceeding the 2015 ozone NAAQS, 
the commenters have not provided any basis for the EPA to conclude that 
Delaware will have an air quality problem relative to the 2015 ozone 
NAAQS in the future year that it has selected as relevant for this 
analysis.
    Additionally, commenters challenge the EPA's conclusion that 
Delaware does not have an air quality problem for the 2008 ozone NAAQS 
by pointing out that the Bellefonte site in Delaware has recorded 8-
hour daily maximum values which exceed even the 1997 ozone NAAQS. These 
exceedances at the Bellefonte site are not relevant to actual or 
projected nonattainment or maintenance issues. Although there may be 
some exceedances of the 2008 ozone NAAQS at the Bellefonte monitor, the 
EPA does not have information to indicate that the fourth highest daily 
ozone value averaged across 3 consecutive years will exceed the 2008 
ozone NAAQS at this site. The commenter has not provided information 
indicating that the monitor is currently violating the 2008 NAAQS.\46\ 
As noted in this section,

[[Page 50460]]

individual exceedances at monitors do not by themselves indicate that a 
state is not attaining or maintaining the NAAQS. Thus, we have no basis 
to conclude there are any air quality problems with respect to the 2008 
NAAQS in Delaware in a manner relevant for step one of the four-step 
transport framework. Thus, because all monitors were projected to 
attain and maintain the standard in the CSAPR Update modeling and are 
attaining the standard in the most recent monitoring period, the EPA 
has no basis to conclude that the sources in the upwind states emit or 
would emit in violation of the good neighbor provision in Delaware for 
the 2008 NAAQS.
---------------------------------------------------------------------------

    \46\ The most current official design value at this monitor is 
71 ppb. See 2017 Design Value Reports, available at https://www.epa.gov/sites/production/files/2018-07/ozone_designvalues_20152017_final_07_24_18.xlsx.
---------------------------------------------------------------------------

    Commenters point out that monitors in the Philadelphia 
nonattainment area, located outside of the state of Delaware, are 
violating both the 2008 and 2015 ozone NAAQS. The commenters assert 
that because Delaware's New Castle County is included with other 
counties which make up the Philadelphia nonattainment area for both the 
2008 and 2015 ozone NAAQS, Delaware's attainment of the ozone NAAQS is 
tied to the attainment of the other monitors in the nonattainment area.
    The EPA disagrees with commenter's suggestion that non-attaining 
monitoring data for nearby receptors outside the petitioning state 
support a CAA section 126(b) finding for Delaware, even if such 
monitors are located in a multistate nonattainment area that includes 
the petitioning state. The specific language of CAA section 126(b) does 
not say that a state may petition the EPA for a finding that emissions 
from a source, or group of sources, is impacting downwind receptors in 
a state other than the petitioning state. In addition, the legislative 
history for this provision suggests the provision was meant to address 
adverse air impacts only in the petitioning state.\47\ Given the 
broader context of CAA section 126, the EPA reasonably interprets CAA 
section 126(b)'s petition authority to be limited to states and 
political subdivisions seeking to address interstate transport of 
pollution impacting downwind receptors within their geographical 
borders.
---------------------------------------------------------------------------

    \47\ When section 126 was added to the CAA, the Senate's 
amendment implementing the basic prohibition on interstate pollution 
stated that: ``Any State or political subdivision may petition the 
Administrator for a finding that a major stationary source in 
another state emits pollutants which would adversely affect the air 
quality in the petitioning State.'' (emphasis added). Clean Air Act 
Amendments of 1977, H.R. 95-564, 95th Cong. at 526 (1977). The House 
concurred with the Senate's amendment to CAA section 126, with 
changes to other portions of the amendment, but did not indicate 
changes to this sentence. Id. The lack of stated changes to this 
component of the Senate's original amendment suggest that Congress 
did not intend for the scope of the petitioning authority to be 
expanded to parties other than a state or political division in 
which downwind air quality is adversely affected.
---------------------------------------------------------------------------

    Additionally, the context of CAA section 126 as a whole suggests 
these provisions are meant to moderate interstate transport concerns 
between affected states and upwind sources, not between any third party 
(even if such party is another state) and upwind sources. CAA section 
126(a), for example, requires upwind sources to provide notification of 
certain potential air quality impacts to nearby states which may be 
affected by the source, not to all states. Furthermore, CAA section 
126(b) petitions may only be filed by states and political 
subdivisions. By contrast, other provisions that contain petition 
authority under the CAA expressly allow for any person to petition the 
EPA (e.g., CAA section 505(b)(2)'s authority for any person to petition 
the EPA to object to the issuance of a Title V petition). The more 
restrictive text in CAA section 126(b) suggests that Congress intended 
access to the petition process to be narrowly available to states and 
political subdivisions directly affected by upwind pollution.
    While the acknowledgement of multistate nonattainment areas in the 
CAA reflects Congress's understanding that pollution crosses state 
boundaries, that does not indicate that Congress clearly authorized all 
states in a multistate nonattainment area to petition EPA under CAA 
section 126(b) related to violating monitors outside their state. 
Portions of Delaware were included in the Philadelphia nonattainment 
area because the EPA determined that those portions were themselves 
contributing to the air quality problems in Pennsylvania.\48\ Nothing 
in the CAA suggests that section 126(b) was intended to relieve states 
like Delaware of the specific planning obligations associated with its 
inclusion in an area designated nonattainment. To the extent a state 
has concerns about the impacts of upwind pollution on out-of-state 
monitors in a shared multistate nonattainment area, these issues can be 
addressed under other statutory processes. For example, every state has 
an obligation to submit a transport SIP under CAA section 
110(a)(2)(D)(i)(I) that contains provisions adequate to prohibit 
emissions activity that contribute significantly to nonattainment or 
interfere with maintenance of the NAAQS in another state, which may 
also include a multistate nonattainment area if such area is being 
impacted by upwind emissions activity.
---------------------------------------------------------------------------

    \48\ See Philadelphia-Wilmington-Atlantic City, PA-NJ-;MD-DE 
Nonattainment Area Final Designations for the 2015 Ozone National 
Ambient Air Quality Standards Technical Support Document. Available 
at https://www.epa.gov/sites/production/files/2018-05/documents/phila_tsd_final.pdf.
---------------------------------------------------------------------------

    Furthermore, the commenters' assertion that monitors in the 
Philadelphia nonattainment area are currently measuring exceedances of 
the 2015 ozone NAAQS does not change the EPA's conclusion that Delaware 
has no air quality problem under the 2015 ozone NAAQS when looking 
toward a relevant future year. As described in Section IV.A of this 
notice, the EPA evaluates downwind ozone air quality problems for the 
purposes of step one of the four-step framework using modeled future 
air quality concentrations for a year that considers the relevant 
attainment deadlines for the NAAQS. Recent analyses projecting emission 
levels to a future year indicate that no air quality monitors in 
Delaware are projected to have nonattainment or maintenance problems 
with respect to the 2015 ozone NAAQS by 2023.\49\ Therefore, consistent 
with the EPA's interpretation of the term ``will'' in the good neighbor 
provision, available future year information does not suggest Delaware 
will have air quality concerns by the relevant attainment date for the 
2015 ozone NAAQS. Under step one of the transport framework, since 
there are no projected nonattainment or maintenance receptors in 
Delaware, the EPA concludes that it does not have sufficient evidence 
to determine that the upwind states and sources are significantly 
contributing to nonattainment or interfering with maintenance of the 
2015 ozone NAAQS in Delaware.\50\
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    \49\ See Supplemental Information on the Interstate Transport 
State Implementation Plan Submissions for the 2008 Ozone National 
Ambient Air Quality Standards under Clean Air Act Section 
110(a)(2)(D)(i)(I) (October 2017), available in the docket for this 
proposed action.
    \50\ The EPA notes that even if the Philadelphia area monitors 
were relevant to the EPA's analysis of Delaware's petition, EPA's 
analysis also shows that those monitors are not projected to have 
nonattainment or maintenance problems with respect to the 2015 ozone 
NAAQS by 2023.
---------------------------------------------------------------------------

    Several comments challenged the EPA's reliance on air quality 
modeling projections for 2023 to indicate that Delaware will not have 
an air quality problem under the 2015 ozone NAAQS. First, commenters 
asserted that even if attainment of the 2015 ozone NAAQS was assured 
for the Philadelphia nonattainment area by 2023, this

[[Page 50461]]

analytic year is unacceptable because the agency should consider the 
August 2, 2021, marginal area attainment date as informative to the 
selection of an analytic year. The EPA does not agree that it is 
required to analyze air quality in a future year aligned with the 
attainment date for nonattainment areas classified as Marginal for the 
2015 ozone NAAQS. Although the North Carolina decision held that the 
EPA must consider attainment dates in downwind states when establishing 
compliance timeframes for emission reductions in upwind states, the 
decision did not speak to which attainment date should influence the 
EPA's evaluation when there are several potentially relevant attainment 
dates. As the decision explains, the good neighbor provision instructs 
the EPA and states to apply its requirements ``consistent with the 
provisions of'' title I of the CAA. North Carolina, 531 F.3d. at 911-
12. The EPA notes that this consistency instruction follows the 
requirement that plans ``contain adequate provisions prohibiting'' 
certain emissions in the good neighbor provision. The EPA, therefore, 
interprets the requirements of the good neighbor provision to apply in 
a manner consistent with the designation and planning requirements in 
title I that apply in downwind states and, in particular, the timeframe 
within which downwind states are required to implement specific 
emissions control measures in nonattainment areas relative to the 
applicable attainment dates. See id. at 912 (holding that the good 
neighbor provision's reference to title I requires consideration of 
both procedural and substantive provisions in title I).
    Ozone nonattainment areas classified as Marginal are not generally 
required to implement specific emission controls at existing sources. 
See CAA section 182(a).\51\ Existing regulations--either local, state, 
or federal--are typically a part of the reason why ``additional'' local 
controls are not needed to bring the area into attainment. As described 
in the EPA's record for its Classifications and Attainment Deadlines 
rule for the 2015 ozone NAAQS, history has shown that the majority of 
areas classified as Marginal for prior 8-hour ozone standards attained 
the respective standards by the Marginal attainment date (i.e., without 
being re-classified to a Moderate designation). 83 FR 10376. As part of 
an historical lookback, the EPA calculated that by the relevant 
attainment date for areas classified as Marginal, 85 percent of such 
areas attained the 1979 1-hour ozone NAAQS, and 64 percent attained the 
2008 ozone NAAQS. Id. at Response to Comments, section A.2.4.\52\ Based 
on these historical data, the EPA expects that many areas classified 
Marginal for the 2015 ozone NAAQS will attain by the relevant 
attainment date as a result of emission reductions that are already 
expected to occur through implementation of existing local, state, and 
federal emission reduction programs. To the extent states have concerns 
about meeting their attainment deadline for a Marginal area, the CAA 
under section 181(b)(3) provides authority for them to voluntarily 
request a higher classification for individual areas, if needed. Where 
the ozone nonattainment area is classified as Moderate or higher, the 
responsible state is required to develop an attainment plan, which 
generally includes the application of various control measures to 
existing sources of emissions located in the nonattainment area, 
consistent with the requirements in Part D of title I of the Act. See 
generally CAA section 182.
---------------------------------------------------------------------------

    \51\ New source review (NSR) and conformity are still required 
for marginal areas, but their purpose is to ensure that new 
emissions don't interfere with attainment as opposed to reducing 
existing emissions.
    \52\ Available at https://www.regulations.gov/document?D=EPA-HQ-OAR-2016-0202-0122.
---------------------------------------------------------------------------

    Thus, given that downwind states are generally not required to 
impose additional controls on existing sources in a Marginal 
nonattainment area, the EPA believes that it would be inconsistent to 
interpret the good neighbor provision as requiring the EPA to evaluate 
the necessity for upwind state emission reductions based on air quality 
modeled in a future year aligned with the Marginal area attainment 
date. Rather, the EPA believes it is more appropriate and consistent 
with the nonattainment planning provisions in title I to evaluate 
downwind air quality and upwind state contributions, and, therefore, 
the necessity for upwind state emission reductions, in a year aligned 
with an area classification in connection with which downwind states 
are also required to implement controls on existing sources--i.e., with 
the Moderate area attainment date, rather than the Marginal one. With 
respect to the 2015 ozone NAAQS, the Moderate area attainment date will 
be in the summer of 2024, and the last full year of monitored ozone-
season data that will inform attainment demonstrations is, therefore, 
2023.
    Even assuming that a year aligned with the Marginal area attainment 
date could be an appropriate analytic year for the EPA to consider in 
evaluating future air quality in Delaware, the commenters have not 
submitted any information that indicates there will be an air quality 
problem under the 2015 ozone NAAQS in Delaware in the Marginal 
attainment-date year of 2021, nor did the petition provide any. As 
discussed in Section III of this notice, the petitioner bears the 
burden of establishing, as an initial matter, a technical basis for the 
specific finding requested and has not done so here.
    The projected ozone design values for 2023 represent the best 
available data regarding expected air quality in Delaware in a future 
attainment year. These data were developed over the course of multiple 
years of analytic work, reflecting extensive stakeholder feedback and 
the latest emission inventory updates. The EPA assembled emissions 
inventory and performed air quality analytics in 2016 and released 
corresponding data and findings in a Notice of Data Availability (NODA) 
in January of 2017. Subsequent to stakeholder feedback on the NODA, the 
EPA was able to further update its inventories and air quality modeling 
and release results for 2023 future analytic year in October 2017. 
There are no comparable data available for earlier analytic years 
between 2017 and 2023 that have been through an equally rigorous 
analytic and stakeholder review process, and, thus, the 2023 data are 
the best data available currently for the EPA to evaluate Delaware's 
claims at this time.
    Commenters additionally contend that the 3-year deadline for 
implementing a remedy under CAA section 126(c) suggests that the use of 
2023, which is 5 years in the future, as an analytic year for purposes 
of evaluating Delaware's CAA section 126(b) petitions is inappropriate. 
The EPA disagrees. The EPA's evaluation of air quality in 2023 is a 
necessary step to determine whether the sources named in Delaware's 
petitions are in violation of the good neighbor provision, and the 
choice of 2023 as an analytic year does not preclude the implementation 
of a remedy in an earlier year if the necessary finding is made. While 
CAA section 126 contemplates that a source or group of sources may be 
found to have interstate transport impacts, it cannot be determined 
whether such source or sources are in violation of the good neighbor 
provision and whether controls are justified without analyzing 
emissions from a range of sources influencing regional-scale ozone 
transport, including sources not named in the petitions. In particular, 
as discussed in Section III of this notice, the EPA evaluates air 
quality in a year

[[Page 50462]]

when emission reductions would be expected to be implemented under the 
good neighbor provision. Analysis of a future year aligned with 
anticipated compliance also ensures that any emission reductions the 
EPA may require under that provision are not in excess of what would be 
necessary to address downwind nonattainment and maintenance problems. 
The 2023 analytic year that the EPA has chosen for evaluating ozone 
transport with respect to the 2015 ozone NAAQS was selected because it 
aligns the downwind attainment dates and ensures that emission 
reductions required by that date will not over-control upwind state 
emissions because it accounts for changes in upwind state emissions and 
downwind state ozone concentrations expected between now and 2023. 
Additionally, even if the EPA were to determine based on 2023 as an 
analytic year that the named sources are projected to be in violation 
of the good neighbor provision, the EPA could still implement a remedy 
that complies with the earlier timeline set out under CAA section 
126(c). Therefore, the EPA's reasonable choice of 2023 as an analytic 
year for evaluating Delaware's petition does not in and of itself 
preclude implementation of a remedy at an earlier date.
    Commenters further assert that since Delaware's and Maryland's 
requested remedies are to require already existing controls to operate 
mean the EPA's justification for selecting the 2023 analytic year is 
incorrect. The EPA disagrees. First, the EPA believes it is appropriate 
for the EPA to consider air quality in 2023 because it is aligned with 
the attainment date for the 2015 ozone NAAQS. As discussed earlier, if 
there is no future air quality problem relative to this NAAQS, it would 
not be appropriate for EPA to require additional upwind emission 
reductions under CAA sections 110 or 126. Moreover, as discussed later 
in this notice, control optimization at the identified sources has 
already been addressed in the CSAPR Update, and emission reductions 
associated with the proposed control technology are already being 
realized. Thus, the EPA does not agree that the timeframe for 
implementation of a control strategy that is already in place should 
guide its selection of a future analytic year for this NAAQS.
    Rather than focusing on optimization, the selection of an 
appropriate year for any additional mitigation measures necessary to 
eliminate upwind contribution would have to accommodate the 
corresponding technologies that could deliver incremental reductions. 
Therefore, the EPA identified an appropriate future analytic year that 
would allow for mitigation measures not yet considered in the CSAPR 
Update for sources across the region. These are technologies that were 
deemed to be infeasible to install for the 2017 ozone season. In 
establishing the CSAPR Update emissions budgets, the EPA identified but 
did not analyze the following two EGU NOX control strategies 
in establishing the CSAPR Update emissions budgets because 
implementation by 2017 was not considered feasible: (1) Installing new 
SCR controls; and (2) installing new SNCR controls. For a variety of 
labor, material, engineering, and grid-related considerations, the EPA 
believes that 2023 would likely be an appropriate year to allow for 
these mitigation measures. See 81 FR 33730 (July 17, 2018); 83 FR 31915 
(July 10, 2018).
    And fourth, commenters assert that the 2023 modeling is flawed 
because it relies on optimistic assumptions that EGU controls would 
operate when there is no enforceable requirement for sources to do so 
under the existing allowance trading program. The commenter states that 
in the 2023 air quality modeling, the EPA incorrectly assumed 
individual units would make emission reductions. The EPA has made both 
a conceptual case as to why those reductions will be achieved through 
the CSAPR Update existing allowance trading program, and an evidence-
based case that reductions based on control optimization already 
achieved in 2017. Not only were the anticipated reductions realized 
generally from EGUs in the upwind states identified by the petitioners, 
but reductions were also made by the fleet of individual sources (on a 
seasonal and daily basis) identified by the commenter. The 
reasonableness and feasibility of the EPA's 2023 EGU emission 
projections regarding the control-optimization reductions under a 
trading program are illustrated by the first year of CSAPR Update 
compliance emission levels in 2017. EGU emissions in 2017 dropped by 21 
percent from 2016 levels and were seven percent below the collective 
CSAPR Update budgets for the 22 affected states. The EPA's 2023 
projections for the 22 states were 10 percent below the collective 
CSAPR Update budgets, meaning in just one year, states have already 
achieved the majority of the EGU reductions anticipated by the EPA for 
2023, suggesting that sources in these states are on pace to actually 
be below that level by 2023. For the five states addressed in the 
petitions, ozone-season NOX EGU emissions dropped from 
136,188 tons in 2016 to 92,189 tons in 2017 for EGUs greater than 25 
MW. This reflects a 32 percent reduction in just one year.\53\
---------------------------------------------------------------------------

    \53\ See Engineering Analysis--Unit File. Available at ftp://ftp.epa.gov/EmisInventory/2011v6/v3platform/reports/2011en_and_2023en/.
---------------------------------------------------------------------------

    Data from 2017, the first year of ozone-season data that would be 
influenced by the CSAPR Update compliance requirements, are consistent 
with the EPA's assumption that the allowance trading program would 
drive SCR operation on a fleet-wide level. The EPA began its 
engineering analysis to project 2023 EGU emissions with 2016 monitored 
and reported data. For the units with existing SCRs that were operating 
below 0.10 lb/mmBtu in 2016, the EPA assumed that their operation would 
remain unchanged in 2023. For the units with existing SCRs that were 
operating above 0.10 lb/mmBtu in 2016 (totaling 82,321 tons of 
emissions in that year), the EPA assumed that SCRs would be optimized 
under a CSAPR Update scenario to 0.10 lb/mmBtu on average for 2023. 
This collective 2023 emissions estimates for these latter units were, 
therefore, adjusted down to 40,590 tons. In 2017, the very first year 
of CSAPR Update implementation, collective emissions from these units 
were 41,706 tons. This 2017 value is already very close to EPA's 2023 
estimated value, and supports the EPA's assumption that these units 
would optimize SCR performance at 0.10 lb/mmBtu on average.
    The EPA observes that this assumption is also reasonable for the 
units identified in the petitions. When examining the group of sources 
named in the petitions, the 2017 average ozone-season NOX 
emission rate for SCR-controlled units was reduced by nearly half 
during the first year of the program relative to 2016 and 2015 levels. 
Moreover, preliminary data for the second quarter of 2018 suggest this 
pattern of lower emission rates at SCR-controlled units under the CSAPR 
Update is continuing.\54\ Many of the analyses provided by commenters 
to suggest the group of named sources were not operating controls are 
based in the 2015-2016 time-period, before the CSAPR Update was 
implemented, when hourly, daily, and seasonal emissions were higher 
because controls were not being consistently run at optimized levels. 
Both CSAPR and the CSAPR

[[Page 50463]]

Update include assurance provisions that ensure that EGUs in each 
covered state will be required to collectively limit their emissions. 
These provisions include an assurance level for each state that serves 
as a statewide emissions cap. This assurance level is the sum of the 
state emission budget plus a variability limit equal to 21 percent of 
the state's ozone-season budget. This means that collectively EGU 
emissions in each state cannot exceed 121 percent of the state budget 
level without incurring penalties. The assurance levels are designed to 
help ensure each covered state in a region-wide trading program still 
reduces emissions--as opposed to purely relying on allowance 
purchases--from historical levels while allowing for the inherent 
variability in generation and emissions from year-to-year given changes 
in power sector market conditions. 76 FR 48212. These assurance levels 
help ensure that the emission reductions associated with the 
optimization of existing controls, on which the CSAPR Update budgets 
were based, or commensurate emission reductions from elsewhere in the 
state continue to be observed going forward. Therefore, even with fleet 
turnover and a growing allowance bank, emissions will continue to be 
limited within the state.
---------------------------------------------------------------------------

    \54\ Preliminary 2018 data reflects first two months of 2018 
ozone season available at the time of finalizing this action. See 
EPA's Clean Air Markets Division data, available at https://ampd.epa.gov/ampd/.
---------------------------------------------------------------------------

    Finally, the EPA also disagrees to the extent the commenter claims 
that EGU emissions will increase, rather than decrease, in future years 
of the CSAPR Update implementation or that the market for allowance 
prices would have to price credits much higher in order to ensure that 
the emission reductions associated with control optimization will 
continue. This claim is not consistent with observed historical 
emission patterns over successive years of an allowance trading 
program's implementation. It is also not consistent with forward 
looking emissions projections in power sector models.\55\ There are a 
variety of policy and market forces at work beyond CSAPR allowance 
prices that are anticipated to continue to drive generation to shift 
from higher emitting to lower emitting sources. These include changes 
such as sustained lower natural gas prices that make lower emitting 
natural gas combined cycle units more economic to build and dispatch, 
state energy policy and technology advancements which have made 
renewable energy (e.g., solar and wind) more competitive compared to 
higher emitting fossil-fuel fired generation, and the aging of the coal 
fleet which is leading many companies to conclude that a significant 
number of higher emitting plants are reaching the end of their useful 
economic life. The EPA's experience implementing prior allowance 
trading programs shows that emissions from covered sources generally 
trend downwards (regardless of allowance price) as time extends further 
from the initial compliance year.\56\ Both the Acid Rain Program and 
CSAPR SO2 allowance banks grew in 2017 from their 2016 
levels, indicating that sources are collectively adding to the bank by 
emitting below state budgets rather than drawing down the bank because 
of the availability of low-cost allowances. This illustrates that the 
EPA's assumptions underlying its projection of 2023 ozone-season 
NOX levels for EGUs are reasonable and appropriate.
---------------------------------------------------------------------------

    \55\ See results from EPA's power sector modeling platform v6. 
Available at https://www.epa.gov/airmarkets/results-using-epas-power-sector-modeling-platform-v6.
    \56\ 2014 Program Progress, Clean Air Interstate Rule, Acid Rain 
Program, and Former NOX Budget Trading Program. EPA. 
Available at https://www.epa.gov/sites/production/files/2017-09/documents/2014_full_report.pdf.
---------------------------------------------------------------------------

b. The EPA's Step One and Two Analysis for Maryland
    With respect to steps one and two of the four-step framework for 
the Maryland petition, as the state noted in its petition and as the 
EPA acknowledged in the proposal, the EPA conducted an analysis in the 
CSAPR Update regarding the air quality impact of anthropogenic 
emissions from the five upwind states named in the state's petition on 
downwind air quality in Maryland with respect to the 2008 ozone NAAQS. 
In the CSAPR Update, the EPA found Maryland has a maintenance receptor 
for the 2008 NAAQS (step one), and that the upwind states that Maryland 
identifies in its petition are ``linked'' above the contribution 
threshold of one percent of the NAAQS (step two).\57\ However, as 
discussed in Section III of this notice, the conclusion that a state's 
emissions met or exceeded this threshold only indicates that further 
analysis is appropriate to determine whether any of the upwind state's 
emissions meet the statutory criteria of significantly contributing to 
nonattainment or interfering with maintenance (step three). The EPA's 
independent step three analysis of the sources named in Maryland's 
petition is discussed in the following sections.
---------------------------------------------------------------------------

    \57\ See CSAPR Update, 81 FR 74504 (October 26, 2016). The EPA 
notes that based on 2015-2017 data, Maryland's highest ozone design 
value is 75 ppb at monitor ID 240251001, which is currently not 
violating the 2008 ozone NAAQS. See 2017 Design Value Reports, 
available at https://www.epa.gov/sites/production/files/2018-07/ozone_designvalues_20152017_final_07_24_18.xlsx.
---------------------------------------------------------------------------

    The state of Maryland submitted a comment challenging the EPA's 
decision to assess Maryland's petition only for the 2008 ozone NAAQS, 
asserting that the EPA failed to acknowledge that EPA's extended delay 
in acting on the CAA section 126(b) petition has impacted Maryland's 
designation under the 2015 ozone standard. Additionally, the comment 
asserts that since Maryland has a maintenance problem for the 2008 
ozone NAAQS, and the states where the petitioned units are located are 
linked to that maintenance problem, applying the EPA's analysis under 
the 2008 ozone NAAQS to the more stringent 2015 ozone NAAQS necessarily 
demonstrates that the named sources are also linked to the same monitor 
under the 2015 ozone standard.
    Maryland's petition did not allege that a source or group of 
sources emit or would emit in violation of CAA section 
110(a)(2)(D)(i)(I) for the 2015 ozone NAAQS, but rather merely alleged 
that emissions reductions resulting from Maryland's requested remedy 
could influence the 2015 ozone designations. As noted in the EPA's 
proposed action on Maryland's petition, the cover letter of the 
petition specifically requests that the agency make a finding ``that 
the 36 electric generating units (EGUs) . . . are emitting pollutants 
in violation of the provisions of Section 110(a)(2)(D)(i)(I) of the CAA 
with respect to the 2008 ozone National Ambient Air Quality 
Standards,'' and the petition throughout refers only to the 2008 ozone 
NAAQS when identifying alleged air quality problems in Maryland and the 
impacts from upwind sources. Maryland acknowledges that it did not 
submit a 126(b) petition requesting a finding with respect to the 2015 
ozone NAAQS. Furthermore, because the EPA's proposal focused on the 
claims related to the 2008 ozone NAAQS raised in the petition, the 
EPA's proposed action on the petition did not provide notice to the 
public of any proposed conclusions or analysis that the public would 
need to appropriately comment on any determinations with respect to the 
2015 ozone NAAQS, nor did it inform the public that any action might be 
taken with regard to a finding of a good neighbor violation with regard 
to the 2015 ozone NAAQS under Maryland's petition. Accordingly, taking 
final action on the petition in the context of the 2015 ozone NAAQS in 
response to Maryland's comments cannot be construed as a logical 
outgrowth of the proposal.

[[Page 50464]]

    Commenters further assert that it is improper for the agency to 
rely on 2023 ozone modeling projections to claim that Maryland does not 
have attainment problems with respect to the 2008 ozone NAAQS. This 
comment misconstrues the EPA's basis for denying Maryland's petition. 
Maryland's petition only requested a specific finding with respect to 
the 2008 ozone NAAQS. As described earlier in this section, the EPA 
determined that Maryland was projected to have a downwind air quality 
concern with respect to the 2008 ozone NAAQS under step one of the 
framework, and that the named upwind states are linked to Maryland in 
step two based on the 2017 modeling conducted for the CSAPR Update. The 
EPA did not evaluate whether Maryland has an air quality problem in 
2023 in assessing its petition.
    In conclusion, under steps one and two of the transport framework, 
the EPA has modeled a maintenance problem in 2017 at the Harford County 
receptor for the 2008 ozone NAAQS following the implementation of the 
CSAPR Update and the upwind states named in the petition are linked to 
that receptor in EPA's 2017 contribution modeling. See 81 FR 74533. The 
EPA concludes that it is appropriate to assess the additional steps of 
the transport framework for the sources named in Maryland's petition. 
This analysis is further described in this section.
3. The EPA's Step Three Analysis With Respect to EGUs Equipped With 
SCRs Named in Delaware and Maryland's Petitions
    In the previous section, the EPA evaluated the petitions with 
regard to steps one and two of the transport framework, and the agency 
found that Delaware does not and is not expected to have a requisite 
air quality problem under step one for either the 2008 or 2015 ozone 
NAAQS, and, therefore, the EPA does not have a basis to impose 
additional emission limitations on the named upwind sources. While the 
EPA is finalizing a determination that Delaware's petitions should be 
denied based on the EPA's conclusions in step one of the four-step 
framework, the EPA is also evaluating the EGUs named in the Delaware 
petitions in this step three analysis because we believe that 
evaluation provides an additional independent basis for denial. 
Regarding the Maryland petition, application of steps one and two for 
the named upwind states indicated that it is appropriate to assess the 
additional steps of the transport framework for the named sources. 
Accordingly, this section discusses the step three analysis for the 
sources named in both the Delaware petitions (as an additional basis 
for denial) and the Maryland petition (as the sole basis for denial).
    Generally, the EPA's analysis in step three considers cost, 
technical feasibility, and air quality factors in a multi-factor test 
to determine whether any emissions from states linked to downwind air 
quality problems in steps one and two will significantly contribute to 
nonattainment and/or interfere with maintenance of the NAAQS, and, 
therefore, must be eliminated pursuant to the good neighbor provision. 
Because the CSAPR Update was recently finalized to address regional 
interstate ozone pollution transport, the EPA considered its step three 
analysis of the sources named in the section 126(b) petitions in light 
of the existing CSAPR Update analysis and in light of additional 
analysis evaluating the impact of the CSAPR Update implementation.\58\ 
Thus, in this section, the EPA explains how it identified and evaluated 
cost and air quality factors to evaluate the named sources in a 
multifactor test consistent with step three of the framework as applied 
in the CSAPR Update. The crucial factors the EPA considered include 
whether there are further NOX emission reductions beyond 
what was already finalized in the CSAPR Update available at the 
specific sources named in the petitions, the cost of any such 
reductions, and the potential air quality improvements that would 
result from any such reductions. The EPA first analyzes this step with 
respect to those units identified in the Delaware and Maryland 
petitions that are equipped with SCR. The EPA then considers two named 
units that are equipped with SNCR, and finally, the one named unit that 
has neither SCR nor SCNR, but that has the ability to shift its fuel 
combustion to lower-emitting options.
---------------------------------------------------------------------------

    \58\ All of the EGUs named in the petitions are subject to FIPs 
promulgated as part of the CSAPR Update that require EGUs in each 
state, including the EGUs named in the petitions, to participate in 
the CSAPR NOX Ozone Season Group 2 allowance trading 
program, subject to statewide emission budgets with limited 
interstate trading.
---------------------------------------------------------------------------

a. Analysis of SCR for NOX Mitigation
    Three of Delaware's petitions identify EGUs (Conemaugh, Harrison, 
and Homer City) that are already equipped with SCRs, and 34 of the 36 
EGUs identified in Maryland's petition are also equipped with SCRs.\59\ 
In establishing each state's CSAPR Update EGU NOX ozone 
season emission budgets, the agency quantified the emission reductions 
achievable from all NOX control strategies that were 
feasible to implement within one year \60\ and cost effective at a 
marginal cost of $1,400 per ton of NOX removed. This level 
of NOX control stringency was established explicitly to 
reflect the ability of sources in regulated states to turn on existing, 
idled SCR--i.e., the operational behavior that the section 126(b) 
petitions generally ask EPA to mandate. In addition to turning on and 
optimizing existing idled SCR controls, this level of NOX 
control stringency encompassed optimizing NOX removal by 
existing, operational SCR controls; installing state-of-the-art 
NOX combustion controls; and shifting generation to existing 
units with lower NOX emission rates within the same state. 
81 FR 74541. Thus, the CSAPR Update emission budgets already reflect 
emission reductions associated with turning on and optimizing existing 
SCR controls across the 22 CSAPR Update states, including at the EGUs 
that are the subject of the Maryland and Delaware petitions. This is 
the same control strategy identified in the petitions as being both 
feasible and cost effective. The EPA is determining that, as a result 
of the CSAPR Update, all identified cost-effective emission reductions 
have already been implemented for the 2008 ozone NAAQS with respect to 
the sources named in the Delaware and Maryland petitions that are 
already equipped with SCR.
---------------------------------------------------------------------------

    \59\ These facilities are located in Indiana (Alcoa Allowance 
Management Inc., Clifty Creek, Gibson, IPL--Petersburg Generating 
Station), Kentucky (East Bend Station, Elmer Smith Station, 
Tennessee Valley Authority Paradise Fossil Plant), Ohio (Killen 
Station, Kyger Creek, W. H. Zimmer Generating Station), Pennsylvania 
(Bruce Mansfield, Cheswick, Homer City, Keystone, Montour), and West 
Virginia (Harrison Power Station, Pleasants Power Station).
    \60\ The CSAPR Update was signed on September 7, 2016--
approximately 8 months before the beginning of the 2017 ozone season 
on May 1.
---------------------------------------------------------------------------

    Delaware and Maryland's petitions contend that, based on data 
available at the time the petitions were filed, the named sources are 
operating their NOX emissions controls at low efficiency 
levels, or are not operating them at all at certain times. Delaware and 
Maryland, therefore, ask the EPA to impose unit-specific 30-day 
emission rate limits or other requirements to ensure the controls will 
be continually operated. The EPA acknowledges that in years prior to 
implementation of the CSAPR Update in 2017, the named sources may have 
operated as petitioners describe. However, implementation of the 
emission budgets promulgated in the CSAPR Update represents the most 
recent data regarding these EGUs' operations. In the years before 2017, 
the EPA observed

[[Page 50465]]

similar emissions behavior for a substantial number of EGUs across the 
eastern United States (i.e., this was not limited to just the named 
sources here) and suspected that the additional emissions resulting 
from the inefficient operation of controls were detrimentally affecting 
air quality for a substantial number of areas. Consequently, through a 
notice-and-comment rulemaking and after evaluating and responding to 
numerous stakeholder comments, the EPA finalized the CSAPR Update. That 
rulemaking found EGUs in the named states had emissions that could be 
cost effectively eliminated in order to address interstate ozone 
transport under the good neighbor provision. Therefore, the EPA imposed 
limits on statewide EGU emissions commensurate with running optimized 
SCR controls (and certain other control strategies). These emission 
reductions resulted in substantial modeled improvements in air quality 
throughout the region and had substantial benefits for the specific 
downwind areas identified in the petitions.
    The EPA received several comments suggesting that emissions data 
indicate that the EPA's determination that the CSAPR Update would 
address interstate transport from these sources is flawed. Accordingly, 
the EPA has evaluated emissions data across the CSAPR Update region, 
including from the states and sources named in the petitions. As 
further described later, the EPA's analysis of such data demonstrates 
that, following implementation of the CSAPR Update, EGUs in the CSAPR 
Update regional generally and the named EGUs specifically have in fact 
achieved emission reductions commensurate with the operation of 
existing SCRs. Consequently, the EPA finds that CSAPR Update 
implementation is generally achieving the NOX reductions 
identified in the section 126(b) petitions for mitigation at these 
sources. The EPA, therefore, determines that these sources neither emit 
nor would emit in violation of the good neighbor provision.
    The EPA determines that this conclusion is appropriate with regard 
to the claims raised under the 2008 ozone NAAQS in both states' 
petitions. Moreover, because the cost-effective strategy of optimizing 
existing controls relative to the 2008 ozone NAAQS has already been 
implemented via the CSAPR Update for the sources Delaware named for its 
claims regarding the 2015 NAAQS, the EPA also determines there are no 
additional cost-effective control strategies available to further 
reduce NOX emissions at these sources to address that most 
recent standard.
(1) Current Emissions Data Show NOX Reductions Under the 
CSAPR Update
    Based on observed emissions levels and emission rates in 2017, 
implementation of the CSAPR Update has resulted in actual emissions 
reductions at the named sources and/or commensurate reductions at other 
sources in the same state, both seasonally and on a daily basis. In 
other words, because the strategy of optimizing existing controls has 
already been implemented for these sources through the CSAPR Update, 
there is no information suggesting there are additional control 
strategies available to further reduce NOX emissions at 
these sources to address for the 2008 ozone-NAAQS.
(a) Seasonal Reductions Under the CSAPR Update
    The recent historical observed and reported data regarding 
emissions from the sources named in the petitions, and the states they 
are located in, illustrate the effectiveness of the EPA's allowance 
trading approach to reducing NOX emissions. While much of 
the data presented in the petitions focused on emissions and emission 
rates prior to 2017, the 2017 ozone-season data illustrates that, 
during the first year of the CSAPR Update Rule: (1) The average 
emission rate improved nearly 50 percent on average at the 34 units 
identified in the petitions as having SCR controls, (2) EGU emissions 
declined by 46 percent at these 34 units, and (3) EGU emissions 
declined by 32 percent collectively in the states where these 
facilities are located.

                Table 1--Ozone-Season NOX Emission Rates and Emissions Pre- and Post-CSAPR Update
----------------------------------------------------------------------------------------------------------------
                                                                       2015            2016            2017
----------------------------------------------------------------------------------------------------------------
Average Ozone-Season Emission rate from 34 identified units (lb/           0.254           0.200           0.115
 mmBtu).........................................................
Total Emissions from 34 identified units (tons).................          55,443          46,023          24,894
Total Emissions from states named in the petitions (tons)*......         154,413         136,188          92,189
----------------------------------------------------------------------------------------------------------------
* IN, KY, OH, PA, and WV.

    Table 1 shows the average emission rate across the 34 units, the 
total seasonal emissions from these units, and the total seasonal 
emissions from all units greater than 25 MW in the indicated states. 
These data illustrate that, in 2017, the control optimization and the 
emission reductions anticipated from the CSAPR Update are being 
realized from the 34 units with SCR controls. Moreover, the EPA 
examined control operation behavior at these units on a more granular 
basis and determined that these operating patterns prevailed on a 
smaller time scale as well. The EPA looked at the average daily 
emission rate and emissions from this group of 34 sources with SCR 
controls for 2015, 2016, and 2017 ozone seasons. The time-series 
figures in the docket for this action show that 2017 daily ozone values 
were significantly lower on both metrics relative to 2015 and 2016.\61\ 
This finding supports the EPA's contention that no further regulatory 
actions are necessary to ensure emission reductions consistent with 
operation of these controls at this time.
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    \61\ The EPA has examined emission rate and tonnage reduction 
from the petitioner-identified sources with SCR-optimization 
potential prevails on a daily basis in addition to a seasonal basis 
and added them to the docket for this action. See Daily 
NOX Emissions Rates for Identified SCR-Controlled Sources 
for Each Day of the Ozone-Season. Available in the docket for this 
action.
---------------------------------------------------------------------------

    The fact that these particular sources are mitigating emissions 
using the same technology and for the same standard identified in the 
petitions is not the sole fact on which EPA bases its determination 
that the measures adopted in the CSAPR Update have addressed reduction 
potential from these sources. Because the EPA implemented those 
reductions requirements though a limited trading program with state 
emission caps, it is also possible that some of the emission reductions 
corresponding to this identified mitigation measure are realized 
elsewhere in the state and have a similar beneficial impact on downwind 
air quality within the petitioning states. The EPA recognizes that a 
regional trading program with embedded state emission caps provides the 
flexibility to achieve emission reductions either at the sources 
through the identified mitigation measures or at

[[Page 50466]]

sources elsewhere in the state but disagrees with the petitioners' 
notion that this undermines the ability of the program to achieve 
meaningful emissions reductions from particular sources. The latest and 
best available data demonstrate that reductions are occurring at those 
sources. Moreover, even in the event of any single-unit variation in 
performance, the overall reductions are occurring within the same 
airshed due to the fact that state budgets and assurance levels were 
set to ensure those reduction levels statewide and regionwide. Thus, 
the design of the CSAPR Update accommodates emissions reductions based 
on unit-specific control optimization and observed data affirm its 
success at realizing this end.
    In evaluating these petitions, the EPA analyzed ozone-season 
emission rates from all coal-fired units in the contiguous U.S. 
equipped with SCR and found that, based on 2017 emissions data 
reflecting implementation of the CSAPR Update, 261 of 274 units had 
ozone-season emission rates below 0.20 lb/mmBtu, indicating they were 
likely operating their post-combustion controls through most of the 
ozone season, including every unit with SCR named in Delaware's and 
Maryland's petitions.\62\ On average, the 274 units were operating at 
an average emission rate of approximately 0.088 lb/mmBtu. Nine of the 
13 units with 2017 emission rates above 0.20 lb/mmBtu are not located 
in the states where petitioners identified sources.\63\ Of the 
remaining four, one retired in 2018, and the other three have 
preliminary 2018 ozone season data (for reported months of May and 
June) below 0.20 lb/mmBtu. Consequently, the EPA finds that on average, 
SCR-controlled units are operating their SCRs throughout the season 
when operating conditions make it feasible, and that the petitioner's 
assertion of the likelihood of not operating controls is not borne out 
in the most recently available data.
---------------------------------------------------------------------------

    \62\ As described in the CSAPR Update, optimized operation of 
combustion controls and SCR typically results in NOX 
emission rates of 0.10 lb/mmBtu or below. Combustion controls alone 
typically result in rates down to 0.20 lb/mmBtu but can at times 
achieve results in the range of 0.14 lb/mmBtu. Therefore, units 
equipped with SCR that have emission rates above 0.20 lb/mmBtu are 
likely not significantly utilizing their SCR. The optimized rate for 
any particular unit depends on the unit-specific characteristics, 
such as boiler configuration, burner type and configuration, fuel 
type, capacity factor, and control characteristics such as the age, 
type, and number of layers of catalyst and reagent concentration and 
type.
    \63\ See Discussion of Short-term Emission Limits Final Rule, 
available in the docket for this action.
---------------------------------------------------------------------------

    The CSAPR Update regional trading program has resulted in an 
approximately 50 percent improvement in emission rate performance at 
SCR-controlled units at the sources named in these petitions. The 
statewide EGU emissions limits help make those reductions permanent 
within the state and region. Therefore, the EPA has addressed upwind 
emission reductions commensurate with SCR optimization in the ozone 
season from the named sources.
    Commenters state that the EPA's use of a fleet-wide average to 
demonstrate operation of SCRs at these units inappropriately ignores 
the ability of the named sources to achieve better emission rates. 
However, in the CSAPR Update, the EPA determined that, based on an 
aggregation of unit-level emission rates, an average fleet-wide rate 
emission rate of 0.10 lb/mmbtu would represent the optimized operation 
of SCR controls that were not at that time being operated or optimized. 
81 FR 74543. In concluding that this rate would be appropriate for 
calculating emission reduction potential from implementation of this 
control strategy, the EPA recognized that some units would have 
optimized rates above that level and some below that level (consistent 
with the petitioner's own comments and analysis). Therefore, in using a 
fleet-wide average for setting regional and state emission limits, the 
EPA considered and relied on unit-level data. Nevertheless, the 0.10 
lb/mmBtu emission rate used to reflect control optimization for the 
2008 ozone NAAQS for the identified sources in the CSAPR Update was not 
reopened for comment in this action.
(b) Daily Reductions Under the CSAPR Update
    Commenters disagree with the EPA's conclusion that data 
demonstrating that SCRs are being operated in the upwind states and at 
the named sources seasonally is representative of implementation of 
cost-effective controls. It is the commenter's position that for 
existing controls to be cost effective, they must be maintained and 
operated in accordance with good pollution control practices whenever 
feasible. Commenters assert that if shorter-term NOX 
emission rate data are evaluated, the SCR controls do not appear to 
have been operated in accordance with good pollution control practices 
at all times the units were operating.
    The petitions have alleged that short-term limits are necessary to 
prevent units from turning controls off intermittently on days with 
high ozone in order to harvest additional power that would otherwise be 
used for control operation. As described at proposal, the EPA examined 
the hourly NOX emissions data reported to the EPA and did 
not observe many instances of units selectively turning down or turning 
off their emission control equipment during hours with high 
generation.\64\ SCR-controlled units generally operated with lower 
emission rates during high generation hours, suggesting SCRs generally 
were in better operating condition--not worse, let alone idling--during 
those days/hours. In other words, the EPA compared NOX rates 
for EGUs for hours with high energy demand and compared them with 
seasonal average NOX rates and found very little difference. 
Thus, the data do not support the notion that units are reducing SCR 
operation on high demand days. Moreover, the auxiliary power used for 
control operation is small--typically less than one percent of the 
generation at the facility--and it is, therefore, unlikely that sources 
would cease operation of controls for such a limited energy savings. 
Instead, the data indicate that increases in total emissions on days 
with high generation are generally the result of additional units that 
do not normally operate coming online to satisfy increased energy 
demand and units that do regularly operate increasing hourly 
utilization, rather than reduced functioning of control equipment. The 
EPA notes that if, in fact, the emission reductions expected from the 
operation of control equipment at these facilities were no longer being 
realized in the future, this final action denying Delaware's and 
Maryland's petitions would not preclude either state from submitting 
another CAA section 126(b) petition for these sources raising new 
information not already considered herein. The EPA is not, however, 
pre-determining what action may be appropriate on any such future 
petition.
---------------------------------------------------------------------------

    \64\ Id.
---------------------------------------------------------------------------

    Commenters have observed that individual units equipped with SCR 
have operated in 2017 ozone season with rates higher than 0.2 lb/mmBtu 
on select days, suggesting that their SCR controls have been idled. The 
commenters identified the number of days this occurred at individual 
units (one unit at Homer City had the highest frequency of 15 days out 
of the 153-day ozone season, one unit at Harrison had two days, and 
Conemaugh had no days) and acknowledged that there may be engineering 
reasons for units to decrease or cease operation of controls on 
individual days (e.g., to avoid damaging or plugging of the SCR or 
taking a forced outage where a breakdown leaves the

[[Page 50467]]

unit unavailable to produce power). The EPA also observes that there 
appear to be engineering limitations to operating SCR at low hourly 
utilization rates (e.g., at hourly capacity factors below about 25 
percent, the EPA has observed limited operation of SCRs).\65\ While 
Maryland acknowledges these engineering challenges to SCR performance 
in low capacity factor conditions, it is not clear how the suggested 
monthly unit-specific emission rate would accommodate those challenges. 
In particular, ozone season capacity factors (which reflect the actual 
output relative to potential output) have decreased over time, dropping 
from a heat-input weighted capacity factor of 77 percent in 2006 to a 
value of 67 percent in 2017, suggesting that units may spend fewer 
hours operating at the high hourly utilization factors associated with 
the most-efficient SCR operation and lowest emission rates.\66\ In 
addition, units are now operating more frequently at hourly utilization 
rates at or below 40 percent in 2017 compared to 2006.
---------------------------------------------------------------------------

    \65\ Hourly utilization factor is defined here as the ratio of 
the hourly heat input to the maximum rated hourly heat input rate. 
See Discussion of Short-term Emissions Limits Final Rule, available 
in the docket for this action.
    \66\ The EPA selected 2006 because a commenter identified 2006 
as the best year of operation for a number of units and 2005 did not 
appear to have as comprehensive a data set.
---------------------------------------------------------------------------

    An individual unit may have high emissions from idling an SCR or 
SNCR or for burning coal (rather than natural gas) on a specific hour 
or day in the 2017 ozone season, or that the absence of daily emission 
limits leaves open the possibility that a unit at the facility may have 
high emissions on days that Maryland or Delaware monitors record ozone 
exceedances. However, in the context of regional ozone pollution, the 
EPA has concludes that reducing NOX emissions regionally and 
seasonally while allowing flexibility in compliance is effective at 
reducing downwind peak ozone concentrations. Because of the regional 
nature of interstate ozone transport, in which emissions are 
transported hundreds of miles over the course of hours or days, the EPA 
has focused on reducing aggregate NOX emissions, an approach 
that has successfully led to reductions in ozone concentrations across 
the east coast. As such, an emission event in one hour or on one day at 
a particular unit is not sufficient to suggest that the source is not 
adequately controlled over the course of the ozone season.
    Petitioners and commenters asserted that that additional emission 
reductions are achievable (comparing the methodology and rates put 
forward by with what would be expected and/or realized under the CSAPR 
Update) and that these emission reductions would be cost effective.
    Commenters assert that the maximum 30-day emission rates requested 
in Maryland's petition are (1) representative of well-run controls, (2) 
flexible to allow for multiple operating conditions and even sub-
optimal operation of controls on some days, and (3) consistently 
achievable based on the units' own reported emissions data that 
indicates the units achieved this emission rate 123 times out of 123 
attempts in their past-best ozone season. However, these assertions are 
flawed because the commenters' assessment included historical data 
that, through notice-and-comment rulemaking in the CSAPR Update, EPA 
determined were not representative of current or future operating 
conditions given SCR component degradation and maintenance schedules 
and changes in unit operation (i.e., to lower capacity factors). For 
example, EPA's analysis of historical SCR performance in the CSAPR 
Update evolved through comments on the proposal, ultimately evaluating 
data from 2009 through 2015 because in this time period SCR controls 
were operated year-round starting in the first compliance period for 
the CAIR NOX annual program (and subsequently CSAPR 
NOX annual programs) rather than only seasonally as was done 
in years before 2009.\67\ Further, the petitioners and commenters 
assert that the agency can apply historical SCR operating data to the 
future in a manner that is at odds with the EPA's conclusions reached 
through notice-and-comment in the CSAPR Update. For example, 
petitioners and commenters assert that the agency can consider data 
from the year of each unit's lowest historical average NOX 
rate. In the CSAPR Update, the agency took comment on the 
representativeness of historical data in terms of future ongoing 
achievable NOX rates. Stakeholder comment led the EPA to 
ultimately to focus on the third lowest ozone season rate from 2009 
through 2015 to ensure that its selected rates represented efficient 
but routine SCR operation (i.e., when the performance of the SCR was 
not simply the result of being new, or having a highly aggressive 
catalyst replacement schedule, but was the result of being well-
maintained and well-run). These topics are as described further in the 
CSAPR Update RTC. Thus, the petitioners and commenters rely on 
inadequate arguments, based in part on analyzing unit behaviors over an 
inappropriate time-period and by overstating the potential 
NOX reductions achievable at the sources. Considering the 
information received and EPA's assessment thereof, the EPA has not 
received sufficient information that necessitates updating or otherwise 
changing the agency's position with respect to the EPA's previous 
findings regarding cost-effective reductions at SCRs.
---------------------------------------------------------------------------

    \67\ The EPA's analysis of SCR NOX rates for the 
final CSAPR Update differed from the proposal. The evaluation 
focused on a more recent timeframe for analysis: 2009 through 2015, 
compared to 2003 through 2014. The EPA believed this change was 
reasonable because there were significant shifts in the power sector 
since 2003, particularly with respect to power sector economics 
(e.g., lower natural gas prices in response to shale gas 
development) and environmental regulations (e.g., CAIR and CSAPR). 
Because of these changes, the EPA considers it reasonable to 
evaluate SCR performance focusing on more recent historical data 
that better represent the current landscape of considerations 
affecting the power sector. The EPA chose 2009 because that is the 
first year of CAIR NOX annual compliance. For further 
discussion, see page 522 of EPA's Response to Comments on the CSAPR 
Update available in the docket for that rule at EPA-HQ-OAR-2015-
0500-0572 and EPA's EGU NOX Mitigation Strategies Final 
Rule TSD available in the docket for that rule at EPA-HQ-OAR-2015-
0500-0554.
---------------------------------------------------------------------------

    In addition, to the extent that commenters argue that the emission 
levels assumed for these units in the CSAPR Update (or alternatively as 
measured in 2017) are marginally higher than what commenters claim 
would be readily achievable, the air quality impacts of these 
differences on the design value are likely to be small. Specifically, 
Maryland indicates that the state anticipates an air quality benefit of 
0.656 ppb attributable to the named units going from idled controls to 
Maryland's definition of ``optimized'' control operation. This is 
comparable to the estimated improvement in the CSAPR Update from the 
engineering base case to the control case of $1,400/ton, wherein the 
EPA estimated a 0.6 ppb improvement in air quality at the for Harford, 
Maryland receptor.\68\ Subtracting the improvement estimated by the 
commenter from the value estimated by the EPA yields a marginal 
difference of 0.056 ppb.\69\ Thus, the petitions do not provide system-
wide impacts analysis showing that their requested unit-specific rate 
requirements, which would reduce sources' emissions only slightly below 
already achieved levels, would result in

[[Page 50468]]

regional reductions and air quality improvements as related to the 
EPA's analysis regarding the good neighbor provision.
---------------------------------------------------------------------------

    \68\ See CSAPR Update Final Ozone AQAT ``Summary DVs'' tab, 
comparing cell L12 and O12 (along with cell O28).
    \69\ While there are differences in modeling platforms, emission 
totals, and temporalization of the emissions within the modeling 
platforms that would affect this comparison, this provides some 
estimate of the difference.
---------------------------------------------------------------------------

(2) Reliance on Allowance Trading To Address Section 126(b) Petitions
    One commenter asserts that evaluating Maryland's CAA section 126(b) 
petition for control for a specific source by relying on an average 
fleet-wide rate without any consideration of the emission rate that 
specific source is capable of achieving undermines the intent of 
section 126(b) of the CAA, which gives a state the authority to ask the 
EPA to set emissions limits for specific sources of air pollution.
    As described earlier, while CAA section 126(b) addresses the same 
substantive prohibition as CAA section 110(a)(2)(D)(i), CAA section 
126(b) provides an independent process for downwind states to address 
interstate transport. Commenters state that whether a specific source 
emits or would emit in violation of the good neighbor provision is 
primarily a factual determination based on monitored data and modeling, 
not a legal conclusion based on whether a source is meeting an 
emissions budget under a SIP or FIP.
    The EPA disagrees with those commenters that argue that the EPA can 
only consider unit-level emission rates when evaluating CAA section 
126(b) petitions and must ignore prior actions and reductions 
addressing interstate transport that pertain to the same NAAQS, the 
same mitigation measures, and the same units. If the EPA has already 
identified, mandated, and received commensurate emission reductions 
from those sources (or sources in a shared geographic region determined 
to be equally relevant to the downwind monitor) based on control 
optimization through a trading program, then ignoring that related 
action could lead to miscounting emission reductions from a mitigation 
technology for a given NAAQS. While the EPA does not disagree that 
these types of considerations need to be revisited when evaluating 
potential reductions to meet future updated NAAQS (just as they have 
been revisited in previous updates to the NAAQS) for which SIPs and 
FIPs have yet to be promulgated (e.g., the 2015 ozone NAAQS), the 
agency disagrees that they are irrelevant considerations for other 
actions related to upwind contribution for the 2008 NAAQS for which 
actions have been promulgated.
    According to commenters, evaluating Delaware's and Maryland's 
section 126(b) petitions based on whether the named sources participate 
in a trading program is a strained interpretation of section 126(b) 
because it fails to account for CAA section 126(c)'s reference to 
source-specific remedies, including emissions limitations. The EPA's 
position on why it is appropriate to evaluate a CAA section 126(b) 
under the four-step framework and CSAPR Update is described in Section 
III of this notice. Additionally, the EPA disagrees with commenters 
that taking account of compliance with an emissions budget as part of 
an analysis of a CAA section 126(b) petition is inconsistent with the 
nature of CAA section 126(c)'s specific alternative remedies. Under CAA 
section 302(k), an ``emission limitation'' is ``a requirement that 
limits the quantity, rate, or concentration of emission of air 
pollutants on a continuous basis.'' Under an allowance trading program, 
the Administrator sets an emission limitation for a defined region or 
regions and a compliance schedule for each unit subject to the program 
in that region. The emission limitation for each unit is the federally 
enforceable requirement that the quantity of the unit's emissions 
during a specified period cannot legally exceed the amount authorized 
by the allowances that the unit holds. The compliance schedule is set 
by establishing a deadline by which units must begin to comply with the 
requirement to hold allowances sufficient to cover emissions. Because 
an allowance trading program is a compliance mechanism that enables 
sources to make cost-effective decisions to meet their allowance 
requirements, which are, in essence, emission limits, the EPA believes 
considering compliance with such a program as part of its analysis of a 
CAA section 126(b) petition is in fact consistent with the forms of 
remedy authorized under CAA section 126(c).
    Additionally, the EPA has previously relied on regional allowance 
trading programs intended to implement CAA section 110(a)(2)(D)(i)(I) 
to also address section 126(b) petitions. The EPA first used a regional 
trading program as a section 126(c) remedy for findings in response to 
section 126(b) petitions from eight states requesting upwind sources be 
regulated with respect to the 1979 ozone NAAQS. Based on findings made 
through the NOX SIP call, the EPA established its Federal 
NOX Budget Trading Program in response to these petitions. 
65 FR 2674 (Jan. 18, 2000). The use of the regional analysis of ozone 
transport in the NOX SIP call findings to respond to 
contemporaneous section 126(b) petitions was challenged in the D.C. 
Circuit in Appalachian Power, where Petitioners argued that findings 
based on statewide emissions cannot determine whether specific 
stationary source emissions are in violation of the good neighbor 
provision. Petitioners argued that instead of relying on the 
NOX SIP call findings, the EPA needed first to make the more 
rigorous finding that the specified stationary sources within a given 
state independently met its threshold test for impacts on downwind 
areas. Given the linkage between section 126(b) and the good neighbor 
provision, the court determined it was reasonable for the EPA to tie 
its source-specific findings under section 126(b) to the significance 
of a state's total NOX emissions as determined under section 
110(a)(2)(D)(i). 249 F.3d at 1049-1050. While the court did not 
explicitly speak to the issue of whether an allowance trading program 
is an appropriate remedy under CAA section 126(c), the court's 
conclusion that a regional analysis is appropriate to evaluate ozone 
transport at individual sources also supports the conclusion that a 
regional remedy can effectively address the any air quality problem 
identified through such an analysis. The court ultimately upheld the 
EPA's regulatory action on the section CAA 126(b) petitions, which 
included reliance on the allowance trading program.
    The EPA evaluated whether there is newly available information that 
leads to a determination that these sources are inadequately controlled 
by the CSAPR Update, as commenters assert. The petitioners and 
commenters claim that this is so, based on data that preceded 
implementation of the CSAPR Update that they assert illustrates that 
relatively large sources with existing control equipment were not 
operating at appropriate levels of NOX abatement. The 
petitioners and commenters further assert that these sources are 
inadequately controlled because they do not always operate control 
equipment on high ozone days. They support their argument with an 
analysis of an allegedly achievable NOX rate, which they 
claim is appropriate for regulatory application.
    The EPA does not agree that these assertions support a 
determination that these sources are inadequately controlled by the 
CSAPR Update, and that additional regulatory measures for these sources 
are necessary under the good neighbor provision. Not only was that rule 
specifically designed to achieve the reductions necessary under the 
good neighbor provision, but recent data indicate that it is in fact 
achieving such reductions and that petitioners' assertions are not 
borne out by the

[[Page 50469]]

current or future operations of the named sources. As discussed 
earlier, based on reported 2017 ozone-season emissions under the first 
CSAPR Update compliance period, these sources as a group effectively 
reduced emissions to a degree consistent with the CSAPR Update remedy. 
Commenters provided no compelling additional recent emissions and air 
quality data that suggest controls were broadly underperforming on high 
ozone days.
    The EPA notes that the power sector is a complex and interconnected 
system in which factors affecting one facility can result in effects 
across facilities within the state or dispatch region. Thus, granting 
the petitioners' request for source-specific emission limitations at 
certain EGUs could cause effects at other EGUs. For instance, rate 
requirements could result in generation shifting to higher-emitting 
units that were not named in the petition, potentially creating worse 
downwind air quality impacts on a statewide or regionwide basis. 
Petitioners fail to recognize or account for potential re-balancing 
across the power sector in response to their requested remedy. By only 
examining the impact of a subset of the units subject to the same cap, 
the petitioner does not fully account for the potential air quality 
impact from implementation of the proposed remedy.
    The EPA received comments on the proposed action asserting that an 
allowance trading program, such as that promulgated in the CSAPR 
Update, cannot address significant contribution to nonattainment or 
interference with maintenance from a source or group of sources under 
CAA section 126. Commenters state that an allowance trading program is 
insufficient to constrain NOX emissions where there are 
excess allowances. Commenters state that since ozone is observed on a 
daily basis and the form of the standard is based on daily 
observations, daily NOX limits are necessary to prevent 
units from emitting at high rates on exceedance days and the days 
leading up to the exceedance. The EPA does not agree that an allowance 
trading program is an inadequate means of implementing emission 
reductions for interstate transport purposes and notes it has done so 
in response to CAA section 126(b) petitions previously.\70\ Petitioners 
have not provided compelling new or novel information regarding the 
EPA's technical analysis of NOX control potential or 
observation of CSAPR Update implementation. Implementation mechanisms 
based on seasonal NOX requirements have demonstrated success 
at reducing peak ozone concentrations. For example, over the past 
decade, there has been significant improvement in ozone across the 
eastern United States, in part due to season-long allowance trading 
programs such as the NOX Budget Trading Program, CAIR, and 
the CSAPR NOX ozone-season allowance trading program. As a 
result, current measured air quality in all Eastern areas is below the 
1997 ozone NAAQS. As such, based on the best information available to 
the agency at this time, the EPA believes that its current approach of 
implementing an allowance trading program at step four has proven 
effective at constraining NOX emissions from covered 
sources, including the sources named in the petitions.
---------------------------------------------------------------------------

    \70\ See Rulemaking on Section 126 Petition From North Carolina 
To Reduce Interstate Transport of Fine Particulate Matter and Ozone; 
Federal Implementation Plans to Reduce Interstate Transport of Fine 
Particulate Matter and Ozone; Revisions to the Clean Air Interstate 
Rule; Revisions to the Acid Rain Program, 71 FR 25328 (April 28, 
2006); Findings of Significant Contribution and Rulemaking on 
Section 126 Petitions for Purposes of Reducing Interstate Ozone 
Transport, 65 FR 2674 (January 18, 2000).
---------------------------------------------------------------------------

b. Analysis of SNCR for NOX Mitigation
    In its petition, Maryland also alleges that two facilities 
operating SNCR post-combustion controls--Cambria Cogen in Pennsylvania 
and Grant Town Power Plant in West Virginia--emit or would emit in 
violation of the good neighbor provision with respect to the 2008 ozone 
NAAQS and asks that the agency impose emission limits or other 
requirements to ensure that the facilities operate their SNCR during 
the ozone season. The EPA is finalizing its proposal to deny Maryland's 
petition with respect to sources operating SNCR based on its conclusion 
that fully operating with SNCR is not a cost-effective NOX 
emissions reduction strategy for these sources, considering other 
relevant factors such as NOX reduction potential and 
downwind air quality impact, with respect to addressing transport 
obligations for the 2008 ozone NAAQS. The EPA determined in the CSAPR 
Update that operating existing SNCR would be $3,400 per ton, which 
exceeded the level that the EPA determined would be cost effective for 
the good neighbor provision for the 2008 ozone NAAQS, and, therefore, 
the EPA is determining in this action that these sources do not emit 
and would not emit in violation of the good neighbor provision with 
respect to that NAAQS.
    As discussed in Section IV.C.2 of the proposal, the EPA evaluated 
control strategies in the CSAPR Update that were considered feasible to 
implement by the 2017 ozone season and determined that EGU control 
strategies available at a marginal cost of $1,400 per ton of 
NOX reduced were cost effective, using a multi-factor test 
that considered cost, NOX reduction potential, and downwind 
air quality improvements at various levels of potential NOX 
control stringency. In its evaluation, the EPA examined control 
strategies available at different cost thresholds, including turning on 
existing idled SNCR, which is the remedy proposed by Maryland in its 
petition for these two units. The EPA identified a marginal cost of 
$3,400 per ton as the level of uniform control stringency that 
represents turning on idled SNCR controls.\71\ The EPA identified this 
higher marginal cost of operating SNCR at units in the CSAPR Update 
region, relative to operation of SCR, predominately based on the cost 
and quantity of reagent needed (i.e., SNCRs require substantially more 
reagent compared with SCRs due to the absence of catalyst which greatly 
facilitates the reactions converting the NOX).
---------------------------------------------------------------------------

    \71\ See EGU NOX Mitigation Strategies Final Rule TSD 
(docket ID EPA-HQ-OAR-2015-0500-0554), available at http://www.regulations.gov.
---------------------------------------------------------------------------

    The CSAPR Update finalized emission budgets using $1,400 per ton 
control stringency, finding within step three of the transport 
framework that this level of stringency represented the control level 
at which incremental EGU NOX reductions and corresponding 
downwind ozone air quality improvements were maximized with respect to 
marginal cost. In finding that use of the $1,400 per ton control cost 
level was appropriate for the 2008 ozone NAAQS, the EPA determined that 
the more stringent emission budget level reflecting $3,400 per ton 
(representing turning on idled SNCR controls) yielded fewer additional 
emission reductions and fewer air quality improvements per additional 
dollar of control costs.
    Based on the information, assumptions, and analysis in the CSAPR 
Update, the EPA determined that establishing emission budgets at $3,400 
per ton and developing associated emissions budgets based on operation 
of idled SNCR controls was not cost effective for addressing good 
neighbor provision obligations for the 2008 ozone NAAQS because this 
level of control yielded fewer additional emission reductions and fewer 
air quality improvements relative to other less-costly control 
strategies. 81 FR 74550. A review of the emission levels at the

[[Page 50470]]

sources named in Maryland's petition before implementation of the CSAPR 
Update, in particular, demonstrates that the two units are relatively 
small in size and have low emission levels, indicating that the units 
have a relatively limited ability to substantially reduce 
NOX emissions and, thereby, improve air quality 
downwind.\72\ Neither Maryland's petition nor public commenters provide 
any contradictory information demonstrating that fully operating SNCR 
is a cost-effective control for the two named sources, considering the 
marginal cost of implementation, the anticipated emission reduction, 
and the potential air quality benefits.\73\ The EPA, thus, denies 
Maryland's petition with respect to these sources based on its 
conclusion that fully operating with SNCR is not a cost-effective 
NOX emission reduction strategy with respect to addressing 
transport obligations for the 2008 ozone NAAQS for these sources, and, 
therefore, that these sources do not emit and would not emit in 
violation of the good neighbor provision with respect to the 2008 ozone 
NAAQS.
---------------------------------------------------------------------------

    \72\ Cambria Cogen units one and two emitted 237 tons and 219 
tons of ozone season NOX in 2016, respectively, while 
Grant Town units 1A and 1B emitted 282 tons and 285 tons of ozone 
season NOX in 2016, respectively. Ozone season 
NOX emissions rates from these EGUs under the CSAPR 
Update in 2017 are described later.
    \73\ Since the EPA does not agree, and Maryland has not 
demonstrated in the first instance that the operation of SNCR at 
these units is cost effective, the EPA need not address Maryland's 
claim that short-term emission limits may be appropriate. In any 
event, the EPA notes that the same concerns with relying on the 
lowest historical emission rate for purposes of determining what is 
achievable for SCRs, discussed in Section IV.B.2 in the proposal, 
would also apply to Maryland's contentions with respect to SNCRs.
---------------------------------------------------------------------------

    While the EPA determined that fully operating SNCR across the 
region was not cost effective with respect to addressing transport 
obligations for the 2008 ozone NAAQS, individual sources may 
nonetheless choose how to comply with the CSAPR ozone season 
NOX allowance trading program. The operation of existing 
SNCR controls is one method to achieve emission reductions needed to 
comply with the requirements of the trading program. 81 FR 74561. For 
instance, during the 2017 ozone season, likely in part as the result of 
economic incentives under the CSAPR Update, the two Cambria units with 
SNCR appear to have operated their controls, resulting in average 
NOX emissions rates of 0.15 and 0.16 lbs/mmBtu, respectively 
(a drop from the 2016 rates of 0.23 and 0.24 lbs/mmBtu, 
respectively).\74\
---------------------------------------------------------------------------

    \74\ See 2015, 2016, and 2017 Ozone-Season NOX rates 
(lbs/mmBtu) for 41 units named in the petitions, available in the 
docket for this action.
---------------------------------------------------------------------------

    One commenter asserts that the EPA incorrectly analyzed Maryland's 
argument related to EGUs equipped with SNCR, as the availability of 
NOX reductions under a 126(b) petition must be evaluated on 
a source-specific basis in order to determine if the proposed 
NOX control is cost effective. The commenter alleges that 
when the EPA conducts cost-effectiveness determinations for RACT, SNCR 
installation is considered cost effective, and, therefore that running 
those installed controls is necessarily also cost effective in the 
context of the good neighbor provision as well. Another commenter 
asserts that the optimization of existing post-combustion controls is 
an immediately available cost-effective NOX reduction 
strategy available in the EGU sector.
    While the operation of SNCR could be implemented relatively 
quickly, as described earlier, the EPA does not have a basis to 
determine that the controls are cost effective at these units when 
considering cost, NOX reduction potential, and downwind air 
quality improvements. Commenters have also not provided information 
demonstrating that, even at the unit level proposed by the commenter, 
operation of SNCR at the two units named in the Maryland petition are 
cost effective relative to NOX reduction potential and 
downwind air quality improvements.
    The EPA also does not agree that any conclusions drawn regarding 
cost effectiveness of controls in other contexts are directly 
applicable here. RACT determinations are evaluating whether 
implementation of certain controls within a nonattainment area will be 
effective at addressing a local air quality problem relative to the 
cost of implementing such controls. However, implementation of the same 
controls at sources that are significantly farther from a particular 
air quality problem may have very different air quality impacts a 
downwind area. As described earlier in this notice, ozone transport is 
the result of the collective contribution of many sources in several 
upwind states. The relative cost effectiveness of emission reductions 
from implementation of controls at a given upwind source, when 
considering NOX reduction potential and downwind impacts, 
will necessarily be different than evaluation of the same controls at a 
more local source. The EPA's approach for assessing cost effectiveness 
in the context of regional interstate ozone pollution transport can, 
therefore, reasonably be considered as addressing a different air 
quality concern and thereby independent from cost-effectiveness 
determinations made under RACT.
    Based on the EPA's conclusion that fully operating with SNCR is not 
a cost-effective NOX emission reduction strategy with 
respect to addressing transport obligations for the 2008 ozone NAAQS 
for these sources, the EPA finds that the petition and the comments 
provide no grounds for the EPA to determine that that the two sources 
identified as operating SNCR emit or would emit in violation of the 
good neighbor provision with respect to the 2008 ozone NAAQS.
c. The EPA's Step Three Analysis With Respect to Brunner Island
    The remaining facility addressed in one of Delaware's petitions is 
the Brunner Island facility, which currently has neither SCR nor SNCR 
installed. As noted earlier, the EPA has already determined that 
Delaware's petitions should be denied based on the EPA's conclusions 
that there are no downwind air quality impacts in Delaware in steps one 
and two of the four-step framework. Nonetheless, the EPA has evaluated 
Brunner Island with respect to step three because it provides another 
independent basis for EPA's denial of the petition.
    With respect to the question of whether there are feasible and 
cost-effective NOX emissions reductions available at Brunner 
Island, the facility primarily burned natural gas with a low 
NOX emissions rate in the 2017 ozone season, and the EPA 
expects the facility to continue operating primarily by burning natural 
gas in future ozone seasons. As such, and as described in more detail 
in the following paragraphs, the EPA at this time finds that no 
additional feasible and cost-effective NOX emissions 
reductions available at Brunner Island have been identified. The EPA, 
therefore, has no basis to determine, consistent with the standard of 
review outlined in Section IV.A of this notice, that Brunner Island 
emits or would emit in violation of the good neighbor provision with 
respect to the 2008 or 2015 ozone NAAQS.
    Delaware's CAA section 126(b) petition first proposes that the 
operation of natural gas is an available cost-effective emissions 
reduction measure that could be implemented at Brunner Island. Brunner 
Island completed construction of a natural gas pipeline connection 
prior to the beginning of the 2017 ozone season (i.e., by May 1, 2017) 
and operated primarily using natural gas as fuel for the 2017 ozone 
season. As a result, Brunner Island's actual ozone season 
NOX emissions declined from 3,765 tons in 2016 to 877 tons 
in 2017,

[[Page 50471]]

and the facility's ozone season NOX emissions rate declined 
from 0.370 lbs/mmBtu in 2016 to 0.090 lbs/mmBtu in 2017. Thus, Brunner 
Island has already implemented the emissions reductions consistent with 
what Delaware asserted would qualify as a cost-effective strategy for 
reducing NOX emissions. Accordingly, the EPA has determined 
that Delaware's CAA section 126(b) petition does not demonstrate that, 
at this current level of emissions, Brunner Island emits in violation 
of the good neighbor provision.
    Similarly, the EPA concludes that Delaware's petition does not 
demonstrate that Brunner Island would emit in violation of the good 
neighbor provision. The EPA believes Brunner Island will continue to 
primarily use natural gas as fuel during future ozone seasons for 
economic reasons. First, compliance with the CSAPR Update provides an 
economic incentive to cost-effectively reduce NOX emissions. 
Specifically, Brunner Island's participation in the CSAPR 
NOX Ozone Season Group 2 allowance trading program provides 
an economic incentive to produce electricity in ways that lower ozone 
season NOX, such as by burning natural gas relative to 
burning coal at this particular power plant. Under the CSAPR Update, 
each ton of NOX emitted by a covered EGU has an economic 
value--either a direct cost in the case that a power plant must 
purchase an allowance to cover that ton of emissions for CSAPR Update 
compliance or an opportunity cost in the case that a power plant must 
use an allowance in its account for compliance and, thereby, foregoes 
the opportunity to sell that allowance on the market. The EPA notes 
that Brunner Island's 2017 emissions would have been approximately 
2,714 tons more than its actual 2017 emissions if it had operated as a 
coal-fired generator, as it did in 2016.\75\ This reduction in 
NOX emissions that is attributable to primarily burning 
natural gas has an economic value in the CSAPR allowance trading 
market.
---------------------------------------------------------------------------

    \75\ This estimated emissions difference was calculated as the 
difference between 2017 reported NOX emissions of 877 
tons and a counterfactual 2017 NOX emissions estimate of 
3,591 tons created using 2017 operations (i.e., heat input of 
19,406,872 mmBtu) multiplied by the 2016 NOX emission 
rate of 0.37 lb/mmBtu reflecting coal-fired generation. These data 
are publicly available at https://www.epa.gov/ampd.
---------------------------------------------------------------------------

    Second, there are continuing fuel-market based economic incentives 
suggesting that Brunner Island will continue to primarily burn natural 
gas during the ozone season. Brunner Island elected to add the 
capability to primarily utilize natural gas by way of a large capital 
investment in a new natural gas pipeline capacity connection. Brunner 
Island's operators would have planned for and constructed this project 
during the recent period of relatively low natural gas prices. In the 
years preceding the completion of this natural gas pipeline connection 
project (i.e., between 2009 and 2016), average annual Henry Hub natural 
gas spot prices ranged from $2.52/mmBtu to $4.37/mmBtu.\76\ The capital 
expenditure to construct a natural gas pipeline connection suggests 
that natural gas prices within this range make it economic (i.e., 
cheaper) for Brunner Island to burn natural gas to generate electricity 
relative to burning coal. As such, future natural gas prices in this 
same range suggest that Brunner Island will continue to primarily burn 
natural gas during future ozone seasons. The EPA and other independent 
analysts expect future natural gas prices to remain low and within this 
price range exhibited from 2009 to 2016 due both to supply and 
distribution pipeline buildout. For example, the Energy Information 
Administration's (EIA) 2018 Annual Energy Outlook (AEO) natural gas 
price projections for the Henry Hub spot price range from $3.06/mmBtu 
in 2018 to $3.83/mmBtu in 2023.\77\ Moreover, the AEO short-term energy 
outlook and New York Mercantile Exchange futures further support the 
estimates of a continued low-cost natural gas supply.\78\ These 
independent analyses of fuel price data and projections lead to the 
EPA's expectation that fuel-market economics will continue to support 
Brunner Island's primarily burning natural gas during future ozone 
seasons through at least 2023.\79\
---------------------------------------------------------------------------

    \76\ Henry Hub is a significant distribution hub located on the 
natural gas pipeline system located in Louisiana. Due to the 
significant volume of trades at this location, it is seen as the 
primary benchmark for the North American natural gas market. These 
data are publicly available at https://www.eia.gov/dnav/ng/hist/rngwhhdA.htm.
    \77\ In the 2018 reference case Annual Energy Outlook (AEO) 
released February 6, 2018, created by the U.S. Energy Information 
Administration (EIA), natural gas prices for the power sector for 
2018 through 2023. Available at https://www.eia.gov/outlooks/aeo/data/browser/#/?id=13-AEO2018&cases=ref2018&sourcekey=0. Projected 
delivered natural gas prices for the electric power sector in the 
Middle Atlantic region, where Brunner Island is located, ranged 
between $3.56 in 2018 and $4.08/mmBtu in 2023. The projected 
delivered coal prices for the electric power sector in the Middle 
Atlantic region remain relatively constant, ranging from $2.51 to 
$2.56/mmBtu. These data are publicly available at https://www.eia.gov/outlooks/aeo/data/browser/#/?id=3-AEO2018®ion=1-2&cases=ref2018&start=2016&end=2023&f=A&linechart=ref2018-d121317a.3-3AEO2018.1-2&map=ref2018-d121317a.4-3-AEO2018.1-2&sourcekey=0.
    \78\ AEO short-term energy outlook available at https://www.eia.gov/outlooks/steo/report/natgas.php.
    \79\ The EPA also notes that a proposed consent decree between 
Sierra Club and Talen Energy may further ensure that Brunner Island 
will operate by burning gas in the ozone season in 2023 and future 
years. Under the settlement, Brunner Island agrees to operate only 
on natural gas during the ozone season (May 1-September 30) starting 
on January 1, 2023, (subjected to limited exceptions) and cease coal 
operations after December 31, 2028. Sierra Club, Talen Energy, and 
Brunner Island jointly moved the Middle District of Pennsylvania to 
enter the proposed the consent decree, and on August 31, 2018, the 
court granted the motion and entered the agreement. See Order 
Granting Joint Motion for Entry of Proposed Consent Decree and 
Stipulation Extending Defendants' Time to Respond to Complaint, 
Sierra Club. v Talen Energy Corp., Case No. 1:18-cv-01042-CCC.
---------------------------------------------------------------------------

    The context in which Brunner Island installed natural gas-firing 
capability and burned natural gas is consistent with observed recent 
trends in natural gas utilization within the power sector, suggesting 
that Brunner Island's economic situation in which it primarily burns 
gas as fuel during the ozone season is not unique or limited. Comparing 
total heat input from 2014 with 2017 for all units that utilize natural 
gas and report to the EPA's Clean Air Markets Division, historical data 
showed an increased use of natural gas of 14 percent.\80\ This overall 
increase results from both an increase in capacity from the 
construction of additional units and an increased gas-fired capacity 
factor at existing sources. The available capacity increased six 
percent while average capacity factor increased from 23 percent to 25 
percent, which reflects an eight percent increase in utilization.
---------------------------------------------------------------------------

    \80\ From 8.4 billion mmBtu to 9.6 billion mmBtu. See EPA's 
Clean Air Markets Division data available at https://ampd.epa.gov/ampd/.
---------------------------------------------------------------------------

    Considering the projected continued broader downward trends in 
NOX emissions resulting in improved air quality in Delaware, 
the EPA anticipates that Brunner Island will likely continue to 
primarily burn natural gas during the ozone season as air quality in 
Delaware continues to improve. Accordingly, the EPA has no basis to 
conclude that the facility would emit in violation of the good neighbor 
provision with respect to either the 2008 or 2015 ozone NAAQS.
    Commenters assert that the EPA's interpretation of ``emits'' or 
``would emit'' inappropriately proposes to evaluate only a single 
year's worth of emissions data or anticipated future rates, without 
ensuring that the emission reductions (i.e. evaluated rates) are 
permanent and federally enforceable. The EPA disagrees that it is 
required to impose federally enforceable limitations at Brunner Island 
based on the facts before the agency. The prohibition of CAA section

[[Page 50472]]

110(a)(2)(D)(i)(I) is linked directly to CAA section 126(b), in that a 
violation of the prohibition in CAA section 110(a)(2)(D)(i) is a 
condition precedent for action under CAA section 126(b) and, 
critically, that significant contribution to nonattainment and 
interference with maintenance should be construed identically for 
purposes of both provisions where EPA has already given meaning to the 
terms under one provision. 83 FR 7711 through 7722; see also 
Appalachian Power, at 1048-50 (affirming as reasonable the EPA's 
approach to interpreting a violation of CAA section 110(a)(2)(D)(i)(I) 
under CAA section 126 consistent with its approach in the 
NOX SIP Call).
    Given the inextricable link between the substantive requirements of 
the two provisions, the EPA applied the same four-step framework used 
in previous ozone transport rulemakings, including the CSAPR Update, 
for evaluating whether Brunner Island significantly contributes to 
nonattainment, or interferes with maintenance, of the 2008 and 2015 
ozone NAAQS in Delaware. Pursuant to this framework, the EPA first 
determines in steps one and two whether emissions from an upwind state 
impact downwind air quality problems at a level that exceeds an air 
quality threshold, such that the state is linked and, therefore, 
contributes to the air quality problem. In step three, the EPA then 
determines whether the contribution is ``significant'' or interferes 
with maintenance of the NAAQS based on several factors, including the 
availability of cost-effective emission reductions at sources within 
the state. Where the EPA determines that a source does not have cost-
effective emission reductions available, the EPA concludes that the 
source does not significantly contribute to nonattainment or interfere 
with maintenance of the NAAQS, and thus, that there are no emissions at 
the source that must be ``prohibited'' under CAA section 
110(a)(2)(D)(i)(I), and the petition can also be denied on this basis.
    Importantly, the EPA only implements federally enforceable limits 
under step four of the four-step framework for sources that the EPA 
determines have emissions that significantly contribute to 
nonattainment or interfere with maintenance of the ozone NAAQS downwind 
under steps one, two, and three. See 81 FR 74553 (declining to impose 
CSAPR Update FIP obligations for EGUs in District of Columbia and 
Delaware despite linkages to downwind receptors where EPA determined no 
cost-effective emission reductions were available). This is consistent 
with the statutory language of CAA section 110(a)(2)(D)(i)(I), which 
``prohibit[s]'' only those emissions that significantly contribute to 
nonattainment or interfere with maintenance of the NAAQS in another 
state. The EPA has reasonably interpreted this to mean that where there 
is no such impact, the EPA and the states are not required to impose 
emission limitations.\81\ The EPA does not dispute that, were it to 
find that Brunner Island emits or would emit in violation of the 
prohibition under CAA section 110(a)(2)(D)(i)(I), an appropriate remedy 
to mitigate the emission impacts would necessarily have to be federally 
enforceable, both under CAA section 126(c) (requiring compliance by a 
source with EPA-imposed emission limitations and compliance schedules) 
and CAA section 110(a)(2)(D)(ii) (requiring a state implementation plan 
to contain provisions ensuring compliance with the requirements of CAA 
section 126).
---------------------------------------------------------------------------

    \81\ This is also consistent with designation requirements 
elsewhere in title I. Downwind areas are initially designated 
attainment or nonattainment for the ozone NAAQS based on actual 
measured ozone concentrations, regardless of whether the level of 
ozone concentrations is due to enforceable emission limits. 
Similarly, the EPA generally evaluates whether sources in nearby 
areas contribute to measured nonattainment in such areas for 
purposes of designations based on actual emission levels, and thus 
sources in those nearby areas are generally subject to nonattainment 
planning requirements only if actual emissions from that area are 
considered to contribute to the air quality problem. Here, where 
``significant contribution'' is necessarily a higher standard than 
the contribution threshold used in designations, it is reasonable 
and consistent to determine that states or EPA need only impose 
emission limitations if it is determined that there is significant 
contribution or interference with maintenance.
---------------------------------------------------------------------------

    However, for the reasons described in the proposal and in this 
final action, the EPA has determined at this time that Brunner Island 
does not emit, or would not emit, in violation of CAA section 
110(a)(2)(D)(i)(I) under steps one, two, and three for either the 2008 
or 2015 ozone NAAQS. Therefore, under the four-step framework, the EPA 
does not reach step four's requirement of federally enforceable 
emission reductions. However, the EPA notes that if, in fact, Brunner 
Island's operations change such that the facility is operating 
primarily on coal during future ozone seasons and future emission 
levels increase so as to be in violation of the good neighbor 
provision, then this final action denying Delaware's petition would not 
preclude Delaware from submitting another petition regarding Brunner 
Island's impacts. The EPA is not, however, pre-determining what action 
may be appropriate on any such future petition, which would depend upon 
a variety of factors, including the level of emissions at Brunner 
Island and future ozone concentrations in Delaware.

V. Determinations Under Section 307(b)(1)

    Section 307(b)(1) of the CAA indicates which Federal Courts of 
Appeal have venue for petitions of review of final actions by the EPA. 
This section provides, in part, that petitions for review must be filed 
in the Court of Appeals for the District of Columbia Circuit if (i) the 
agency action consists of ``nationally applicable regulations 
promulgated, or final action taken, by the Administrator,'' or (ii) 
such action is locally or regionally applicable, 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.''
    The EPA finds that this final action regarding the pending CAA 
section 126(b) petitions is ``nationally applicable.'' or, in the 
alternative, is based on a determination of ``nationwide scope and 
effect'' within the meaning of CAA section 307(b)(1). Through this 
rulemaking action, the EPA interprets sections 110 and 126 of the CAA, 
statutory provisions which apply to all states and territories in the 
United States. In addition, the final action addresses emissions 
impacts and sources located in seven States, which are located in 
multiple EPA Regions and federal circuits.\82\ This action is also 
based on a common core of factual findings and analyses concerning the 
transport of pollutants between the different states. Furthermore, the 
EPA intends this interpretation and approach to be consistently 
implemented nationwide with respect to CAA section 126(b) petitions for 
the 2008 and 2015 ozone NAAQS. Courts have found similar actions to be 
nationally applicable.\83\ For these reasons, the Administrator finds 
that any final action related to this proposal is nationally applicable 
or, in the alternative, is based on a determination of nationwide scope 
and effect for purposes of CAA section 307(b)(1).
---------------------------------------------------------------------------

    \82\ See H.R. Rep. No. 95-294 at 323, 324, reprinted in 1977 
U.S.C.C.A.N. 1402-03.
    \83\ See, e.g., Texas v. EPA, 2011 U.S. App. LEXIS 5654 (5th 
Cir. 2011) (finding SIP call to 13 states to be nationally 
applicable and thus transferring the case to the U.S. Court of 
Appeals for the D.C. Circuit in accordance with CAA section 
307(b)(1)).
---------------------------------------------------------------------------

    Thus, the EPA finds that pursuant to CAA section 307(b)(1) any 
petitions for review of this final action would be filed in the Court 
of Appeals for the District of Columbia Circuit within 60

[[Page 50473]]

days from the date any final action is published in the Federal 
Register.

VI. Statutory Authority

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

    Dated: September 14, 2018.
Andrew R. Wheeler,
Acting Administrator.
[FR Doc. 2018-20854 Filed 10-4-18; 8:45 am]
 BILLING CODE 6560-50-P



                                                50444                          Federal Register / Vol. 83, No. 194 / Friday, October 5, 2018 / Notices

                                                ENVIRONMENTAL PROTECTION                                the index, some information is not                    I. Executive Summary of the EPA’s
                                                AGENCY                                                  publicly available, i.e., Confidential                Decision on CAA Section 126(b)
                                                                                                        Business Information or other                         Petitions From Delaware and Maryland
                                                [EPA–HQ–OAR–2018–0295; FRL–9984–32–
                                                OAR]
                                                                                                        information whose disclosure is
                                                                                                        restricted by statute. Certain other                     In 2016, the states of Delaware and
                                                RIN 2060–AT40, 2060–AT39, 2060–AT38,                    material, such as copyrighted material,               Maryland submitted a total of five
                                                2060–AT37, 2060–AT36                                    is not placed on the internet and will be             petitions requesting that the EPA make
                                                                                                        publicly available only in hard copy                  findings pursuant to CAA section 126(b)
                                                Response to Clean Air Act Section                       form. Publicly available docket                       that emissions from numerous upwind
                                                126(b) Petitions From Delaware and                      materials are available either                        sources significantly contribute to
                                                Maryland                                                electronically in the docket or in hard               nonattainment and/or interfere with
                                                AGENCY:   Environmental Protection                      copy at the EPA Docket Center, William                maintenance of the ozone NAAQS in
                                                Agency (EPA).                                           Jefferson Clinton (WJC) West Building,                violation of CAA section
                                                ACTION: Notice of final action on                       Room 3334, 1301 Constitution Avenue                   110(a)(2)(D)(i)(I), otherwise known as
                                                petition.                                               NW, Washington, DC. The Public                        the ‘‘good neighbor’’ provision.
                                                                                                        Reading Room is open from 8:30 a.m. to                Delaware submitted four petitions, each
                                                SUMMARY:   The Environmental Protection                 4:30 p.m., Monday through Friday,                     alleging good neighbor violations by
                                                Agency (EPA) is denying four petitions                  excluding legal holidays. The telephone               individual sources located in
                                                submitted by the state of Delaware and                  number for the Public Reading Room is                 Pennsylvania or West Virginia with
                                                one petition submitted by the state of                  (202) 566–1744, and the telephone                     respect to the 2008 and 2015 ozone
                                                Maryland under Clean Air Act (CAA or                    number for the Office of Air and                      NAAQS. Maryland submitted a single
                                                Act) section 126(b). The petitions were                 Radiation Docket and Information                      petition alleging good neighbor
                                                submitted between July and November                     Center is (202) 566–1742.                             violations by 36 electric generating units
                                                2016. Each of Delaware’s four petitions                                                                       (EGUs) in five states with respect to the
                                                                                                        FOR FURTHER INFORMATION CONTACT:
                                                requested that the EPA make a finding                                                                         2008 ozone NAAQS. On May 31, 2018,
                                                that emissions from individual sources                  Questions concerning this final action
                                                                                                        should be directed to Mr. Lev                         the EPA issued a proposal to deny all
                                                in Pennsylvania or West Virginia are                                                                          five CAA section 126(b) petitions. 83 FR
                                                significantly contributing to Delaware’s                Gabrilovich, U.S. Environmental
                                                                                                        Protection Agency, Office of Air Quality              26666 (June 8, 2018). The agency
                                                nonattainment of the 2008 and 2015 8-                                                                         solicited comments on the proposal and
                                                hour ozone national ambient air quality                 Planning and Standards, Air Quality
                                                                                                        Policy Division, Mail Code C539–01,                   hosted a public hearing on June 22,
                                                standards (NAAQS). Maryland’s                                                                                 2018, where nine speakers testified. The
                                                petition requested that the EPA make a                  Research Triangle Park, NC 27711,
                                                                                                        telephone (919) 541–1496; email at                    EPA also received 117 written
                                                finding that emissions from 36 electric                                                                       comments submitted to the docket on
                                                generating units in Indiana, Kentucky,                  gabrilovich.lev@epa.gov.
                                                                                                                                                              the proposed denial. This Federal
                                                Ohio, Pennsylvania, and West Virginia                   SUPPLEMENTARY INFORMATION:   The                      Register notice addresses certain
                                                are significantly contributing to ozone                 information in this document is                       significant comments the agency
                                                levels that exceed the 2008 8-hour                      organized as follows:                                 received. The remaining comments are
                                                ozone NAAQS in Maryland, and,                                                                                 addressed in the Response to Comments
                                                                                                        I. Executive Summary of the EPA’s Decision
                                                therefore, are interfering with                                                                               (RTC) document available in the docket
                                                                                                              on CAA Section 126(b) Petitions From
                                                nonattainment and maintenance of the                          Delaware and Maryland                           for this action.
                                                2008 ozone NAAQS. The EPA is                            II. Background
                                                denying the petitions based on the best                                                                          As described in further detail in this
                                                                                                           A. Ozone and Public Health
                                                information available to the agency at                                                                        notice, the EPA is finalizing the denial
                                                                                                           B. The CAA Section 126(b) Petitions From
                                                this time, and particularly in light of an                                                                    of the CAA section 126(b) petitions
                                                                                                              Delaware
                                                existing regulation already addressing                     C. The CAA Section 126(b) Petition From
                                                                                                                                                              submitted by the states of Delaware and
                                                emissions from these facilities: The                          Maryland                                        Maryland. Generally, the Delaware and
                                                Cross-State Air Pollution Rule Update                      D. Summary of the EPA’s May 31, 2018,              Maryland petitions (and commenters
                                                for the 2008 ozone NAAQS (CSAPR                               Proposal                                        who were supportive of the EPA’s
                                                Update). The EPA’s denial finds that                       E. Historical Regional Analyses of Good            granting these petitions) suggest that
                                                Delaware has not demonstrated that the                        Neighbor Obligations Related to Ozone           Delaware and Maryland residents are
                                                named sources emit or would emit in                     III. CAA Sections 126 and 110 and Standard            exposed to unhealthy levels of ground-
                                                violation of the CAA’s ‘‘good neighbor’’                      of Review for This Action                       level ozone pollution. They identify
                                                provision. Further, the agency’s                           A. Statutory Authority Under CAA                   certain EGUs in upwind states, most
                                                independent analysis indicates that the                       Sections 126 and 110(a)(2)(D)(i)(I)             with post-combustion nitrogen oxides
                                                identified sources in Delaware’s and                       B. Reasonableness of Applying the Four-            (NOX) controls,1 that historically were
                                                Maryland’s petitions do not currently                         Step Transport Framework for This               not optimally operating for pollution
                                                emit and are not expected to emit                             Action                                          abatement. The petitions ask EPA to
                                                pollution in violation of the good                      IV. The EPA’s Final Response to Delaware’s            impose federally enforceable short-term,
                                                neighbor provision for either the 2008 or                     and Maryland’s CAA Section 126(b)               rate-based emissions limits on these
                                                2015 ozone NAAQS.                                             Petitions                                       EGUs to ensure that the NOX controls
                                                                                                           A. The EPA’s Evaluation of Whether the             are optimally operated. The EPA
                                                DATES: This final action is effective on
daltland on DSKBBV9HB2PROD with NOTICES2




                                                                                                              Petitions Are Sufficient To Support a
                                                October 5, 2018.                                                                                              proposed to deny these petitions in May
                                                                                                              CAA Section 126(b) Finding
                                                ADDRESSES: The EPA has established a                                                                          of 2018, and has considered public
                                                                                                           B. The EPA’s Independent Analysis of the
                                                docket for this action under Docket ID                        Petitions Consistent With the CSAPR
                                                                                                                                                                1 In the case of one facility, Brunner Island Steam
                                                No. EPA–HQ–OAR–2018–0295. All                                 Update
                                                                                                                                                              Generating Station in Pennsylvania, Delaware cites,
                                                documents in the docket are listed and                  V. Determinations Under CAA Section                   the facility’s ability to combust natural gas in
                                                publicly available at http://                                 307(b)(1)                                       electricity generation and thereby reduce NOX
                                                www.regulations.gov. Although listed in                 VI. Statutory Authority                               relative to combusting coal at the facility.



                                           VerDate Sep<11>2014   17:37 Oct 04, 2018   Jkt 247001   PO 00000   Frm 00002   Fmt 4701   Sfmt 4703   E:\FR\FM\05OCN2.SGM   05OCN2


                                                                               Federal Register / Vol. 83, No. 194 / Friday, October 5, 2018 / Notices                                             50445

                                                comments on that proposal in crafting                   potential beyond the level of NOX                       deficiencies in the Delaware analyses.
                                                this final action.                                      control stringency already finalized in                 As further described in this notice, the
                                                   Consistent with the EPA’s proposal                   the CSAPR Update emissions budgets.                     EPA is, therefore, denying Delaware’s
                                                and based on the best data available to                 In other words, the agency determines                   petitions based on the petitioner’s
                                                the agency at this time, the agency is                  that the CSAPR Update appropriately                     failure to meet its burden under CAA
                                                finalizing its denial of these petitions.               quantified the cost-effective NOX                       section 126(b) to establish a basis for the
                                                The EPA’s denial for Delaware is based                  reduction potential from the EGUs                       finding requested. The EPA additionally
                                                on its findings that air quality modeling               named in the CAA section 126(b)                         is denying both Delaware’s and
                                                of ozone levels in 2017 from the Cross-                 petitions and the EPA does not find any                 Maryland’s petitions based on the
                                                State Air Pollution Rule Update for the                 further NOX reductions that may be                      agency’s own independent analysis of
                                                2008 Ozone NAAQS 2 (CSAPR Update)                       available from these EGUs at more                       the interstate transport of ozone
                                                and more recent air quality modeling of                 stringent levels of NOX control to be                   pollution conducted for the CSAPR
                                                ozone levels in 2023 show no air quality                cost effective considering additional                   Update, which rebuts several assertions
                                                problems in the state with regard to the                relevant factors such as NOX reduction                  in these petitions, as well as additional
                                                2008 and 2015 ozone NAAQS,                              potential and air quality impacts.                      technical analysis regarding current unit
                                                respectively. For both the Delaware and                    Further, the EPA finds that the                      operations. Finally, the EPA is also
                                                Maryland petitions, the EPA’s denial is                 CSAPR Update is, in fact, controlling                   denying Delaware’s petitions for the
                                                also based on the fact that the agency                  emissions from the named EGUs                           2015 ozone NAAQS based on its own
                                                has already evaluated the ozone                         specifically and from all EGUs                          recent analyses projecting emissions
                                                transport issues and NOX control                        collectively in the named upwind states                 levels to a relevant future year, which
                                                strategies raised in the petitions and                  that impact ozone concentrations in                     found no expected nonattainment or
                                                finalized the CSAPR Update to                           Delaware and Maryland. Based on the                     maintenance problems in Delaware for
                                                implement the NOX control strategies                    2017 ozone season emissions data, the                   that NAAQS. In making this final
                                                achievable in states upwind of Delaware                 CSAPR Update reduced regional ozone                     decision, the EPA reviewed the
                                                and Maryland, including at the specific                 season NOX emissions by approximately                   incoming petitions, the public
                                                EGUs named in both Delaware’s and                       77,000 tons (21 percent) from 2016                      comments received, the relevant
                                                Maryland’s petitions. 81 FR 74504.                      levels. Additionally, the average 2017                  statutory authorities, and other relevant
                                                Although the CSAPR Update only                          ozone season NOX emissions rate across                  materials. Accordingly, the EPA denies
                                                explicitly addressed the 2008 ozone                     the EGUs named in the Delaware or                       the CAA section 126(b) petitions from
                                                NAAQS, the EPA’s conclusion in that                     Maryland petitions was 0.116 pounds/                    Delaware and Maryland.
                                                action as to the control strategies                     one million British thermal units (lbs/                    The remainder of this notice is
                                                available at the named sources is                       mmBtu) compared with average rates of                   organized as follows: Section II of this
                                                relevant to its analysis of Delaware’s                  0.257 and 0.208 lbs/mmBtu in 2015 and                   notice provides background
                                                and Maryland’s petitions with regard to                 2016, respectively. Thus, the best data                 information, a summary of the relevant
                                                both the 2008 ozone NAAQS (addressed                    that the agency has available at this                   issues raised in Delaware’s and
                                                in all five petitions) and the 2015 ozone               time—2017 emissions data—indicate                       Maryland’s CAA section 126(b)
                                                NAAQS (addressed in the Delaware                        that the CSAPR Update ozone season                      petitions, and a summary of the EPA’s
                                                petitions) because the EPA’s                            allowance trading program is reducing                   May 31, 2018, proposed action; Section
                                                determination that the cost-effective                   summer-time NOX emissions and these                     III of this notice provides information
                                                control strategy is already being                       data suggest that the units named in the                regarding the EPA’s approach to
                                                implemented at the named sources in                     CAA section 126(b) petitions are                        addressing the interstate transport of
                                                the context of the CSAPR allowance                      collectively controlling their NOX                      ozone and the statutory authority under
                                                trading program applies regardless of                   emissions consistent with the NOX                       CAA sections 110(a)(2)(D)(i) and 126(b);
                                                which NAAQS is being addressed, as                      control strategies identified in the                    and Section IV of this notice details the
                                                explained below.                                        petitions.                                              basis for the EPA’s final action to deny
                                                   Because the CSAPR Update is a final                     The agency does not at this time find                these petitions, including responses to
                                                rule in which the EPA has evaluated                     adequate technical or legal grounds for                 significant comments received on the
                                                substantially the same environmental                    granting the Delaware or Maryland CAA                   proposal.
                                                issues and concerns as those that                       section 126(b) petitions in light of the
                                                Delaware and Maryland raise in their                    existing and effective CSAPR Update                     II. Background
                                                CAA section 126(b) petitions, the                       regulation. The agency, therefore, denies               A. Ozone and Public Health
                                                agency has reviewed those petitions in                  these petitions due to the lack of further
                                                light of, among other factors, the CSAPR                                                                           Ground-level ozone is not emitted
                                                                                                        cost-effective controls relative to the
                                                Update record analysis and the findings                                                                         directly into the air but is a secondary
                                                                                                        emissions reductions already required
                                                made therein. In doing so, the EPA                                                                              air pollutant created by chemical
                                                                                                        by the CSAPR Update and based on the
                                                found that the named EGUs do not have                                                                           reactions between NOX and volatile
                                                                                                        best available information—2017
                                                further cost-effective 3 NOX reduction                  emissions data—indicating that the                      organic compounds (VOCs) in the
                                                                                                        CSAPR Update is being appropriately                     presence of sunlight. These precursor
                                                  2 81  FR 74504 (October 26, 2016).                    implemented to reduce NOX emissions                     emissions can be transported downwind
                                                  3 In the CSAPR Update, the EPA evaluated several                                                              directly or, after transformation in the
                                                                                                        regionally and from the named EGUs.
                                                levels of EGU NOX control stringency and                                                                        atmosphere, as ozone. As a result, ozone
                                                represented those levels using an estimated             The EPA also notes several technical
                                                                                                                                                                formation, atmospheric residence, and
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                                                marginal cost per ton of NOX reduced. The final
                                                CSAPR Update action selected the level of control       agency considered these NOX reduction strategies to
                                                                                                                                                                transport can occur on a regional scale
                                                stringency that included operating and optimizing       be cost effective at marginal cost of $1,400 per ton.   (i.e., hundreds of miles). For further
                                                existing SCR post-combustion controls, installing       The EPA selected this level of control stringency by    discussion of ozone-formation
                                                state-of-the-art NOX combustion controls, and           applying a multi-factor test, which indicated that      chemistry, the regional nature of
                                                shifting generation to existing units with lower NOX    this level of control stringency maximized NOX
                                                emission rates within the same state. This level of     reductions and air quality improvement relative to
                                                                                                                                                                interstate transport of ozone pollution,
                                                NOX control stringency was represented by a             cost, as compared to the other control levels           and health effects, see the CSAPR
                                                marginal cost of $1,400 per ton. In other words, the    evaluated.                                              Update, 81 FR 74513–14.


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                                                50446                          Federal Register / Vol. 83, No. 194 / Friday, October 5, 2018 / Notices

                                                  On March 12, 2008, the EPA                            Extensions (CAMx), but Delaware did                   NOX emissions at all three coal-fired
                                                promulgated a revision to the ozone                     not submit this documentation with its                units. Homer City is equipped with
                                                NAAQS, lowering both the primary and                    petitions or otherwise provide it to the              LNBs, OFA, and SCR for control of NOX
                                                secondary standards to 75 parts per                     EPA. Based on the August 6, 2015                      emissions at all three coal-fired units.
                                                billion (ppb).4 On October 1, 2015, the                 technical memorandum from STI and                     Conemaugh is equipped with LNBs,
                                                EPA further revised the ground-level                    the October 24, 2016 CAMx modeling                    close-coupled and separated overfire air
                                                ozone NAAQS to 70 ppb.5                                 documentation, the petitions claim that               (CC/SOFA), and SCR for control of NOX
                                                                                                        all four named sources had modeled                    emissions at both coal-fired units.
                                                B. The CAA Section 126(b) Petitions
                                                                                                        contributions above one percent of the                Brunner Island is equipped with LNBs
                                                From Delaware
                                                                                                        2008 8-hour ozone NAAQS to locations                  and combustion air controls and has the
                                                   In 2016, the state of Delaware,                      in Delaware on select days during the                 ability to burn coal, gas, or both to
                                                through the Delaware Department of                      2011 ozone season.7                                   provide steam to its generators.
                                                Natural Resources and Environmental                        All four petitions contend that the                Delaware acknowledges that Brunner
                                                Control (Delaware), submitted four                      absence of short-term NOX emissions                   Island can use natural gas as fuel at all
                                                petitions alleging that emissions from                  limits cause the named sources to                     three units, lowering the units’ NOX
                                                the Conemaugh Generating Station                        significantly contribute to Delaware’s                emissions, but argues that Brunner
                                                (Conemaugh), the Homer City                             nonattainment of the 2008 and 2015                    Island’s ability to also use coal indicates
                                                Generating Station (Homer City), and                    ozone NAAQS. The petitions ask the                    that, without a short-term NOX
                                                the Brunner Island Steam Generating                     EPA to implement short-term NOX                       emissions limit, the units will continue
                                                Station (Brunner Island) in                             emissions limits as a remedy under                    to significantly contribute to
                                                Pennsylvania, and the Harrison Power                    CAA section 126(c) to ensure optimal                  nonattainment or interfere with
                                                Station (Harrison) in West Virginia,                    operation at these units. The petitions               maintenance of the ozone NAAQS in
                                                significantly contribute to exceedances                 identify existing regulatory programs                 Delaware. In the case of Conemaugh,
                                                of the 2008 and 2015 8-hour ozone                       aimed at limiting NOX emissions at the                Harrison, and Homer City, Delaware
                                                NAAQS in the state of Delaware.6                        sources but argue that these programs                 similarly contends that current NOX
                                                   The petitions identify a total of 59                 are not effective at preventing emissions             emissions regulations applicable to
                                                exceedance days in Delaware for the                     from significantly contributing to                    sources in Pennsylvania and West
                                                2008 ozone NAAQS in the six ozone                       downwind air quality problems in                      Virginia do not prevent significant
                                                seasons between 2010 and 2015.                          Delaware. In the case of Brunner Island,              contribution to Delaware’s
                                                Furthermore, Delaware contends that if                  Homer City, and Conemaugh, Delaware                   nonattainment of the ozone NAAQS. As
                                                the 2015 8-hour ozone NAAQS had                         argues that the Pennsylvania regulations              indicated in this notice, these EGUs all
                                                been in effect during this period,                      addressing the reasonable available
                                                Delaware would have experienced a                                                                             have SCR to control NOX emissions.
                                                                                                        control technology (RACT) requirements                Delaware argues that a review of
                                                total of 113 exceedance days in those                   for NOX 8 include a 30-day averaging
                                                ozone seasons. As discussed in Section                                                                        emissions rates since the SCRs were
                                                                                                        period for determining compliance with                installed indicates that the SCRs were at
                                                III.D of the proposal, each of the                      emissions rates, which will allow the
                                                Delaware petitions alleges that an                                                                            times turned off or operated at reduced
                                                                                                        facilities to emit above the rate limit on            levels of effectiveness in the ozone
                                                individual source significantly                         specific days while still meeting the 30-
                                                contributes to nonattainment of the                                                                           season. Thus, in Delaware’s view, these
                                                                                                        day average limit. Furthermore, the state             sources also need a short-term NOX
                                                2008 and 2015 8-hour ozone NAAQS in
                                                                                                        argues that, although all four facilities             emissions limit to implement effective
                                                Delaware based on two common
                                                                                                        named in their petitions have been                    and consistent NOX control operation.
                                                arguments. First, all four petitions allege
                                                                                                        subject to several NOX emissions                      For more information on the sources
                                                that the EPA’s modeling conducted in
                                                                                                        allowance trading programs that                       identified in the petitions, see Sections
                                                support of the CSAPR Update shows
                                                                                                        effectively put a seasonal NOX                        III.D and III.E of the proposal.
                                                that the states in which these sources
                                                                                                        emissions mass cap on the fleet of                       Subsequent to receiving the petitions,
                                                are located contribute one percent or
                                                                                                        subject units, the subject units are not              the EPA published notices extending
                                                more of the 2008 8-hour ozone NAAQS
                                                                                                        required to limit their NOX emissions                 the statutory deadline for the agency to
                                                to ozone concentrations in Delaware.
                                                Second, all four petitions point to                     over any particular portion of the ozone              take final action on all four of
                                                additional modeling to support these                    season as long as they are able to obtain             Delaware’s CAA section 126(b)
                                                same claims. The Brunner Island and                     sufficient NOX allowances to cover each               petitions. CAA section 126(b) of the Act
                                                Harrison petitions cite an August 6,                    unit’s actual ozone season NOX mass                   requires the EPA to either make a
                                                2015 technical memorandum from                          emissions. The state alleges that the                 finding or deny a petition within 60
                                                Sonoma Technology, Inc. (STI), which                    sources have, therefore, been able to                 days of receipt of the petition and after
                                                describes contribution modeling results.                comply with the allowance trading                     holding a public hearing. However, any
                                                The Conemaugh and Homer City                            program requirements without having to                action taken by the EPA under CAA
                                                petitions cite to October 24, 2016                      make any significant reductions in their              section 126(b) is subject to the
                                                modeling documentation from the                         ozone season average NOX emissions                    procedural requirements of CAA section
                                                Comprehensive Air Quality Model with                    rates.                                                307(d). See CAA section 307(d)(1)(N).
                                                                                                           Notably, each of the facilities is                 CAA section 307(d) requires the EPA to
                                                  4 See National Ambient Air Quality Standards for      equipped with combustion and/or post-                 conduct notice-and-comment
                                                Ozone, Final Rule, 73 FR 16436 (March 27, 2008).        combustion controls. Harrison is                      rulemaking, including issuance of a
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                                                  5 See National Ambient Air Quality Standards for      equipped with low NOX burners (LNBs),                 notice of proposed action, a period for
                                                Ozone, Final Rule, 80 FR 65292 (October 26, 2015).      overfire air (OFA), and selective
                                                  6 See Petitions from the state of Delaware under                                                            public comment, and a public hearing
                                                                                                        catalytic reduction (SCR) for control of              before making a final determination
                                                CAA section 126(b) requesting that the EPA find
                                                that Conemaugh, Homer City, Brunner Island, and                                                               whether to make the requested finding.
                                                                                                          7 See 83 FR 26670.
                                                Harrison are emitting air pollutants in violation of
                                                the provisions of CAA section 110(a)(2)(D)(i) of the      8 Additional RACT Requirements for Major
                                                                                                                                                              In light of the time required for notice-
                                                CAA with respect to the 2008 and the 2015 ozone         Sources of NOX and VOC; 25 Pa Code 129.96–100         and-comment rulemaking, CAA section
                                                NAAQS, available in the docket for this action.         (also known as the ‘‘RACT II rule’’).                 307(d)(10) provides for a time extension,


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                                                                               Federal Register / Vol. 83, No. 194 / Friday, October 5, 2018 / Notices                                            50447

                                                under certain circumstances, for                        own state regulation as an example, that              optimizing existing control
                                                rulemakings subject to the CAA section                  optimizing controls means operating                   technologies, enforced through use of a
                                                307(d) procedural requirements. In                      controls consistent with technological                30-day rolling average rate.11
                                                accordance with CAA section                             limitations, manufacturers’                              Maryland also submitted the
                                                307(d)(10), the EPA determined that the                 specifications, good engineering and                  following documents: A review of its
                                                60-day period for action on Delaware’s                  maintenance practices, and good air                   own NOX regulations for coal fired
                                                petitions would be insufficient for the                 pollution control practices for                       EGUs; 12 a study conducted by
                                                EPA to complete the necessary technical                 minimizing emissions.                                 Maryland and the University of
                                                review, develop an adequate proposal,                      The petition further alleges that                  Maryland regarding regional ozone
                                                and allow time for notice and comment,                  Maryland’s proposed remedy—                           transport research and analysis efforts in
                                                including an opportunity for public                     discussed further below—will influence                Maryland; 13 an August 6, 2015 STI
                                                hearing. In 2016, the EPA published                     how areas in Maryland and other Mid-                  report alleging that source
                                                notices extending the deadlines to act                  Atlantic states are designated under the              apportionment modeling indicates that
                                                on all four of Delaware’s petitions by 6                new 2015 ozone NAAQS. According to                    emissions from Brunner Island (a source
                                                months. The notices extending these                     Maryland, the proposed remedy, if                     not specifically addressed in Maryland’s
                                                deadlines can be found in the docket for                implemented in 2017, would most                       petition) contribute significantly to
                                                this rulemaking.                                        likely allow the Baltimore area and the               ozone formation in Pennsylvania and
                                                                                                        Washington, DC, multi-state area, which               neighboring states during the modeled
                                                C. The CAA Section 126(b) Petition                      includes portions of Maryland, to both                ozone season; 14 a list of recommended
                                                From Maryland                                           be designated attainment for the 2015                 language for the EPA to include in
                                                   On November 16, 2016, the state of                   ozone NAAQS.                                          federal orders related to the named
                                                Maryland, through the Maryland                             Maryland alleges that, although the 36             EGUs to remedy significant
                                                Department of the Environment,                          named EGUs have existing post-                        contribution; 15 and an evaluation of
                                                submitted a CAA section 126(b) petition                 combustion control mechanisms that                    cost savings Maryland alleges the units
                                                alleging that emissions from 36 EGUs                    should prevent significant contribution,              have incurred in 2014 by not fully
                                                significantly contribute to ozone levels                the facilities have either ceased to                  running their controls compared with
                                                that exceed the 2008 ozone NAAQS in                     operate the controls regularly during the             the cost of running their controls at full
                                                Maryland and, therefore, significantly                  ozone season or have chosen to operate                efficiency.16
                                                contribute to nonattainment and                         them in a sub-optimal manner.                            Maryland supplemented its petition
                                                interfere with maintenance of the                       Maryland presents an analysis based on                with several further appendices
                                                NAAQS.9 These sources are coal-fired                    2005–2015 ozone-season data to support                submitted in 2017. Maryland submitted
                                                EGUs located in Indiana, Kentucky,                      this contention.10 Maryland argues that               an additional optimization analysis
                                                Ohio, Pennsylvania, and West Virginia,                  whether controls are optimally run can                comparing NOX emissions rates in 2006,
                                                which Maryland notes are states that                    be determined by comparing current                    2015, and 2016 for EGUs listed in its
                                                EPA has already determined are                          ozone season average emissions rates to               petition; 17 an analysis comparing 2016
                                                significantly contributing to                           the lowest ozone season average                       ozone season average emissions rates to
                                                nonattainment in Maryland under the                     emissions rate achieved either after                  the lowest demonstrated ozone season
                                                2008 ozone NAAQS. Maryland indicates                    2005 or after the unit installed SCR or               average emissions rates between 2005
                                                that all of these sources have SCR or                   SNCR, whichever is later. Maryland                    and 2015 at 369 coal-fired EGUs in 29
                                                selective non-catalytic reduction (SNCR)                further alleges that NOX emissions rates              states identified as the Eastern Modeling
                                                to control NOX emissions. In addition,                  at the 36 EGUs have increased                         Domain; 18 an analysis comparing of
                                                Maryland’s technical support document                   significantly since the SCR and SNCR                  average emissions data at 21 units in
                                                                                                        installation and initial testing,                     Pennsylvania in the first quarter of 2017
                                                discusses modeling conducted by the
                                                                                                        indicating that these EGUs are not                    to the lowest demonstrated ozone
                                                University of Maryland, which claims to
                                                                                                        operating their post-combustion                       season average emissions rate between
                                                show that ozone concentrations would
                                                                                                        controls efficiently on each day of the               2005–2016; 19 and additional
                                                be reduced if these EGUs were to
                                                                                                        ozone season.                                         photochemical modeling conducted by
                                                optimize running their SCR and SNCR
                                                                                                           Maryland also submitted a number of                the University of Maryland regarding
                                                controls. Maryland argues that these
                                                                                                        technical memoranda to support its                    the impact of the 36 named EGUs in the
                                                projected reductions in ozone
                                                                                                        argument. Maryland submitted analyses                 five upwind states on ozone
                                                concentrations at Maryland monitors
                                                                                                        of control technology optimization for                concentrations in Maryland, which
                                                demonstrate that optimizing the post-
                                                                                                        coal-fired EGUs in eastern states, which              concludes that emissions from these
                                                combustion controls at the 36 units with                                                                      units significantly contribute to ozone
                                                                                                        they contend demonstrate that NOX
                                                SCR or SNCR would allow Maryland to                                                                           concentrations in Maryland and,
                                                attain, or come very close to attaining,                emissions rates at specific EGUs are
                                                                                                        well above what is considered                         therefore, contribute to nonattainment
                                                the 2008 8-hour ozone NAAQS.                                                                                  and interfere with the maintenance of
                                                Maryland also provides the results of                   representative of an EGU running post-
                                                                                                        combustion controls efficiently; that                 the 8-hour ozone NAAQS.20
                                                control optimization modeling scenarios                                                                          Maryland’s petition requests a remedy
                                                which project the ozone impacts of                      2015 and 2016 EPA data show that
                                                                                                        many EGUs have not been running their                 that will compel the named EGUs to
                                                optimizing emissions controls in 2018.
                                                Maryland suggests, by way of using its                  post combustion controls as efficiently
                                                                                                                                                                11 See  id.
                                                                                                        as they have in the past during the                     12 Id. Appendix B.
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                                                  9 See Petition to the United States Environmental     ozone season; and that the EPA should,                  13 Id. Appendix C.
                                                Protection Agency Pursuant to Section 126 of the        therefore, ensure these controls are                    14 Id. Appendix D.
                                                Clean Air Act for Abatement of Emissions from 36        operating during the 2017 ozone season                  15 Id. Appendix E.
                                                Coal-Fired Electric Generating Units at 19 Plants in    by including requirements that each                     16 Id. Appendix F.
                                                Five States that Significantly Contribute to
                                                Nonattainment of, and Interfere with Maintenance        named EGU to minimize emissions by                      17 Id. Supplemental Appendix A.
                                                                                                                                                                18 Id. Supplemental Appendix B.
                                                of, the 2008 Ozone National Ambient Air Quality
                                                                                                                                                                19 Id. Supplemental Appendix C.
                                                Standard in the State of Maryland, available in the       10 Maryland Petition, Appendix A, Part 2,

                                                docket for this action.                                 available in the docket for this action.                20 Id. Supplemental Appendix D.




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                                                50448                          Federal Register / Vol. 83, No. 194 / Friday, October 5, 2018 / Notices

                                                optimize their SCR and SNCR.                            limitations, manufacturers’                            insufficient to support Delaware’s
                                                Maryland indicates that its petition is                 specifications, good engineering and                   conclusion that the four sources named
                                                focused on ensuring controls are run at                 maintenance practices, and good air                    in the petitions emit or would emit in
                                                the units every day of the ozone season.                pollution control practices. Second,                   violation of the good neighbor
                                                According to Maryland, the CSAPR                        Maryland requests that the EPA enforce                 provision. First, the EPA proposed to
                                                Update, earlier federal allowance                       this requirement by comparing each                     find that Delaware does not provide
                                                trading programs, and many state                        unit’s maximum 30-day rolling average                  sufficient information to indicate that
                                                regulations allow for longer compliance                 emissions rate to the unit’s lowest                    there is a current or expected future
                                                periods, which means that controls do                   reported ozone emissions rate.                         downwind air quality problem in the
                                                not necessarily need to be run                          Maryland also requests that this remedy                state with respect to either the 2008 and
                                                effectively every day to comply with                    be implemented by 2017 to help areas                   2015 ozone NAAQS. Id. at 26676.
                                                these requirements. Maryland claims                     in Maryland achieve attainment in time                 Second, the EPA proposed to find that
                                                that this has resulted in situations                    to inform area designations in the state               the emissions information Delaware
                                                where sources in the five upwind states                 for the 2015 ozone NAAQS.                              relies upon for its air quality modeling
                                                have not run their controls efficiently on                Consistent with CAA section 307(d),                  is not representative of current or future
                                                many days with high ozone, and,                         as discussed in Section III.D of the                   projected emissions levels at the named
                                                therefore, these sources are impacting                  proposal, the EPA determined that the                  EGUs. Id. Third, the EPA proposed to
                                                Maryland in violation of CAA section                    60-day period for responding to                        find that Delaware’s analyses regarding
                                                110(a)(2)(D)(i)(I). Maryland also claims                Maryland’s petition is insufficient for                ozone contributions to modeled and/or
                                                that, on some of those days, the 36 EGUs                the EPA to complete the necessary                      measured ozone levels are unclear and,
                                                in these states emitted in the aggregate                technical review, develop an adequate                  therefore, insufficient to support
                                                over 300 more tons of NOX than they                     proposal, and allow time for notice and                Delaware’s position that the named
                                                would have if they had run their control                comment, including an opportunity for                  sources are significantly contributing to
                                                technologies efficiently. Additionally,                 public hearing, on a proposed finding                  nonattainment or interfering with
                                                Maryland states that these days are often               regarding whether the 36 EGUs                          maintenance of the NAAQS on specific
                                                the same days where downwind ozone                      identified in the petition significantly               days. Id. The EPA also proposed to find
                                                levels are likely to be highest because of              contribute to nonattainment or interfere               that material elements of the analysis
                                                hot, ozone-conducive weather.                           with maintenance of the 2008 ozone                     provided in Maryland’s petition are
                                                Maryland supports its claim by alleging                 NAAQS in Maryland. On January 3,                       technically deficient. Id. at 26677.
                                                that over the entire ozone season, the                  2017, the EPA published a notice                          The EPA further proposed to rely on
                                                relief requested in its petition could                  extending the deadline for acting on                   its own independent analysis to
                                                result in very large reductions.                        Maryland’s CAA section 126(b) petition                 evaluate the requested CAA section
                                                Maryland contends that in 2015,                         to July 15, 2017.22                                    126(b) findings. Id. First, the EPA
                                                approximately 39,000 tons of NOX                                                                               proposed to find that its independent
                                                                                                        D. Summary of the EPA’s May 31, 2018,
                                                reductions could have been achieved in                                                                         analysis provides no basis to conclude
                                                                                                        Proposal
                                                the ozone season if the 36 EGUs had                                                                            that any of the sources named by
                                                                                                           In Section IV of the proposal, the EPA              Delaware are linked to a downwind air
                                                simply run their controls efficiently.                  explained its bases for proposing to
                                                Therefore, Maryland states that, based                                                                         quality problem with regard to the 2008
                                                                                                        deny the CAA section 126(b) petitions                  ozone NAAQS in steps one and two of
                                                on the EPA’s past approaches to                         from Delaware and Maryland. Given                      the four-step framework. The EPA
                                                establishing significant contributions                  that ozone is a regional pollutant and                 explained that, based on the modeling
                                                based on cost-effective controls, the                   that the EPA had recently evaluated                    conducted in support of the CSAPR
                                                NOX emissions from these 36 EGUs                        regional ozone pollution in the CSAPR                  Update, Delaware was not projected to
                                                must be abated on each day of the ozone                 Update, the EPA proposed to evaluate                   have any nonattainment or maintenance
                                                season starting in May of 2017.                         the petition consistent with the same                  receptors in 2017 with respect to the
                                                   Maryland contends that emissions at                  four-step regional analytic framework—                 2008 ozone NAAQS, and, therefore, the
                                                the 36 named EGUs can be reduced at                     described in more detail in the                        states named in Delaware’s petitions are
                                                reasonable cost, or with potentially no                 following section—that the EPA has                     not linked to a downwind air quality
                                                actual new costs to the EGUs at all,21                  used in previous regulatory actions to                 problem in the state under that
                                                because this requested remedy rests on                  evaluate regional interstate ozone                     standard. Id. at 26678. Furthermore,
                                                the use of existing control equipment.                  transport. Within this framework, the                  both to confirm the projections in the
                                                Maryland suggests two methods to                        EPA also proposed to evaluate whether                  CSAPR Update modeling and in
                                                ensure optimized use of controls at                     the sources named in the petitions emit                response to the petition’s assertion that
                                                these sources. First, Maryland requests                 or would emit in violation of the good                 current air quality data show that
                                                that the EPA include language in federal                neighbor provision based on both                       Delaware has a downwind problem for
                                                and state regulations or operating                      current and future anticipated emissions               the 2008 ozone NAAQS, the EPA
                                                permits requiring the owners or                         levels. The EPA identified multiple                    examined Delaware’s 2014–2016 design
                                                operators of the relevant EGUs to use all               bases for the proposed denial.                         values and found that no monitors were
                                                installed pollution control technology                     The EPA noted that the agency’s                     violating the 2008 ozone NAAQS. Id.
                                                consistent with technological                           historical approach to evaluating CAA                  The EPA also proposed to find that
                                                                                                        section 126(b) petitions looks first to see            available future year modeling data do
                                                  21 Although Maryland suggests emissions could
                                                                                                        whether a petition, standing alone,                    not suggest that Delaware will have air
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                                                potentially be reduced with no actual new costs to
                                                the EGUs, Maryland does not provide further             identifies or establishes a technical basis            quality problems by the relevant
                                                information supporting its suggestion that zero-cost    for the requested CAA section 126(b)                   attainment date for the 2015 ozone
                                                reductions may be available. To the contrary,           finding. 83 FR 26674. In this regard, the              NAAQS.
                                                Maryland states that the cost per ton range would       agency proposed to find that several                      Second, the EPA evaluated whether
                                                be from $670 to $1,000, depending on whether the
                                                SCR systems are in partial operation or totally         aspects of Delaware’s analyses are                     there are further cost-effective NOX
                                                idled. See Maryland Petition Appendix F, available                                                             emissions reductions available at the
                                                in the docket for this action.                            22 82   FR 22 (January 3, 2017).                     specific sources named in the petitions,


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                                                                               Federal Register / Vol. 83, No. 194 / Friday, October 5, 2018 / Notices                                            50449

                                                consistent with step three of the four-                 burned natural gas with a low NOX                     quality modeling projections to a future
                                                step framework. For units in the                        emission rate in the 2017 ozone season                compliance year. The EPA has focused
                                                Delaware and Maryland petitions                         and that the EPA reasonably expects the               its analysis on a future year in light of
                                                already equipped with SCRs, the EPA                     facility to continue operating primarily              the forward-looking nature of the good
                                                proposed to determine that the CSAPR                    by burning natural gas in future ozone                neighbor obligation in CAA section
                                                Update emissions budgets already                        seasons. Id. at 26680. As such, the EPA               110(a)(2)(D)(i)(I). Specifically, the
                                                reflect emissions reductions associated                 proposed to deny the Brunner Island                   statute requires that states prohibit
                                                with the turning on and optimizing of                   petition because the agency found that                emissions that ‘‘will’’ significantly
                                                existing SCR controls at the EGUs that                  there are no additional feasible and cost-            contribute to nonattainment or interfere
                                                are the subject of the petitions for the                effective NOX emission reductions                     with maintenance of the NAAQS in any
                                                2008 ozone NAAQS, which is the same                     available at Brunner Island.                          other state. The EPA has reasonably
                                                control strategy identified in the                                                                            interpreted this language as permitting
                                                                                                        E. Historical Regional Analyses of Good
                                                petitions as being both feasible and cost                                                                     states and the EPA in implementing the
                                                                                                        Neighbor Obligations Related to Ozone
                                                effective. Id. at 26679. Therefore, the                                                                       good neighbor provision to
                                                EPA proposed to determine that all                         As explained in the proposal, given                prospectively evaluate downwind air
                                                identified cost-effective emission                      that formation, atmospheric residence,                quality problems and the need for
                                                reductions have already been                            and transport of ozone occur on a                     further upwind emissions reductions.
                                                implemented with respect to these                       regional scale (i.e., hundreds of miles)              See North Carolina v. EPA, 531 F.3d
                                                sources, and therefore that those sources               over much of the eastern United States,               896, 913–14 (D.C. Cir. 2008) (affirming
                                                neither emit nor would emit in violation                the states and the EPA have historically              as reasonable the EPA’s interpretation of
                                                of the good neighbor provision for the                  addressed interstate transport of ozone               ‘‘will’’ to refer to future, projected ozone
                                                2008 NAAQS. The EPA proposed to                         pursuant to the good neighbor provision               concentrations). The agency has thus
                                                determine that this conclusion is also                  through a series of regional rulemakings              identified areas expected to be in
                                                appropriate with regard to the 2015                     focused on the reduction of NOX                       nonattainment with the NAAQS and
                                                ozone NAAQS for those sources                           emissions. These rulemakings have                     those areas that may struggle to
                                                addressed in the Delaware petitions                     included findings that downwind states’               maintain the NAAQS;
                                                because the EPA’s determination that                    problems attaining and maintaining the                   (2) Determining which upwind states
                                                the cost-effective control strategy is                  ozone NAAQS result, in part, from the                 are linked to these identified downwind
                                                already being implemented applies                       contribution of pollution from multiple               air quality problems and warrant further
                                                                                                        upwind sources located in different                   analysis to determine whether their
                                                regardless of which NAAQS is being
                                                                                                        upwind states. Specifically, to support               emissions violate the good neighbor
                                                addressed. In other words, because the
                                                                                                        each historical action, an evaluation of              provision. In the EPA’s most recent
                                                strategy of optimizing existing controls
                                                                                                        the extent of the ozone transport                     transport rulemakings for the 2008
                                                relative to the 2008 ozone NAAQS has
                                                                                                        problem (i.e., the breadth of downwind                ozone NAAQS, the agency identified
                                                already been implemented via the
                                                                                                        ozone problems and the contributions                  such upwind states to be those modeled
                                                CSAPR Update for the sources Delaware
                                                                                                        from upwind states) was performed.                    to contribute at or above a threshold
                                                named for the 2015 NAAQS, the EPA
                                                                                                        Historically, these assessments have                  equivalent to one percent of the
                                                proposed there are no additional control
                                                                                                        found interstate ozone transport to be an             applicable NAAQS;
                                                strategies available to further reduce
                                                                                                        interconnected system of upwind and                      (3) For upwind states linked to
                                                NOX emissions at these sources to                       downwind ozone transport such that a                  downwind air quality problems,
                                                address this standard. Id.                              regional trading program would be                     identifying on a statewide basis
                                                   To the extent that the Delaware and                  effective at implementing the CAA’s                   emissions (if any) that will significantly
                                                Maryland petitions also identify sources                good neighbor requirements.23                         contribute to nonattainment or interfere
                                                without SCR, the EPA also proposed to                                                                         with maintenance of a standard, based
                                                deny the petitions. Maryland cited two                  1. Description of the Four-Step
                                                                                                                                                              on cost and air quality factors evaluated
                                                sources operating selective non-catalytic               Transport Framework
                                                                                                                                                              in a multi-factor test. In all four of the
                                                reduction post-combustion controls                         The EPA has promulgated several                    EPA’s prior rulemakings for ozone, the
                                                (SNCR). The EPA proposed to deny                        transport rulemakings that have                       agency apportioned emission reduction
                                                Maryland’s petition with respect to                     addressed the good neighbor provision,                responsibility among multiple upwind
                                                these sources based on its conclusion in                including four addressing interstate                  states linked to downwind air quality
                                                the CSAPR Update that fully operating                   transport with respect to various ozone               problems using several particular cost-
                                                with SNCR is not a cost-effective NOX                   NAAQS. Each of these rulemakings                      and air quality-based factors to quantify
                                                emission reduction strategy with respect                essentially followed the same four-step               the reduction in a linked upwind state’s
                                                to addressing transport obligations for                 transport framework to quantify and                   emissions that the rulemaking would
                                                the 2008 ozone NAAQS. The EPA,                          implement emission reductions                         require pursuant to the good neighbor
                                                therefore, proposed to find that these                  necessary to address the interstate                   provision; and
                                                sources do not emit and would not emit                  transport requirements of the good                       (4) For states that are found to have
                                                in violation of the good neighbor                       neighbor provision. These steps are:                  emissions that significantly contribute
                                                provision with respect to the 2008                         (1) Identifying downwind air quality               to nonattainment or interfere with
                                                ozone NAAQS. Additionally, one of                       problems relative to the NAAQS. The                   maintenance of the NAAQS downwind,
                                                Delaware’s petitions alleges significant                EPA has identified downwind areas                     implementing the necessary emission
                                                contribution from the Brunner Island                    with air quality problems (referred to as             reductions within the state. When the
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                                                facility, which currently has neither                   ‘‘receptors’’) considering monitored air              EPA has promulgated federal
                                                SCR nor SNCR installed. The EPA                         quality data, where appropriate, and air              implementation plans (FIPs) addressing
                                                proposed to determine that an                                                                                 the good neighbor provision for the
                                                                                                          23 The Supreme Court has also concurred with the
                                                independent step three analysis still                                                                         ozone NAAQS in prior transport
                                                                                                        EPA’s assessment regarding the complexity and
                                                provides a basis for denying Delaware’s                 interconnectivity underpinning ozone transport.
                                                                                                                                                              rulemakings, the EPA has typically
                                                Brunner Island petition. The EPA                        See EPA v. EME Homer City Generation, L.P., 134       required affected sources in upwind
                                                explained that the facility primarily                   S. Ct. 1584, 1593–94 (2014).                          states to participate in allowance trading


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                                                50450                          Federal Register / Vol. 83, No. 194 / Friday, October 5, 2018 / Notices

                                                programs to achieve the necessary                       addressed several pending CAA section                 (May 12, 2005) to address interstate
                                                emission reductions.24 In addition, the                 126(b) petitions submitted by eight                   transport under the good neighbor
                                                EPA has also offered states the                         northeastern states regarding the same                provision with respect to the 1997
                                                opportunity to participate in similar                   air quality issues addressed by the NOX               ozone NAAQS, as well as the 1997 fine
                                                EPA-operated allowance trading                          SIP Call (i.e., interstate ozone transport            particulate matter (PM2.5) NAAQS. 70
                                                programs to achieve the necessary                       for the 1979 ozone NAAQS). These CAA                  FR 25172. The EPA adopted the same
                                                emission reductions through state                       section 126(b) petitions asked the EPA                framework for quantifying the level of
                                                implementation plans (SIPs).                            to find that ozone emissions from                     states’ significant contribution to
                                                                                                        numerous sources located in 22 states                 downwind nonattainment in CAIR as it
                                                2. Prior Regional Rulemakings Under                     and the District of Columbia had                      used in the NOX SIP Call, based on the
                                                the Good Neighbor Provision                             adverse air quality impacts on the                    determination in the NOX SIP Call that
                                                   The EPA’s first regional rulemaking                  petitioning downwind states. Half of the              downwind ozone nonattainment is due
                                                regarding interstate transport, the NOX                 petitioning states requested that the                 to the impact of emissions from
                                                SIP Call, addressed the 1979 ozone                      NOX reductions to address regional                    numerous upwind sources and states.
                                                NAAQS. 63 FR 57356 (October 27,                         interstate ozone pollution transport be               70 FR 25162, 25172 (May 12, 2005). The
                                                1998). The NOX SIP Call was the result                  implemented using an allowance                        EPA explained that ‘‘[t]ypically, two or
                                                of the analytic work and                                trading program.25 Based on analysis                  more States contribute transported
                                                recommendations of the Ozone                            conducted for the NOX SIP Call                        pollution to a single downwind area, so
                                                Transport Assessment Group (OTAG),                      regarding upwind state impacts on                     that the ‘collective contribution’ is
                                                which was organized by and led by                       downwind air quality, the EPA in May                  much larger than the contribution of any
                                                states in consultation with the EPA and                 1999 made technical determinations                    single State.’’ 70 FR 25186. CAIR
                                                other stakeholders. The EPA used this                   regarding the claims in the petitions, but            included two distinct regulatory
                                                collaboratively developed analysis to                   did not at that time make the CAA                     processes: (1) A rulemaking to define
                                                conclude in the NOX SIP Call that ‘‘[t]he               section 126(b) findings requested by the              significant contribution (i.e., the
                                                fact that virtually every nonattainment                 petitions. 64 FR 28250 (May 25, 1999).                emission reduction obligation) under
                                                problem is caused by numerous sources                   In making these technical                             the good neighbor provision and
                                                over a wide geographic area is a factor                 determinations, the EPA concluded that                provide for submission of SIPs
                                                suggesting that the solution to the                     the NOX SIP Call would fully address                  eliminating that contribution, 70 FR
                                                problem is the implementation over a                    and remediate the claims raised in these              25162 (May 12, 2005); and (2) a
                                                wide area of controls on many sources,                  petitions, and that the EPA would,                    rulemaking to promulgate, where
                                                each of which may have a small or                       therefore, not need to take separate                  necessary, FIPs imposing emission
                                                unmeasurable ambient impact by itself.’’                action to remedy any potential                        limitations in the event states did not
                                                63 FR 57356, 57377 (October 27, 1998).                  violations of the CAA section                         submit SIPs. 71 FR 25328 (April 28,
                                                The NOX SIP Call promulgated                            110(a)(2)(D)(i) prohibition. 64 FR 28252.             2006). The FIPs required EGUs in
                                                statewide emission budgets and                          However, subsequent litigation over the               affected states to participate in regional
                                                required upwind states to adopt SIPs                    NOX SIP Call led the EPA to ‘‘de-link’’               allowance trading programs, which
                                                that would decrease their NOX                           the CAA section 126(b) petition                       replaced the previous NOX Budget
                                                emissions by a sufficient amount to                     response from the NOX SIP Call, and the               Trading Program.
                                                meet these budgets, thereby prohibiting                 EPA made final CAA section 126(b)                        In conjunction with the second CAIR
                                                the emissions that significantly                        findings for 12 states named in the                   rulemaking, which promulgated
                                                contribute to nonattainment or interfere                petitions and the District of Columbia.               backstop FIPs, the EPA acted on a CAA
                                                with maintenance of the ozone NAAQS                     The EPA found that sources in these                   section 126(b) petition received from the
                                                in downwind states. The EPA also                        states emitted in violation of the                    state of North Carolina on March 19,
                                                promulgated a model rule for a regional                 prohibition in the good neighbor                      2004, seeking a finding that large EGUs
                                                allowance trading program called the                    provision with respect to the 1979                    located in 13 states were significantly
                                                NOX Budget Trading Program that states                  ozone NAAQS based on the affirmative                  contributing to nonattainment and/or
                                                could adopt in their SIPs as a                                                                                interfering with maintenance of the
                                                                                                        technical determinations made in the
                                                mechanism to achieve some or all of the                                                                       1997 ozone NAAQS and the 1997 PM2.5
                                                                                                        May 1999 rulemaking. In order to
                                                required emission reductions. All of the                                                                      NAAQS in North Carolina. Citing the
                                                                                                        remedy the violation under CAA section
                                                                                                                                                              analyses conducted to support the
                                                jurisdictions covered by the NOX SIP                    126(c), the EPA required affected
                                                                                                                                                              promulgation of CAIR, the EPA denied
                                                Call ultimately chose to adopt the NOX                  sources in the upwind states to
                                                                                                                                                              North Carolina’s CAA section 126(b)
                                                Budget Trading Program into their SIPs.                 participate in a regional allowance
                                                                                                                                                              petition in full based on determinations
                                                The NOX SIP Call was upheld by the                      trading program whose requirements
                                                                                                                                                              either that the named states were not
                                                U.S. Court of Appeals for the District of               were designed to be interchangeable
                                                                                                                                                              adversely impacting downwind air
                                                Columbia Circuit (D.C. Circuit) in all                  with the requirements of the optional
                                                                                                                                                              quality in violation of the good neighbor
                                                pertinent respects. See Michigan v. EPA,                NOX Budget Trading Program model                      provision, or that such impacts were
                                                213 F.3d 663 (2000).                                    rule provided under the NOX SIP Call.                 fully remedied by implementation of the
                                                   In coordination with the NOX SIP Call                65 FR 2674 (January 18, 2000). The                    emission reductions required by the
                                                rulemaking under CAA section                            EPA’s action on these CAA section                     CAIR FIPs. 71 FR 25328, 25330 (April
                                                110(a)(2)(D)(i)(I), the EPA also                        126(b) petitions was upheld by the D.C.               28, 2006).
                                                                                                        Circuit. See Appalachian Power Co. v.                    The D.C. Circuit found that EPA’s
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                                                  24 While the EPA has chosen to implement
                                                                                                        EPA, 249 F.3d 1032 (D.C. Cir. 2001).                  approach to CAA section
                                                emission reductions through allowance trading              The EPA next promulgated the Clean
                                                programs for states found to have a downwind                                                                  110(a)(2)(D)(i)(I) in CAIR was
                                                impact, upwind states can choose to submit a SIP        Air Interstate Rule (CAIR), 70 FR 25162               ‘‘fundamentally flawed’’ in several
                                                that implements such reductions through other                                                                 respects, and the rule was remanded in
                                                enforceable mechanisms that meets the                     25 Connecticut, Maine, New York, and

                                                requirements of the good neighbor provision, such       Pennsylvania requested an allowance trading
                                                                                                                                                              July 2008 with the instruction that the
                                                as the enforceable mechanisms that petitioners          program to reduce NOX emissions and remedy            EPA replace the rule ‘‘from the ground
                                                apparently favor and argue for in their petition.       regional interstate ozone transport. 63 FR 56297.     up.’’ North Carolina, 531 F.3d at 929.


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                                                                               Federal Register / Vol. 83, No. 194 / Friday, October 5, 2018 / Notices                                           50451

                                                The decision did not find fault with the                   Most recently, the EPA promulgated                 modeling data for a 2023 analytic year,
                                                EPA’s general multi-step framework for                  the CSAPR Update to address the good                  the CSAPR Update fully addresses the
                                                addressing interstate ozone transport,                  neighbor provision requirements for the               good neighbor provision requirements
                                                but rather concluded the EPA’s analysis                 2008 ozone NAAQS. 81 FR 74504                         for the 2008 ozone NAAQS for the 20
                                                and compliance mechanisms did not                       (October 26, 2016). The CSAPR Update                  eastern states (among the 22) previously
                                                address all elements required by the                    built upon previous regulatory efforts in             addressed in the CSAPR Update. 83 FR
                                                statute. The EPA’s separate action                      order to address the collective                       31915. The EPA’s proposed
                                                denying North Carolina’s CAA section                    contributions of ozone pollution from                 determination was premised on the
                                                126(b) petition was not challenged.                     22 states in the eastern United States to             finding that there would be no
                                                   On August 8, 2011, the EPA                           widespread downwind air quality                       remaining nonattainment or
                                                promulgated CSAPR to replace CAIR. 76                   problems. As was also the case for the                maintenance receptors for the 2008
                                                FR 48208 (August 8, 2011). CSAPR                        previous rulemakings, the EPA                         ozone NAAQS in the eastern U.S. in
                                                addressed the same (1997) ozone and                     evaluated the nature (i.e., breadth and               2023. The proposed determination
                                                PM2.5 NAAQS as CAIR and, in addition,                   interconnectedness) of the ozone                      applied the four-step CSAPR framework
                                                addressed interstate transport for the                  problem and NOX reduction potential                   but did not progress past step one since
                                                2006 PM2.5 NAAQS by requiring 28                        from EGUs, including those sources                    no air quality receptors were identified.
                                                states to reduce sulfur dioxide (SO2)                   named in the Delaware and Maryland                    Therefore, with the CSAPR Update fully
                                                emissions, annual NOX emissions, and/                   CAA section 126(b) petitions. The                     implemented, the EPA has proposed to
                                                or ozone season NOX emissions that                      CSAPR Update is described in more                     find that states are not expected to
                                                would significantly contribute to other                 detail in Section IV.B of this final                  contribute significantly to
                                                states’ nonattainment or interfere with                 action.                                               nonattainment in, or interfere with
                                                other states’ ability to maintain these air                In finalizing the CSAPR Update, the
                                                                                                                                                              maintenance by, any other state with
                                                quality standards. Consistent with prior                EPA found that it was at that time
                                                                                                                                                              regard to the 2008 ozone NAAQS. EPA
                                                determinations made in the NOX SIP                      unable to determine whether the rule
                                                                                                                                                              is currently reviewing comments on the
                                                Call and CAIR, the EPA again found that                 fully resolved good neighbor obligations
                                                                                                        for most of the states subject to that                proposed rule and anticipates taking
                                                multiple upwind states contributed to                                                                         final action by December 2018. The
                                                downwind ozone nonattainment in                         action, including those addressed in
                                                                                                        Delaware’s and Maryland’s petitions                   remaining two states were determined
                                                multiple downwind states. Specifically,
                                                                                                        (Indiana, Kentucky, Ohio, Pennsylvania                to have no remaining good neighbor
                                                the EPA found ‘‘that the total ‘collective
                                                                                                        and West Virginia), and noted that,                   obligation for the 2008 ozone NAAQS in
                                                contribution’ from upwind sources
                                                                                                        based on its analysis at that time, the               the CSAPR Update (Tennessee), 81 FR
                                                represents a large portion of PM2.5 and
                                                                                                        emission reductions required by the rule              74540 (October 26, 2016), and in a
                                                ozone at downwind locations and that
                                                                                                        ‘‘may not be all that is needed’’ to                  separate SIP approval (Kentucky), 81 FR
                                                the total amount of transport is
                                                                                                        address transported emissions.28 81 FR                33730 (July 17, 2018).
                                                composed of the individual contribution
                                                from numerous upwind states.’’ 76 FR                    74521 through 74522. The EPA noted                    III. CAA Sections 126 and 110 and
                                                48237. Accordingly, the EPA conducted                   that the information available at that                Standard of Review for This Action
                                                a regional analysis, calculated emission                time suggested that downwind air
                                                budgets for affected states, and required               quality problems would remain in 2017                    The following subsections describe
                                                EGUs in these states to participate in                  after implementation of the CSAPR                     both the statutory authority and the
                                                new regional allowance trading                          Update and that upwind states                         EPA’s standard of review for the final
                                                programs to reduce statewide emission                   continued to be linked to those                       action on Delaware’s and Maryland’s
                                                levels.26 CSAPR was subject to nearly 4                 downwind problems at or above the                     CAA section 126(b) petitions. Section
                                                years of litigation. Ultimately, the                    one-percent threshold. However, in the                III.A of this notice describes the EPA’s
                                                Supreme Court upheld the EPA’s                          CSAPR Update the EPA could not                        authority and interpretation of key
                                                approach to calculating emission                        determine whether, in step three of the               terms under both CAA sections 126 and
                                                reduction obligations and apportioning                  four-step framework, the EPA had                      110(a)(2)(D)(i)(I), including the
                                                upwind state responsibility under the                   quantified all emission reductions that               relationship between the good neighbor
                                                good neighbor provision, but also held                  may be considered cost effective                      provision and CAA section 126(b).
                                                that the EPA was precluded from                         because the rule did not evaluate non-                Section III.B of this notice describes the
                                                requiring more emission reductions                      EGU ozone season NOX reductions and                   reasonableness of applying the four-step
                                                than necessary to address downwind air                  further EGU control strategies (i.e., the             framework and certain prior findings
                                                quality problems, or ‘‘over-controlling’’               implementation of new post-combustion                 under the CSAPR Update as the
                                                upwind state emissions. See EPA v.                      controls) that were achievable on                     standard of review in evaluating
                                                EME Homer City Generation, L.P., 134 S.                 timeframes extending beyond the 2017                  Delaware’s and Maryland’s CAA section
                                                Ct. 1584, 1607–09 (2014) (EME Homer                     analytic year.                                        126(b) petitions.
                                                City).27                                                   On July 10, 2018, the EPA proposed
                                                                                                        to find that, based on the latest available           A. Statutory Authority Under CAA
                                                  26 The CSAPR trading programs included                emissions inventory and air quality                   Sections 126 and 110(a)(2)(D)(i)(I)
                                                assurance provisions to ensure that emissions are
                                                reduced within each individual state, in accordance     budgets where it found those budgets may over-           The statutory authority for this action
                                                with North Carolina, 531 F.3d at 907–08 (holding        control emissions beyond what was necessary to        is provided by CAA sections 126 and
                                                the EPA must actually require elimination of            address the good neighbor requirements. EME           110(a)(2)(D)(i). Section 126(b) of the
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                                                emissions from sources that contribute significantly    Homer City Generation, L.P. v. EPA, 795 F.3d 118      CAA provides that any state or political
                                                to nonattainment and interfere with maintenance in      (2015) (EME Homer City II). The EPA addressed the
                                                downwind areas). Those provisions were also             remand in several rulemaking actions in 2016 and      subdivision may petition the
                                                included in the CSAPR Update and went into effect       2017.                                                 Administrator of the EPA to find that
                                                with the 2017 CSAPR compliance periods.                   28 The EPA determined that the emission             any major source or group of stationary
                                                  27 On remand from the Supreme Court, the D.C.         reductions required by the CSAPR Update satisfied     sources in an upwind state emits or
                                                Circuit further affirmed various aspects of the         the full scope of the good neighbor obligation for
                                                CSAPR, while remanding the rule without vacatur         Tennessee with respect to the 2008 ozone NAAQS.
                                                                                                                                                              would emit any air pollutant in
                                                for reconsideration of certain states’ emissions        81 FR 74551–22.                                       violation of the prohibition of CAA


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                                                50452                           Federal Register / Vol. 83, No. 194 / Friday, October 5, 2018 / Notices

                                                section 110(a)(2)(D)(i).29 Petitions                     NAAQS. Notably, the EPA’s most recent                for purposes of both provisions (since
                                                submitted pursuant to this section are                   rulemaking, the CSAPR Update, was                    the identical terms are naturally
                                                commonly referred to as CAA section                      promulgated to address interstate                    interpreted as meaning the same thing
                                                126(b) petitions. Similarly, findings by                 transport under section 110(a)(2)(D)(i)(I)           in the two linked provisions). See
                                                the Administrator, pursuant to this                      for the 2008 ozone NAAQS and required                Appalachian Power, 249 F.3d at 1049–
                                                section, that a source or group of                       implementation of specific emission                  50.
                                                sources emits air pollutants in violation                budgets starting in 2017. 81 FR 74504.                  While section 126(b) of the CAA
                                                of the CAA section 110(a)(2)(D)(i)                          The EPA’s historical approach to                  provides a mechanism for states and
                                                prohibition are commonly referred to as                  evaluating CAA section 126(b) petitions              other political subdivisions to seek
                                                CAA section 126(b) findings.                             evaluates whether a petition establishes             abatement of pollution in other states
                                                   CAA section 126(c) explains the effect                a sufficient basis for the requested CAA             that may affect their air quality, it does
                                                of a CAA section 126(b) finding and                      section 126(b) finding. See, e.g., 76 FR             not identify specific criteria or a specific
                                                establishes the conditions under which                   19662, 19666 (April 7, 2011) (proposed               methodology for the Administrator to
                                                continued operation of a source subject                  response to petition from New Jersey                 apply when deciding whether to make
                                                to such a finding may be permitted.                      regarding SO2 emissions from the                     a CAA section 126(b) finding or deny a
                                                Specifically, CAA section 126(c)                         Portland Generating Station); 83 FR                  petition. Therefore, the EPA has
                                                provides that it is a violation of section               16064, 16070 (April 13, 2018) (final                 discretion to identify relevant criteria
                                                126 of the Act and of the applicable SIP:                response to petition from Connecticut                and develop a reasonable methodology
                                                (1) For any major proposed new or                        regarding ozone emissions from Brunner               for determining whether a CAA section
                                                modified source subject to a CAA                         Island). The EPA first evaluates the
                                                                                                                                                              126(b) finding should be made. Thus, in
                                                section 126(b) finding to be constructed                 technical analysis in the petition to see
                                                                                                                                                              addressing a CAA section 126(b)
                                                or operate in violation of the prohibition               if that analysis, standing alone, is
                                                                                                                                                              petition that addresses ozone transport,
                                                of CAA section 110(a)(2)(D)(i); or (2) for               sufficient to support a CAA section
                                                                                                                                                              the EPA believes it is appropriate to
                                                any major existing source for which                      126(b) finding. The EPA focuses on the
                                                                                                                                                              interpret these ambiguous terms
                                                such a finding has been made to stay in                  analysis in the petition because the
                                                                                                                                                              consistent with the EPA’s historical
                                                operation more than 3 months after the                   statute does not require the EPA to
                                                                                                                                                              approach to evaluating interstate ozone
                                                date of the finding. The statute,                        conduct an independent technical
                                                                                                                                                              pollution transport under the good
                                                however, also gives the Administrator                    analysis to evaluate claims made in
                                                                                                                                                              neighbor provision, and its
                                                discretion to permit the continued                       CAA section 126(b) petitions. The
                                                                                                         petitioner, thus, bears the burden of                interpretation and application of that
                                                operation of a source beyond 3 months
                                                                                                         establishing, as an initial matter, a                related provision of the statute. This
                                                if the source complies with emission
                                                                                                         technical basis for the specific finding             approach is particularly applicable to
                                                limitations and compliance schedules
                                                                                                         requested. The EPA has no obligation to              the Delaware and Maryland petitions
                                                provided by the EPA to bring about
                                                                                                         prepare an analysis to supplement a                  because the EPA recently finalized and
                                                compliance with the requirements
                                                                                                         petition that fails, on its face, to include         began implementation of the CSAPR
                                                contained in CAA sections
                                                                                                         an initial technical demonstration. Such             Update, which evaluated and addresses
                                                110(a)(2)(D)(i) and 126 as expeditiously
                                                                                                         a petition, or a petition that fails to              interstate ozone pollution transport,
                                                as practicable, but in any event no later
                                                                                                         identify the specific finding requested,             inclusive of the named states’ impacts
                                                than 3 years from the date of the
                                                                                                         can be denied as insufficient.                       on Delaware and Maryland. As
                                                finding.
                                                                                                         Nonetheless, the EPA has the discretion              described further in Section II of this
                                                   Section 110(a)(2)(D)(i) of the CAA,
                                                                                                         to conduct independent analyses when                 notice, ozone is a regional air pollutant
                                                referred to as the good neighbor
                                                                                                         helpful in evaluating the basis for a                and previous EPA analyses and
                                                provision of the Act, requires states to
                                                                                                         potential CAA section 126(b) finding or              regulatory actions have evaluated the
                                                prohibit certain emissions from in-state
                                                                                                         developing a remedy if a finding is                  regional interstate ozone transport
                                                sources if such emissions impact the air
                                                                                                         made.                                                problem using a four-step analytic
                                                quality in downwind states.
                                                                                                            With respect to the statutory                     framework. The EPA most recently
                                                Specifically, CAA sections 110(a)(1) and
                                                                                                         requirements of both section                         applied this four-step framework in
                                                110(a)(2)(D)(i)(I) require all states,
                                                                                                         110(a)(2)(D)(i) and section 126 of the               promulgating the CSAPR Update to
                                                within 3 years of promulgation of a new
                                                                                                         CAA, the EPA has consistently                        address interstate transport with respect
                                                or revised NAAQS, to submit SIPs that
                                                                                                         acknowledged that Congress created                   to the 2008 ozone NAAQS under CAA
                                                contain adequate provisions prohibiting
                                                                                                         these provisions as two independent                  section 110(a)(2)(D)(i)(I) and believes it
                                                any source or other type of emissions
                                                                                                         statutory processes to address the                   may be generally useful in analyzing the
                                                activity within the state from emitting
                                                                                                         problem of interstate pollution                      2015 ozone NAAQS. Given the specific
                                                any air pollutant in amounts which will
                                                                                                         transport. See, e.g., 76 FR 69052, 69054             cross-reference in CAA section 126(b) to
                                                contribute significantly to
                                                                                                         (November 7, 2011). Congress provided                the substantive prohibition in CAA
                                                nonattainment in, or interfere with
                                                                                                         two separate statutory processes without             section 110(a)(2)(D)(i), the EPA believes
                                                maintenance by, any other state with
                                                                                                         indicating any preference for one over               any prior findings made under the good
                                                respect to that NAAQS. As described in
                                                                                                         the other, suggesting it viewed either               neighbor provision are informative—if
                                                the prior section, the EPA has
                                                                                                         approach as a legitimate means to                    not determinative—for a CAA section
                                                developed a number of regional
                                                                                                         produce the desired result. While either             126(b) action. Therefore, in this
                                                rulemakings to address CAA section
                                                                                                         provision may be applied to address                  instance, the EPA’s decision whether to
                                                110(a)(2)(D)(i)(I) for the various ozone
                                                                                                         interstate transport, they are also closely          grant or deny the CAA section 126(b)
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                                                   29 The text of CAA section 126 as codified in the     linked in that a violation of the                    petitions regarding both the 2008 8-hour
                                                U.S. Code cross-references CAA section                   prohibition in CAA section                           ozone and 2015 ozone NAAQS depends
                                                110(a)(2)(D)(ii) instead of CAA section                  110(a)(2)(D)(i) is a condition precedent             on application of the four-step
                                                110(a)(2)(D)(i). The courts have confirmed that this     for action under CAA section 126(b)                  framework. The application of the four-
                                                is a scrivener’s error and the correct cross-reference
                                                is to CAA section 110(a)(2)(D)(i). See Appalachian
                                                                                                         and, critically, significant contribution            step framework to the EPA’s analysis of
                                                Power Co. v. EPA, 249 F.3d 1032, 1040–44 (D.C. Cir.      to nonattainment and interference with               Maryland’s and Delaware’s CAA section
                                                2001).                                                   maintenance are construed identically                126(b) petitions regarding the 2008


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                                                                                Federal Register / Vol. 83, No. 194 / Friday, October 5, 2018 / Notices                                           50453

                                                ozone NAAQS is, therefore, legally                           The EPA notes that Congress did not                section 126(b) petition. Put another way,
                                                appropriate given the EPA has                             specify how the EPA should determine                  requiring additional reductions would
                                                previously interpreted (and addressed)                    that a major source or group of                       result in eliminating emissions that do
                                                significant contribution and interference                 stationary sources ‘‘emits or would                   not contribute significantly to
                                                with maintenance under CAA section                        emit’’ any air pollutant in violation of              nonattainment or interfere with
                                                110(a)(2)(D)(i) under this framework via                  the prohibition of CAA section                        maintenance of the NAAQS, an action
                                                the CSAPR Update.                                         110(a)(2)(D)(i)(I) under the terms of CAA             beyond the scope of the prohibition in
                                                  Unlike the 2008 ozone NAAQS, the                        section 126(b). The EPA also believes,                CAA section 110(a)(2)(D)(i)(I) and,
                                                EPA has not to date engaged in a                          given the more regional, rather than                  therefore, beyond the scope of the EPA’s
                                                rulemaking action regarding the good                      localized, impact of NOX emissions on                 authority to make the requested finding
                                                neighbor provision for the 2015 ozone                     downwind ozone concentrations, it is                  under CAA section 126(b). See EME
                                                NAAQS. However, the EPA has recently                      reasonable and appropriate at each step               Homer City, 134 S. Ct. at 1604 n.18,
                                                released technical information intended                   to consider whether the facility ‘‘emits              1608–09 (holding the EPA may not over-
                                                to assist states’ efforts in development of               or would emit’’ in light of the facility’s            control by requiring sources in upwind
                                                SIPs to address this standard.30 As part                  current or reasonably anticipated future              states to reduce emissions by more than
                                                of the memo releasing the technical                       operating conditions. Therefore, the                  necessary to eliminate significant
                                                information, the EPA acknowledged that                    EPA interprets the phrase ‘‘emits or                  contribution to nonattainment or
                                                states have flexibility to pursue                         would emit’’ in the context of acting on              interference with maintenance of the
                                                approaches that may differ from the                       Delaware’s and Maryland’s petitions to                NAAQS in downwind states under the
                                                EPA’s historical approach to evaluating                   mean that a source may ‘‘emit’’ in                    good neighbor provision).
                                                interstate transport in developing their                  violation of the good neighbor provision                 Thus, for example, if the EPA has
                                                good neighbor SIPs. Nonetheless, the                      if, based on current emission levels, the             already approved a state’s SIP as
                                                EPA’s technical analysis and the                          upwind state in which the source is                   adequate to meet the requirements of
                                                potential flexibilities identified in the                 located contributes to downwind air                   CAA section 110(a)(2)(D)(i)(I), the EPA
                                                memo generally followed the basic                         quality problems and the individual                   has no basis to find that a source in that
                                                elements of the EPA’s historical four-                    source may be further controlled as                   state emits or would emit in violation of
                                                step framework. Thus, in light of the                     determined through a multi-factor test                the prohibition of CAA section
                                                EPA’s discretion to identify relevant                     that includes consideration of cost-                  110(a)(2)(D)(i)(I) absent new information
                                                criteria and develop a reasonable                         effective controls, technical feasibility,            demonstrating that the SIP is now
                                                methodology for determining whether a                     and air quality factors. Similarly, in                insufficient to address the prohibition.
                                                CAA section 126(b) finding should be                      evaluating the sources named under                    Similarly, if the EPA has promulgated a
                                                made, the EPA continues to evaluate the                   these petitions, a source ‘‘would emit’’              FIP that it has determined fully
                                                claims regarding the 2015 ozone                           in violation of the good neighbor                     eliminates emissions that significantly
                                                NAAQS for the specific sources named                      provision if, based on reasonably                     contribute to nonattainment or interfere
                                                in in Delaware’s CAA section 126(b)                       anticipated future emission levels                    with maintenance in a downwind state,
                                                petitions consistent with the EPA’s four-                 (accounting for existing conditions), the             the EPA has no basis to find that sources
                                                step framework. To the extent that the                    upwind state in which the source is                   in the upwind state are emitting or
                                                EPA made determinations in either the                     located contributes to downwind air                   would emit in violation of the CAA
                                                CSAPR Update or other analytic                            quality problems and the individual                   section 110(a)(2)(D)(i)(I) prohibition,
                                                exercises that are pertinent to the                       source could be further controlled as                 absent new information to the contrary.
                                                evaluation of the 2015 ozone NAAQS                        determined through a multi-factor test                   The EPA notes that the approval of a
                                                under the four-step framework for the                     that includes consideration of cost-                  SIP or promulgation of a FIP
                                                sources named in the petitions, it is                     effective controls, technical feasibility,            implementing CAA section
                                                appropriate to consider that relevant                     and air quality factors. Consistent with              110(a)(2)(D)(i)(I) means that a state’s
                                                information as well.31                                    this interpretation, the EPA has,                     emissions are adequately prohibited for
                                                                                                          therefore, evaluated, in this notice,                 the particular set of facts analyzed
                                                   30 See ‘‘Information on the Interstate Transport
                                                                                                          whether the sources cited in the                      under approval of a SIP or promulgation
                                                State Implementation Plan Submissions for the             petitions emit or would emit in                       of a FIP. If a petitioner produces new
                                                2015 Ozone National Ambient Air Quality                                                                         data or information showing a different
                                                Standards under Clean Air Act Section
                                                                                                          violation of the good neighbor provision
                                                110(a)(2)(D)(i)(I)’’ (March 27, 2018), available in the   based on both current and anticipated                 level of contribution or other facts not
                                                docket for this proposed action. By operation of          future emission levels.                               considered when the SIP or FIP was
                                                statute, states are required to submit to the EPA            In interpreting the phrase ‘‘emits or              promulgated, compliance with a SIP or
                                                their SIPs to address the good neighbor provision         would emit in violation of the                        FIP may not be determinative regarding
                                                for the 2015 ozone NAAQS in October 2018.
                                                   31 As discussed further in Section IV.B.1 of this      prohibition of section [110(a)(2)(D)(i)],’’           whether the upwind sources would emit
                                                notice, in the CSAPR Update the EPA found that            if the EPA or a state has already adopted             in violation of the prohibition of CAA
                                                it was not at that time able to determine whether         adequate provisions that eliminate the                section 110(a)(2)(D)(i)(I). See 64 FR
                                                the Update fully resolved good neighbor obligations       significant contribution to                           28274 n.15; 71 FR 25336 n.6;
                                                for the 2008 ozone NAAQS for most of the states                                                                 Appalachian Power, 249 F.3d at 1067
                                                subject to that action, including those addressed in
                                                                                                          nonattainment or interference with
                                                Delaware’s and Maryland’s petitions (Indiana,             maintenance of the NAAQS in                           (later developments can provide the
                                                Kentucky, Ohio, Pennsylvania, and West Virginia),         downwind states, then there simply is                 basis for another CAA section 126(b)
                                                and noted that the emission reductions required by        no violation of the CAA section                       petition). Thus, in circumstances where
                                                the rule may not be all that is needed to address         110(a)(2)(D)(i)(I) prohibition, and,                  a SIP or FIP addressing CAA section
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                                                transported emissions. 81 FR 74521. The EPA is not
                                                making a final determination regarding any                hence, no grounds to grant a CAA                      110(a)(2)(D)(i)(I) is being implemented,
                                                remaining good neighbor obligation for those states                                                             the EPA will evaluate the CAA section
                                                as part of this action, other than with respect to        applicable NAAQS.) However, the EPA notes that        126(b) petition to determine if it raises
                                                emissions from the sources named in the petition          in a separate, pending action, the EPA has proposed   new information that merits further
                                                with respect to the particular NAAQS at issue. (Any       to determine that the CSAPR Update fully addresses
                                                determination made in this final rule is only with        certain states’ good neighbor obligations regarding   consideration.
                                                respect to the sources specifically named in              the 2008 ozone NAAQS. See 83 FR 31915 (July 10,          Several commenters disagreed with
                                                Delaware’s and Maryland’s petitions for the               2018).                                                the EPA’s interpretation of the


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                                                50454                          Federal Register / Vol. 83, No. 194 / Friday, October 5, 2018 / Notices

                                                relationship between the good neighbor                  petitions regarding the 2015 ozone                    However, the commenters
                                                provision under CAA section                             NAAQS, for which good neighbor SIPs                   mischaracterize the EPA’s position. As
                                                110(a)(2)(D)(i)(I) and section 126(b),                  are not due until October 2018, until its             described, where a SIP or FIP is already
                                                contending that Congress intended CAA                   action on the good neighbor SIPs (for                 in place to address the prohibition in
                                                section 126(b) petitions to be a legal tool             the named upwind states) has                          CAA section 110(a)(2)(D)(i)(I), the EPA
                                                to address interstate problems separate                 concluded. Therefore, by taking action                has already made a determination that
                                                and distinct from SIP and FIP actions                   in this instance on Delaware’s section                sources subject to that SIP or FIP have
                                                under CAA section 110. Commenters                       126(b) petitions regarding the 2015                   been adequately addressed for purposes
                                                cite to legislative history and the D.C.                ozone NAAQS before action under                       of interstate transport. A petitioner need
                                                Circuit’s opinion in Appalachian Power                  section 110 has been concluded, the                   not demonstrate that the EPA’s original
                                                in support of their assertions that CAA                 EPA believes it has given CAA section                 determination underlying the SIP or FIP
                                                section 126 is intended to remedy                       126(b) independent meaning as                         is flawed. Rather, the EPA has
                                                interstate transport problems                           intended by Congress and the courts.                  recognized that circumstances may
                                                notwithstanding the existence of CAA                       The D.C. Circuit’s opinion in                      change after the EPA makes its
                                                section 110. Commenters accordingly                     Appalachian Power, which commenters                   determination under CAA section 110,
                                                assert the EPA is incorrect in                          specifically point to, further supports               in which case it is incumbent upon the
                                                determining that its four-step approach                 the EPA’s interpretation taken in this                petitioner in the first instance to provide
                                                under CAA section 110(a)(2)(D)(i)(I) is                 action: That while the agency need not                information demonstrating that the
                                                appropriate for evaluating under CAA                    wait for the CAA section 110 process to               named sources is unlawfully impacting
                                                section 126(b) whether an upwind                        conclude before taking action on a CAA                the petitioning state in spite of the SIP
                                                source or group of sources will                         section 126(b) petition, the EPA                      or FIP, in light of newly available
                                                significantly contribute to                             reasonably interprets the substantive                 information. The EPA disagrees that this
                                                nonattainment or interfere with                         requirements of the two provisions to be              is a ‘‘new’’ position the agency is taking
                                                maintenance of the 2008 and the 2015                    closely linked. The court in                          regarding the linkage between good
                                                ozone NAAQS in a petitioning                            Appalachian Power specifically                        neighbor SIPs and FIPs and CAA section
                                                downwind state.                                         considered whether it was appropriate                 126(b) petition. As described earlier in
                                                                                                        for the EPA to rely on findings made                  this section, the EPA has interpreted
                                                   The EPA has consistently
                                                                                                        under the good neighbor provision in                  CAA section 126(b) to impose this
                                                acknowledged in prior actions under                     the NOX SIP Call rulemaking in granting               burden on petitioners in each section
                                                CAA section 126(b) that Congress                        several CAA section 126(b) petitions                  126(b) petition addressed by the agency
                                                created the good neighbor provision and                 raising similar interstate transport                  in the last two decades. See, e.g., 64 FR
                                                CAA section 126 as two independent                      concerns with regards to the same                     28274 n.15 (action on eight states’
                                                statutory processes to address one                      NAAQS. Petitioners in that case argued                petitions for the 1979 ozone NAAQS);
                                                problem: Interstate pollution transport.                that the EPA should instead make a                    71 FR 25336 n.6 (action on North
                                                See, e.g., 83 FR 26666, 26675 (June 8,                  finding that ‘‘the specified stationary               Carolina’s petition for the 1997 ozone
                                                2018) (proposal for this final action); 76              sources within a given state                          NAAQS).
                                                FR 69052, 69054 (November 7, 2011)                      independently met [the statute’s]
                                                (proposed action for the EPA’s final                    threshold test for effect on downwind                 B. Reasonableness of Applying the Four-
                                                action on New Jersey’s CAA section                      nonattainment.’’ 249 F.3d at 1049. The                Step Transport Framework for This
                                                126(b) petition regarding SO2 emissions                 court found that by referring to                      Action
                                                from Portland Generating Station). As                   stationary sources that emit pollutants                  As discussed in Section II of this
                                                the commenters point out, courts have                   ‘‘in violation of the prohibition of [CAA             notice, the EPA has consistently
                                                upheld the EPA’s position that CAA                      section 110(a)(2)(D)(i)],’’ Congress                  analyzed ozone transport with the
                                                sections 110(a)(2)(D)(i) and 126 are two                ‘‘clearly hinged the meaning of section               understanding that nonattainment and
                                                independent statutory processes to                      126 on that of section 110(a)(2)(D)(i).’’             maintenance concerns result from the
                                                address the same problem of interstate                  Id. at 1050. The court, therefore,                    cumulative air quality impacts of
                                                transport. See GenOn REMA, LLC v.                       concluded that given CAA section 126’s                contributions from numerous
                                                EPA, 722 F.3d 513, 520–23 (3d Cir.                      silence on what it means for a stationary             anthropogenic sources across several
                                                2013); Appalachian Power, 249 F.3d at                   source to violate CAA section                         upwind states (as well as from within
                                                1047. However, the commenters                           110(a)(2)(D)(i), the EPA’s approach of                the downwind state). Consistent with
                                                misread the courts’ holding regarding                   relying on findings under CAA section                 this understanding, the EPA has
                                                the EPA’s interpretation of the interplay               110(a)(2)(D)(i) was reasonable and,                   evaluated ozone transport based in part
                                                between the two provisions. Both the                    therefore, entitled to deference under                on the relative contribution of all
                                                D.C. Circuit and Third Circuit spoke to                 Chevron U.S.A. Inc. v. Natural                        anthropogenic sources within a state, as
                                                the question of the timing of these                     Resources Defense Council, Inc., 467                  measured against to a screening
                                                processes—specifically, whether the                     U.S. 837, 843 (1984). Id. The EPA’s                   threshold, and then identified particular
                                                EPA could act on a CAA section 126(b)                   approach to addressing the CAA section                source sectors and units for regulatory
                                                petition in instances where the agency                  126(b) petitions considered the                       consideration.32 This approach to
                                                had not yet acted on a CAA section 110                  Appalachian Power case is consistent                  evaluating ozone transport is reasonable
                                                SIP addressing interstate transport for                 with the EPA’s application of the four-               because the statute’s use of
                                                the same NAAQS. Both courts upheld                      step framework and consideration of                   ‘‘significantly’’ as a modifier to
                                                the EPA’s position that it need not wait                findings made in the CSAPR Update in
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                                                                                                                                                              ‘‘contribute’’ implies a relationship, e.g.,
                                                for the CAA section 110 process to                      acting on Maryland’s and Delaware’s
                                                conclude in order to act on a CAA                       CAA section 126(b) petitions.                            32 The EPA has used cost as a factor in its multi-

                                                section 126(b) petition, thus affirming                    Commenters also contend that the                   factor approach for quantifying significant
                                                that both statutory provisions are                      EPA is erecting a ‘‘new barrier’’ to CAA              contribution from multiple contributing states. Cost
                                                                                                                                                              is used in a relative (i.e., least-cost abatement)
                                                independent from one another from a                     section 126(b) petitions by requiring a               approach that also requires examining individual
                                                timing perspective. Here, the agency has                petitioner to disprove the validity of the            source impact and reduction potential in the
                                                not deferred action on Delaware’s                       SIP or FIP in place for a source.                     context of the larger universe of contributors.



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                                                                               Federal Register / Vol. 83, No. 194 / Friday, October 5, 2018 / Notices                                                     50455

                                                the impact a source or collection of                       The complexity of atmospheric                         reasonable to consider these factors
                                                sources has relative to other relevant                  chemistry and the interconnected, long-                  whether evaluating ozone transport in
                                                sources of that pollutant. Therefore,                   distance nature of ozone transport also                  the context of a good neighbor SIP
                                                although CAA section 126(b) allows                      demonstrates the appropriateness of the                  under CAA section 110 or a section
                                                downwind states to petition the EPA                     four-step framework. As a result of this                 126(b) petition.
                                                regarding specific sources or groups of                 complexity, including domestic and                          The EPA has already conducted such
                                                sources that they believe are                           international as well as anthropogenic                   an analysis for all sources named in
                                                contributing to the downwind air                        and background contributions to ozone                    Delaware and Maryland’s petitions via
                                                quality problems, the EPA believes it is                and its precursors, it is less likely that               the CSAPR Update. The EPA
                                                reasonable and appropriate to evaluate                  a single source is entirely responsible                  determined that the upwind states
                                                the emissions from sources named in a                   for impacts to a downwind area. For                      named by the petitioners emitted in
                                                petition in the context of all relevant                 example, several commenters assert that                  violation of the good neighbor provision
                                                anthropogenic sources of that pollutant                 the emissions from all of the sources                    with respect to downwind states. The
                                                to determine whether or not emissions                   named in the Maryland petition                           EPA, therefore, found that EGUs in
                                                from the named sources are in violation                 contribute 0.656 ppb to the Edgewood                     these states, including the named
                                                of the good neighbor provision.                         receptor in Maryland—an amount that                      sources, collectively needed to make
                                                   The EPA notes that the four-step                     is insufficient to itself cause                          reductions at a cost level commensurate
                                                framework provides a logical,                           nonattainment. Thus, a determination                     with operating and optimizing existing
                                                consistent, and systematic approach for                 regarding whether this impact is                         SCR controls (among other NOX
                                                addressing interstate transport for a                   sufficient to significantly contribute to                reduction strategies included in the
                                                variety of criteria pollutants under a                  nonattainment or interfere with                          CSAPR Update). Based on the nature of
                                                broad array of national, regional, and                  maintenance of the NAAQS—in light of                     ozone formation, the many receptors
                                                local scenarios. Consequently, the EPA                  other anthropogenic emission sources                     throughout the region, the many source
                                                finds it reasonable to apply the same                   impacting a downwind area—is                             sectors and numerous sources, and
                                                four-step transport framework used to                   necessarily more complicated. However,                   because EGUs had readily available low-
                                                evaluate regional ozone transport under                 the EPA evaluates within step three of                   cost and impactful emission reductions
                                                the good neighbor provision in                          the framework whether upwind sources                     available, the EPA found that a limited
                                                considering a CAA section 126(b)                        have emissions that significantly                        allowance trading program would
                                                petition addressing the impacts of                      contribute to nonattainment or interfere                 achieve emission reductions
                                                individual sources on downwind                          with maintenance of the ozone NAAQS                      commensurate with applying these cost-
                                                attainment and maintenance of the                       based on various control, cost, and air                  effective controls. As discussed in more
                                                ozone NAAQS. As the four-step                           quality factors, including the magnitude                 detail in Section IV of this notice,
                                                framework is applied to evaluate a                      of emissions from upwind states, the                     petitioners and commenters have not
                                                particular interstate transport problem,                number of potential emission reductions                  demonstrated, based on information
                                                the EPA can determine whether upwind                    from upwind sources, the cost of those                   available at this time, either that the
                                                sources are actually contributing to a                  potential emission reductions, and the                   particular sources named by petitioners
                                                downwind air quality problem; whether                   potential air quality impacts of emission                should be required to make further
                                                and which sources can be cost                           reductions.34 The EPA believes it is                     emission reductions under the good
                                                effectively controlled relative to that                                                                          neighbor provision in light of their
                                                downwind air quality problem; what                      outlined the four-step transport framework to            contributions relative to other sources
                                                                                                        evaluate whether the identified source was emitting
                                                level of emissions should be eliminated                 in violation of the good neighbor provision. The
                                                                                                                                                                 that are not named in the petitions, or
                                                to address the downwind air quality                     EPA concluded that the petitioning downwind state        that source-specific unit-level emission
                                                problem; and the means of                               had an air quality problem (step one) for the 2010       rates are necessary to ensure reductions
                                                                                                        SO2 NAAQS. The agency determined that emissions          are being achieved under the CSAPR
                                                implementing corresponding emission                     from the named source in the upwind state alone
                                                limits (i.e., source-specific rates, or                 were sufficient not just to contribute to (step two),
                                                                                                                                                                 Update. As further described in Section
                                                statewide emission budgets in a limited                 but to cause a violation of the NAAQS in the             IV.B of this notice, the EPA’s
                                                regional allowance trading program).                    petitioning state. As such, the agency determined        independent analysis finds that,
                                                                                                        that the facility should be regulated because of the     contrary to the petitioners’ and
                                                The outcome of this assessment will                     magnitude of its contribution and the relative lack
                                                vary based on the scope of the air                      of other contributing sources (step three). To           commenters’ assertions, the CSAPR
                                                quality problem, the availably and cost                 address this impact, the EPA imposed federally           Update allowance trading program has
                                                of controls at sources in upwind states,                enforceable source-specific rate limits to eliminate     been sufficient and successful in
                                                                                                        the source’s significant contribution (step four). See   reducing regional emissions of ozone
                                                and the relative impact of upwind                       Final Response to Petition From New Jersey
                                                emission reductions on downwind                         Regarding SO2 Emissions from the Portland                and emissions across the named EGUs.
                                                ozone concentrations. For a more                        Generating Station, 76 FR 69052 (November 7,                For any analysis of a CAA section
                                                localized pollutant like SO2, the use of                2011).                                                   126(b) petition regarding interstate
                                                                                                          34 ‘‘We believe it is important to consider both
                                                the four-step framework could result in                                                                          transport of ozone, a regional pollutant
                                                                                                        [cost and air quality] factors because circumstances
                                                a finding that emissions from a unit                    related to different downwind receptors can vary
                                                                                                                                                                 with contribution from a variety of
                                                were significantly contributing to                      and consideration of multiple factors can help EPA       sources, the EPA reviews whether the
                                                nonattainment, or interfering with                      appropriately identify each state’s significant          particular sources identified by the
                                                                                                        contribution under different circumstances. [. . .]      petitioner should be controlled in light
                                                maintenance, under the first three steps,               Using both air quality and cost factors allows EPA
                                                which may lead the agency in step four                  to consider the full range of circumstances and
                                                                                                                                                                 of the collective impact of emissions on
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                                                to require unit-specific compliance                     state-specific factors that affect the relationship
                                                requirements (such as an emission                       between upwind emissions and downwind                    quantifying each state’s significant contribution.’’
                                                                                                        nonattainment and maintenance problems. For              Proposed Federal Implementation Plans To Reduce
                                                rate).33                                                example, considering cost takes into account the         Interstate Transport of Fine Particulate Matter and
                                                                                                        extent to which existing plants are already              Ozone, 75 FR 45210, 45271 (August 2, 2010)
                                                  33 For an example of such a case, the EPA’s action    controlled as well as the potential for, and relative    (CSAPR proposal) (describing potential disparities
                                                on a prior CAA section 126(b) petition regarding        difficulty of, additional emissions reductions.          between upwind and downwind state contributions
                                                SO2 emissions from the Portland Generating Station      Therefore, EPA believes that it is appropriate to        to identified air quality problems and between
                                                in Pennsylvania analyzed similar factors as those       consider both cost and air quality metrics when          levels of controls between states).



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                                                50456                          Federal Register / Vol. 83, No. 194 / Friday, October 5, 2018 / Notices

                                                air quality in the area, including                      the fourth-highest daily maximum                        in Section IV.B of this notice, the EPA’s
                                                emissions from other anthropogenic                      ozone concentration, averaged across 3                  review of current and projected future
                                                sources. Thus, review of the named                      consecutive years.35 In contrast,                       air quality in Delaware indicates that
                                                sources in the Delaware and Maryland                    exceedances represent, in the case of the               the state is attaining and will maintain
                                                petitions provides a starting point for                 2008 and 2015 ozone NAAQS, an                           the 2008 ozone NAAQS. Accordingly,
                                                the EPA’s evaluation, but does not—as                   8-hour measurement above the level of                   Delaware’s petition provides
                                                the commenters suggest—complete the                     the NAAQS. Violations, rather than                      insufficient evidence of a requisite air
                                                evaluation to determine whether the                     exceedances, are the relevant metric for                quality problem with respect to the 2008
                                                named sources emit or would emit in                     identifying nonattainment and                           ozone NAAQS within the state.
                                                violation of the good neighbor                          maintenance problems. A design value                       With respect to the 2015 ozone
                                                provision.                                              is a statistic that describes the air                   NAAQS, Delaware argues that if that
                                                                                                        quality status of a given location relative             NAAQS had been in effect from 2011
                                                IV. The EPA’s Final Response to                         to the level of the NAAQS. Thus,                        through 2016, Delaware monitors would
                                                Delaware’s and Maryland’s CAA                           individual exceedances at monitors do                   have recorded more exceedances than
                                                Section 126(b) Petitions                                not by themselves indicate that a state                 they did under the 2008 ozone NAAQS.
                                                   The EPA is finalizing denials of the                 is not attaining or maintaining the                     However, again, the identification of
                                                Maryland petition and all four of the                   NAAQS. In prior transport rulemakings,                  individual exceedances does not speak
                                                Delaware petitions. Section IV.A of this                the EPA identified both nonattainment                   to whether there are current violations
                                                notice describes the EPA’s                              and maintenance receptors based on air                  of the standard. Additionally, as
                                                determination that Delaware has not                     quality model projections of measured                   discussed further in Section II of this
                                                demonstrated that the sources named in                  design values. In the CSAPR Update, the                 notice, the EPA evaluates downwind
                                                their petitions emit or would emit in                   EPA identified nonattainment receptors                  ozone air quality problems for purposes
                                                violation of the good neighbor provision                as those with an average projected                      of step one of the four-step framework
                                                such that they will significantly                       design value above the NAAQS and                        using modeled future air quality
                                                contribute to nonattainment or interfere                with current measured nonattainment.                    concentrations for a year that considers
                                                with maintenance of the 2008 or 2015                    The EPA identified maintenance                          the relevant attainment deadlines for the
                                                ozone NAAQS in Delaware. Section                        receptors as those monitors with a                      NAAQS, based on its interpretation of
                                                IV.B of this notice describes the EPA’s                 ‘‘maximum’’ future design value above                   the term ‘‘will’’ in the good neighbor
                                                independent analysis of the sources                     the NAAQS in order to take into                         provision.36 The petitions do not
                                                named in both states’ petitions and                     account historic variability in air quality             provide any analysis indicating that
                                                concludes based on such analysis that                   at the monitor. See 81 FR 74531.                        Delaware may violate or have difficulty
                                                there is no basis to find that the named                   Several commenters have argued that                  maintaining 2015 ozone NAAQS in a
                                                sources emit or would emit pollution in                 Delaware is not attaining or maintaining                year associated with the relevant
                                                violation of the good neighbor provision                the 2008 ozone NAAQS because there                      attainment dates for that standard.
                                                with respect to the 2008 ozone NAAQS                    are areas in Delaware that are                             Several commenters allege that the
                                                (Delaware and Maryland) or the 2015                     designated nonattainment for that                       EPA incorrectly identified technical
                                                ozone NAAQS (Delaware only). In this                    standard. However, a nonattainment                      deficiencies in Delaware’s petition
                                                section, and in the RTC document                        designation, which was first issued for                 regarding whether there is an air quality
                                                included in the docket for this action,                 the 2008 ozone NAAQS in 2012, does                      problem in Delaware. The commenters
                                                the agency explains the rationale                       not by itself indicate that a state is                  also submitted additional data that they
                                                supporting its final action and provides                currently failing to attain or struggling               contend demonstrates current violations
                                                its response to significant public                      to maintain the NAAQS, or that it will                  in the state. However, comments related
                                                comments on the proposed action.                        have problems attaining or maintaining                  to the 2008 ozone NAAQS either
                                                                                                        the standard in the future. The courts                  identified violating monitors outside of
                                                A. The EPA’s Evaluation of Whether the                                                                          Delaware or identified further
                                                                                                        have confirmed that the EPA’s authority
                                                Petitions Are Sufficient To Support a                                                                           individual exceedances in Delaware
                                                                                                        to find that a source or state is in
                                                CAA Section 126(b) Finding                                                                                      without demonstrating that they
                                                                                                        violation of the good neighbor provision
                                                                                                                                                                contributed to a violating design value.
                                                1. Delaware’s Petition Is Not Sufficient                is constrained to circumstances where
                                                                                                                                                                The commenters have not submitted
                                                on Its Own Merit To Support a CAA                       an actual air quality problem has been
                                                                                                                                                                information that conclusively shows
                                                Section 126(b) Finding                                  identified. See EME Homer City, 134 S.
                                                                                                                                                                current or future violations of the 2008
                                                   The EPA finds that Delaware’s                        Ct. at 1608–09 (holding the EPA cannot
                                                                                                                                                                ozone NAAQS within the state of
                                                conclusions are not supported by the                    require more emission reductions than
                                                                                                                                                                Delaware. For the 2015 ozone NAAQS,
                                                petitions’ assessments based on several                 necessary to address downwind air
                                                                                                                                                                the commenters identified current
                                                technical deficiencies. First, with                     quality problems); EME Homer City II,
                                                                                                                                                                violating monitors in Delaware but did
                                                respect to the 2008 ozone NAAQS, the                    795 F.3d 118 at 129–30 (D.C. Cir. 2015)
                                                                                                                                                                not identify any projected air quality
                                                EPA is finalizing its conclusion that                   (holding state emission budgets invalid
                                                                                                                                                                violations in a future year associated
                                                Delaware does not provide sufficient                    where air quality modeling projected no
                                                                                                                                                                with the relevant attainment dates.
                                                information to indicate that there is a                 downwind air quality problems).
                                                                                                                                                                Commenters did not correct any of the
                                                current or expected future air quality                  Delaware has not demonstrated that
                                                                                                                                                                technical deficiencies the EPA
                                                problem in the state. While the                         there is a current or expected future air
                                                                                                                                                                identified in Delaware’s petitions. Thus,
                                                Delaware petitions identify individual                  quality problem in the state, nor did any
                                                                                                                                                                the EPA is concluding, as proposed, that
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                                                exceedances of the ozone standard in                    commenters provide evidence of a
                                                                                                                                                                the petition does not adequately identify
                                                the state between the 2000 and 2016                     current or anticipated future violation of
                                                                                                                                                                a relevant air quality problem related to
                                                ozone seasons, this does not                            the 2008 ozone NAAQS. As discussed
                                                                                                                                                                the 2008 or 2015 ozone NAAQS.
                                                demonstrate that there is a resulting                     35 See 80 FR 65296 (October 26, 2015) for a
                                                                                                                                                                   Second, with respect to step two of
                                                nonattainment or maintenance problem.                   detailed explanation of the calculation of the 3-year   the four-step framework, material
                                                Ozone NAAQS violations, as opposed to                   8-hour average and the methodology set forth in 40
                                                exceedances, are determined based on                    CFR part 50, appendix U.                                 36 81   FR 74517.



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                                                                               Federal Register / Vol. 83, No. 194 / Friday, October 5, 2018 / Notices                                             50457

                                                elements of Delaware’s analysis                         2008 or 2015 ozone standards—which                       would be expected. Therefore, the EPA
                                                regarding the contributions from the                    indicates that a NAAQS violation occurs                  does not have a basis to grant
                                                Brunner Island, Harrison, Homer City,                   when the fourth highest daily maximum                    Delaware’s petition with respect to
                                                and Conemaugh EGUs to air quality in                    value in a calendar year at a specific                   either the 2008 or 2015 ozone NAAQS
                                                Delaware are deficient and, therefore,                  monitor exceeds the standard—and,                        based on data and analyses provided in
                                                the conclusions that the petitions draw                 thus, is not informative of whether there                the petitions.
                                                are not supported by the technical                      is a nonattainment issue in the state.
                                                                                                                                                                 2. The EPA’s Analysis of the Technical
                                                assessment. As noted earlier, all four                  Specifically, Delaware does not identify
                                                                                                                                                                 Sufficiency of Maryland’s Petition
                                                petitions rely upon air quality modeling                the numeric modeled and/or measured
                                                that uses 2011 emissions to quantify the                ozone levels on the same days identified                    The EPA is not finalizing its proposed
                                                contribution from each of the four                      in Delaware’s petitions with modeled                     finding that Maryland’s petitions are
                                                named sources to locations in Delaware                  impacts.38 For example, Delaware’s                       technically deficient, but is finalizing
                                                on individual days in 2011. However,                    Homer City petition identifies modeled                   the denial based on the EPA’s
                                                2011 emissions are generally much                       contributions from emissions at that                     independent assessment there are no
                                                higher than, and therefore not                          source to three downwind monitoring                      additional cost-effective reductions
                                                representative of, current or future                    sites in Delaware on July 18, 2011.                      relative to the CSAPR Update for the
                                                projected emissions levels at these EGUs                However, the petition fails to identify                  sources named in Maryland’s petition.
                                                and in the rest of the region—levels that               whether there were measured and/or                       This topic is discussed in more detail in
                                                the EPA believes are most relevant to                   modeled exceedances of the ozone                         Section IV.B of this notice.
                                                determining whether a source ‘‘emits or                 NAAQS on that particular day at those                    B. The EPA’s Independent Analysis of
                                                would emit’’ in violation of the good                   sites. Delaware’s Harrison and Brunner                   the Petitions Consistent With the CSAPR
                                                neighbor provision.37 Thus, the 2011                    Island petitions identify the days the                   Update
                                                modeling does not provide                               contributions were modeled to occur,
                                                representative data regarding                                                                                      As discussed in Section III.A of this
                                                                                                        but not the specific monitoring sites
                                                contributions that would result from                                                                             notice, the EPA may decide to conduct
                                                                                                        where Delaware claims emissions from
                                                either current or future emission levels                                                                         independent analyses when evaluating
                                                                                                        these sources impact air quality.
                                                from these EGUs. When evaluating a                                                                               the basis for a potential CAA section
                                                                                                        Moreover, these two petitions do not
                                                CAA section 126(b) petition, it is                                                                               126(b) finding or when developing a
                                                                                                        provide information on whether the
                                                important and consistent with the                                                                                remedy if a finding is made. Because the
                                                                                                        contributions were to design values that
                                                language of the section to rely on                                                                               CSAPR Update recently evaluated
                                                                                                        actually exceed the ozone NAAQS.
                                                current and relevant data known at the                                                                           interstate ozone pollution transport,
                                                                                                        Delaware’s Conemaugh petition
                                                time the agency takes action. Were the                                                                           including considering the air quality
                                                                                                        identifies 2011 contributions on days
                                                EPA to act based on outdated or non-                                                                             and EGU emissions described in the
                                                                                                        when some Delaware monitors
                                                representative information solely                                                                                Delaware and Maryland 126(b)
                                                                                                        exceeded the 2008 NAAQS, but the
                                                because it was provided in a petition,                                                                           petitions, the EPA evaluated the
                                                                                                        petition does not specify which
                                                that action could be arbitrary and                                                                               petitions and comments received on the
                                                                                                        monitors were impacted on those days.
                                                unreasonable and could, for example,                                                                             proposal in light of the agency’s existing
                                                                                                        The petition therefore does not provide
                                                impose controls or emission limitations                                                                          regulatory program, and the underlying
                                                                                                        information to show that the modeled
                                                that are not appropriately tailored to the                                                                       analysis on which it is based. This
                                                                                                        contributions occurred at monitoring
                                                nature of the problem at the time of the                                                                         constitutes the EPA’s independent
                                                                                                        sites that were exceeding either the 2008
                                                EPA’s final action or at the time when                                                                           analysis for certain aspects of the
                                                                                                        or 2015 ozone NAAQS. Commenters did
                                                such controls or limitations would                                                                               petitions. The agency also evaluated
                                                                                                        not provide additional information
                                                actually be implemented. This could                                                                              additional technical information that
                                                                                                        clarifying these deficiencies.
                                                result in unnecessary over-control (or                     For the reasons described in this                     became available after the CSAPR
                                                under-control) of emissions, beyond (or                 section, Delaware’s analyses in its four                 Update was finalized to independently
                                                short of) what is required to address the               petitions do not allow the EPA to                        evaluate other aspects of the petitions.
                                                good neighbor provision, in violation of                                                                           This section begins by explaining the
                                                                                                        conclude that there is a current or future
                                                the Supreme Court’s holding in EME                                                                               relationship between the CSAPR Update
                                                                                                        nonattainment or maintenance problem
                                                Homer City, 134 S. Ct. at 1608–09.                                                                               and the EPA’s independent analysis of
                                                                                                        in Delaware based on violations of the
                                                   Further, the analyses provided by                                                                             the petitions. The subsequent
                                                                                                        NAAQS, nor that the named sources are
                                                Delaware regarding the alleged impacts                                                                           subsections discuss the EPA’s rationale
                                                                                                        improperly impacting downwind air
                                                of the four sources on downwind air                                                                              for denying the petitions with respect to
                                                                                                        quality on days when such violations
                                                quality include some information on the                                                                          the named sources.
                                                frequency and magnitude of ozone                          38 Existing EPA analyses of interstate ozone
                                                                                                                                                                 1. CSAPR Update as Context
                                                impacts, but the information provided                   pollution transport focus on contributions to high
                                                does not account for the form of the                    ozone days at the specific downwind receptor in             The EPA promulgated the CSAPR
                                                                                                        order to evaluate the impact on nonattainment and        Update to address the good neighbor
                                                   37 As an example of how emissions have changed       maintenance at the receptor. For example, in the         provision requirements for the 2008
                                                                                                        CSAPR Update modeling, ozone contributions were
                                                between 2011 and a recent historical year, the EPA
                                                                                                        calculated using data for the days with the highest
                                                                                                                                                                 ozone NAAQS. 81 FR 74504. The final
                                                notes that Pennsylvania’s 2017 EGU NOX ozone
                                                season emissions were 79 percent below 2011             future year modeled ozone concentrations. For the        CSAPR Update built upon previous
                                                levels. One of the named sources, Brunner Island,       2008 ozone NAAQS, only the highest measured              regulatory efforts in order to address the
                                                is located in Pennsylvania and reduced its              ozone days from each year are considered for the         collective contributions of ozone
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                                                individual ozone season NOX emissions by 88             calculation of ozone design values (the values that
                                                                                                        determine whether there is a measured NAAQS
                                                                                                                                                                 pollution from 22 states in the eastern
                                                percent in 2017 relative to 2011 levels. (https://
                                                www.epa.gov/ampd). Additional emissions data            violation). Measured ozone values that are far below     United States to widespread downwind
                                                from 2011 and a recent historical year is included      the level of the NAAQS do not cause an exceedance        air quality problems. As was also the
                                                in the docket, which also shows that 2011               or violation of the NAAQS. For this reason, only         case for the previous rulemakings, the
                                                emissions are generally higher than emissions in        ozone contributions to days that are among the
                                                recent years. See 2011 to 2017 NOX Comparisons,         highest modeled ozone days at the receptor are
                                                                                                                                                                 EPA evaluated the nature (i.e., breadth
                                                Ozone Season, available in the docket for this          relevant to determining if a state or source is linked   and interconnectedness) of the ozone
                                                action.                                                 to downwind nonattainment or maintenance issues.         problem and NOX reduction potential


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                                                50458                          Federal Register / Vol. 83, No. 194 / Friday, October 5, 2018 / Notices

                                                from EGUs, including those sources                      identified in Maryland and Delaware’s                 own merits adequately establish the
                                                named in the Delaware and Maryland                      petitions, to participate in the CSAPR                presence of a current or future
                                                CAA section 126(b) petitions.                           NOX Ozone Season Group 2 allowance                    nonattainment or maintenance problem
                                                   Of particular relevance to this action,              trading program, with more detailed                   in Delaware, the EPA also
                                                the EPA determined in the CSAPR                         assurance provisions applying to each                 independently examined whether there
                                                Update that emissions from the states                   covered state to ensure that they will be             is an air quality problem under the 2008
                                                identified in Maryland’s petition were                  required to collectively limit their                  and 2015 ozone NAAQS (step one). As
                                                linked in steps one and two of the four-                emissions, beginning with the 2017                    described in the following sections, the
                                                step framework to maintenance                           ozone season. The CSAPR trading                       EPA finds that the named sources in
                                                receptors for the 2008 ozone NAAQS in                   programs and the EPA’s prior emission                 Delaware’s petitions are not, and will
                                                Maryland based on air quality modeling                  trading programs (e.g., the NOX Budget
                                                projections to 2017. 81 FR 74538                                                                              not be, emitting in violation of the good
                                                                                                        Trading Program associated with the
                                                through 74539. With respect to                          NOX SIP Call) have provided a proven,                 neighbor provision with respect to
                                                Delaware, the CSAPR Update modeling                     cost-effective implementation                         Delaware for either the 2008 or 2015
                                                revealed no monitors in the state with                  framework for achieving emission                      ozone NAAQS. The EPA also conducted
                                                a projected average or maximum design                   reductions. This implementation                       a further independent assessment of the
                                                value above the level of the 2008 ozone                 approach was shaped by previous                       sources named in Delaware’s petitions
                                                NAAQS in 2017.39 Thus, the EPA in                       rulemakings and reflects the evolution                with respect to step three of the
                                                step one of the four-step framework did                 of these programs in response to court                framework, discussed later in this
                                                not identify any downwind air quality                   decisions and practical experience                    notice, which further supports the
                                                problems in Delaware with respect to                    gained by states, industry, and the EPA.              EPA’s denial of the Delaware petitions.
                                                the 2008 ozone NAAQS and, therefore,                       As discussed in more detail later, the
                                                did not determine that emissions from                   EPA has considered the CSAPR Update                   (1) The EPA’s Independent Analysis
                                                any of the states identified in the state’s             and related technical information in                  Regarding Delaware’s Step One Claims
                                                four petitions would be linked to                       evaluating the section 126(b) petitions.              With Respect to the 2008 Ozone
                                                Delaware.                                               This includes a review of the air quality             NAAQS
                                                   For states linked to downwind air                    modeling conducted for the CSAPR
                                                quality problems in Maryland, the                                                                                The EPA first looked to modeling
                                                                                                        Update to evaluate projected
                                                agency identified certain emissions from                nonattainment and maintenance                         conducted in 2016 that projects ozone
                                                large EGUs as significantly contributing                concerns in each petitioning states in                concentrations at air quality monitoring
                                                to nonattainment and/or interfering                     steps one and two of the four-step                    sites in 2017, which was conducted for
                                                with maintenance of the NAAQS based                     framework. The EPA has also                           purposes of evaluating step one of the
                                                on cost and air-quality factors.                        considered the control strategies                     four-step framework for the 2008 ozone
                                                Considering these factors, the EPA                      evaluated and implemented in the                      NAAQS as part of the CSAPR Update.40
                                                found there were cost-effective emission                CSAPR Update to conclude, in step                     This modeling indicated that Delaware
                                                reductions that could be achieved                       three, that the EPA has already                       was not projected to have any
                                                within upwind states at a level of                      implemented emission reductions                       nonattainment or maintenance receptors
                                                control stringency available at a                       associated with operation of existing                 in 2017 with respect to the 2008 ozone
                                                marginal cost of $1,400 per ton of NOX                  SCRs at the named sources and that the                NAAQS. See 83 FR 26678. Furthermore,
                                                reduced. This level of control stringency               EPA has already concluded that the                    the EPA examined Delaware’s 2014–
                                                represented ozone season NOX                            operation of existing SNCR at two other               2016 design values, and found that no
                                                reductions that could be achieved in the                named sources is not a cost-effective                 areas in Delaware had a design value
                                                2017 analytic year and included the                     control strategy under the good neighbor              that violated the 2008 ozone NAAQS.
                                                potential for operating and optimizing                  provision.                                            See id. An examination of the recently
                                                existing SCR post-combustion controls;                                                                        released 2015–2017 design values
                                                installing state-of-the-art NOX                         2. The EPA’s Step One and Two
                                                                                                        Analyses for Delaware and Maryland                    showed the same result.41 Accordingly,
                                                combustion controls; and shifting
                                                generation to existing units with lower                                                                       the EPA has no basis to conclude that
                                                                                                           As part of the EPA’s independent
                                                NOX emission rates within the same                      analysis, the agency considered                       any of the sources named by Delaware
                                                state. 81 FR 74551. The CSAPR Update                    Delaware’s and Maryland’s petitions in                in its petitions are linked to a
                                                quantified an emission budget for each                  light of recent agency analysis which                 downwind air quality problem in the
                                                state based on that level of control                    applied steps one and two of the four-                state with regard to the 2008 ozone
                                                potential. The EPA found that these                     step framework. The EPA found that the                NAAQS. In the absence of a downwind
                                                emission budgets were necessary to                      named sources are not contributing to                 air quality problem, the EPA has no
                                                achieve the required emission                           nonattainment or interfering with                     authority to regulate upwind sources to
                                                reductions and mitigate impacts on                      maintenance of Delaware’s air quality                 address air quality in Delaware with
                                                downwind states’ air quality in time for                for either the 2008 or 2015 ozone                     respect to the 2008 ozone NAAQS.
                                                the July 2018 moderate area attainment                  NAAQS, and that the sources named in
                                                date for the 2008 ozone NAAQS.                          Maryland’s petition warranted further
                                                   The CSAPR Update finalized                           analysis of significant contribution to
                                                enforceable measures necessary to                       nonattainment and interference with                     40 Air Quality Modeling Technical Support

                                                achieve the emission reductions in each                                                                       Document for the Final Cross-State Air Pollution
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                                                                                                        maintenance for the 2008 ozone NAAQS
                                                state by requiring power plants in                                                                            Rule Update (August 2016). Available at https://
                                                                                                        in step three.                                        www.epa.gov/sites/production/files/2017-05/
                                                covered states, including the sources
                                                                                                        a. The EPA’s Step One Analyses for                    documents/aq_modeling_tsd_final_csapr_
                                                  39 See                                                Delaware                                              update.pdf.
                                                        Air Quality Modeling Technical Support                                                                  41 See 2017 Design Value Reports, available at
                                                Document for the Final Cross-State Air Pollution           While the EPA, as discussed in
                                                Rule Update. Available at https://www.epa.gov/                                                                https://www.epa.gov/sites/production/files/2018-
                                                airmarkets/air-quality-modeling-technical-support-      Section IV.A of this notice, finds that               07/ozone_designvalues_20152017_final_07_24_
                                                document-final-cross-state-air-pollution-rule.          Delaware’s petitions do not on their                  18.xlsx.



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                                                                                Federal Register / Vol. 83, No. 194 / Friday, October 5, 2018 / Notices                                                      50459

                                                (2) The EPA’s Independent Analysis                        whether downwind nonattainment areas                       As described earlier, the EPA has
                                                Regarding Delaware’s Step One Claims                      classified as moderate have attained the                evaluated air quality monitoring and
                                                With Respect to the 2015 Ozone                            standard by the relevant 2024                           modeling data for the 2008 ozone
                                                NAAQS                                                     attainment date.45 Therefore, consistent                NAAQS, and found no current or
                                                   Additionally, the EPA independently                    with the EPA’s interpretation of the                    anticipated future violations of the 2008
                                                examined whether there will be a                          term ‘‘will’’ in the good neighbor                      ozone NAAQS (in the form of the
                                                downwind air quality problem in                           provision discussed in Section III of this              standard) at receptors within the state of
                                                Delaware with regard to the 2015 ozone                    notice, available future year information               Delaware. While the EPA evaluated
                                                NAAQS. The modeling conducted in                          does not indicate Delaware will have air                modeling data for future projections of
                                                support of the CSAPR Update shows                         quality concerns by the attainment date                 air quality for both the 2008 and 2015
                                                one monitor—monitor ID 100051003 in                       for the 2015 ozone NAAQS that EPA has                   ozone NAAQS consistent with the
                                                Sussex County—with a maximum 2017                         determined is relevant for purposes of                  forward-looking nature of the good
                                                projected design value (which the EPA                     this analysis. Accordingly, the EPA does                neighbor provision, monitoring data
                                                has typically used to help identify                       not have a basis to regulate upwind                     regarding current violations is a relevant
                                                                                                          sources to address air quality in                       analytic tool for the 2008 ozone NAAQS
                                                maintenance receptors) above the 2015
                                                                                                          Delaware with respect to the 2015 ozone                 considering the attainment date for the
                                                ozone NAAQS.42 Measured data show
                                                                                                          NAAQS.                                                  standard has already passed. However,
                                                that two monitors exceeded the 2015
                                                ozone NAAQS based on the 2014–2016                        (3) Responses to Comments Regarding                     because the relevant attainment date for
                                                design values,43 and three monitors                       the EPA’s Independent Analysis for                      the 2015 ozone NAAQS has not yet
                                                show exceedances of the 2015 ozone                        Step One Under the 2008 and 2015                        passed, it is appropriate to evaluate
                                                NAAQS based on the 2015–2017 design                       Ozone NAAQS                                             future anticipated air quality in step one
                                                values.44 However, as described in                                                                                of determining whether sources must be
                                                                                                             Commenters asserted that the EPA’s                   controlled under the good neighbor
                                                Section II.B of this notice, the EPA                      conclusion that Delaware does not have
                                                evaluates downwind ozone air quality                                                                              provision. The EPA evaluated air
                                                                                                          current or future nonattainment or                      quality modeling data for receptors
                                                problems for the purposes of Step one                     maintenance problems for the 2008 and
                                                of the four-step framework using                                                                                  located within the state of Delaware and
                                                                                                          2015 ozone NAAQS is unreasonable in                     found that, while there are monitors that
                                                modeled future air quality                                light of technical information in the
                                                concentrations for a year that EPA                                                                                are currently violating the 2015 ozone
                                                                                                          record they claim demonstrates                          NAAQS, the data indicate no future air
                                                selects in consideration of the relevant                  otherwise. Commenters further state
                                                attainment deadlines for the NAAQS.                                                                               quality problem for this NAAQS by the
                                                                                                          that New Castle County, Delaware, was                   relevant 2024 attainment date for that
                                                Thus, the 2017 modeling data and the                      designated nonattainment as part of the
                                                recent measured data are not necessarily                                                                          standard. Thus, although commenters
                                                                                                          multistate Philadelphia nonattainment
                                                indicative of a downwind air quality                                                                              state that current ambient monitoring
                                                                                                          area under both the 2008 and 2015
                                                problem that would necessitate the                                                                                data in Delaware for 2018 shows that
                                                                                                          ozone NAAQS, and that the most recent
                                                control of upwind sources to address air                                                                          three of Delaware’s monitors (all in New
                                                                                                          design values for three monitors in New
                                                quality in Delaware with respect to the                                                                           Castle County) are exceeding the 2015
                                                                                                          Castle County exceeded the 70 ppb 2015
                                                2015 ozone NAAQS.                                                                                                 ozone NAAQS, the commenters have
                                                                                                          ozone standard.
                                                   Recent analyses projecting emission                       As an initial matter, the EPA disagrees              not provided any basis for the EPA to
                                                levels to a future year indicate that no                  with the way the commenters                             conclude that Delaware will have an air
                                                air quality monitors in Delaware are                      characterize an air quality problem in                  quality problem relative to the 2015
                                                projected to have nonattainment or                        relation to CAA section 126(b). The                     ozone NAAQS in the future year that it
                                                maintenance problems with respect to                      EPA’s statutory authority extends to                    has selected as relevant for this analysis.
                                                the 2015 ozone NAAQS by 2023, which                       addressing emissions that significantly                    Additionally, commenters challenge
                                                is the last year of ozone season data that                contribute to nonattainment or interfere                the EPA’s conclusion that Delaware
                                                will be considered in order to determine                  with maintenance of the NAAQS.                          does not have an air quality problem for
                                                                                                          Commenters’ focus on individual high                    the 2008 ozone NAAQS by pointing out
                                                  42 In prior transport rulemakings, the EPA
                                                                                                          ozone days does not account for the                     that the Bellefonte site in Delaware has
                                                identified both nonattainment and maintenance             form of the 2008 or 2015 ozone                          recorded 8-hour daily maximum values
                                                receptors based on air quality model projections of
                                                                                                          standards (under which a violation                      which exceed even the 1997 ozone
                                                measured design values. In the CSAPR Update, the                                                                  NAAQS. These exceedances at the
                                                EPA identified nonattainment receptors as those           occurs when the fourth-highest reading
                                                with an average projected design value above the          in a calendar year at a specific monitor                Bellefonte site are not relevant to actual
                                                NAAQS and with current measured nonattainment.            exceeds the NAAQS) and thus is not                      or projected nonattainment or
                                                The EPA identified maintenance receptors as those
                                                                                                          informative of whether there is a                       maintenance issues. Although there may
                                                monitors with a ‘‘maximum’’ future design value                                                                   be some exceedances of the 2008 ozone
                                                above the NAAQS in order to take into account             nonattainment or maintenance issue.
                                                historic variability in air quality at the monitor. See   Thus, the petitioners and commenters                    NAAQS at the Bellefonte monitor, the
                                                81 FR 74531.                                              raise contentions are ultimately                        EPA does not have information to
                                                  43 See 2016 Design Value Reports, available at
                                                                                                          misaligned with the EPA’s logical                       indicate that the fourth highest daily
                                                https://www.epa.gov/air-trends/air-quality-design-                                                                ozone value averaged across 3
                                                values#report. The official designations for these        approach of identifying downwind air
                                                areas and information relied upon for those               quality problems for purposes of CAA                    consecutive years will exceed the 2008
                                                designations are contained in the EPA’s designation       sections 110(a)(2)(D)(i)(I) and 126(b) in               ozone NAAQS at this site. The
                                                actions for the 2015 ozone NAAQS. See 82 FR
                                                                                                          a manner that is consistent with the                    commenter has not provided
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                                                54232 (November 16, 2017) and the docket for                                                                      information indicating that the monitor
                                                Additional Air Quality Designations for the 2015          form of the standard.
                                                Ozone National Ambient Air Quality Standards,
                                                                                                                                                                  is currently violating the 2008
                                                EPA–HQ–OAR–2017–0548, and accompanying                      45 See Information on the Interstate Transport        NAAQS.46 As noted in this section,
                                                technical support documents.                              State Implementation Plan Submissions for the
                                                  44 See 2017 Design Value Reports, available at          2015 Ozone National Ambient Air Quality                   46 The most current official design value at this

                                                https://www.epa.gov/sites/production/files/2018-          Standards under Clean Air Act Section                   monitor is 71 ppb. See 2017 Design Value Reports,
                                                07/ozone_designvalues_20152017_final_07_24_               110(a)(2)(D)(i)(I) (March 27, 2017), available in the   available at https://www.epa.gov/sites/production/
                                                18.xlsx.                                                  docket for this proposed action.                                                                   Continued




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                                                50460                           Federal Register / Vol. 83, No. 194 / Friday, October 5, 2018 / Notices

                                                individual exceedances at monitors do                    reasonably interprets CAA section                    a transport SIP under CAA section
                                                not by themselves indicate that a state                  126(b)’s petition authority to be limited            110(a)(2)(D)(i)(I) that contains
                                                is not attaining or maintaining the                      to states and political subdivisions                 provisions adequate to prohibit
                                                NAAQS. Thus, we have no basis to                         seeking to address interstate transport of           emissions activity that contribute
                                                conclude there are any air quality                       pollution impacting downwind                         significantly to nonattainment or
                                                problems with respect to the 2008                        receptors within their geographical                  interfere with maintenance of the
                                                NAAQS in Delaware in a manner                            borders.                                             NAAQS in another state, which may
                                                relevant for step one of the four-step                      Additionally, the context of CAA                  also include a multistate nonattainment
                                                transport framework. Thus, because all                   section 126 as a whole suggests these                area if such area is being impacted by
                                                monitors were projected to attain and                    provisions are meant to moderate                     upwind emissions activity.
                                                maintain the standard in the CSAPR                       interstate transport concerns between                   Furthermore, the commenters’
                                                Update modeling and are attaining the                    affected states and upwind sources, not              assertion that monitors in the
                                                standard in the most recent monitoring                   between any third party (even if such                Philadelphia nonattainment area are
                                                period, the EPA has no basis to                          party is another state) and upwind                   currently measuring exceedances of the
                                                conclude that the sources in the upwind                  sources. CAA section 126(a), for                     2015 ozone NAAQS does not change the
                                                states emit or would emit in violation of                example, requires upwind sources to                  EPA’s conclusion that Delaware has no
                                                the good neighbor provision in                           provide notification of certain potential            air quality problem under the 2015
                                                Delaware for the 2008 NAAQS.                             air quality impacts to nearby states                 ozone NAAQS when looking toward a
                                                   Commenters point out that monitors                    which may be affected by the source,                 relevant future year. As described in
                                                in the Philadelphia nonattainment area,                  not to all states. Furthermore, CAA                  Section IV.A of this notice, the EPA
                                                located outside of the state of Delaware,                section 126(b) petitions may only be                 evaluates downwind ozone air quality
                                                are violating both the 2008 and 2015                     filed by states and political                        problems for the purposes of step one of
                                                ozone NAAQS. The commenters assert                       subdivisions. By contrast, other                     the four-step framework using modeled
                                                that because Delaware’s New Castle                       provisions that contain petition                     future air quality concentrations for a
                                                County is included with other counties                   authority under the CAA expressly                    year that considers the relevant
                                                which make up the Philadelphia                           allow for any person to petition the EPA             attainment deadlines for the NAAQS.
                                                nonattainment area for both the 2008                     (e.g., CAA section 505(b)(2)’s authority             Recent analyses projecting emission
                                                and 2015 ozone NAAQS, Delaware’s                         for any person to petition the EPA to                levels to a future year indicate that no
                                                attainment of the ozone NAAQS is tied                    object to the issuance of a Title V                  air quality monitors in Delaware are
                                                to the attainment of the other monitors                  petition). The more restrictive text in              projected to have nonattainment or
                                                in the nonattainment area.                               CAA section 126(b) suggests that                     maintenance problems with respect to
                                                   The EPA disagrees with commenter’s                    Congress intended access to the petition             the 2015 ozone NAAQS by 2023.49
                                                suggestion that non-attaining                            process to be narrowly available to                  Therefore, consistent with the EPA’s
                                                monitoring data for nearby receptors                     states and political subdivisions directly           interpretation of the term ‘‘will’’ in the
                                                outside the petitioning state support a                  affected by upwind pollution.                        good neighbor provision, available
                                                CAA section 126(b) finding for                              While the acknowledgement of                      future year information does not suggest
                                                Delaware, even if such monitors are                      multistate nonattainment areas in the                Delaware will have air quality concerns
                                                located in a multistate nonattainment                    CAA reflects Congress’s understanding                by the relevant attainment date for the
                                                area that includes the petitioning state.                that pollution crosses state boundaries,             2015 ozone NAAQS. Under step one of
                                                The specific language of CAA section                     that does not indicate that Congress                 the transport framework, since there are
                                                126(b) does not say that a state may                     clearly authorized all states in a                   no projected nonattainment or
                                                petition the EPA for a finding that                      multistate nonattainment area to                     maintenance receptors in Delaware, the
                                                emissions from a source, or group of                     petition EPA under CAA section 126(b)                EPA concludes that it does not have
                                                sources, is impacting downwind                           related to violating monitors outside                sufficient evidence to determine that the
                                                receptors in a state other than the                      their state. Portions of Delaware were               upwind states and sources are
                                                petitioning state. In addition, the                      included in the Philadelphia                         significantly contributing to
                                                legislative history for this provision                   nonattainment area because the EPA                   nonattainment or interfering with
                                                suggests the provision was meant to                      determined that those portions were                  maintenance of the 2015 ozone NAAQS
                                                address adverse air impacts only in the                  themselves contributing to the air                   in Delaware.50
                                                petitioning state.47 Given the broader                   quality problems in Pennsylvania.48                     Several comments challenged the
                                                context of CAA section 126, the EPA                      Nothing in the CAA suggests that                     EPA’s reliance on air quality modeling
                                                                                                         section 126(b) was intended to relieve               projections for 2023 to indicate that
                                                files/2018-07/ozone_designvalues_20152017_final_         states like Delaware of the specific                 Delaware will not have an air quality
                                                07_24_18.xlsx.                                                                                                problem under the 2015 ozone NAAQS.
                                                   47 When section 126 was added to the CAA, the
                                                                                                         planning obligations associated with its
                                                Senate’s amendment implementing the basic                inclusion in an area designated                      First, commenters asserted that even if
                                                prohibition on interstate pollution stated that: ‘‘Any   nonattainment. To the extent a state has             attainment of the 2015 ozone NAAQS
                                                State or political subdivision may petition the          concerns about the impacts of upwind                 was assured for the Philadelphia
                                                Administrator for a finding that a major stationary      pollution on out-of-state monitors in a              nonattainment area by 2023, this
                                                source in another state emits pollutants which
                                                would adversely affect the air quality in the            shared multistate nonattainment area,
                                                                                                                                                                49 See Supplemental Information on the Interstate
                                                petitioning State.’’ (emphasis added). Clean Air Act     these issues can be addressed under
                                                Amendments of 1977, H.R. 95–564, 95th Cong. at                                                                Transport State Implementation Plan Submissions
                                                                                                         other statutory processes. For example,              for the 2008 Ozone National Ambient Air Quality
                                                526 (1977). The House concurred with the Senate’s
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                                                amendment to CAA section 126, with changes to
                                                                                                         every state has an obligation to submit              Standards under Clean Air Act Section
                                                other portions of the amendment, but did not                                                                  110(a)(2)(D)(i)(I) (October 2017), available in the
                                                indicate changes to this sentence. Id. The lack of          48 See Philadelphia-Wilmington-Atlantic City,     docket for this proposed action.
                                                stated changes to this component of the Senate’s         PA-NJ-;MD-DE Nonattainment Area Final                  50 The EPA notes that even if the Philadelphia

                                                original amendment suggest that Congress did not         Designations for the 2015 Ozone National Ambient     area monitors were relevant to the EPA’s analysis
                                                intend for the scope of the petitioning authority to     Air Quality Standards Technical Support              of Delaware’s petition, EPA’s analysis also shows
                                                be expanded to parties other than a state or political   Document. Available at https://www.epa.gov/sites/    that those monitors are not projected to have
                                                division in which downwind air quality is                production/files/2018-05/documents/phila_tsd_        nonattainment or maintenance problems with
                                                adversely affected.                                      final.pdf.                                           respect to the 2015 ozone NAAQS by 2023.



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                                                                               Federal Register / Vol. 83, No. 194 / Friday, October 5, 2018 / Notices                                          50461

                                                analytic year is unacceptable because                   EPA calculated that by the relevant                   air quality in Delaware, the commenters
                                                the agency should consider the August                   attainment date for areas classified as               have not submitted any information that
                                                2, 2021, marginal area attainment date                  Marginal, 85 percent of such areas                    indicates there will be an air quality
                                                as informative to the selection of an                   attained the 1979 1-hour ozone NAAQS,                 problem under the 2015 ozone NAAQS
                                                analytic year. The EPA does not agree                   and 64 percent attained the 2008 ozone                in Delaware in the Marginal attainment-
                                                that it is required to analyze air quality              NAAQS. Id. at Response to Comments,                   date year of 2021, nor did the petition
                                                in a future year aligned with the                       section A.2.4.52 Based on these                       provide any. As discussed in Section III
                                                attainment date for nonattainment areas                 historical data, the EPA expects that                 of this notice, the petitioner bears the
                                                classified as Marginal for the 2015                     many areas classified Marginal for the                burden of establishing, as an initial
                                                ozone NAAQS. Although the North                         2015 ozone NAAQS will attain by the                   matter, a technical basis for the specific
                                                Carolina decision held that the EPA                     relevant attainment date as a result of               finding requested and has not done so
                                                must consider attainment dates in                       emission reductions that are already                  here.
                                                downwind states when establishing                       expected to occur through                                The projected ozone design values for
                                                compliance timeframes for emission                      implementation of existing local, state,              2023 represent the best available data
                                                reductions in upwind states, the                        and federal emission reduction                        regarding expected air quality in
                                                decision did not speak to which                         programs. To the extent states have                   Delaware in a future attainment year.
                                                attainment date should influence the                    concerns about meeting their attainment               These data were developed over the
                                                EPA’s evaluation when there are several                 deadline for a Marginal area, the CAA                 course of multiple years of analytic
                                                potentially relevant attainment dates. As               under section 181(b)(3) provides                      work, reflecting extensive stakeholder
                                                the decision explains, the good neighbor                authority for them to voluntarily request             feedback and the latest emission
                                                provision instructs the EPA and states to               a higher classification for individual                inventory updates. The EPA assembled
                                                apply its requirements ‘‘consistent with                areas, if needed. Where the ozone                     emissions inventory and performed air
                                                the provisions of’’ title I of the CAA.                 nonattainment area is classified as                   quality analytics in 2016 and released
                                                North Carolina, 531 F.3d. at 911–12.                    Moderate or higher, the responsible                   corresponding data and findings in a
                                                The EPA notes that this consistency                     state is required to develop an                       Notice of Data Availability (NODA) in
                                                instruction follows the requirement that                attainment plan, which generally                      January of 2017. Subsequent to
                                                plans ‘‘contain adequate provisions                     includes the application of various                   stakeholder feedback on the NODA, the
                                                prohibiting’’ certain emissions in the                  control measures to existing sources of               EPA was able to further update its
                                                good neighbor provision. The EPA,                       emissions located in the nonattainment                inventories and air quality modeling
                                                therefore, interprets the requirements of               area, consistent with the requirements                and release results for 2023 future
                                                the good neighbor provision to apply in                 in Part D of title I of the Act. See                  analytic year in October 2017. There are
                                                a manner consistent with the                            generally CAA section 182.                            no comparable data available for earlier
                                                designation and planning requirements                      Thus, given that downwind states are               analytic years between 2017 and 2023
                                                in title I that apply in downwind states                generally not required to impose                      that have been through an equally
                                                and, in particular, the timeframe within                additional controls on existing sources               rigorous analytic and stakeholder
                                                which downwind states are required to                   in a Marginal nonattainment area, the                 review process, and, thus, the 2023 data
                                                implement specific emissions control                    EPA believes that it would be                         are the best data available currently for
                                                measures in nonattainment areas                         inconsistent to interpret the good                    the EPA to evaluate Delaware’s claims at
                                                relative to the applicable attainment                   neighbor provision as requiring the EPA               this time.
                                                                                                        to evaluate the necessity for upwind                     Commenters additionally contend
                                                dates. See id. at 912 (holding that the
                                                                                                        state emission reductions based on air                that the 3-year deadline for
                                                good neighbor provision’s reference to
                                                                                                        quality modeled in a future year aligned              implementing a remedy under CAA
                                                title I requires consideration of both                                                                        section 126(c) suggests that the use of
                                                                                                        with the Marginal area attainment date.
                                                procedural and substantive provisions                                                                         2023, which is 5 years in the future, as
                                                                                                        Rather, the EPA believes it is more
                                                in title I).                                                                                                  an analytic year for purposes of
                                                                                                        appropriate and consistent with the
                                                   Ozone nonattainment areas classified                                                                       evaluating Delaware’s CAA section
                                                                                                        nonattainment planning provisions in
                                                as Marginal are not generally required to                                                                     126(b) petitions is inappropriate. The
                                                                                                        title I to evaluate downwind air quality
                                                implement specific emission controls at                                                                       EPA disagrees. The EPA’s evaluation of
                                                                                                        and upwind state contributions, and,
                                                existing sources. See CAA section                                                                             air quality in 2023 is a necessary step to
                                                                                                        therefore, the necessity for upwind state
                                                182(a).51 Existing regulations—either                                                                         determine whether the sources named
                                                                                                        emission reductions, in a year aligned
                                                local, state, or federal—are typically a                                                                      in Delaware’s petitions are in violation
                                                                                                        with an area classification in connection
                                                part of the reason why ‘‘additional’’                                                                         of the good neighbor provision, and the
                                                                                                        with which downwind states are also
                                                local controls are not needed to bring                                                                        choice of 2023 as an analytic year does
                                                                                                        required to implement controls on
                                                the area into attainment. As described in                                                                     not preclude the implementation of a
                                                                                                        existing sources—i.e., with the
                                                the EPA’s record for its Classifications                                                                      remedy in an earlier year if the
                                                                                                        Moderate area attainment date, rather
                                                and Attainment Deadlines rule for the                                                                         necessary finding is made. While CAA
                                                                                                        than the Marginal one. With respect to
                                                2015 ozone NAAQS, history has shown                                                                           section 126 contemplates that a source
                                                                                                        the 2015 ozone NAAQS, the Moderate
                                                that the majority of areas classified as                                                                      or group of sources may be found to
                                                                                                        area attainment date will be in the
                                                Marginal for prior 8-hour ozone                                                                               have interstate transport impacts, it
                                                                                                        summer of 2024, and the last full year
                                                standards attained the respective                                                                             cannot be determined whether such
                                                                                                        of monitored ozone-season data that
                                                standards by the Marginal attainment                                                                          source or sources are in violation of the
                                                                                                        will inform attainment demonstrations
                                                date (i.e., without being re-classified to                                                                    good neighbor provision and whether
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                                                                                                        is, therefore, 2023.
                                                a Moderate designation). 83 FR 10376.                      Even assuming that a year aligned                  controls are justified without analyzing
                                                As part of an historical lookback, the                  with the Marginal area attainment date                emissions from a range of sources
                                                                                                        could be an appropriate analytic year for             influencing regional-scale ozone
                                                   51 New source review (NSR) and conformity are
                                                                                                        the EPA to consider in evaluating future              transport, including sources not named
                                                still required for marginal areas, but their purpose
                                                is to ensure that new emissions don’t interfere with
                                                                                                                                                              in the petitions. In particular, as
                                                attainment as opposed to reducing existing                52 Available at https://www.regulations.gov/        discussed in Section III of this notice,
                                                emissions.                                              document?D=EPA-HQ-OAR-2016-0202-0122.                 the EPA evaluates air quality in a year


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                                                50462                          Federal Register / Vol. 83, No. 194 / Friday, October 5, 2018 / Notices

                                                when emission reductions would be                       incremental reductions. Therefore, the                addressed in the petitions, ozone-season
                                                expected to be implemented under the                    EPA identified an appropriate future                  NOX EGU emissions dropped from
                                                good neighbor provision. Analysis of a                  analytic year that would allow for                    136,188 tons in 2016 to 92,189 tons in
                                                future year aligned with anticipated                    mitigation measures not yet considered                2017 for EGUs greater than 25 MW. This
                                                compliance also ensures that any                        in the CSAPR Update for sources across                reflects a 32 percent reduction in just
                                                emission reductions the EPA may                         the region. These are technologies that               one year.53
                                                require under that provision are not in                 were deemed to be infeasible to install                  Data from 2017, the first year of
                                                excess of what would be necessary to                    for the 2017 ozone season. In                         ozone-season data that would be
                                                address downwind nonattainment and                      establishing the CSAPR Update                         influenced by the CSAPR Update
                                                maintenance problems. The 2023                          emissions budgets, the EPA identified                 compliance requirements, are consistent
                                                analytic year that the EPA has chosen                   but did not analyze the following two                 with the EPA’s assumption that the
                                                for evaluating ozone transport with                     EGU NOX control strategies in                         allowance trading program would drive
                                                respect to the 2015 ozone NAAQS was                     establishing the CSAPR Update                         SCR operation on a fleet-wide level. The
                                                selected because it aligns the downwind                 emissions budgets because                             EPA began its engineering analysis to
                                                attainment dates and ensures that                       implementation by 2017 was not                        project 2023 EGU emissions with 2016
                                                emission reductions required by that                    considered feasible: (1) Installing new               monitored and reported data. For the
                                                date will not over-control upwind state                 SCR controls; and (2) installing new                  units with existing SCRs that were
                                                emissions because it accounts for                       SNCR controls. For a variety of labor,                operating below 0.10 lb/mmBtu in 2016,
                                                changes in upwind state emissions and                   material, engineering, and grid-related               the EPA assumed that their operation
                                                downwind state ozone concentrations                     considerations, the EPA believes that                 would remain unchanged in 2023. For
                                                expected between now and 2023.                          2023 would likely be an appropriate                   the units with existing SCRs that were
                                                Additionally, even if the EPA were to                   year to allow for these mitigation                    operating above 0.10 lb/mmBtu in 2016
                                                determine based on 2023 as an analytic                  measures. See 81 FR 33730 (July 17,                   (totaling 82,321 tons of emissions in that
                                                year that the named sources are                         2018); 83 FR 31915 (July 10, 2018).                   year), the EPA assumed that SCRs
                                                projected to be in violation of the good                                                                      would be optimized under a CSAPR
                                                                                                           And fourth, commenters assert that
                                                neighbor provision, the EPA could still                                                                       Update scenario to 0.10 lb/mmBtu on
                                                                                                        the 2023 modeling is flawed because it
                                                implement a remedy that complies with                                                                         average for 2023. This collective 2023
                                                                                                        relies on optimistic assumptions that
                                                the earlier timeline set out under CAA                                                                        emissions estimates for these latter units
                                                                                                        EGU controls would operate when there
                                                section 126(c). Therefore, the EPA’s                                                                          were, therefore, adjusted down to
                                                                                                        is no enforceable requirement for                     40,590 tons. In 2017, the very first year
                                                reasonable choice of 2023 as an analytic
                                                                                                        sources to do so under the existing                   of CSAPR Update implementation,
                                                year for evaluating Delaware’s petition
                                                                                                        allowance trading program. The                        collective emissions from these units
                                                does not in and of itself preclude
                                                                                                        commenter states that in the 2023 air                 were 41,706 tons. This 2017 value is
                                                implementation of a remedy at an
                                                                                                        quality modeling, the EPA incorrectly                 already very close to EPA’s 2023
                                                earlier date.
                                                   Commenters further assert that since                 assumed individual units would make                   estimated value, and supports the EPA’s
                                                Delaware’s and Maryland’s requested                     emission reductions. The EPA has made                 assumption that these units would
                                                remedies are to require already existing                both a conceptual case as to why those                optimize SCR performance at 0.10 lb/
                                                controls to operate mean the EPA’s                      reductions will be achieved through the               mmBtu on average.
                                                justification for selecting the 2023                    CSAPR Update existing allowance                          The EPA observes that this
                                                analytic year is incorrect. The EPA                     trading program, and an evidence-based                assumption is also reasonable for the
                                                disagrees. First, the EPA believes it is                case that reductions based on control                 units identified in the petitions. When
                                                appropriate for the EPA to consider air                 optimization already achieved in 2017.                examining the group of sources named
                                                quality in 2023 because it is aligned                   Not only were the anticipated                         in the petitions, the 2017 average ozone-
                                                with the attainment date for the 2015                   reductions realized generally from EGUs               season NOX emission rate for SCR-
                                                ozone NAAQS. As discussed earlier, if                   in the upwind states identified by the                controlled units was reduced by nearly
                                                there is no future air quality problem                  petitioners, but reductions were also                 half during the first year of the program
                                                relative to this NAAQS, it would not be                 made by the fleet of individual sources               relative to 2016 and 2015 levels.
                                                appropriate for EPA to require                          (on a seasonal and daily basis)                       Moreover, preliminary data for the
                                                additional upwind emission reductions                   identified by the commenter. The                      second quarter of 2018 suggest this
                                                under CAA sections 110 or 126.                          reasonableness and feasibility of the                 pattern of lower emission rates at SCR-
                                                Moreover, as discussed later in this                    EPA’s 2023 EGU emission projections                   controlled units under the CSAPR
                                                notice, control optimization at the                     regarding the control-optimization                    Update is continuing.54 Many of the
                                                identified sources has already been                     reductions under a trading program are                analyses provided by commenters to
                                                addressed in the CSAPR Update, and                      illustrated by the first year of CSAPR                suggest the group of named sources
                                                emission reductions associated with the                 Update compliance emission levels in                  were not operating controls are based in
                                                proposed control technology are already                 2017. EGU emissions in 2017 dropped                   the 2015–2016 time-period, before the
                                                being realized. Thus, the EPA does not                  by 21 percent from 2016 levels and were               CSAPR Update was implemented, when
                                                agree that the timeframe for                            seven percent below the collective                    hourly, daily, and seasonal emissions
                                                implementation of a control strategy                    CSAPR Update budgets for the 22                       were higher because controls were not
                                                that is already in place should guide its               affected states. The EPA’s 2023                       being consistently run at optimized
                                                selection of a future analytic year for                 projections for the 22 states were 10                 levels. Both CSAPR and the CSAPR
                                                this NAAQS.                                             percent below the collective CSAPR
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                                                   Rather than focusing on optimization,                Update budgets, meaning in just one                      53 See Engineering Analysis—Unit File. Available

                                                the selection of an appropriate year for                year, states have already achieved the                at ftp://ftp.epa.gov/EmisInventory/2011v6/
                                                any additional mitigation measures                      majority of the EGU reductions                        v3platform/reports/2011en_and_2023en/.
                                                                                                                                                                 54 Preliminary 2018 data reflects first two months
                                                necessary to eliminate upwind                           anticipated by the EPA for 2023,
                                                                                                                                                              of 2018 ozone season available at the time of
                                                contribution would have to                              suggesting that sources in these states               finalizing this action. See EPA’s Clean Air Markets
                                                accommodate the corresponding                           are on pace to actually be below that                 Division data, available at https://ampd.epa.gov/
                                                technologies that could deliver                         level by 2023. For the five states                    ampd/.



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                                                                               Federal Register / Vol. 83, No. 194 / Friday, October 5, 2018 / Notices                                           50463

                                                Update include assurance provisions                     generation, and the aging of the coal                 Maryland’s petition is discussed in the
                                                that ensure that EGUs in each covered                   fleet which is leading many companies                 following sections.
                                                state will be required to collectively                  to conclude that a significant number of                 The state of Maryland submitted a
                                                limit their emissions. These provisions                 higher emitting plants are reaching the               comment challenging the EPA’s
                                                include an assurance level for each state               end of their useful economic life. The                decision to assess Maryland’s petition
                                                that serves as a statewide emissions cap.               EPA’s experience implementing prior                   only for the 2008 ozone NAAQS,
                                                This assurance level is the sum of the                  allowance trading programs shows that                 asserting that the EPA failed to
                                                state emission budget plus a variability                emissions from covered sources                        acknowledge that EPA’s extended delay
                                                limit equal to 21 percent of the state’s                generally trend downwards (regardless                 in acting on the CAA section 126(b)
                                                ozone-season budget. This means that                    of allowance price) as time extends                   petition has impacted Maryland’s
                                                collectively EGU emissions in each state                further from the initial compliance                   designation under the 2015 ozone
                                                cannot exceed 121 percent of the state                  year.56 Both the Acid Rain Program and                standard. Additionally, the comment
                                                budget level without incurring                          CSAPR SO2 allowance banks grew in                     asserts that since Maryland has a
                                                penalties. The assurance levels are                     2017 from their 2016 levels, indicating               maintenance problem for the 2008
                                                designed to help ensure each covered                    that sources are collectively adding to               ozone NAAQS, and the states where the
                                                state in a region-wide trading program                  the bank by emitting below state                      petitioned units are located are linked to
                                                still reduces emissions—as opposed to                   budgets rather than drawing down the                  that maintenance problem, applying the
                                                purely relying on allowance                             bank because of the availability of low-              EPA’s analysis under the 2008 ozone
                                                purchases—from historical levels while                  cost allowances. This illustrates that the            NAAQS to the more stringent 2015
                                                allowing for the inherent variability in                EPA’s assumptions underlying its                      ozone NAAQS necessarily demonstrates
                                                generation and emissions from year-to-                  projection of 2023 ozone-season NOX                   that the named sources are also linked
                                                year given changes in power sector                      levels for EGUs are reasonable and                    to the same monitor under the 2015
                                                market conditions. 76 FR 48212. These                   appropriate.                                          ozone standard.
                                                assurance levels help ensure that the                                                                            Maryland’s petition did not allege that
                                                emission reductions associated with the                 b. The EPA’s Step One and Two
                                                                                                                                                              a source or group of sources emit or
                                                optimization of existing controls, on                   Analysis for Maryland
                                                                                                                                                              would emit in violation of CAA section
                                                which the CSAPR Update budgets were                                                                           110(a)(2)(D)(i)(I) for the 2015 ozone
                                                                                                           With respect to steps one and two of
                                                based, or commensurate emission                                                                               NAAQS, but rather merely alleged that
                                                                                                        the four-step framework for the
                                                reductions from elsewhere in the state                                                                        emissions reductions resulting from
                                                                                                        Maryland petition, as the state noted in
                                                continue to be observed going forward.                                                                        Maryland’s requested remedy could
                                                                                                        its petition and as the EPA
                                                Therefore, even with fleet turnover and                                                                       influence the 2015 ozone designations.
                                                                                                        acknowledged in the proposal, the EPA
                                                a growing allowance bank, emissions                                                                           As noted in the EPA’s proposed action
                                                                                                        conducted an analysis in the CSAPR
                                                will continue to be limited within the                                                                        on Maryland’s petition, the cover letter
                                                                                                        Update regarding the air quality impact
                                                state.                                                                                                        of the petition specifically requests that
                                                   Finally, the EPA also disagrees to the               of anthropogenic emissions from the
                                                                                                        five upwind states named in the state’s               the agency make a finding ‘‘that the 36
                                                extent the commenter claims that EGU                                                                          electric generating units (EGUs) . . . are
                                                emissions will increase, rather than                    petition on downwind air quality in
                                                                                                        Maryland with respect to the 2008                     emitting pollutants in violation of the
                                                decrease, in future years of the CSAPR                                                                        provisions of Section 110(a)(2)(D)(i)(I) of
                                                Update implementation or that the                       ozone NAAQS. In the CSAPR Update,
                                                                                                        the EPA found Maryland has a                          the CAA with respect to the 2008 ozone
                                                market for allowance prices would have                                                                        National Ambient Air Quality
                                                to price credits much higher in order to                maintenance receptor for the 2008
                                                                                                        NAAQS (step one), and that the upwind                 Standards,’’ and the petition throughout
                                                ensure that the emission reductions                                                                           refers only to the 2008 ozone NAAQS
                                                associated with control optimization                    states that Maryland identifies in its
                                                                                                        petition are ‘‘linked’’ above the                     when identifying alleged air quality
                                                will continue. This claim is not                                                                              problems in Maryland and the impacts
                                                consistent with observed historical                     contribution threshold of one percent of
                                                                                                        the NAAQS (step two).57 However, as                   from upwind sources. Maryland
                                                emission patterns over successive years                                                                       acknowledges that it did not submit a
                                                of an allowance trading program’s                       discussed in Section III of this notice,
                                                                                                        the conclusion that a state’s emissions               126(b) petition requesting a finding with
                                                implementation. It is also not consistent                                                                     respect to the 2015 ozone NAAQS.
                                                with forward looking emissions                          met or exceeded this threshold only
                                                                                                        indicates that further analysis is                    Furthermore, because the EPA’s
                                                projections in power sector models.55                                                                         proposal focused on the claims related
                                                                                                        appropriate to determine whether any of
                                                There are a variety of policy and market                                                                      to the 2008 ozone NAAQS raised in the
                                                                                                        the upwind state’s emissions meet the
                                                forces at work beyond CSAPR allowance                                                                         petition, the EPA’s proposed action on
                                                                                                        statutory criteria of significantly
                                                prices that are anticipated to continue to                                                                    the petition did not provide notice to
                                                                                                        contributing to nonattainment or
                                                drive generation to shift from higher                                                                         the public of any proposed conclusions
                                                                                                        interfering with maintenance (step
                                                emitting to lower emitting sources.                                                                           or analysis that the public would need
                                                                                                        three). The EPA’s independent step
                                                These include changes such as                                                                                 to appropriately comment on any
                                                                                                        three analysis of the sources named in
                                                sustained lower natural gas prices that                                                                       determinations with respect to the 2015
                                                make lower emitting natural gas                                                                               ozone NAAQS, nor did it inform the
                                                                                                          56 2014 Program Progress, Clean Air Interstate
                                                combined cycle units more economic to                   Rule, Acid Rain Program, and Former NOX Budget        public that any action might be taken
                                                build and dispatch, state energy policy                 Trading Program. EPA. Available at https://           with regard to a finding of a good
                                                and technology advancements which                       www.epa.gov/sites/production/files/2017-09/           neighbor violation with regard to the
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                                                have made renewable energy (e.g., solar                 documents/2014_full_report.pdf.
                                                                                                          57 See CSAPR Update, 81 FR 74504 (October 26,       2015 ozone NAAQS under Maryland’s
                                                and wind) more competitive compared                                                                           petition. Accordingly, taking final
                                                                                                        2016). The EPA notes that based on 2015–2017
                                                to higher emitting fossil-fuel fired                    data, Maryland’s highest ozone design value is 75     action on the petition in the context of
                                                                                                        ppb at monitor ID 240251001, which is currently       the 2015 ozone NAAQS in response to
                                                  55 See results from EPA’s power sector modeling       not violating the 2008 ozone NAAQS. See 2017
                                                platform v6. Available at https://www.epa.gov/          Design Value Reports, available at https://
                                                                                                                                                              Maryland’s comments cannot be
                                                airmarkets/results-using-epas-power-sector-             www.epa.gov/sites/production/files/2018-07/ozone_     construed as a logical outgrowth of the
                                                modeling-platform-v6.                                   designvalues_20152017_final_07_24_18.xlsx.            proposal.


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                                                50464                          Federal Register / Vol. 83, No. 194 / Friday, October 5, 2018 / Notices

                                                   Commenters further assert that it is                 for the sources named in both the                      establishing each state’s CSAPR Update
                                                improper for the agency to rely on 2023                 Delaware petitions (as an additional                   EGU NOX ozone season emission
                                                ozone modeling projections to claim                     basis for denial) and the Maryland                     budgets, the agency quantified the
                                                that Maryland does not have attainment                  petition (as the sole basis for denial).               emission reductions achievable from all
                                                problems with respect to the 2008 ozone                    Generally, the EPA’s analysis in step               NOX control strategies that were feasible
                                                NAAQS. This comment misconstrues                        three considers cost, technical                        to implement within one year 60 and
                                                the EPA’s basis for denying Maryland’s                  feasibility, and air quality factors in a              cost effective at a marginal cost of
                                                petition. Maryland’s petition only                      multi-factor test to determine whether                 $1,400 per ton of NOX removed. This
                                                requested a specific finding with respect               any emissions from states linked to                    level of NOX control stringency was
                                                to the 2008 ozone NAAQS. As described                   downwind air quality problems in steps                 established explicitly to reflect the
                                                earlier in this section, the EPA                        one and two will significantly                         ability of sources in regulated states to
                                                determined that Maryland was projected                  contribute to nonattainment and/or                     turn on existing, idled SCR—i.e., the
                                                to have a downwind air quality concern                  interfere with maintenance of the                      operational behavior that the section
                                                with respect to the 2008 ozone NAAQS                    NAAQS, and, therefore, must be                         126(b) petitions generally ask EPA to
                                                under step one of the framework, and                    eliminated pursuant to the good                        mandate. In addition to turning on and
                                                that the named upwind states are linked                 neighbor provision. Because the CSAPR                  optimizing existing idled SCR controls,
                                                to Maryland in step two based on the                    Update was recently finalized to address               this level of NOX control stringency
                                                2017 modeling conducted for the                         regional interstate ozone pollution                    encompassed optimizing NOX removal
                                                CSAPR Update. The EPA did not                           transport, the EPA considered its step                 by existing, operational SCR controls;
                                                evaluate whether Maryland has an air                    three analysis of the sources named in                 installing state-of-the-art NOX
                                                quality problem in 2023 in assessing its                the section 126(b) petitions in light of               combustion controls; and shifting
                                                petition.                                               the existing CSAPR Update analysis and                 generation to existing units with lower
                                                   In conclusion, under steps one and                   in light of additional analysis evaluating             NOX emission rates within the same
                                                two of the transport framework, the EPA                 the impact of the CSAPR Update                         state. 81 FR 74541. Thus, the CSAPR
                                                has modeled a maintenance problem in                    implementation.58 Thus, in this section,               Update emission budgets already reflect
                                                2017 at the Harford County receptor for                 the EPA explains how it identified and                 emission reductions associated with
                                                the 2008 ozone NAAQS following the                      evaluated cost and air quality factors to              turning on and optimizing existing SCR
                                                implementation of the CSAPR Update                      evaluate the named sources in a                        controls across the 22 CSAPR Update
                                                and the upwind states named in the                      multifactor test consistent with step                  states, including at the EGUs that are the
                                                petition are linked to that receptor in                 three of the framework as applied in the               subject of the Maryland and Delaware
                                                EPA’s 2017 contribution modeling. See                   CSAPR Update. The crucial factors the                  petitions. This is the same control
                                                81 FR 74533. The EPA concludes that it                  EPA considered include whether there                   strategy identified in the petitions as
                                                is appropriate to assess the additional                 are further NOX emission reductions                    being both feasible and cost effective.
                                                steps of the transport framework for the                beyond what was already finalized in                   The EPA is determining that, as a result
                                                sources named in Maryland’s petition.                   the CSAPR Update available at the                      of the CSAPR Update, all identified
                                                This analysis is further described in this              specific sources named in the petitions,               cost-effective emission reductions have
                                                section.                                                the cost of any such reductions, and the               already been implemented for the 2008
                                                3. The EPA’s Step Three Analysis With                   potential air quality improvements that                ozone NAAQS with respect to the
                                                Respect to EGUs Equipped With SCRs                      would result from any such reductions.                 sources named in the Delaware and
                                                Named in Delaware and Maryland’s                        The EPA first analyzes this step with                  Maryland petitions that are already
                                                Petitions                                               respect to those units identified in the               equipped with SCR.
                                                                                                        Delaware and Maryland petitions that                      Delaware and Maryland’s petitions
                                                   In the previous section, the EPA                                                                            contend that, based on data available at
                                                                                                        are equipped with SCR. The EPA then
                                                evaluated the petitions with regard to                                                                         the time the petitions were filed, the
                                                                                                        considers two named units that are
                                                steps one and two of the transport                                                                             named sources are operating their NOX
                                                                                                        equipped with SNCR, and finally, the
                                                framework, and the agency found that                                                                           emissions controls at low efficiency
                                                                                                        one named unit that has neither SCR
                                                Delaware does not and is not expected                                                                          levels, or are not operating them at all
                                                                                                        nor SCNR, but that has the ability to
                                                to have a requisite air quality problem                                                                        at certain times. Delaware and
                                                                                                        shift its fuel combustion to lower-
                                                under step one for either the 2008 or                                                                          Maryland, therefore, ask the EPA to
                                                                                                        emitting options.
                                                2015 ozone NAAQS, and, therefore, the                                                                          impose unit-specific 30-day emission
                                                EPA does not have a basis to impose                     a. Analysis of SCR for NOX Mitigation                  rate limits or other requirements to
                                                additional emission limitations on the                     Three of Delaware’s petitions identify              ensure the controls will be continually
                                                named upwind sources. While the EPA                     EGUs (Conemaugh, Harrison, and                         operated. The EPA acknowledges that in
                                                is finalizing a determination that                      Homer City) that are already equipped                  years prior to implementation of the
                                                Delaware’s petitions should be denied                   with SCRs, and 34 of the 36 EGUs                       CSAPR Update in 2017, the named
                                                based on the EPA’s conclusions in step                  identified in Maryland’s petition are                  sources may have operated as
                                                one of the four-step framework, the EPA                 also equipped with SCRs.59 In                          petitioners describe. However,
                                                is also evaluating the EGUs named in                                                                           implementation of the emission budgets
                                                the Delaware petitions in this step three                  58 All of the EGUs named in the petitions are       promulgated in the CSAPR Update
                                                analysis because we believe that                        subject to FIPs promulgated as part of the CSAPR       represents the most recent data
                                                evaluation provides an additional                       Update that require EGUs in each state, including      regarding these EGUs’ operations. In the
                                                independent basis for denial. Regarding                 the EGUs named in the petitions, to participate in
                                                                                                                                                               years before 2017, the EPA observed
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                                                                                                        the CSAPR NOX Ozone Season Group 2 allowance
                                                the Maryland petition, application of                   trading program, subject to statewide emission
                                                steps one and two for the named                         budgets with limited interstate trading.               Generating Station), Pennsylvania (Bruce
                                                upwind states indicated that it is                         59 These facilities are located in Indiana (Alcoa   Mansfield, Cheswick, Homer City, Keystone,
                                                appropriate to assess the additional                    Allowance Management Inc., Clifty Creek, Gibson,       Montour), and West Virginia (Harrison Power
                                                                                                        IPL—Petersburg Generating Station), Kentucky (East     Station, Pleasants Power Station).
                                                steps of the transport framework for the                Bend Station, Elmer Smith Station, Tennessee              60 The CSAPR Update was signed on September
                                                named sources. Accordingly, this                        Valley Authority Paradise Fossil Plant), Ohio          7, 2016—approximately 8 months before the
                                                section discusses the step three analysis               (Killen Station, Kyger Creek, W. H. Zimmer             beginning of the 2017 ozone season on May 1.



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                                                                                    Federal Register / Vol. 83, No. 194 / Friday, October 5, 2018 / Notices                                                     50465

                                                similar emissions behavior for a                                further described later, the EPA’s                            has resulted in actual emissions
                                                substantial number of EGUs across the                           analysis of such data demonstrates that,                      reductions at the named sources and/or
                                                eastern United States (i.e., this was not                       following implementation of the CSAPR                         commensurate reductions at other
                                                limited to just the named sources here)                         Update, EGUs in the CSAPR Update                              sources in the same state, both
                                                and suspected that the additional                               regional generally and the named EGUs                         seasonally and on a daily basis. In other
                                                emissions resulting from the inefficient                        specifically have in fact achieved                            words, because the strategy of
                                                operation of controls were detrimentally                        emission reductions commensurate with                         optimizing existing controls has already
                                                affecting air quality for a substantial                         the operation of existing SCRs.                               been implemented for these sources
                                                number of areas. Consequently, through                          Consequently, the EPA finds that                              through the CSAPR Update, there is no
                                                a notice-and-comment rulemaking and                             CSAPR Update implementation is                                information suggesting there are
                                                after evaluating and responding to                              generally achieving the NOX reductions                        additional control strategies available to
                                                numerous stakeholder comments, the                              identified in the section 126(b) petitions                    further reduce NOX emissions at these
                                                EPA finalized the CSAPR Update. That                            for mitigation at these sources. The EPA,                     sources to address for the 2008 ozone-
                                                rulemaking found EGUs in the named                              therefore, determines that these sources                      NAAQS.
                                                states had emissions that could be cost                         neither emit nor would emit in violation
                                                                                                                                                                              (a) Seasonal Reductions Under the
                                                effectively eliminated in order to                              of the good neighbor provision.
                                                                                                                                                                              CSAPR Update
                                                address interstate ozone transport under                           The EPA determines that this
                                                the good neighbor provision. Therefore,                         conclusion is appropriate with regard to                         The recent historical observed and
                                                the EPA imposed limits on statewide                             the claims raised under the 2008 ozone                        reported data regarding emissions from
                                                EGU emissions commensurate with                                 NAAQS in both states’ petitions.                              the sources named in the petitions, and
                                                running optimized SCR controls (and                             Moreover, because the cost-effective                          the states they are located in, illustrate
                                                certain other control strategies). These                        strategy of optimizing existing controls                      the effectiveness of the EPA’s allowance
                                                emission reductions resulted in                                 relative to the 2008 ozone NAAQS has                          trading approach to reducing NOX
                                                substantial modeled improvements in                             already been implemented via the                              emissions. While much of the data
                                                air quality throughout the region and                           CSAPR Update for the sources Delaware                         presented in the petitions focused on
                                                had substantial benefits for the specific                       named for its claims regarding the 2015                       emissions and emission rates prior to
                                                downwind areas identified in the                                NAAQS, the EPA also determines there                          2017, the 2017 ozone-season data
                                                petitions.                                                      are no additional cost-effective control                      illustrates that, during the first year of
                                                   The EPA received several comments                            strategies available to further reduce                        the CSAPR Update Rule: (1) The average
                                                suggesting that emissions data indicate                         NOX emissions at these sources to                             emission rate improved nearly 50
                                                that the EPA’s determination that the                           address that most recent standard.                            percent on average at the 34 units
                                                CSAPR Update would address interstate                                                                                         identified in the petitions as having SCR
                                                transport from these sources is flawed.                         (1) Current Emissions Data Show NOX                           controls, (2) EGU emissions declined by
                                                Accordingly, the EPA has evaluated                              Reductions Under the CSAPR Update                             46 percent at these 34 units, and (3)
                                                emissions data across the CSAPR                                   Based on observed emissions levels                          EGU emissions declined by 32 percent
                                                Update region, including from the states                        and emission rates in 2017,                                   collectively in the states where these
                                                and sources named in the petitions. As                          implementation of the CSAPR Update                            facilities are located.

                                                                 TABLE 1—OZONE-SEASON NOX EMISSION RATES AND EMISSIONS PRE- AND POST-CSAPR UPDATE
                                                                                                                                                                               2015            2016            2017

                                                Average Ozone-Season Emission rate from 34 identified units (lb/mmBtu) ..............................                              0.254           0.200           0.115
                                                Total Emissions from 34 identified units (tons) ...........................................................................       55,443          46,023          24,894
                                                Total Emissions from states named in the petitions (tons)* .......................................................               154,413         136,188          92,189
                                                   * IN, KY, OH, PA, and WV.


                                                   Table 1 shows the average emission                           docket for this action show that 2017                         fact on which EPA bases its
                                                rate across the 34 units, the total                             daily ozone values were significantly                         determination that the measures
                                                seasonal emissions from these units,                            lower on both metrics relative to 2015                        adopted in the CSAPR Update have
                                                and the total seasonal emissions from all                       and 2016.61 This finding supports the                         addressed reduction potential from
                                                units greater than 25 MW in the                                 EPA’s contention that no further                              these sources. Because the EPA
                                                indicated states. These data illustrate                         regulatory actions are necessary to                           implemented those reductions
                                                that, in 2017, the control optimization                         ensure emission reductions consistent                         requirements though a limited trading
                                                and the emission reductions anticipated                         with operation of these controls at this                      program with state emission caps, it is
                                                from the CSAPR Update are being                                 time.                                                         also possible that some of the emission
                                                realized from the 34 units with SCR                               The fact that these particular sources                      reductions corresponding to this
                                                controls. Moreover, the EPA examined                            are mitigating emissions using the same                       identified mitigation measure are
                                                control operation behavior at these units                       technology and for the same standard                          realized elsewhere in the state and have
                                                on a more granular basis and                                    identified in the petitions is not the sole                   a similar beneficial impact on
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                                                determined that these operating patterns                          61 The EPA has examined emission rate and
                                                                                                                                                                              downwind air quality within the
                                                prevailed on a smaller time scale as                            tonnage reduction from the petitioner-identified
                                                                                                                                                                              petitioning states. The EPA recognizes
                                                well. The EPA looked at the average                             sources with SCR-optimization potential prevails              that a regional trading program with
                                                daily emission rate and emissions from                          on a daily basis in addition to a seasonal basis and          embedded state emission caps provides
                                                this group of 34 sources with SCR                               added them to the docket for this action. See Daily           the flexibility to achieve emission
                                                                                                                NOX Emissions Rates for Identified SCR-Controlled
                                                controls for 2015, 2016, and 2017 ozone                         Sources for Each Day of the Ozone-Season.                     reductions either at the sources through
                                                seasons. The time-series figures in the                         Available in the docket for this action.                      the identified mitigation measures or at


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                                                50466                          Federal Register / Vol. 83, No. 194 / Friday, October 5, 2018 / Notices

                                                sources elsewhere in the state but                      approximately 50 percent improvement                  operation. As described at proposal, the
                                                disagrees with the petitioners’ notion                  in emission rate performance at SCR-                  EPA examined the hourly NOX
                                                that this undermines the ability of the                 controlled units at the sources named in              emissions data reported to the EPA and
                                                program to achieve meaningful                           these petitions. The statewide EGU                    did not observe many instances of units
                                                emissions reductions from particular                    emissions limits help make those                      selectively turning down or turning off
                                                sources. The latest and best available                  reductions permanent within the state                 their emission control equipment during
                                                data demonstrate that reductions are                    and region. Therefore, the EPA has                    hours with high generation.64 SCR-
                                                occurring at those sources. Moreover,                   addressed upwind emission reductions                  controlled units generally operated with
                                                even in the event of any single-unit                    commensurate with SCR optimization                    lower emission rates during high
                                                variation in performance, the overall                   in the ozone season from the named                    generation hours, suggesting SCRs
                                                reductions are occurring within the                     sources.                                              generally were in better operating
                                                same airshed due to the fact that state                   Commenters state that the EPA’s use                 condition—not worse, let alone idling—
                                                budgets and assurance levels were set to                of a fleet-wide average to demonstrate                during those days/hours. In other
                                                ensure those reduction levels statewide                 operation of SCRs at these units                      words, the EPA compared NOX rates for
                                                and regionwide. Thus, the design of the                 inappropriately ignores the ability of the            EGUs for hours with high energy
                                                CSAPR Update accommodates                               named sources to achieve better                       demand and compared them with
                                                emissions reductions based on unit-                     emission rates. However, in the CSAPR                 seasonal average NOX rates and found
                                                specific control optimization and                       Update, the EPA determined that, based                very little difference. Thus, the data do
                                                observed data affirm its success at                     on an aggregation of unit-level emission              not support the notion that units are
                                                realizing this end.                                     rates, an average fleet-wide rate                     reducing SCR operation on high
                                                   In evaluating these petitions, the EPA               emission rate of 0.10 lb/mmbtu would                  demand days. Moreover, the auxiliary
                                                analyzed ozone-season emission rates                    represent the optimized operation of                  power used for control operation is
                                                from all coal-fired units in the                        SCR controls that were not at that time               small—typically less than one percent
                                                contiguous U.S. equipped with SCR and                   being operated or optimized. 81 FR                    of the generation at the facility—and it
                                                found that, based on 2017 emissions                     74543. In concluding that this rate                   is, therefore, unlikely that sources
                                                data reflecting implementation of the                   would be appropriate for calculating                  would cease operation of controls for
                                                CSAPR Update, 261 of 274 units had                      emission reduction potential from                     such a limited energy savings. Instead,
                                                ozone-season emission rates below 0.20                  implementation of this control strategy,              the data indicate that increases in total
                                                lb/mmBtu, indicating they were likely                   the EPA recognized that some units                    emissions on days with high generation
                                                operating their post-combustion                         would have optimized rates above that                 are generally the result of additional
                                                controls through most of the ozone                      level and some below that level                       units that do not normally operate
                                                season, including every unit with SCR                   (consistent with the petitioner’s own                 coming online to satisfy increased
                                                named in Delaware’s and Maryland’s                      comments and analysis). Therefore, in                 energy demand and units that do
                                                petitions.62 On average, the 274 units                  using a fleet-wide average for setting                regularly operate increasing hourly
                                                were operating at an average emission                   regional and state emission limits, the               utilization, rather than reduced
                                                rate of approximately 0.088 lb/mmBtu.                   EPA considered and relied on unit-level               functioning of control equipment. The
                                                Nine of the 13 units with 2017 emission                 data. Nevertheless, the 0.10 lb/mmBtu                 EPA notes that if, in fact, the emission
                                                rates above 0.20 lb/mmBtu are not                       emission rate used to reflect control                 reductions expected from the operation
                                                located in the states where petitioners                 optimization for the 2008 ozone NAAQS                 of control equipment at these facilities
                                                identified sources.63 Of the remaining                  for the identified sources in the CSAPR               were no longer being realized in the
                                                four, one retired in 2018, and the other                Update was not reopened for comment                   future, this final action denying
                                                three have preliminary 2018 ozone                       in this action.                                       Delaware’s and Maryland’s petitions
                                                season data (for reported months of May                                                                       would not preclude either state from
                                                                                                        (b) Daily Reductions Under the CSAPR
                                                and June) below 0.20 lb/mmBtu.                                                                                submitting another CAA section 126(b)
                                                                                                        Update
                                                Consequently, the EPA finds that on                                                                           petition for these sources raising new
                                                average, SCR-controlled units are                          Commenters disagree with the EPA’s                 information not already considered
                                                operating their SCRs throughout the                     conclusion that data demonstrating that               herein. The EPA is not, however, pre-
                                                season when operating conditions make                   SCRs are being operated in the upwind                 determining what action may be
                                                it feasible, and that the petitioner’s                  states and at the named sources                       appropriate on any such future petition.
                                                assertion of the likelihood of not                      seasonally is representative of                          Commenters have observed that
                                                operating controls is not borne out in                  implementation of cost-effective                      individual units equipped with SCR
                                                the most recently available data.                       controls. It is the commenter’s position              have operated in 2017 ozone season
                                                   The CSAPR Update regional trading                    that for existing controls to be cost                 with rates higher than 0.2 lb/mmBtu on
                                                program has resulted in an                              effective, they must be maintained and                select days, suggesting that their SCR
                                                                                                        operated in accordance with good                      controls have been idled. The
                                                  62 As described in the CSAPR Update, optimized        pollution control practices whenever                  commenters identified the number of
                                                operation of combustion controls and SCR typically      feasible. Commenters assert that if                   days this occurred at individual units
                                                results in NOX emission rates of 0.10 lb/mmBtu or
                                                below. Combustion controls alone typically result
                                                                                                        shorter-term NOX emission rate data are               (one unit at Homer City had the highest
                                                in rates down to 0.20 lb/mmBtu but can at times         evaluated, the SCR controls do not                    frequency of 15 days out of the 153-day
                                                achieve results in the range of 0.14 lb/mmBtu.          appear to have been operated in                       ozone season, one unit at Harrison had
                                                Therefore, units equipped with SCR that have            accordance with good pollution control                two days, and Conemaugh had no days)
                                                emission rates above 0.20 lb/mmBtu are likely not
                                                                                                        practices at all times the units were                 and acknowledged that there may be
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                                                significantly utilizing their SCR. The optimized rate
                                                for any particular unit depends on the unit-specific    operating.                                            engineering reasons for units to decrease
                                                characteristics, such as boiler configuration, burner     The petitions have alleged that short-              or cease operation of controls on
                                                type and configuration, fuel type, capacity factor,     term limits are necessary to prevent                  individual days (e.g., to avoid damaging
                                                and control characteristics such as the age, type,      units from turning controls off
                                                and number of layers of catalyst and reagent
                                                                                                                                                              or plugging of the SCR or taking a forced
                                                concentration and type.                                 intermittently on days with high ozone                outage where a breakdown leaves the
                                                  63 See Discussion of Short-term Emission Limits       in order to harvest additional power that
                                                Final Rule, available in the docket for this action.    would otherwise be used for control                     64 Id.




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                                                                               Federal Register / Vol. 83, No. 194 / Friday, October 5, 2018 / Notices                                                  50467

                                                unit unavailable to produce power). The                 methodology and rates put forward by                  CSAPR Update, the agency took
                                                EPA also observes that there appear to                  with what would be expected and/or                    comment on the representativeness of
                                                be engineering limitations to operating                 realized under the CSAPR Update) and                  historical data in terms of future
                                                SCR at low hourly utilization rates (e.g.,              that these emission reductions would be               ongoing achievable NOX rates.
                                                at hourly capacity factors below about                  cost effective.                                       Stakeholder comment led the EPA to
                                                25 percent, the EPA has observed                           Commenters assert that the maximum                 ultimately to focus on the third lowest
                                                limited operation of SCRs).65 While                     30-day emission rates requested in                    ozone season rate from 2009 through
                                                Maryland acknowledges these                             Maryland’s petition are (1)                           2015 to ensure that its selected rates
                                                engineering challenges to SCR                           representative of well-run controls, (2)              represented efficient but routine SCR
                                                performance in low capacity factor                      flexible to allow for multiple operating              operation (i.e., when the performance of
                                                conditions, it is not clear how the                     conditions and even sub-optimal                       the SCR was not simply the result of
                                                suggested monthly unit-specific                         operation of controls on some days, and               being new, or having a highly aggressive
                                                emission rate would accommodate those                   (3) consistently achievable based on the              catalyst replacement schedule, but was
                                                challenges. In particular, ozone season                 units’ own reported emissions data that               the result of being well-maintained and
                                                capacity factors (which reflect the actual              indicates the units achieved this                     well-run). These topics are as described
                                                output relative to potential output) have               emission rate 123 times out of 123                    further in the CSAPR Update RTC.
                                                decreased over time, dropping from a                    attempts in their past-best ozone season.             Thus, the petitioners and commenters
                                                heat-input weighted capacity factor of                  However, these assertions are flawed                  rely on inadequate arguments, based in
                                                77 percent in 2006 to a value of 67                     because the commenters’ assessment                    part on analyzing unit behaviors over an
                                                percent in 2017, suggesting that units                  included historical data that, through                inappropriate time-period and by
                                                may spend fewer hours operating at the                  notice-and-comment rulemaking in the                  overstating the potential NOX
                                                high hourly utilization factors                         CSAPR Update, EPA determined were                     reductions achievable at the sources.
                                                associated with the most-efficient SCR                  not representative of current or future               Considering the information received
                                                operation and lowest emission rates.66                  operating conditions given SCR                        and EPA’s assessment thereof, the EPA
                                                In addition, units are now operating                    component degradation and                             has not received sufficient information
                                                more frequently at hourly utilization                   maintenance schedules and changes in                  that necessitates updating or otherwise
                                                rates at or below 40 percent in 2017                    unit operation (i.e., to lower capacity               changing the agency’s position with
                                                compared to 2006.                                       factors). For example, EPA’s analysis of              respect to the EPA’s previous findings
                                                   An individual unit may have high                     historical SCR performance in the                     regarding cost-effective reductions at
                                                emissions from idling an SCR or SNCR                    CSAPR Update evolved through                          SCRs.
                                                or for burning coal (rather than natural                comments on the proposal, ultimately                    In addition, to the extent that
                                                gas) on a specific hour or day in the                   evaluating data from 2009 through 2015                commenters argue that the emission
                                                2017 ozone season, or that the absence                  because in this time period SCR controls              levels assumed for these units in the
                                                of daily emission limits leaves open the                were operated year-round starting in the              CSAPR Update (or alternatively as
                                                possibility that a unit at the facility may             first compliance period for the CAIR                  measured in 2017) are marginally higher
                                                have high emissions on days that                        NOX annual program (and subsequently                  than what commenters claim would be
                                                Maryland or Delaware monitors record                    CSAPR NOX annual programs) rather                     readily achievable, the air quality
                                                ozone exceedances. However, in the                      than only seasonally as was done in                   impacts of these differences on the
                                                context of regional ozone pollution, the                years before 2009.67 Further, the                     design value are likely to be small.
                                                EPA has concludes that reducing NOX                     petitioners and commenters assert that                Specifically, Maryland indicates that the
                                                emissions regionally and seasonally                     the agency can apply historical SCR                   state anticipates an air quality benefit of
                                                while allowing flexibility in compliance                operating data to the future in a manner              0.656 ppb attributable to the named
                                                is effective at reducing downwind peak                  that is at odds with the EPA’s                        units going from idled controls to
                                                ozone concentrations. Because of the                    conclusions reached through notice-                   Maryland’s definition of ‘‘optimized’’
                                                regional nature of interstate ozone                     and-comment in the CSAPR Update. For                  control operation. This is comparable to
                                                transport, in which emissions are                       example, petitioners and commenters                   the estimated improvement in the
                                                transported hundreds of miles over the                  assert that the agency can consider data              CSAPR Update from the engineering
                                                course of hours or days, the EPA has                    from the year of each unit’s lowest                   base case to the control case of $1,400/
                                                focused on reducing aggregate NOX                       historical average NOX rate. In the                   ton, wherein the EPA estimated a 0.6
                                                emissions, an approach that has                                                                               ppb improvement in air quality at the
                                                successfully led to reductions in ozone                    67 The EPA’s analysis of SCR NO rates for the
                                                                                                                                             X                for Harford, Maryland receptor.68
                                                                                                        final CSAPR Update differed from the proposal. The    Subtracting the improvement estimated
                                                concentrations across the east coast. As                evaluation focused on a more recent timeframe for
                                                such, an emission event in one hour or                  analysis: 2009 through 2015, compared to 2003
                                                                                                                                                              by the commenter from the value
                                                on one day at a particular unit is not                  through 2014. The EPA believed this change was        estimated by the EPA yields a marginal
                                                sufficient to suggest that the source is                reasonable because there were significant shifts in   difference of 0.056 ppb.69 Thus, the
                                                                                                        the power sector since 2003, particularly with        petitions do not provide system-wide
                                                not adequately controlled over the                      respect to power sector economics (e.g., lower
                                                course of the ozone season.                             natural gas prices in response to shale gas
                                                                                                                                                              impacts analysis showing that their
                                                   Petitioners and commenters asserted                  development) and environmental regulations (e.g.,     requested unit-specific rate
                                                that that additional emission reductions                CAIR and CSAPR). Because of these changes, the        requirements, which would reduce
                                                                                                        EPA considers it reasonable to evaluate SCR           sources’ emissions only slightly below
                                                are achievable (comparing the                           performance focusing on more recent historical data
                                                                                                        that better represent the current landscape of
                                                                                                                                                              already achieved levels, would result in
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                                                  65 Hourly utilization factor is defined here as the
                                                                                                        considerations affecting the power sector. The EPA
                                                ratio of the hourly heat input to the maximum rated     chose 2009 because that is the first year of CAIR        68 See CSAPR Update Final Ozone AQAT

                                                hourly heat input rate. See Discussion of Short-term    NOX annual compliance. For further discussion, see    ‘‘Summary DVs’’ tab, comparing cell L12 and O12
                                                Emissions Limits Final Rule, available in the docket    page 522 of EPA’s Response to Comments on the         (along with cell O28).
                                                for this action.                                        CSAPR Update available in the docket for that rule       69 While there are differences in modeling
                                                  66 The EPA selected 2006 because a commenter          at EPA–HQ–OAR–2015–0500–0572 and EPA’s EGU            platforms, emission totals, and temporalization of
                                                identified 2006 as the best year of operation for a     NOX Mitigation Strategies Final Rule TSD available    the emissions within the modeling platforms that
                                                number of units and 2005 did not appear to have         in the docket for that rule at EPA–HQ–OAR–2015–       would affect this comparison, this provides some
                                                as comprehensive a data set.                            0500–0554.                                            estimate of the difference.



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                                                50468                          Federal Register / Vol. 83, No. 194 / Friday, October 5, 2018 / Notices

                                                regional reductions and air quality                     program is a strained interpretation of               where Petitioners argued that findings
                                                improvements as related to the EPA’s                    section 126(b) because it fails to account            based on statewide emissions cannot
                                                analysis regarding the good neighbor                    for CAA section 126(c)’s reference to                 determine whether specific stationary
                                                provision.                                              source-specific remedies, including                   source emissions are in violation of the
                                                                                                        emissions limitations. The EPA’s                      good neighbor provision. Petitioners
                                                (2) Reliance on Allowance Trading To
                                                                                                        position on why it is appropriate to                  argued that instead of relying on the
                                                Address Section 126(b) Petitions
                                                                                                        evaluate a CAA section 126(b) under the               NOX SIP call findings, the EPA needed
                                                   One commenter asserts that                           four-step framework and CSAPR Update                  first to make the more rigorous finding
                                                evaluating Maryland’s CAA section                       is described in Section III of this notice.           that the specified stationary sources
                                                126(b) petition for control for a specific              Additionally, the EPA disagrees with                  within a given state independently met
                                                source by relying on an average fleet-                  commenters that taking account of                     its threshold test for impacts on
                                                wide rate without any consideration of                  compliance with an emissions budget as                downwind areas. Given the linkage
                                                the emission rate that specific source is               part of an analysis of a CAA section                  between section 126(b) and the good
                                                capable of achieving undermines the                     126(b) petition is inconsistent with the              neighbor provision, the court
                                                intent of section 126(b) of the CAA,                    nature of CAA section 126(c)’s specific               determined it was reasonable for the
                                                which gives a state the authority to ask                alternative remedies. Under CAA                       EPA to tie its source-specific findings
                                                the EPA to set emissions limits for                     section 302(k), an ‘‘emission limitation’’            under section 126(b) to the significance
                                                specific sources of air pollution.                      is ‘‘a requirement that limits the                    of a state’s total NOX emissions as
                                                   As described earlier, while CAA                      quantity, rate, or concentration of                   determined under section
                                                section 126(b) addresses the same                       emission of air pollutants on a                       110(a)(2)(D)(i). 249 F.3d at 1049–1050.
                                                substantive prohibition as CAA section                  continuous basis.’’ Under an allowance                While the court did not explicitly speak
                                                110(a)(2)(D)(i), CAA section 126(b)                     trading program, the Administrator sets               to the issue of whether an allowance
                                                provides an independent process for                                                                           trading program is an appropriate
                                                                                                        an emission limitation for a defined
                                                downwind states to address interstate                                                                         remedy under CAA section 126(c), the
                                                                                                        region or regions and a compliance
                                                transport. Commenters state that                                                                              court’s conclusion that a regional
                                                                                                        schedule for each unit subject to the
                                                whether a specific source emits or                                                                            analysis is appropriate to evaluate ozone
                                                                                                        program in that region. The emission
                                                would emit in violation of the good                                                                           transport at individual sources also
                                                                                                        limitation for each unit is the federally
                                                neighbor provision is primarily a factual                                                                     supports the conclusion that a regional
                                                                                                        enforceable requirement that the
                                                determination based on monitored data                                                                         remedy can effectively address the any
                                                                                                        quantity of the unit’s emissions during
                                                and modeling, not a legal conclusion                                                                          air quality problem identified through
                                                                                                        a specified period cannot legally exceed
                                                based on whether a source is meeting an                                                                       such an analysis. The court ultimately
                                                                                                        the amount authorized by the
                                                emissions budget under a SIP or FIP.                                                                          upheld the EPA’s regulatory action on
                                                   The EPA disagrees with those                         allowances that the unit holds. The
                                                                                                        compliance schedule is set by                         the section CAA 126(b) petitions, which
                                                commenters that argue that the EPA can                                                                        included reliance on the allowance
                                                only consider unit-level emission rates                 establishing a deadline by which units
                                                                                                        must begin to comply with the                         trading program.
                                                when evaluating CAA section 126(b)                                                                               The EPA evaluated whether there is
                                                petitions and must ignore prior actions                 requirement to hold allowances
                                                                                                        sufficient to cover emissions. Because                newly available information that leads
                                                and reductions addressing interstate                                                                          to a determination that these sources are
                                                transport that pertain to the same                      an allowance trading program is a
                                                                                                        compliance mechanism that enables                     inadequately controlled by the CSAPR
                                                NAAQS, the same mitigation measures,                                                                          Update, as commenters assert. The
                                                and the same units. If the EPA has                      sources to make cost-effective decisions
                                                                                                                                                              petitioners and commenters claim that
                                                already identified, mandated, and                       to meet their allowance requirements,
                                                                                                                                                              this is so, based on data that preceded
                                                received commensurate emission                          which are, in essence, emission limits,
                                                                                                                                                              implementation of the CSAPR Update
                                                reductions from those sources (or                       the EPA believes considering
                                                                                                                                                              that they assert illustrates that relatively
                                                sources in a shared geographic region                   compliance with such a program as part
                                                                                                                                                              large sources with existing control
                                                determined to be equally relevant to the                of its analysis of a CAA section 126(b)
                                                                                                                                                              equipment were not operating at
                                                downwind monitor) based on control                      petition is in fact consistent with the
                                                                                                                                                              appropriate levels of NOX abatement.
                                                optimization through a trading program,                 forms of remedy authorized under CAA
                                                                                                                                                              The petitioners and commenters further
                                                then ignoring that related action could                 section 126(c).
                                                                                                                                                              assert that these sources are
                                                lead to miscounting emission reductions                    Additionally, the EPA has previously               inadequately controlled because they do
                                                from a mitigation technology for a given                relied on regional allowance trading                  not always operate control equipment
                                                NAAQS. While the EPA does not                           programs intended to implement CAA                    on high ozone days. They support their
                                                disagree that these types of                            section 110(a)(2)(D)(i)(I) to also address            argument with an analysis of an
                                                considerations need to be revisited                     section 126(b) petitions. The EPA first               allegedly achievable NOX rate, which
                                                when evaluating potential reductions to                 used a regional trading program as a                  they claim is appropriate for regulatory
                                                meet future updated NAAQS (just as                      section 126(c) remedy for findings in                 application.
                                                they have been revisited in previous                    response to section 126(b) petitions                     The EPA does not agree that these
                                                updates to the NAAQS) for which SIPs                    from eight states requesting upwind                   assertions support a determination that
                                                and FIPs have yet to be promulgated                     sources be regulated with respect to the              these sources are inadequately
                                                (e.g., the 2015 ozone NAAQS), the                       1979 ozone NAAQS. Based on findings                   controlled by the CSAPR Update, and
                                                agency disagrees that they are irrelevant               made through the NOX SIP call, the EPA                that additional regulatory measures for
                                                considerations for other actions related                established its Federal NOX Budget                    these sources are necessary under the
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                                                to upwind contribution for the 2008                     Trading Program in response to these                  good neighbor provision. Not only was
                                                NAAQS for which actions have been                       petitions. 65 FR 2674 (Jan. 18, 2000).                that rule specifically designed to
                                                promulgated.                                            The use of the regional analysis of ozone             achieve the reductions necessary under
                                                   According to commenters, evaluating                  transport in the NOX SIP call findings to             the good neighbor provision, but recent
                                                Delaware’s and Maryland’s section                       respond to contemporaneous section                    data indicate that it is in fact achieving
                                                126(b) petitions based on whether the                   126(b) petitions was challenged in the                such reductions and that petitioners’
                                                named sources participate in a trading                  D.C. Circuit in Appalachian Power,                    assertions are not borne out by the


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                                                                               Federal Register / Vol. 83, No. 194 / Friday, October 5, 2018 / Notices                                                50469

                                                current or future operations of the                     not provided compelling new or novel                  strategies in the CSAPR Update that
                                                named sources. As discussed earlier,                    information regarding the EPA’s                       were considered feasible to implement
                                                based on reported 2017 ozone-season                     technical analysis of NOX control                     by the 2017 ozone season and
                                                emissions under the first CSAPR Update                  potential or observation of CSAPR                     determined that EGU control strategies
                                                compliance period, these sources as a                   Update implementation.                                available at a marginal cost of $1,400
                                                group effectively reduced emissions to a                Implementation mechanisms based on                    per ton of NOX reduced were cost
                                                degree consistent with the CSAPR                        seasonal NOX requirements have                        effective, using a multi-factor test that
                                                Update remedy. Commenters provided                      demonstrated success at reducing peak                 considered cost, NOX reduction
                                                no compelling additional recent                         ozone concentrations. For example, over               potential, and downwind air quality
                                                emissions and air quality data that                     the past decade, there has been                       improvements at various levels of
                                                suggest controls were broadly                           significant improvement in ozone across               potential NOX control stringency. In its
                                                underperforming on high ozone days.                     the eastern United States, in part due to             evaluation, the EPA examined control
                                                   The EPA notes that the power sector                  season-long allowance trading programs                strategies available at different cost
                                                is a complex and interconnected system                  such as the NOX Budget Trading                        thresholds, including turning on
                                                in which factors affecting one facility                 Program, CAIR, and the CSAPR NOX                      existing idled SNCR, which is the
                                                can result in effects across facilities                 ozone-season allowance trading                        remedy proposed by Maryland in its
                                                within the state or dispatch region.                    program. As a result, current measured                petition for these two units. The EPA
                                                Thus, granting the petitioners’ request                 air quality in all Eastern areas is below             identified a marginal cost of $3,400 per
                                                for source-specific emission limitations                the 1997 ozone NAAQS. As such, based                  ton as the level of uniform control
                                                at certain EGUs could cause effects at                  on the best information available to the              stringency that represents turning on
                                                other EGUs. For instance, rate                          agency at this time, the EPA believes                 idled SNCR controls.71 The EPA
                                                requirements could result in generation                 that its current approach of                          identified this higher marginal cost of
                                                shifting to higher-emitting units that                  implementing an allowance trading                     operating SNCR at units in the CSAPR
                                                were not named in the petition,                         program at step four has proven                       Update region, relative to operation of
                                                potentially creating worse downwind                     effective at constraining NOX emissions               SCR, predominately based on the cost
                                                air quality impacts on a statewide or                   from covered sources, including the                   and quantity of reagent needed (i.e.,
                                                regionwide basis. Petitioners fail to                   sources named in the petitions.                       SNCRs require substantially more
                                                recognize or account for potential re-                                                                        reagent compared with SCRs due to the
                                                balancing across the power sector in                    b. Analysis of SNCR for NOX Mitigation                absence of catalyst which greatly
                                                response to their requested remedy. By                     In its petition, Maryland also alleges             facilitates the reactions converting the
                                                only examining the impact of a subset                   that two facilities operating SNCR post-              NOX).
                                                of the units subject to the same cap, the               combustion controls—Cambria Cogen in                     The CSAPR Update finalized
                                                petitioner does not fully account for the               Pennsylvania and Grant Town Power                     emission budgets using $1,400 per ton
                                                potential air quality impact from                       Plant in West Virginia—emit or would                  control stringency, finding within step
                                                implementation of the proposed                          emit in violation of the good neighbor                three of the transport framework that
                                                remedy.                                                 provision with respect to the 2008                    this level of stringency represented the
                                                   The EPA received comments on the                     ozone NAAQS and asks that the agency                  control level at which incremental EGU
                                                proposed action asserting that an                       impose emission limits or other                       NOX reductions and corresponding
                                                allowance trading program, such as that                 requirements to ensure that the facilities            downwind ozone air quality
                                                promulgated in the CSAPR Update,                        operate their SNCR during the ozone                   improvements were maximized with
                                                cannot address significant contribution                 season. The EPA is finalizing its                     respect to marginal cost. In finding that
                                                to nonattainment or interference with                   proposal to deny Maryland’s petition                  use of the $1,400 per ton control cost
                                                maintenance from a source or group of                   with respect to sources operating SNCR                level was appropriate for the 2008 ozone
                                                sources under CAA section 126.                          based on its conclusion that fully                    NAAQS, the EPA determined that the
                                                Commenters state that an allowance                      operating with SNCR is not a cost-                    more stringent emission budget level
                                                trading program is insufficient to                      effective NOX emissions reduction                     reflecting $3,400 per ton (representing
                                                constrain NOX emissions where there                     strategy for these sources, considering               turning on idled SNCR controls) yielded
                                                are excess allowances. Commenters                       other relevant factors such as NOX                    fewer additional emission reductions
                                                state that since ozone is observed on a                 reduction potential and downwind air                  and fewer air quality improvements per
                                                daily basis and the form of the standard                quality impact, with respect to                       additional dollar of control costs.
                                                is based on daily observations, daily                   addressing transport obligations for the                 Based on the information,
                                                NOX limits are necessary to prevent                     2008 ozone NAAQS. The EPA                             assumptions, and analysis in the CSAPR
                                                units from emitting at high rates on                    determined in the CSAPR Update that                   Update, the EPA determined that
                                                exceedance days and the days leading                    operating existing SNCR would be                      establishing emission budgets at $3,400
                                                up to the exceedance. The EPA does not                  $3,400 per ton, which exceeded the                    per ton and developing associated
                                                agree that an allowance trading program                 level that the EPA determined would be                emissions budgets based on operation of
                                                is an inadequate means of implementing                  cost effective for the good neighbor                  idled SNCR controls was not cost
                                                emission reductions for interstate                      provision for the 2008 ozone NAAQS,                   effective for addressing good neighbor
                                                transport purposes and notes it has done                and, therefore, the EPA is determining                provision obligations for the 2008 ozone
                                                so in response to CAA section 126(b)                    in this action that these sources do not              NAAQS because this level of control
                                                petitions previously.70 Petitioners have                emit and would not emit in violation of               yielded fewer additional emission
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                                                                                                        the good neighbor provision with                      reductions and fewer air quality
                                                  70 See Rulemaking on Section 126 Petition From
                                                                                                        respect to that NAAQS.                                improvements relative to other less-
                                                North Carolina To Reduce Interstate Transport of           As discussed in Section IV.C.2 of the              costly control strategies. 81 FR 74550. A
                                                Fine Particulate Matter and Ozone; Federal
                                                Implementation Plans to Reduce Interstate               proposal, the EPA evaluated control                   review of the emission levels at the
                                                Transport of Fine Particulate Matter and Ozone;
                                                Revisions to the Clean Air Interstate Rule; Revisions   Rulemaking on Section 126 Petitions for Purposes        71 See EGU NO Mitigation Strategies Final Rule
                                                                                                                                                                                 X
                                                to the Acid Rain Program, 71 FR 25328 (April 28,        of Reducing Interstate Ozone Transport, 65 FR 2674    TSD (docket ID EPA–HQ–OAR–2015–0500–0554),
                                                2006); Findings of Significant Contribution and         (January 18, 2000).                                   available at http://www.regulations.gov.



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                                                50470                          Federal Register / Vol. 83, No. 194 / Friday, October 5, 2018 / Notices

                                                sources named in Maryland’s petition                       One commenter asserts that the EPA                 effectiveness determinations made
                                                before implementation of the CSAPR                      incorrectly analyzed Maryland’s                       under RACT.
                                                Update, in particular, demonstrates that                argument related to EGUs equipped                        Based on the EPA’s conclusion that
                                                the two units are relatively small in size              with SNCR, as the availability of NOX                 fully operating with SNCR is not a cost-
                                                and have low emission levels,                           reductions under a 126(b) petition must               effective NOX emission reduction
                                                indicating that the units have a                        be evaluated on a source-specific basis               strategy with respect to addressing
                                                relatively limited ability to substantially             in order to determine if the proposed                 transport obligations for the 2008 ozone
                                                reduce NOX emissions and, thereby,                      NOX control is cost effective. The                    NAAQS for these sources, the EPA finds
                                                improve air quality downwind.72                         commenter alleges that when the EPA                   that the petition and the comments
                                                Neither Maryland’s petition nor public                  conducts cost-effectiveness                           provide no grounds for the EPA to
                                                commenters provide any contradictory                    determinations for RACT, SNCR                         determine that that the two sources
                                                information demonstrating that fully                    installation is considered cost effective,            identified as operating SNCR emit or
                                                operating SNCR is a cost-effective                      and, therefore that running those                     would emit in violation of the good
                                                control for the two named sources,                      installed controls is necessarily also cost           neighbor provision with respect to the
                                                considering the marginal cost of                        effective in the context of the good                  2008 ozone NAAQS.
                                                implementation, the anticipated                         neighbor provision as well. Another                   c. The EPA’s Step Three Analysis With
                                                emission reduction, and the potential                   commenter asserts that the optimization               Respect to Brunner Island
                                                air quality benefits.73 The EPA, thus,                  of existing post-combustion controls is
                                                denies Maryland’s petition with respect                 an immediately available cost-effective                  The remaining facility addressed in
                                                to these sources based on its conclusion                NOX reduction strategy available in the               one of Delaware’s petitions is the
                                                that fully operating with SNCR is not a                 EGU sector.                                           Brunner Island facility, which currently
                                                cost-effective NOX emission reduction                                                                         has neither SCR nor SNCR installed. As
                                                                                                           While the operation of SNCR could be               noted earlier, the EPA has already
                                                strategy with respect to addressing                     implemented relatively quickly, as
                                                transport obligations for the 2008 ozone                                                                      determined that Delaware’s petitions
                                                                                                        described earlier, the EPA does not have              should be denied based on the EPA’s
                                                NAAQS for these sources, and,                           a basis to determine that the controls are
                                                therefore, that these sources do not emit                                                                     conclusions that there are no downwind
                                                                                                        cost effective at these units when                    air quality impacts in Delaware in steps
                                                and would not emit in violation of the                  considering cost, NOX reduction
                                                good neighbor provision with respect to                                                                       one and two of the four-step framework.
                                                                                                        potential, and downwind air quality                   Nonetheless, the EPA has evaluated
                                                the 2008 ozone NAAQS.                                   improvements. Commenters have also
                                                   While the EPA determined that fully                                                                        Brunner Island with respect to step
                                                                                                        not provided information demonstrating                three because it provides another
                                                operating SNCR across the region was
                                                                                                        that, even at the unit level proposed by              independent basis for EPA’s denial of
                                                not cost effective with respect to
                                                                                                        the commenter, operation of SNCR at                   the petition.
                                                addressing transport obligations for the
                                                                                                        the two units named in the Maryland                      With respect to the question of
                                                2008 ozone NAAQS, individual sources
                                                                                                        petition are cost effective relative to               whether there are feasible and cost-
                                                may nonetheless choose how to comply
                                                                                                        NOX reduction potential and downwind                  effective NOX emissions reductions
                                                with the CSAPR ozone season NOX
                                                                                                        air quality improvements.                             available at Brunner Island, the facility
                                                allowance trading program. The
                                                operation of existing SNCR controls is                     The EPA also does not agree that any               primarily burned natural gas with a low
                                                one method to achieve emission                          conclusions drawn regarding cost                      NOX emissions rate in the 2017 ozone
                                                reductions needed to comply with the                    effectiveness of controls in other                    season, and the EPA expects the facility
                                                requirements of the trading program. 81                 contexts are directly applicable here.                to continue operating primarily by
                                                FR 74561. For instance, during the 2017                 RACT determinations are evaluating                    burning natural gas in future ozone
                                                ozone season, likely in part as the result              whether implementation of certain                     seasons. As such, and as described in
                                                of economic incentives under the                        controls within a nonattainment area                  more detail in the following paragraphs,
                                                CSAPR Update, the two Cambria units                     will be effective at addressing a local air           the EPA at this time finds that no
                                                with SNCR appear to have operated                       quality problem relative to the cost of               additional feasible and cost-effective
                                                their controls, resulting in average NOX                implementing such controls. However,                  NOX emissions reductions available at
                                                emissions rates of 0.15 and 0.16 lbs/                   implementation of the same controls at                Brunner Island have been identified.
                                                mmBtu, respectively (a drop from the                    sources that are significantly farther                The EPA, therefore, has no basis to
                                                2016 rates of 0.23 and 0.24 lbs/mmBtu,                  from a particular air quality problem                 determine, consistent with the standard
                                                respectively).74                                        may have very different air quality                   of review outlined in Section IV.A of
                                                                                                        impacts a downwind area. As described                 this notice, that Brunner Island emits or
                                                  72 Cambria Cogen units one and two emitted 237        earlier in this notice, ozone transport is            would emit in violation of the good
                                                tons and 219 tons of ozone season NOX in 2016,          the result of the collective contribution             neighbor provision with respect to the
                                                respectively, while Grant Town units 1A and 1B          of many sources in several upwind                     2008 or 2015 ozone NAAQS.
                                                emitted 282 tons and 285 tons of ozone season NOX
                                                in 2016, respectively. Ozone season NOX emissions       states. The relative cost effectiveness of               Delaware’s CAA section 126(b)
                                                rates from these EGUs under the CSAPR Update in         emission reductions from                              petition first proposes that the operation
                                                2017 are described later.                               implementation of controls at a given                 of natural gas is an available cost-
                                                  73 Since the EPA does not agree, and Maryland
                                                                                                        upwind source, when considering NOX                   effective emissions reduction measure
                                                has not demonstrated in the first instance that the
                                                operation of SNCR at these units is cost effective,     reduction potential and downwind                      that could be implemented at Brunner
                                                the EPA need not address Maryland’s claim that          impacts, will necessarily be different                Island. Brunner Island completed
                                                short-term emission limits may be appropriate. In       than evaluation of the same controls at               construction of a natural gas pipeline
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                                                any event, the EPA notes that the same concerns
                                                with relying on the lowest historical emission rate
                                                                                                        a more local source. The EPA’s                        connection prior to the beginning of the
                                                for purposes of determining what is achievable for      approach for assessing cost effectiveness             2017 ozone season (i.e., by May 1, 2017)
                                                SCRs, discussed in Section IV.B.2 in the proposal,      in the context of regional interstate                 and operated primarily using natural gas
                                                would also apply to Maryland’s contentions with         ozone pollution transport can, therefore,             as fuel for the 2017 ozone season. As a
                                                respect to SNCRs.
                                                  74 See 2015, 2016, and 2017 Ozone-Season NO
                                                                                                        reasonably be considered as addressing                result, Brunner Island’s actual ozone
                                                                                                    X
                                                rates (lbs/mmBtu) for 41 units named in the             a different air quality concern and                   season NOX emissions declined from
                                                petitions, available in the docket for this action.     thereby independent from cost-                        3,765 tons in 2016 to 877 tons in 2017,


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                                                                               Federal Register / Vol. 83, No. 194 / Friday, October 5, 2018 / Notices                                                   50471

                                                and the facility’s ozone season NOX                     primarily utilize natural gas by way of                 during future ozone seasons through at
                                                emissions rate declined from 0.370 lbs/                 a large capital investment in a new                     least 2023.79
                                                mmBtu in 2016 to 0.090 lbs/mmBtu in                     natural gas pipeline capacity                              The context in which Brunner Island
                                                2017. Thus, Brunner Island has already                  connection. Brunner Island’s operators                  installed natural gas-firing capability
                                                implemented the emissions reductions                    would have planned for and constructed                  and burned natural gas is consistent
                                                consistent with what Delaware asserted                  this project during the recent period of                with observed recent trends in natural
                                                would qualify as a cost-effective strategy              relatively low natural gas prices. In the               gas utilization within the power sector,
                                                for reducing NOX emissions.                             years preceding the completion of this                  suggesting that Brunner Island’s
                                                Accordingly, the EPA has determined                     natural gas pipeline connection project                 economic situation in which it
                                                that Delaware’s CAA section 126(b)                      (i.e., between 2009 and 2016), average                  primarily burns gas as fuel during the
                                                petition does not demonstrate that, at                  annual Henry Hub natural gas spot                       ozone season is not unique or limited.
                                                this current level of emissions, Brunner                prices ranged from $2.52/mmBtu to                       Comparing total heat input from 2014
                                                Island emits in violation of the good                   $4.37/mmBtu.76 The capital                              with 2017 for all units that utilize
                                                neighbor provision.                                     expenditure to construct a natural gas                  natural gas and report to the EPA’s
                                                   Similarly, the EPA concludes that                    pipeline connection suggests that                       Clean Air Markets Division, historical
                                                Delaware’s petition does not                            natural gas prices within this range                    data showed an increased use of natural
                                                demonstrate that Brunner Island would                   make it economic (i.e., cheaper) for                    gas of 14 percent.80 This overall increase
                                                emit in violation of the good neighbor                  Brunner Island to burn natural gas to                   results from both an increase in capacity
                                                provision. The EPA believes Brunner                     generate electricity relative to burning                from the construction of additional
                                                Island will continue to primarily use                   coal. As such, future natural gas prices                units and an increased gas-fired
                                                natural gas as fuel during future ozone                 in this same range suggest that Brunner                 capacity factor at existing sources. The
                                                seasons for economic reasons. First,                    Island will continue to primarily burn                  available capacity increased six percent
                                                compliance with the CSAPR Update                        natural gas during future ozone seasons.                while average capacity factor increased
                                                provides an economic incentive to cost-                 The EPA and other independent                           from 23 percent to 25 percent, which
                                                effectively reduce NOX emissions.                       analysts expect future natural gas prices               reflects an eight percent increase in
                                                Specifically, Brunner Island’s                          to remain low and within this price                     utilization.
                                                participation in the CSAPR NOX Ozone                    range exhibited from 2009 to 2016 due                      Considering the projected continued
                                                Season Group 2 allowance trading                        both to supply and distribution pipeline                broader downward trends in NOX
                                                program provides an economic                            buildout. For example, the Energy                       emissions resulting in improved air
                                                incentive to produce electricity in ways                Information Administration’s (EIA) 2018                 quality in Delaware, the EPA anticipates
                                                that lower ozone season NOX, such as                    Annual Energy Outlook (AEO) natural                     that Brunner Island will likely continue
                                                by burning natural gas relative to                      gas price projections for the Henry Hub                 to primarily burn natural gas during the
                                                burning coal at this particular power                   spot price range from $3.06/mmBtu in                    ozone season as air quality in Delaware
                                                plant. Under the CSAPR Update, each                     2018 to $3.83/mmBtu in 2023.77                          continues to improve. Accordingly, the
                                                ton of NOX emitted by a covered EGU                     Moreover, the AEO short-term energy                     EPA has no basis to conclude that the
                                                has an economic value—either a direct                   outlook and New York Mercantile                         facility would emit in violation of the
                                                cost in the case that a power plant must                Exchange futures further support the                    good neighbor provision with respect to
                                                purchase an allowance to cover that ton                 estimates of a continued low-cost                       either the 2008 or 2015 ozone NAAQS.
                                                                                                        natural gas supply.78 These                                Commenters assert that the EPA’s
                                                of emissions for CSAPR Update
                                                                                                        independent analyses of fuel price data                 interpretation of ‘‘emits’’ or ‘‘would
                                                compliance or an opportunity cost in
                                                                                                        and projections lead to the EPA’s                       emit’’ inappropriately proposes to
                                                the case that a power plant must use an
                                                                                                        expectation that fuel-market economics                  evaluate only a single year’s worth of
                                                allowance in its account for compliance
                                                                                                        will continue to support Brunner                        emissions data or anticipated future
                                                and, thereby, foregoes the opportunity                                                                          rates, without ensuring that the
                                                to sell that allowance on the market.                   Island’s primarily burning natural gas
                                                                                                                                                                emission reductions (i.e. evaluated
                                                The EPA notes that Brunner Island’s                                                                             rates) are permanent and federally
                                                                                                           76 Henry Hub is a significant distribution hub
                                                2017 emissions would have been                                                                                  enforceable. The EPA disagrees that it is
                                                                                                        located on the natural gas pipeline system located
                                                approximately 2,714 tons more than its                  in Louisiana. Due to the significant volume of          required to impose federally enforceable
                                                actual 2017 emissions if it had operated                trades at this location, it is seen as the primary      limitations at Brunner Island based on
                                                as a coal-fired generator, as it did in                 benchmark for the North American natural gas
                                                                                                                                                                the facts before the agency. The
                                                2016.75 This reduction in NOX                           market. These data are publicly available at https://
                                                                                                        www.eia.gov/dnav/ng/hist/rngwhhdA.htm.                  prohibition of CAA section
                                                emissions that is attributable to                          77 In the 2018 reference case Annual Energy
                                                primarily burning natural gas has an                    Outlook (AEO) released February 6, 2018, created          79 The EPA also notes that a proposed consent
                                                economic value in the CSAPR                             by the U.S. Energy Information Administration           decree between Sierra Club and Talen Energy may
                                                allowance trading market.                               (EIA), natural gas prices for the power sector for      further ensure that Brunner Island will operate by
                                                                                                        2018 through 2023. Available at https://                burning gas in the ozone season in 2023 and future
                                                   Second, there are continuing fuel-                   www.eia.gov/outlooks/aeo/data/browser/#/?id=13-         years. Under the settlement, Brunner Island agrees
                                                market based economic incentives                        AEO2018&cases=ref2018&sourcekey=0. Projected            to operate only on natural gas during the ozone
                                                suggesting that Brunner Island will                     delivered natural gas prices for the electric power     season (May 1–September 30) starting on January 1,
                                                continue to primarily burn natural gas                  sector in the Middle Atlantic region, where Brunner     2023, (subjected to limited exceptions) and cease
                                                                                                        Island is located, ranged between $3.56 in 2018 and     coal operations after December 31, 2028. Sierra
                                                during the ozone season. Brunner Island                 $4.08/mmBtu in 2023. The projected delivered coal       Club, Talen Energy, and Brunner Island jointly
                                                elected to add the capability to                        prices for the electric power sector in the Middle      moved the Middle District of Pennsylvania to enter
                                                                                                        Atlantic region remain relatively constant, ranging     the proposed the consent decree, and on August 31,
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                                                  75 This estimated emissions difference was            from $2.51 to $2.56/mmBtu. These data are publicly      2018, the court granted the motion and entered the
                                                calculated as the difference between 2017 reported      available at https://www.eia.gov/outlooks/aeo/data/     agreement. See Order Granting Joint Motion for
                                                NOX emissions of 877 tons and a counterfactual          browser/#/?id=3-AEO2018&region=1-2&cases=               Entry of Proposed Consent Decree and Stipulation
                                                2017 NOX emissions estimate of 3,591 tons created       ref2018&start=2016&end=2023&f=A&linechart=              Extending Defendants’ Time to Respond to
                                                using 2017 operations (i.e., heat input of 19,406,872   ref2018-d121317a.3-3AEO2018.1-2&map=ref2018-            Complaint, Sierra Club. v Talen Energy Corp., Case
                                                mmBtu) multiplied by the 2016 NOX emission rate         d121317a.4-3-AEO2018.1-2&sourcekey=0.                   No. 1:18–cv–01042–CCC.
                                                of 0.37 lb/mmBtu reflecting coal-fired generation.         78 AEO short-term energy outlook available at          80 From 8.4 billion mmBtu to 9.6 billion mmBtu.

                                                These data are publicly available at https://           https://www.eia.gov/outlooks/steo/report/               See EPA’s Clean Air Markets Division data
                                                www.epa.gov/ampd.                                       natgas.php.                                             available at https://ampd.epa.gov/ampd/.



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                                                50472                          Federal Register / Vol. 83, No. 194 / Friday, October 5, 2018 / Notices

                                                110(a)(2)(D)(i)(I) is linked directly to                statutory language of CAA section                       level of emissions at Brunner Island and
                                                CAA section 126(b), in that a violation                 110(a)(2)(D)(i)(I), which ‘‘prohibit[s]’’               future ozone concentrations in
                                                of the prohibition in CAA section                       only those emissions that significantly                 Delaware.
                                                110(a)(2)(D)(i) is a condition precedent                contribute to nonattainment or interfere
                                                                                                                                                                V. Determinations Under Section
                                                for action under CAA section 126(b)                     with maintenance of the NAAQS in
                                                and, critically, that significant                       another state. The EPA has reasonably                   307(b)(1)
                                                contribution to nonattainment and                       interpreted this to mean that where                        Section 307(b)(1) of the CAA indicates
                                                interference with maintenance should                    there is no such impact, the EPA and                    which Federal Courts of Appeal have
                                                be construed identically for purposes of                the states are not required to impose                   venue for petitions of review of final
                                                both provisions where EPA has already                   emission limitations.81 The EPA does                    actions by the EPA. This section
                                                given meaning to the terms under one                    not dispute that, were it to find that                  provides, in part, that petitions for
                                                provision. 83 FR 7711 through 7722; see                 Brunner Island emits or would emit in                   review must be filed in the Court of
                                                also Appalachian Power, at 1048–50                      violation of the prohibition under CAA                  Appeals for the District of Columbia
                                                (affirming as reasonable the EPA’s                      section 110(a)(2)(D)(i)(I), an appropriate              Circuit if (i) the agency action consists
                                                approach to interpreting a violation of                 remedy to mitigate the emission impacts                 of ‘‘nationally applicable regulations
                                                CAA section 110(a)(2)(D)(i)(I) under                    would necessarily have to be federally                  promulgated, or final action taken, by
                                                CAA section 126 consistent with its                     enforceable, both under CAA section                     the Administrator,’’ or (ii) such action is
                                                approach in the NOX SIP Call).                          126(c) (requiring compliance by a                       locally or regionally applicable, if ‘‘such
                                                   Given the inextricable link between                  source with EPA-imposed emission                        action is based on a determination of
                                                the substantive requirements of the two                 limitations and compliance schedules)                   nationwide scope or effect and if in
                                                provisions, the EPA applied the same                    and CAA section 110(a)(2)(D)(ii)                        taking such action the Administrator
                                                four-step framework used in previous                    (requiring a state implementation plan                  finds and publishes that such action is
                                                ozone transport rulemakings, including                  to contain provisions ensuring                          based on such a determination.’’
                                                the CSAPR Update, for evaluating                        compliance with the requirements of                        The EPA finds that this final action
                                                whether Brunner Island significantly                    CAA section 126).                                       regarding the pending CAA section
                                                contributes to nonattainment, or                           However, for the reasons described in                126(b) petitions is ‘‘nationally
                                                interferes with maintenance, of the 2008                the proposal and in this final action, the              applicable.’’ or, in the alternative, is
                                                and 2015 ozone NAAQS in Delaware.                       EPA has determined at this time that                    based on a determination of
                                                Pursuant to this framework, the EPA                     Brunner Island does not emit, or would                  ‘‘nationwide scope and effect’’ within
                                                first determines in steps one and two                   not emit, in violation of CAA section
                                                                                                                                                                the meaning of CAA section 307(b)(1).
                                                whether emissions from an upwind                        110(a)(2)(D)(i)(I) under steps one, two,
                                                                                                                                                                Through this rulemaking action, the
                                                state impact downwind air quality                       and three for either the 2008 or 2015
                                                                                                                                                                EPA interprets sections 110 and 126 of
                                                problems at a level that exceeds an air                 ozone NAAQS. Therefore, under the
                                                                                                                                                                the CAA, statutory provisions which
                                                quality threshold, such that the state is               four-step framework, the EPA does not
                                                                                                                                                                apply to all states and territories in the
                                                linked and, therefore, contributes to the               reach step four’s requirement of
                                                                                                                                                                United States. In addition, the final
                                                air quality problem. In step three, the                 federally enforceable emission
                                                                                                                                                                action addresses emissions impacts and
                                                EPA then determines whether the                         reductions. However, the EPA notes that
                                                                                                                                                                sources located in seven States, which
                                                contribution is ‘‘significant’’ or                      if, in fact, Brunner Island’s operations
                                                                                                                                                                are located in multiple EPA Regions and
                                                interferes with maintenance of the                      change such that the facility is operating
                                                NAAQS based on several factors,                         primarily on coal during future ozone                   federal circuits.82 This action is also
                                                including the availability of cost-                     seasons and future emission levels                      based on a common core of factual
                                                effective emission reductions at sources                increase so as to be in violation of the                findings and analyses concerning the
                                                within the state. Where the EPA                         good neighbor provision, then this final                transport of pollutants between the
                                                determines that a source does not have                  action denying Delaware’s petition                      different states. Furthermore, the EPA
                                                cost-effective emission reductions                      would not preclude Delaware from                        intends this interpretation and approach
                                                available, the EPA concludes that the                   submitting another petition regarding                   to be consistently implemented
                                                source does not significantly contribute                Brunner Island’s impacts. The EPA is                    nationwide with respect to CAA section
                                                to nonattainment or interfere with                      not, however, pre-determining what                      126(b) petitions for the 2008 and 2015
                                                maintenance of the NAAQS, and thus,                     action may be appropriate on any such                   ozone NAAQS. Courts have found
                                                that there are no emissions at the source               future petition, which would depend                     similar actions to be nationally
                                                that must be ‘‘prohibited’’ under CAA                   upon a variety of factors, including the                applicable.83 For these reasons, the
                                                section 110(a)(2)(D)(i)(I), and the                                                                             Administrator finds that any final action
                                                petition can also be denied on this basis.                 81 This is also consistent with designation          related to this proposal is nationally
                                                   Importantly, the EPA only                            requirements elsewhere in title I. Downwind areas       applicable or, in the alternative, is based
                                                                                                        are initially designated attainment or nonattainment    on a determination of nationwide scope
                                                implements federally enforceable limits                 for the ozone NAAQS based on actual measured
                                                under step four of the four-step                        ozone concentrations, regardless of whether the
                                                                                                                                                                and effect for purposes of CAA section
                                                framework for sources that the EPA                      level of ozone concentrations is due to enforceable     307(b)(1).
                                                determines have emissions that                          emission limits. Similarly, the EPA generally              Thus, the EPA finds that pursuant to
                                                                                                        evaluates whether sources in nearby areas               CAA section 307(b)(1) any petitions for
                                                significantly contribute to                             contribute to measured nonattainment in such areas
                                                nonattainment or interfere with                         for purposes of designations based on actual            review of this final action would be
                                                maintenance of the ozone NAAQS                          emission levels, and thus sources in those nearby       filed in the Court of Appeals for the
                                                downwind under steps one, two, and                      areas are generally subject to nonattainment            District of Columbia Circuit within 60
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                                                                                                        planning requirements only if actual emissions
                                                three. See 81 FR 74553 (declining to                    from that area are considered to contribute to the
                                                impose CSAPR Update FIP obligations                     air quality problem. Here, where ‘‘significant            82 See H.R. Rep. No. 95–294 at 323, 324, reprinted

                                                for EGUs in District of Columbia and                    contribution’’ is necessarily a higher standard than    in 1977 U.S.C.C.A.N. 1402–03.
                                                                                                        the contribution threshold used in designations, it       83 See, e.g., Texas v. EPA, 2011 U.S. App. LEXIS
                                                Delaware despite linkages to downwind
                                                                                                        is reasonable and consistent to determine that states   5654 (5th Cir. 2011) (finding SIP call to 13 states
                                                receptors where EPA determined no                       or EPA need only impose emission limitations if it      to be nationally applicable and thus transferring the
                                                cost-effective emission reductions were                 is determined that there is significant contribution    case to the U.S. Court of Appeals for the D.C.
                                                available). This is consistent with the                 or interference with maintenance.                       Circuit in accordance with CAA section 307(b)(1)).



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                                                                               Federal Register / Vol. 83, No. 194 / Friday, October 5, 2018 / Notices                                                 50473

                                                days from the date any final action is                  VI. Statutory Authority                                 Dated: September 14, 2018.
                                                published in the Federal Register.                                                                             Andrew R. Wheeler,
                                                                                                              42 U.S.C. 7410, 7426, 7601.                      Acting Administrator.
                                                                                                                                                               [FR Doc. 2018–20854 Filed 10–4–18; 8:45 am]
                                                                                                                                                               BILLING CODE 6560–50–P
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Document Created: 2018-10-05 01:52:34
Document Modified: 2018-10-05 01:52:34
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
ActionNotice of final action on petition.
DatesThis final action is effective on October 5, 2018.
ContactQuestions concerning this final action should be directed to Mr. Lev Gabrilovich, U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Air Quality Policy Division, Mail Code C539-01, Research Triangle Park, NC 27711, telephone (919) 541-1496; email at [email protected]
FR Citation83 FR 50444 
RIN Number2060-AT40, 2060-AT39, 2060-AT38, 2060-AT37 and 2060-AT36

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