district clerk for the district of columbia circu] t l. …[epa—oar—2016—0596;...

UJI+h1 SA 4êj- h4U

_____ _____

FOR DISTRICT L

FILEDE

I DEC 26 oit I IN THE UNITED STATES COURT OF APPEA] ‘ L.FOR THE DISTRICT OF COLUMBIA CIRCU] T

CLERKUnited St i1es Coutt of Appeals

_____________________

District

STATE OF NEW YORK, STATE OFCONNECTICUT, STATE OF DELAWARE,STATE OF MARYLAND, COMMONWEALTHOF MASSACHUSETTS, COMMONWEALTH 17-1273OF PENNSYLVANIA, STATE OF RHODE Docket No._______ISLAND, and STATE OF VERMONT,

Petitioners,

V.

UNITED STATES ENVIRONMENTALPROTECTION AGENCY, and E. SCOTTPRUITT, in his official capacity as Administratorof the U.S. Environmental Protection Agency,

Respondents.

PETITION FOR REVIEW

Pursuant to Rule 15 of the Federal Rules of Appellate Procedure and section

3 07(b) of the Clean Air Act, 42 U.S.C. § 7607(b), the petitioners listed above hereby

petition the Court to review the final agency action of respondents entitled

“Response to the December 9, 2013, Clean Air Act Section 1 76A Petition From

Connecticut, Delaware, Maryland, Massachusetts, New Hampshire, New York,

Pennsylvania, Rhode Island and Vermont,” 82 Fed. Reg. 51,238 (November 3,

USCA Case #17-1273 Document #1710690 Filed: 12/26/2017 of 19

2017). A copy ofthe notice of final action is attached hereto as Exhibit A. Petitioners

seek a determination that the final action is unlawful and therefore must be vacated.

DATED: December 22, 2017 Respectfully submitted,

FOR THE STATE Of NEW YORK

ERIC T. SCHNEIDERMANAttorney General

BARBARA UNDERWOODSolicitor General

By: 444qL%iMORGAN .. COSTELLO

CLAIBORNE E. WALTHALL*

Assistant Attorneys GeneralEnvironmental Protection BureauOffice of the Attorney GeneralThe CapitolAlbany, NY 12224(518) 776-2392Morgan.Coste11oag.ny.gov

* Application for attorney admission to the Court is pending.


FOR THE STATE OfCONNECTICUT

FOR THE STATE OfDELAWARE

/9t.i tL:%— U%7Ey:

FOR THE STATE OFMARYLANI)

BRIAN FROSHAttorney General

By: M’tfd%att L4L/LMIcHAEL F. STRANDEAssistant Attorney GeneralDepartment of the Environment1800 Washington Blvd.Suite 6048Baltimore, MD 21230(410) 537-3421michael. strandemaryland.gov

FOR THE COMMONWEALTHOF MASSACHUSETTS

MAURA HEALEYAttorney General

By: C)A,CT( lui (!-tL

CAROL IANcUAssistant Attorney GeneralEnvironmental ProtectionDivisionOne Ashburton Place,Boston, MA 02108(617) [email protected]

GEORGE JEPSENAttorney General

By:M ITHEW I. LEVINE

JILL LACEDONIA

Assistant Attorneys GeneralOffice of the Attorney GeneralP.O. Box 120, 55 Elm StreetHartford, CT 06141-0 120(860) 808-5250Jil1.Lacedoniact.gov

MATTHEW P. DENNAttorney General

p

:eVALERIE S. EDGE 0Deputy Attorney GeneralDelaware Department of Justice102 West Water Street, 3d FloorDover, DE 19904(302) 257-3219Valerie.edgestate.de.us

t-,nA ‘-t’&ë,&4/ LLt1%1 -

18th Floor


FOR THE COMMONWEALTH FOR THE STATE OF RHODEOF PENNSYLVANIA ISLAND

JOSH SHAPIRO PETER MLMARTINAttorney General Attorney General

By: tt”? ‘l9L By:STEVEN J. SANTARSIERO GREGOY S SCHULTZ

ChiefDeputy Attorney General Special Assistant AttorneyMICHAEL J. FIscHER GeneralChiefDeputy Attorney General Rhode Island Department ofKRISTEN M. FuRLAN Attorney GeneralAsst. Director, 150 South Main StreetBureau ofRegulatory Counsel Providence, RI 02903PA Department of Environmental (401) 274-4400Protection gSchultzriag.ri.govPA Office of the AttorneyGeneralStrawberry SquareHarrisburg, PA 17102(215) [email protected]

FOR THE STATE OF VERMONT

THOMAS J. DONOVAN, JR.Attorney General

By: M Ck)Zij

NICHOLAS F. PERSAMPIERI

Assistant Attorney GeneralOffice of the Attorney General109 State StreetMontpelier, VT 05609-100 1(802) 828-6902nick.persampierivermont.gov


EXHIBIT A(Notice of Final Action)


51238 Federal Register/Vol. 82, No. 212 / Friday, November 3, 2017 / Notices

comments on EISs issued by otherFederal agencies. EPA’s comment letterson EISs are available at: hftps://cdxnodengn .epa.gov/cdx-nepa-publiclaction/eis/search.EISNo. 20170213, Final, FHWA, DE, US

113 North/South Study MilisboroSouth Area, Contact: RyanO’Donoghue (302) 734—2745

EIS No. 20170214, Draft, USAF, WA,KC—46A Main Operating Base #4(MOB 4) Beddown, Comment PeriodEnds: 12/18/2017, Contact: CaptMatthew Smith (210) 925—3175

ElS No. 20170215, Final, FRA, TX,Texas-Oklahoma Passenger Rail StudyService-Level FEIS/ROD, ReviewPeriod Ends: 12/03/2017, Contact:Kevin Wright (202) 493—0845

FISNo. 20170216, Final,FEMA, NAT,National Flood Insurance ProgramNationwide ProgrammaticEnvironmental Impact Statement,Review Period Ends: 12/03/2017,Contact: Bret Gates (202) 646—4133

EISNo. 20170217, Final, USACE, TX,Lower Bois d’Arc Creek ReservoirFannin County Texas, Review PeriodEnds: 12/09/2017, Contact: AndrewCommer (918) 669—7400

EISNo. 20170218, Draft, NMFS, WA, 10Salmon and Steethead HatcheryPrograms in the Duwamish-GreenRiver Basin, Comment Period Ends:12/20/2017, Contact: Steve Leider(360) 753—4650

Amended NoticesEIS No. 20170210, Final, USFS, WY

Upper Green River Area RangelandProject, Review Period Ends: 12/11/2017, Contact: Dave Booth (307) 367—4326Revision to FR Notice Published 10/

2 7/2017; Correóting Lead Agency fromUSFWS to USFS.

Dated: October 31, 2017.Kelly Knight,Director, NEPA Compliance Division, OfficeofFederalActivities.[FRDoc. 2017—23967 Filed 11—2—17; 8:45 am]

BILLING CODE 6560—SO-P

ENVIRONMENTAL PROTECTIONAGENCY

[EPA—OAR—2016—0596; FRL—9970—36—OAR]

RIN 2060—AT22

Response to December 9, 2013, CleanAir Act Section 176A Petition FromConnecticut, Delaware, Maryland,Massachusetts, New Hampshire, NewYork, Pennsylvania, Rhode Island andVermont

AGENCY: Environmental ProtectionAgency (EPA).

ACTION: Notice of final action onpetition.

SUMMARY: The Environmental ProtectionAgency (EPA) is denying a Clean AirAct (CAA) petition filed on December 9,2013, by the states of Connecticut,Delaware, Maryland, Massachusetts,New Hampshire, New York,Pennsylvania, Rhode Island andVermont. The petition requested thatthe EPA expand the Ozone TransportRegion (0Th) by adding the states ofIllinois, Indiana, Kentucky, Michigan,North Carolina, Ohio, Tennessee, WestVirginia and the areas of Virginia notalready in the OTR in order to addressthe interstate transport of air pollutionwith respect to the 2008 ozone nationalambient air quality standards (NAAQS).As a result of this denial, the geographicscope and requirements of the 0Th willremain unchanged. However, the EPAand states will continue to implementprograms to address interstate transportof ozone pollution with respect to the2008 ozone.

DATES: This final action is effective onNovember 3, 2017.

ADDRESSES: The EPA has established adocket for this action under Docket IDNo. EPA—HQ—OAR—2016—0596. Alldocuments in the docket are listed andpublicly available at hftp://www.regulations.gov. Although listed inthe index, some information is notpublicly available, i.e., ConfidentialBusiness Information or otherinformation whose disclosure isrestricted by statute. Certain othermaterial, such as copyrighted material,is not placed on the Internet and will bepublicly available only in hard copyform. Publicly available docketmaterials are available eitherelectronically in the docket or in hardcopy at the Docket, EPA/DC, EPA West,Room 3334, 1301 Constitution AvenueNW., Washington, DC. The PublicReading Room is open from 8:30 a.m. to4:30 p.m., Monday through Friday,excluding legal holidays. The telephonenumber for the Public Reading Room is(202) 566—1744, and the telephonenumber for the Office of Air andRadiation Docket and InformationCenter is (202) 566—1742.

FOR FURTHER INFORMATION CONTACT: Ms.Gobeail McKinley, U.S. EnvironmentalProtection Agency, Office of Air QualityPlanning and Standards, Air QualityPolicy Division, Mail code C539—01,Research Triangle Park, NC 27711,telephone (919) 541—5246; email [email protected].

I. General Information

Throughout this document, wherever“we,” “us,” or “our” is used, we meanthe U.S. EPA.

A. How is this action organized?

The information in thisSUPPLEMENTARY INFORMATION section ofthis preamble is organized as follows:I. General Information

A. How is this action organized?B. Where can I get a copy of this document

and other related information?C. What acronyms, abbreviations and units

are used in this preamble?II. Executive Summary of the EPA’s Decision

on the CAA Section 176A PetitionIll. Background and Legal Authority

A. Ozone and Public HealthB. Sections 176A and 184 of the CAA and

the 0Th ProcessC. Legal Standard for This ActionD. The CAA Section 176A Petition and

Related CorrespondenceIV. The EPA’s Decision on the CAA Section

176A PetitionA. The CAA Good Neighbor ProvisionsB. The EPA’s Interstate Transport

Rulemaking Under the Good NeighborProvision

C. Additional Rules That Reduce NO andVOC Emissions

D. Summary of Rationale for the Decisionon the CAA Section 176A Petition

V. Major Comments on the Proposed DenialA. Adequacy of the EPA’s RationaleB. Effectiveness of Ozone Precursor

Emissions ReductionsC. Efficiency in Addressing Statutory

Interstate Transport RequirementsD. Equity Among StatesE. Statutory Intent of CAA Section 176A

(or 184)F. Comments on the 2015 Ozone NAAQS

VI. Final Action to Deny the CAA Section176A Petition

VII. Judicial Review and DeterminationsUnder Section 307(b)(1) of the CAA

Vifi. Statutory Authority

B. Where can Iget a copy of thisdocument and other relatedinformation?

In addition to being available in thedocket, an electronic copy of this actionwill be posted at https://www.epa.gov/ozone-pollution/2008-ozone-national-ambient-air-quality-standards-naaqssection-i 76a-petitions.

C. What acronyms, abbreviations andunits are used in this preamble?

APA Administrative Procedure ActCAA or Act Clean Air ActCFR Code of Federal RegulationsD.C. Circuit United States Court of Appeals

for the District of Columbia CircuitEGU Electric Generating UnitEPA U.S. Environmental Protection AgencyFW Federal Implementation PlanFR Federal RegisterNAAQS National Ambient Air Quality

StandardsSUPPLEMENTARY INFORMATION:


Federal Register / Vol. 82, No. 212 I Friday, November 3, 2017 / Notices 51239

NEI National Emissions InventoryNESHAP National Emission Standards for

Hazardous Mr PollutantsNOx Nitrogen OxidesNSPS New Source Performance StandardNSR New Source Review0MB Office of Management and BudgetOTAG Ozone Transport Assessment GroupOTC Ozone Transport CommissionOTR Ozone Transport RegionPM Particulate MatterRACT Reasonably Available Control

TechnologyRTC Response to CommentSIP State Implementation PlanSO2 Sulfur DioxideVOC Volatile Organic Compound

II. Executive Summary of the EPA’sDecision on the CAA Section 176APetition

Tn December 2013, the petitioningstates of Connecticut, Delaware,Maryland, Massachusetts, NewHampshire, New York, Pennsylvania,Rhode Island and Vermont (petitioners)submitted a petition under section 176Aof the CAA that requests the EPA toexpand the OTR by adding nine statesto the region.’ In January 2017, the EPAissued a proposal to deny the CAAsection 176A(a) petition. The agencysolicited comments on this proposal.The EPA received oral testimony from17 speakers at a public hearing on theproposal on April 13, 2017. The EPAalso received over 100 comments on theproposed denial. This final actionaddresses the major comments theagency received. The remainingcomments are addressed in theResponse to Comment (RTC) documentavailable in the docket for this action.

hi this final action, the EPA isdenying the petition to expand the OTR.In making this decision, the EPAreviewed the incoming petition, thepublic comments received, the relevantstatutory authorities and other relevantmaterials. Section 176A of the CAAprovides the Administrator withdiscretion to determine whether toexpand an existing transport region. Inlight of existing control requirementsboth within and outside the OTR, theagency’s ongoing implementation of the“good neighbor” provision (CAAsection 110(a)(2)(D)(i)(I)) throughupdates to the Cross State Air Pollution

nine states are illinois, Indiana, Kentucky,Michigan, North Carolina, Ohio, Tennessee, WestVirginia and Virginia. The parts of northernVirginia included in the Washington, DCConsolidated Metropolitan Statistical Area arealready in the OTR. The petition seeks to add theremainder of the state of Virginia to the 0Th. SeeResponse to December 9, 2013, Clean Air ActSection 176A Petition From Connecticut, Delaware,Maryland, Massachusetts, New Hampshire, NewYork, Pennsylvania, Rhode Island and Vermont,Notice of Proposed Action on Petition, 82 FR 6509(January 19, 2017).

Rule (CSAPR), and the emissionreductions achieved pursuant to federaland state programs promulgatedpursuant to these and other CAAauthorities, which have improved, andwill continue to improve, air quality inthe OTR and throughout the UnitedStates (U.S.), the EPA denies the section176A petition to add states to the OTRfor the purpose of addressing interstatetransport of the 2008 ozone NAAQS.The EPA believes that other CAAprovisions (e.g., section110(a)(2)(D)(i)(I)) provide a betterpathway for states and the EPA todevelop a tailored remedy that is mosteffective for addressing any remainingair quality problems for the 2008 ozoneNAAQS identified by the petitioners.The states and the EPA have historicallyand effectively reduced ozone and theinterstate transport of ozone pollutionusing these other CAA authorities. Forpurposes of addressing interstatetransport with respect to the 2008 ozoneNAAQS, the EPA believes thatcontinuing its longstanding andeffective utilization of the existing andexpected control programs under theCAA’s mandatory good neighborprovision embodied in section110(a)(2)(D)(i)(I) is a more effectivemeans of addressing regional ozonepollution transport for the areas withinthe OTR that must attain the NAAQSthan expanding the OTR as requested.Furthermore, the EPA believes thatreliance on these other CAA authoritiesis a more appropriate use of the agency’slimited resources. In addition, in light ofcomments asking the agency to lookmore closely at the technical merits ofthe petition, the EPA has reassessed thetechnical information submitted insupport of the petition, both bypetitioners and commenters on theproposed denial, and finds there to besufficient analytical gaps to justify thisdenial action. Accordingly, the EPAdenies the CAA section 176A petitionfiled by the nine petitioning states.

III. Background and Legal Authority

A. Ozone and Public Health

Ground-level ozone is not emitteddirectly into the air, but is a secondaryair pollutant created by chemicalreactions between oxides of nitrogen(NO) and volatile organic compounds(VOCs) in the presence of sunlight. Fora discussion of ozone-formationchemistry, interstate transport issues,and health effects, see 82 FR 6511.

OnMarch 12, 2008, the EPApromulgated a revision to the NAAQS,lowering both the primary andsecondary standards to 75 parts per

billion (ppb).2 On October 1, 2015, theEPA strengthened the ground-levelozone NAAQS, based on extensivescientific evidence about ozone’s effectson public health and welfare.3 As statedat proposal, this action does not addressany CAA requirements with respect tothe 2015 ozone NAAQS.

B. Sections 176A and 184 of the CAAand the OTR Process

Subpart 1 of title I of the CAAincludes provisions governing generalplan requirements for designatednonattainment areas. This subpartincludes provisions providing for thedevelopment of transport regions toaddress the interstate transport ofpollutants that contribute to NAAQSviolations, hi particular, section 176A(a)of the CAA provides that, on theAdministrator’s own motion or by apetition from the governor of any state,whenever the Administrator has reasonto believe that the interstate transport ofair pollutants from one or more statescontributes significantly to a violation ofthe NAAQS in one or more other states,the Administrator may establish, byrule, a transport region for suchpollutant that includes such states. Theprovision further provides that theAdministrator may add any state, orportion of a state, to any transportregion whenever the Administrator hasreason to believe that the interstatetransport of air pollutants from suchstate significantly contributes to aviolation of the standard in the transportregion.

Section 176A(b) of the CAA providesthat when the Administrator establishesa transport region, the Administratorshall establish an associated transportcommission, comprised of (at aminimum) the following: Governor ordesignee of each state, the EPAAdministrator or designee, the RegionalEPA Administrator and an air pollutioncontrol official appointed by thegovernor of each state. The purpose ofthe transport commission is to assessthe degree of interstate pollutiontransport throughout the transportregion and assess control strategies tomitigate the interstate pollutiontransport.

Subpart 2 of title I of the CAAincludes provisions governingadditional plan requirements fordesignated ozone nonaftainment areas,including specific provisions focused onthe interstate transport of ozone. Inparticular, subpart 2 includes section

2See National Ambient Air Quality Standards forOzone, Final Rule, 73 FR 16436 (March 27, 2008).

3See National Ambient Air Quality Standards forOzone, Final Rule, $0 FR 65292 (October 26, 2015).


51240 Federal Register / Vol. 82, No. 212 / Friday, November 3, 2017 / Notices

184(a), which established a singletransport region for ozone—the OTR—comprised of the states of Connecticut,Delaware, Maine, Maryland,Massachusetts, New Hampshire, NewJersey, New York, Pennsylvania, RhodeIsland, Vermont and the ConsolidatedMetropolitan Statistical Area thatincludes the District of Columbia andcertain parts of northern Virginia.

-Section 184(b) of the CAA establishedcertain control requirements that eachstate in the OTR is required toimplement within the state and whichrequire certain controls on sources ofNO and V0C statewide. Section184(b)(1)(A) of the CAA requires OTRstates to include in their stateimplementation plans (SIPs) enhancedvehicle inspection and maintenance tI!M) programs.4 Section 184(b)(2) of theCAA requires OTR-state SIPs to subjectmajor sources of VOC in ozone transportregions to the same requirements thatapply to major sources in designatedozone nonattainment areas classified asmoderate, regardless of whether thesource is located in a nonattainmentarea. Thus, the state must adopt rules toapply the nonattainment new sourcereview (NNSRJ (pursuant to CAAsection 173) and reasonably availablecontrol technology tRACT) (pursuant tosection 182(b)(2)) provisions for majorVOC sources statewide. Section184(b)(2) of the CAA further providesthat, for purposes of implementing theserequirements, a major stationary sourceshall be defined as one that emits or hasthe potential to emit at least 50 tons peryear of V0Cs. Under CAA section184(b)(2), states must also implementStage II vapor recovery programs,incremental to Onboard Refueling VaporRecovery achievements, or measuresthat achieve comparable emissionsreductions, for both attainment andnonattainment areas.5

Section 182(f) requires states to applythe same requirements to majorstationary sources of NO as are appliedto major stationary sources of VOCunder subpart 2. Thus, the same NNSRand RACT requirements that apply tomajor stationary sources of VOC in theOTR also apply to major stationarysources of NOx.6 While NOx emissionsare necessary for the formation of ozonein the lower atmosphere, a localdecrease in NO emissions can, in some

Enhanced vehicle I/M programs are required inmetropolitan statistical areas in the OTR with a1990 Census population of 100,000 or moreregardless of ozone attainment status.

See May 16, 2012, Air Quality: Widespread Usefor Onboard Refueling Vapor Recovery and Stage UWaiver, 72 FR 28772 (May 16, 2012).

6See Nitrogen Oxides Supplement to the GeneralPreamble, 57 FR 55622 (November 25, 1992).

cases, increase local ozoneconcentrations, creating potential “NOdisbenefits.” Accordingly, CAA section182(f) maybe exempt from certainrequirements of the EPA’s motor vehicleJIM regulations and from certain federalrequirements of general andtransportation conformity.7

Additionally, under section 184(c) ofthe CAA, the OTC may, based on amajority vote of the governors on theCommission, recommend additionalcontrol measures not specified in thestatute to be applied within all or partof the OTR if necessary to bring anyareas in the OTR into attainment by theapplicable attainment dates. if the EPAapproves such a recommendation,under CAA section 184(c)(5), then theAdministrator must declare each state’simplementation plan inadequate to meetthe requirements of CAA section110(a)(2)(D) and must order the states toinclude the approved control measuresin their revised plans pursuant to CAAsection 110(k)(5). If a CAA section110(k)(5] finding is issued, then stateshave 1 year to revise their SIPs toinclude the approved measures.

States included in the OTR by virtueof CAA section 184(b)(1) were requiredto submit SIPs to the EPA addressingthese requirements within 2 years of the1990 CAA amendments, or byNovember 15, 1992. Section 184(b)(1) ofthe CAA further provides that if statesare later added to the 0Th pursuant toCAA section 176A(a)(1), such statesmust submit SIPs addressing theserequirements within 9 months afterinclusion in the 0Th. When the ozoneNAAQS are updated, as occurred in2008 and 2015, the OTR states mustsubmit RACT SIPs on the sametimeframe as areas designated asnonattainment—classified as Moderateor above. For the 2008 ozone NAAQS,OTR RACT SIPs were due no later than2 years following the effective date ofarea designations (i.e., the SIPs were dueon July 20, 2014). 8

C. Legal Standard for This Action

Section 176A(a)(1) of the CAA statesthat the Administrator may add a stateto a transport region if theAdministrator has reason to believe thatemissions from the state significantlycontribute to a violation of the NAAQSwithin the transport region. For the

7As stated in the EPA’s l/M rule (November 5,1992; 57 FR 52950) and conformity rules(November 14, 1995; 60 FR 57179 for transportationrules and November 30, 1993; 58 FR 63214 forgeneral rules), certain NOx requirements in thoserules do not apply where the EPA grants anareawide exemption under CAA section 182ff).

4O CFR 51.1116. See also 2008 Ozone NAAQSImplementation Rule, 80 FR 12264, 12282 (March6, 2015).

reasons discussed in this section, theuse of the discretionary term “may” inCAA section 176A(a) means that theAdministrator should exercisereasonable discretion in implementingthe requirements of the CAA withrespect to interstate pollution transportwhen determining whether or not toapprove or deny a CAA section 176Apetition.

The Administrator’s discretionpursuant to CAA section 176A(a) hasbeen affirmed by the U.S. Court ofAppeals for the District of ColumbiaCircuit (D.C. Circuit). In Michigan v.EPA, plaintiffs challenged whether theEPA may exercise its authority pursuantto CAA sections 110(k)(5) and110(a)(2)(D) of the statute to addressinterstate transport without first forminga transport commission pursuant toCAA section 176A(b). 213 F.3d 663, 672(2000). The D.C. Circuit held that theagency is only required to establish atransport commission “if the agencyexercises its discretion to create atransport region pursuant to section176A(a).” Id. The court explained that“EPA can address interstate transportapart from convening a 176A!184transport commission as subsection (a)provides that EPA ‘may’ establish atransport region Id. Thus, thecourt held that the discretion to createa transport region rests with theAdministrator. So, too, does thediscretion to add states to or removestates from a transport commission.

Consistent with the Supreme Court’sopinion in Massachusetts v. EPA, 549U.S. 497 (2007), the D.C. Circuit hasheld that agencies have the discretion todetermine how to best allocate resourcesin order to prioritize regulatory actionsin a way that best achieves theobjectives of the authorizing statute. InDefenders of Wildlife v. Gutierrez, thecourt rejected a challenge to theNational Marine Fisheries Service’s(NMFS) denial of a petition foremergency rulemaking to impose speedrestrictions to protect the right whalefrom boating traffic pursuant to section553(e) of the Endangered Species Act,which requires agencies to “give aninterested person the right to petitionfor the issuance, amendment, or repealof a rule.” 532 F.3d 913 (DC Cir 2008).The NMFS denied the petition on thegrounds that imposing such restrictionswould divert resources from, and delaydevelopment of, a more comprehensivestrategy for protecting the whalepopulation. Id.at 916. The courtdetermined that NMFS’s explanation forthe denial was a reasonable decision tofocus its resources on a comprehensivestrategy, which in light of theinformation before the NMFS at the


Federal Register/Vol. 82, No. 212/Friday, November 3, 2017/Notices 51241

time, was reasoned and adequatelysupported by the record. Id. Similarly,in WildEarth Guardians v. EPA, thecourt reviewed the EPA’s denial of apetition to list coal mines for regulationunder CAA section 111(b)(1)(A). 751F.3d 651 (D.C. Cir. 2014). Section111(b)(1)(A) of the CAA provides that,as a means of developing standards ofperformance for new stationary sources,the EPA shall, by a date certain publish“(and from time to time thereafter shallrevise) a list of categories of stationarysources.” (emphasis added) Theprovision provides that theAdministrator “shall include a categoryof sources in such list if in his judgmentit causes, or contributes significantly to,air pollution which may reasonably beanticipated to endanger public healthand welfare.” The EPA denied thepetition, explaining that it mustprioritize its actions in light of limitedresources and ongoing budgetuncertainties, and that denial of thepetition was not a determination as towhether coal mines should be regulatedas a source of air pollutants. 751 F.3dat 650. The EPA also noted as part of itsdenial that it might in the future initiatea rulemaking to do so. The D.C. Circuitheld that the language in CAA sectionlii(b)(i)(A)—”ftom time to time” and“in his judgment”—means that theAdministrator may exercise reasonablediscretion in determining when to addnew sources to the list of sourcecategories, and that such languageafforded agency officials discretion toprioritize sources that are the mostsignificant threats to public health toensure effective administration of theagency’s regulatory agenda. Id. at 651. Ineach of these cases previouslydiscussed, the acting agency has beenentitled to broad discretion to act on apending petition so long as the agencyprovided a reasoned explanation.Notably, as each of these decisionsfocused on the case-specificcircumstances relied upon by the actingagency to deny the pending petition, thecourts did not speak to whether theagency might reach a differentconclusion under differentcircumstances. Like the statutoryprovisions evaluated by the courts inthese cases, the term “may” in CAAsection 176A(a) means that theAdministrator is permitted to exercisereasonable discretion in determiningwhen and whether to add new states toa transport region. While theAdministrator must adequately explainthe facts and policy concerns he reliedon in acting on the petition and conformsuch reasons with the authorizingstatute, review of such a decision is

highly deferential. Thus, the agency isentitled to broad discretion whendetermining whether to grant or denysuch a petition.

D. The CAA Section 1 76A Petition andRelated Correspondence

On December 9, 2013, the states ofConnecticut, Delaware, Maryland,Massachusetts, New Hampshire, NewYork, Rhode Island and Vermontsubmitted a petition under CAA section1 76A requesting that the EPA add to theOTR the states of Illinois, Indiana,Kentucky, Michigan, North Carolina,Ohio, Tennessee, West Virginia and theportion of Virginia currently not withinthe OTR. On December 17, 2013, thepetition was amended to add the stateof Pennsylvania as a state petitioner.

The petitioners submitted a technicalanalysis with their petition, which thepetitioners contended demonstrates thatthe nine named upwind statessignificantly contribute to violations ofthe 2008 ozone NAAQS in the OTR. Thepetitioners acknowledged and includeddata used to support rulemakingspromulgated by the EPA that addressedinterstate transport with respect to boththe 2008 ozone NAAQS, and priorozone NAAQS, in order to furthersupport their request to expand theOTR. Moreover, the petitionersidentified those areas that aredesignated nonattainment with respectto the 2008 ozone NAAQS within andoutside the 0Th and conducted a linearextrapolation with preliminary 2012design values to the year 2015 to predictthat certain areas outside the OTR willcontinue to be in nonattaimnent or willhave difficulty maintaining attainmentof the NAAQS after the EPA’s 2008ozone NAAQS final area designations in2012. In addition, the petitionersincluded supplemental modeling,which was used to project ozone designvalues to the years 2018 and 2020. Thepetitioners’ 2018 modeling purported toshow that, with “on-the-way” OTRmeasures, areas within the OTR andwithin non-OTR states would continueto have problems attaining the 2008ozone NAAQS. Lastly, their 2020modeling purported to show that evenwith a 58 percent NOx and 3 percentVOC anthropogenic emissions reductionover the eastern U.S., there would beone area in New Jersey that wouldcontinue to have trouble maintainingthe NAAQS.

The petitioners further noted that the0Th states have adopted andimplemented numerous andincreasingly stringent controls onsources of VOCs and NOx that may notcurrently be required for similar sourcesin the upwind states. Petitioners

contended that expansion of the 0Th toinclude these upwind states will helpthe petitioning states attain the 2008ozone NAAQS. The petitioners includedtwo case studies that identify the typesof measures adopted throughout thecurrent OTR, including mobile sourceand stationary source control measuresthat have been enacted to reduceemissions of NOx and VOCs. Thepetitioners contended that theexpansion of the OTR is warranted sothat the downwind states and theupwind states can work together toaddress interstate ozone transport forthe 2008 ozone NAAQS. Also, thepetitioners asserted that withoutimmediate expansion of the OTR,attainment of the 2008 ozone NAAQS inmany areas in the U.S. will remain“elusive.”

At the time the petition wassubmitted, the EPA’s then most recenteffort to address the interstate transportof ozone pollution (i.e., CSAPR) wassubject to litigation in the D.C. Circuit.As discussed in more detail later in thisnotice, the EPA issued CSAPR pursuantto section 110(a)(2)(D)(i)(I) of the CAAin order to address interstate transportwith respect to the 1997 ozone NAAQS,as well as the 1997 and 2006 fineparticulate matter (PM2.5) NAAQS. 76FR 48208 (August 8, 2011). On August21, 2012, the D.C. Circuit issued adecision in EME Homer City Generation,L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012),vacating CSAPR based on severalholdings that would have limited theEPA’s authority pursuant to section110(a)(2)(D)(i)(I). The petitionerssubmitted the section 176A petition inDecember 2013. Thereafter, on April 29,2014, the Supreme Court issued adecision reversing the D.C. Circuit’sdecision and upholding the EPA’sinterpretation of its authority pursuantto CAA section 110. EPA v. EME HomerCity Generation, L.P., 134 5. Ct. 1584(2014).

Subsequent to the petition being filed,states arid other stakeholders submittedadditional information to the agency insupport of, or, in opposition to, thepetition. In the January 19, 2017, theproposed denial, the EPA summarizedthe correspondence it had received.These documents can be found in thedocket for this action.

IN. The EPA’s Decision on the CAASection 176A Petition

At proposal, the EPA explained itsproposed basis for the denial of the CAAsection 176A petition. The EPAdescribed other authorities provided bythe CAA for addressing the interstatetransport of ozone pollution and theflexibilities those provisions provide.


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The EPA noted its historical use of theseauthorities to address the interstatetransport of ozone pollution and theadvantages of thoserulemakings foraddressing current ozone nonattainmentproblems for the 2008 ozone NAAQS.The EPA explained that it preferred touse these authorities to address theremaining interstate transport problemswith respect to the 2008 ozone NAAQSbecause it believes these authoritiesallow the agency to develop a tailoredremedy that is most effective foraddressing any remaining air qualityproblems. Additionally, the EPAdescribed other measures that haveachieved, and will continue to achieve,significant reductions in emissions ofNO and VOCs resulting in lower levelsof transported ozone pollution thatimpact attainment and maintenance ofthe 2008 ozone NAAQS. This sectionsummarizes the major points settingforth the EPA’s reasons for denial of thepetition. The EPA’s basis for denyingthe petition has not fundamentallychanged from the proposal; we continueto believe that other CAA mechanismsare more flexible and effective thanexpanding the 0Th (pursuant to section176A) for addressing current interstateozone transport issues with respect tothe 2008 ozone NAAQS. In Section V ofthis notice, and in the RTC documentincluded in the docket for this action,the agency provides additionalsupporting rationale for its conclusionin light of the public comments.

A. The CAA Good Neighbor ProvisionsThe CAA provision that states and the

EPA have primarily relied on to addressinterstate pollution transport is section110(a)(2)(D)(i)(I), often referred to as the“good neighbor” provision, whichrequires states to prohibit certainemissions from in-state sourcesimpacting the air qualityin other states.Specifically, in keeping with the CAA’sstructure of shared state and federalregulatory responsibility, CAA section110(a)(2)(D)(i)(I) requires all states,within 3 years of promulgation of a newor revised NAAQS, to submit SIPs thatcontain adequate provisions prohibitingany source or other type of emissionsactivity within the state from emittingany aft pollutant in amounts which willcontribute significantly tononattainment in, or interfere withmaintenance by, any other state withrespect to any NAAQS. Thus, each stateis required to submit a SiP thatdemonstrates the state is adequatelycontrolling sources of emissions thatwould impact downwind states’ airquality relative to the NAAQS inviolation of the good neighborprovision.

Once a state submits a good neighborSW, the EPA must evaluate the SW todetermine whether it meets the statutorycriteria of the good neighbor provision,and then approve or disapprove, inwhole or in part, the state’s submissionin accordance with CAA section 110(k).In the event that a state does not submita required SW addressing the goodneighbor provision, the EPA is requiredunder the CAA to issue a “finding offailure to submit” that a state has failedto make the required SW submission. Ifthe EPA disapproves a state’s SWsubmission or if the EPA finds that astate has failed to submit a required SW,then the action triggers the EPA’sobligations under section 110(c) of theCAA, to promulgate a federalimplementation plan (FTP) within 2years, unless the state corrects thedeficiency, and the EPA approves theplan or plan revision before the EPApromulgates a FTP. Thus, in the eventthat a state does not address the goodneighbor provision requirements in aSW submission, the statute providesthat the EPA must address therequirements in the state’s stead.

Section 110(k)(5) of the CAA alsoprovides a means for the EPA to requirestates to revise previously approvedSWs, including good neighbor SiPs, ifthe EPA determines that an approvedSW is substantially inadequate to attainor maintain the NAAQS, to adequatelymitigate interstate pollutant transport,or to otherwise comply withrequirements of the CAA. The EPA canuse its authority under CAA section110(k)(5) to call for revision of the SWby the state to correct the inadequaciesunder CAA section 110(a)(2)(D)(i)(I),and if the state fails to make therequired submission, the EPA canpromulgate a FTP under CAA section110(c) to address the inadequacies.

Finally, section 126 of the CAAprovides states with an additionalopportunity to bring to the EPA’sattention specific instances where asource or a group of sources in a specificstate may be emitting in excess of whatthe good neighbor provision wouldallow. Section 126(b) of the CAAprovides that any state or politicalsubdivision may petition theAdministrator of the EPA to find thatany major source or group of stationarysources in upwind states emits or wouldemit any air pollutant in violation of theprohibition of CAA section110(a)(2)(D)(i).9 Petitions submitted

9The text of CAA section 126 codified in the U.S.Code cross refererices CAA section 110(a)(2)(D)(ii)instead of CAA section 110(a)(2)(D)(i). The courtshave confirmed that this is a scrivener’s error andthe correct cross reference is to CAA section

pursuant to this section are referred toas CAA section 126 petitions. Section126(c) of the CAA explains the impactof such a finding and establishes theconditions under which continuedoperation of a source subject to such afinding maybe permitted. Specifically,CAA section 126(c) provides that itwould be a violation of section 126 ofthe Act and of the applicable SiP: (1)For any major proposed new ormodified source subject to a CAAsection 126 finding to be constructed oroperate in violation of the goodneighbor prohibition of CAA section110(a)(2)(D)(i); or (2) for any majorexisting source for which such a findinghas been made to operate more than 3months after the date of the finding. Thestatute, however, also gives theAdministrator discretion to permit thecontinued operation of a source beyond3 months if the source complies withemission limitations and complianceschedules provided by the EPA to bringabout compliance with the requirementscontained in CAA sections110(a)(2)(D)(i) and 126 as expeditiouslyas practicable but no later than 3 yearsfrom the date of the finding. Where theEPA provides such limitations andcompliance schedules, CAA section110(a)(2)(D)(ii) further requires thatgood neighbor SIPs ensure compliancewith these limitations and complianceschedules.1o

The flexibility provided by thesestatutory provisions is different fromthat provided by the requirementsimposed upon states in the 0Th.Generally, states in the OTR mustimpose a uniform set of requirements onsources within each state that meet theminimum requirements imposed by thestatute. The good neighbor provision, bycontrast, provides both the states andthe EPA with the flexibility to developa remedy that is tailored to a particularair quality problem, including theflexibility to tailor the remedy toaddress the particular precursorpollutants and sources that would mosteffectively address the particulardownwind air quality problem. Asdescribed in the next section (SectionW.B. of this notice) and in the proposal,the EPA has previously promulgatedfour interstate transport nilemakings

110(a)(2)(D)(i), See Appalachian Power Co. v. EPA,249 F.3d 1032, 1040—44 (D.C. Cir. 2001).

10The EPA has received, but not yet acted upon,several CAA section 126 petitions from a numberof the petitioning states regarding the contributionof specific electric generating units (EGUs) tointerstate ozone transport with respect to the Z008and 2015 ozone NAAQS. Petitions have beensubmitted by Connecticut, Delaware, and Maryland.The list of EGUs identified in one or more of thesepetitions includes EGUs operating in Indiana,Kentucky, Ohio, Pennsylvania and West Virginia.



pursuant to these authorities in order toquantify the specific emissionreductions required in certain easternstates to comply with the requirementsof CAA section 11O(a)(2)(D)(i)(I) fordownwind nonaftainment andmaintenance oncerns with respect tothe NAAQS for ozone and PM2.5.

B. The EPA’s Interstate TransportRulemakings Under the Good NeighborProvision

To address the regional transport ofozone pursuant to the CAA’s goodneighbor provision under section11O(a)(2)(D)(i)(I), the EPA haspromulgated four regional interstatetransport rules focusing on thereduction of NOx emissions, as theprimary meaningful precursor toaddress regional ozone transport acrossstate boundaries, from certain sourceslocated in states in the eastern half ofthe U.S. 1112 The four interstatetransport rulemaldngs are the: NO SIPCall,’3 Clean Air Interstate Rule(CAW),’4 CSAPR15 and the CSAPRUpdate.’°

The EPA summarized the history andkey provisions of each of theserulemakings in the January 19, 2017,proposed denial. See 82 FR 6516, 6517,6518 and 6519. The CSAPR Update,which directly relates to the 2008 ozoneNAAQS, is discussed in the nextsection. In each of these rulemakings,the EPA identified those sources andpollutants that, based on the availableinformation at that time, were mosteffective in addressing the particular airquality problem identified by the EPA’sanalysis. This allowed the EPA to crafttailored remedies that provided efficientand effective means of addressing theparticular air quality problem at issue.In each of the regional transport rules,the EPA’s analyses demonstrated thatNOx is the ozone precursor that is mosteffective to reduce when addressingregional transport of ozone in theeastern U.S. The EPA has also focusedeach rule on those sources that can mostcost-effectively reduce emissions ofNOR, such as electric generating units(EGUs) and, in one rule, certain largenon-EGUs. These rulemakings

11 purposes of these rulemaldngs, the westernU.S. (or the West) consists of the 11 westerncontiguous states of Arizona, California, Colorado,Idaho, Montana, Nevada, New Mexico, Oregon,Utah, Washington and Wyoming.

12 of these miemakings also addressed thereduction of annual NOx and sulfur dioxide (SO2)emissions for the purposes of addressing theinterstate transport of particulate matter pollutionpursuant to the good neighbor provision.

62 FR 57356 (October 27, 1998).147Q FR 25162 (May 12, 2005).15 76 FR 48208 (August 8, 2011).1681 FR 74504 (October 26, 2016).

demonstrate that the EPA has used andis continuing to use its authority underCAA section 110(a)(2)(D)(i)(I) to focuson those sources and precursors thatmost effectively address the particularinterstate ozone transport problems inthe eastern U.S.

The CSAPR Update To Address the2008 Ozone NAAQS

On October 26, 2016, the EPApublished an update to CSAPR thataddresses the good neighbor provisionwith respect to the 2008 ozone NAAQS.81 FR 74504 (CSAPR Update). TheCSAPR Update requires sources in 22states to reduce ozone season NOemissions that significantly contributeto nonattainment or interfere withmaintenance of the 2008 ozone NAAQSin other states. The EPA found that foreach state included in the CSAPRUpdate, the state had failed to submit orthe EPA had disapproved a completeSW revision addressing the goodneighbor provision for the 2008 ozoneNAAQS. The EPA promulgated FIPs foreach of the 22 states covered by theCSAPR Update. To accomplishimplementation aligned with theapplicable attainment deadline for the2008 ozone NAAQS, the FIPs requireaffected EGUs to participate in theregional allowance trading program toachieve emission reductions beginningwith the 2017 ozone season (i.e., May-September 2017).

The CSAPR Update analysis foundthat emissions from eight of the ninestates named in the CAA section 176Apetition to be added to the OTR, inaddition to a number of other states,were linked to downwind projected airquality problems, referred to asnonattainment and/or maintenancereceptors, in the eastern U.S. in 2017with respect to the 2008 ozone NAAQS.81 FR 74506, 74538 and 74539. For onestate named in the CAA section 176Apetition, North Carolina, the EPAdetermined in the CSAPR Update thatthe state was not linked to anydownwind air quality problems and,therefore, will not significantlycontribute to nonattainment or interferewith maintenance of the 2008 ozoneNAAQS in any other state pursuant tothe good neighbor provision. 81 FR74506, 74537 and 74538.

For those states linked to downwindair quality problems, the EPA nextevaluated timely and cost-effectiveemissions reductions achievable bysources in each state in order to quantifythe amount of emissions constitutingeach state’s significant contribution tononattainment and interference withmaintenance of the standard pursuant tothe good neighbor provision. The EPA

focused its analysis on: (1) Emissionsreductions achievable by 2017 in orderto assist downwind states with meetingthe applicable attainment deadline forthe 2008 ozone NAAQS (81 FR 74521);(2) reductions in only NO emissions,consistent with past ozone transportrules (81 FR 74514); and (3) cost-effective NO emissions reductionsfrom EGUs. The EPA, therefore,calculated emissions budgets for eachaffected state based on the cost-effectiveNO emissions reductions achievablefrom EGUs for the 2017 ozone season.

The EPA concluded that theemissions reductions achieved byimplementation of the budgetsconstitute a portion of most affectedstates’ significant contribution tononattainment or interference withmaintenance of the 2008 ozone NAAQSat these downwind receptors. 81 FR74508, 745 22.’ For most states, the EPAcould not determine that it had fullyaddressed emissions reductionobligations pursuant to the goodneighbor provision because certainstates were projected to remain linked todownwind air quality problems in 2017even after implementation of thequantified emissions reductions andbecause the EPA did not quantifyfurther NO reduction potential fromEGUs beyond 2017 or any NOxreduction potential from non-EGUs. Inorder to determine the level of NOcontrol stringency necessary to quantifythose emissions reductions that fullyconstitute each state’s significantcontribution to downwindnonattaimnent or interference withmaintenance, the EPA explained inpromulgating the final CSAPR Updatethat it would likely need to evaluatefurther emission reductions from EGUand non-EGU control strategies thatcould be implemented on longertimeframes. The CSAPR Updaterepresented a significant first step by theEPA to quantify states’ emissionreduction obligations under the goodneighbor provision for the 2008 ozoneNAAQS. Even though the CSAPRUpdate did not fully address mostupwind states’ emission reductionobligation pursuant to the goodneighbor provision, the implementationof the emissions budgets quantified inthat rule are helping to address orresolve projected air quality problems inthe eastern U.S., including the

17 For one state named in the CAA section 176Apetition, Tennessee, the EPA determined that theemissions reductions required by the CSAPRUpdate would fully address the state’s significantcontribution to nonattainment and interferencewith maintenance of the 2008 ozone NAAQS inother states.


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designated nonattainment areas withinthe OTR.

The EPA is actively continuing thework with states necessary to addressany remaining obligations under thegood neighbor provision with respect tothe 2008 ozone NAAQS. The EPA isperforming updated ozone transport airquality modeling and analysis tocharacterize interstate transport beyond2017.18 The results of this analysis willprovide updated information on anyremaining ozone problems and linkagesbetween states.

C. Additional Rules That Reduce NOand VOC Emissions

In addition to the significant efforts toimplement the good neighbor provisionfor the 2008 and prior ozone NAAQS,there are also numerous federal andstate emission reduction rules that havealready been adopted, which haveresulted or will result in the furtherreduction of ozone precursor emissions,including emissions from states namedin the CAA section 176A petition andpetitioning states. Many of these rulesdirectly require sources to achievereductions of NON, VOC, or both, andothers require actions that willindirectly result in such reductions. Asa result of these emissions reductions,the interstate transport of ozone hasbeen and will continue to be reducedover time.

The majority of man-made NO andVOC emissions that contribute to ozoneformation in the U.S. comes from thefollowing sectors: On-road and nonroadmobile sources, industrial processes(including solvents), consumer andcommercial products, and the electricpower industry. In 2014, the most recentyear for which the National EmissionsInventory (NEI) is available, the largestcontributors of annual NO emissionsnationally are on-road and nonroadmobile sources (accounted for about 56percent) and the electric power industry(EGUs; accounted for about 13 percent).With respect to VOCs, the largestcontributors of annual man-madeemissions nationally are industrialprocesses (including solvents;accounted for about 48 percent) andmobile sources (accounted for about 27percent).1920

181xi January 2017, the EPA also sharedpreliminary 2023 interstate transport data andsolicited input from states on the EPA’s interstatetransport assessment for the 2015 ozone NAAQS. 82FR 1733 (January 6, 2017). The EPA included inputand feedback received from the public submitted inresponse to the Notice of Data Availability inconducting the updated modeling.

19 voc percentages are for anthropogenicVOCs only. Emissions from natural sources, such astrees, also comprise around 70 percent of total VOCemissions nationally, with a higher proportion

The EPA establishes emissionsstandards under various CAAauthorities for numerous classes ofautomobile, truck, bus, motorcycle,earth mover, aircraft, and locomotiveengines, and for the fuels used to powerthese engines. The pollutant reductionbenefits from new engine standardsincrease each year as older and more-polluting vehicles and engines arereplaced with newer, cleaner models.The benefits from fuel programsgenerally begin as soon as a new fuel isavailable. Further, the ongoing emissionreductions from mobile source federalprograms, such as those listedpreviously, will provide for substantialemissions reductions well into thefuture, and will complement state andlocal efforts to attain the 2008 ozoneNAAQS.

There are several existing nationalrules that continue to achieve emissionreductions through 2025 and beyondwith more protective emissionstandards for on-road vehicles thatinclude: Control of Air Pollution fromMotor Vehicles: Tier 3 Motor VehicleEmission and Fuel Standards;21 Controlof Air Pollution from New MotorVehicles: Tier 2 Motor VehicleEmissions Standards and GasolineSulfur Control Requirements;22 Controlof Air Pollution from New MotorVehicles: Heavy-Duty Engine andVehicle Standards and Highway DieselFuel Sulfur Control Requirements;23Model Year 2017 and Later Light-DutyVehicle Greenhouse Gas Emissions andCorporate Average Fuel EconomyStandards; 24 Model Year 2012—2016Light-Duty Vehicle Greenhouse GasEmission Standards and CorporateAverage Fuel Economy Standards;25Greenhouse Gas Emissions and FuelEfficiency Standards for Medium- andHeavy-Duty Engines and Vehicles—Phase 2; 26 Phase 1 Greenhouse GasEmissions Standards and FuelEfficiency Standards for Medium- andHeavy-Duty Engines and Vehicles27 andControl of Hazardous Air Pollutantsfrom Mobile Sources.28

Similarly, already adopted regulationsfor non-road engines and equipmentthat will achieve further reductionsinclude: Control of Emissions of Air

occurring during the ozone season and in areas withmore vegetative cover.

20For more information, see the “2014 NEISummary Spreadsheet” in the docket.

Zi 81 FR 23414 (April 28, 2014).2265 FR 6698 (February 10, 2000).2366 FR 5002 (January 18, 2001).2477 FR 62624 (October 15, 2012).25 75 FR 25324 (May 7, 2010).2681 FR 73478 (October 25 2016).2776 FR 57106 (September 15, 2011).2872 FR 8428 (February 26, 2007).

Pollution from Nonroad Diesel Enginesand Fuel;29 Republication for Control ofEmissions of Air Pollution fromLocomotive Engines and MarineCompression-Ignition Engines LessThan 30 Liters per 30 Controlof Emissions from New MarineCompression-Ignition Engines at orAbove 30 Liters per Cylinder; 31 theInternational Maritime Organization’sEmission Control Area to ReduceEmissions from Ships in the U.S.Caribbean; Control of Air PollutionFrom Aircraft and Aircraft Engines; 32

Emission Standards and TestProcedures; Control of Emissions fromNonroad Large Spark-Ignition Engines,and Recreational Engines (Marine andLand-Based);33 and Control ofEmissions from Nonroad Spark-IgnitionEngines and Equipment.34

As a result of the rules and programslisted in this section, various other stateprograms and efforts, and widereconomic trends, ozone levels across thenation and the OTR have beendeclining—e.g., down by more than 30percent since 1980 nationwide. Ozonelevels across the nation are expected tofurther decline over the next severalyears due to emissions controls alreadyin place. The EPA’s emissionsprojections in support of the 2015 ozoneNAAQS modeling show decliningemissions of NO and VOCs between2017 and 2025. In the states comprisingthe OTR plus the nine upwind statesnamed in the CAA section 176Apetition, total NO emissions over theupcoming 7-year period (2017—2025) areexpected to decline by almost 20percent on average and VOC emissionsare expected to decline by more than 10percent on average over the sameperiod.35

D. Summary ofRationale for theDecision on the CAA Section 1 76APetition

As proposed, the EPA is finalizing itsdenial of the CAA section 176A petitionbecause we believe that the statuteprovides other, more effective means ofaddressing the impact of interstateozone transport on any remaining airquality problems within the OTR withrespect to the 2008 ozone NAAQS.Continuing those existing efforts is abetter use of the agency’s limitedresources. As described at proposal, thestatute provides several provisions that

2969 FR 38958 (June 29, 2004).3073 FR 37096 (June 30, 2008).31 75 FR 22896 (April 30, 2010).3277 FR 36342 (June 18, 2012).67 FR 68242 (November 8, 2002).3473 FR 59034 (October 8, 2008).

more information, see the “2011, 2017 and2025 NEI Summary Spreadsheet” in the docket.



allow states and the EPA to addressinterstate ozone transport with a remedybetter tailored to the nature of theparticular aft quality problem, focusingon those precursor emissions andsources that most directly impactdownwind ozone nonattaimnent andmaintenance problems and which canbe controlled most cost effectively. TheEPA and states are actively using theseprovisions, and numerous federal andstate measures have reduced, and willcontinue to reduce, the VOC and N0emissions that contribute to ozoneformation aiid the interstate transport ofozone pollution. The EPA does notbelieve that it is necessary to add morestates to the OTR at this time in orderto effectively address transportedpollution in the OTR relative to the2008 ozone NAAQS.

While the CAA contains severalprovisions, both mandatory anddiscretionary, to address interstatepollution transport, the EPA’s decisionwhether to grant or deny a CAA section1 76A petition to expand an existingtransport region is discretionary.Section 176A of the CAA states that theAdministrator may add any state orportion of a state to an existing transportregion whenever the Administrator hasreason to believe that the interstatetransport of air pollutants from suchstate significantly contributes to aviolation of the standard in the transportregion. The EPA does not dispute thatcertain named upwind states in thepetition might impact air quality in oneor more downwind states that aremeasuring violations of th 2008 ozoneNAAQS. However, the EPA believesthat states and the EPA can effectivelyaddress the upwind states’ impacts ondownwind ozone air quality through thegood neighbor provision. The EPA hasalready taken steps to address interstatetransport with respect to the 2008 ozoneNAAQS through the promulgation ofthe CSAPR Update, which reducesemissions starting with the 2017 ozoneseason. The EPA used the authority ofCAA sections 110(a)(2)(D)(i)(I) and110(c) to tailor a remedy focused on theprecursor pollutant most likely toimprove ozone levels (currently N0) indownwind states and those sources thatcan most cost-effectively reduceemissions within a limited timeframe(i.e., EGUs). The EPA furtherimplemented the remedy through anallowance trading program that achievesemission reductions while providingsources with the flexibility toimplement the control strategies of theirchoice.

We believe that the continued use ofthe authority provided by the goodneighbor provision to address the

interstate transport of ozone pollutionplus other regulations that are already inplace will permit the states and the EPAto achieve any additional mandatoryreductions to address the 2008 ozoneNAAQS without the need to implementthe additional requirements thatinclusion in the 0Th would entail. Asdescribed in the proposal, this approachto address the interstate transport ofozone is a proven, efficient, and cost-effective means of addressingdownwind air quality concerns that theagency has employed and refined overnearly two decades. However, the EPAnotes that the addition of states to the0Th pursuant to the CAA section 176Aauthority—and the additional planningrequirements that would entail—couldbe given consideration as an appropriatemeans to address the interstate transportrequirements of the CAA should theagency’s approach or othercircumstances change in the future.

As described in this action, the CAAprovides the agency and states with theauthority to mitigate the specific sourcesthat contribute to interstate pollutionthrough implementation plans to satisfythe requirements of the good neighborprovision, CAA section110(a)(2)(D)(i)(I), and through therelated petition process under CAAsection 126. This authority gives theEPA and states numerous potentialpolicy approaches to address interstatepollution transport of ozone, and theEPA has consistently and repeatedlyused its authority under CAA section110(a)(2)(D)(i)(I) to approve state plansfor reducing ozone transport or topromulgate FIPs to specifically focus onthe sources of ozone transport bothwithin and outside the 0Th. The NOxSW Call, CAW, CSAPR, CSAPR Updateand numerous individual SW approvalsdemonstrate that the EPA has a longhistory of using its CAA section 110authority to specifically addressinterstate pollution transport in atailored way that is specific to a NAAQSand set of pollution sources that are theprimary contributors to interstatepollution transport. As described inSection W.B of this notice, using theauthority of the good neighbor provisionhas allowed the EPA to focus its effortson pollution sources that areresponsible for the largest contributionsto ozone transport and that can cost-effectively reduce emissions, and alsoenables the agency to focus on N0 asthe primary driver of long range ozonetransport—an approach the courts havefound to be a reasonable means ofaddressing interstate ozone transport.Michigan v. EPA, 213 F.3d at 688 (“EPAreasonably concluded that long-range

ozone transport can only be addressedadequately through NOx reductions”);see also EPA v. EME Homer CityGeneration, L.P., 134 S. Ct. at 1607(affirming as “efficient and equitable”the EPA’s use of cost to apportionemission reduction responsibilitypursuant to the good neighborprovision).

As explained previously, addingstates to an OTR under CAA section176A will not afford the states and EPAwith the flexibility to focus on specificsources and ozone precursor emissionstailored to address the downwind state’scurrent air quality problems and neededremedy to achieve attainment of the2008 NAAQS. The statute prescribes aspecific set of controls for a variety ofsources to control emissions of bothVOCs and NOx. CAA section110(a)(2)(D)(i)(I), on the other hand,permits the EPA and the regulatedcommunity the flexibility to focuscontrols on specific sources andpollutants that most efficiently addressthe air quality problem being addressed.The EPA determined in the CSAPRUpdate that regional NOx emissionsreductions are the most effective meansfor providing ozone benefits for areas inthe eastern United States, including theOTR, currently violating the 2008 ozoneNAAQS, and that NOx reductions canbe most efficiently achieved by focusingon those sources that can cost-effectively reduce emissions within alimited timeframe. Accordingly, theEPA does not believe that therequirements which would be imposedupon states added to the 0Th would bethe most effective means of addressingany remaining interstate transportconcerns with respect to the 2008 ozoneNAAQS.

The implementation of controlswithin the 0Th, when combined withthe numerous federal and state emissionreduction programs that have alreadybeen adopted that have resulted in thereduction of ozone precursor emissionseither directly or as a co-benefit of thoseregulations, have helped to significantlyreduce ozone levels. These programswill continue to reduce ozone precursoremissions and ozone concentrationsboth within and outside of the 0Th overmany years to come. The EPA believesthe most efficient way to address anyremaining 2008 ozone NAAQSinterstate transport problems is tocontinue to address any requiredreductions through a combination oftailored programs, including theimplementation of the CSAPR Update,further development of implementationplans pursuant to section 110,development of local attainment plans,and, if appropriate, consideration of


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additional emissions limitationsresulting from action on CAA section126 petitions.

The Administrator may exercisereasonable discretion in determiningwhether or not to approve or deny aCAA section 176A petition. The EPAhas reviewed the request of thepetitioners to add additional states tothe OTR in light of required controlstrategies for ozone transport regionsand the other statutory tools available tothe agency and states to address theinterstate transport of ozone pollution.The agency believes that continuing itslongstanding and effective use of theexisting and expected control programsunder the CAA’s mandatory goodneighbor provision embodied in section110(a)(2)(D)(i)(I), includingimplementation of the CSAPR Updatebeginning in 2017 and technical worknow underway to fully address the goodneighbor provision for the 2008NAAQS, is a more effective approachfor addressing regional interstate ozonetransport problems relative to the 2008ozone standard.

The EPA, therefore, denies thepetitioners’ request to add at this timeadditional states to the OTR for thepurpose of addressing interstatetransport of the 2008 ozone NAAQS.The agency will instead continue to useother authorities available within theCAA in order to address the long-range,interstate transport of ozone pollution.This response only considers theeffectiveness of the OTR expansion toachieve appropriate emission reductionsto address the 2008 ozone NAAQS. TheEPA notes that, under differentcircumstances, the OTR provisions havebeen an effective tool for air qualitymanagement, and could be similarlyeffective in the future for addressinginterstate transport of ozone pollution.Accordingly, nothing in this documentshould be read to limit states’ ability toifie a petition under CAA section 176Ain the future or to prejudge the outcomeof such a petition, if filed.

V. Major Comments on the ProposedDenial

The EPA solicited comment on theproposed denial of the petition based onthe EPA’s preference for addressinginterstate transport with respect to the2008 ozone NAAQS pursuant to otherCAA authorities. This section addressessignificant comments received on theJanuary 19, 2017, proposed denial.Remaining comments are addressed in aseparate RTC document found in thedocket for this action.

A. Adequacy of the EPA’S RationaleCommenters believed that the EPA’s

explanation for denial in the proposalwas inadequate. Commenters stated thatthe EPA’s explanation for the proposeddenial of the petition failed to providea technical review of the data submittedby the petitioners and instead focusedon the availability of other CAAprograms. Commenters asserted the EPA“must adequately explain the facts andpolicy concerns relied on in acting onthe petition and conform such reasonswith the authorizing statute.” Forexample, they claimed, the EPA offeredno analysis of relative costs of othertools and the efficiency of thoseapproaches nor did the EPA propose tofind the petition technically inadequatewith respect to the air quality datapresented in the technical supportdocument (TSD) for the petition.36Commenters stated that the agencyfailed to provide empirical evidence tosupport the basis for the proposeddenial. Some commenters believedempirical data are required in order forthe agency to respond to a CAA section176A petition. Some commentersbelieved that the EPA’s supportingtechnical data for the CAIR and CSAPRrules technically justify expansion ofthe OTR, pointing in particular to thePetition IS)]. Commenters in support ofthe proposed denial claimed there areerrors with the petitioners’ supportingdata. In addition, some corumentersacknowledged that recent air qualitymeasurements and emission reductionsof ozone precursor pollutants show thatair quality has improved. In contrast,some commenters opposed to theproposed denial encouraged the EPA togrant the petition in part based on dataprovided by petitioners that showedthat some of the states outside the OTRwere violating the NAAQS and believedthe OTR requirements would also helpthose areas meet the NAAQS.

Response: The EPA disagrees that itbears the burden of conductingextensive air quality or other empiricalanalysis in response to a CAA section176A petition. Petitioners foradministrative action generally shouldestablish the merits of their petition inthe first instance. See, e.g., Radio-Television News Dirs. Ass’n v. FCC, 184F.3d 872, 881 (D.C. Cir. 1999). While theagency has reviewed the technicalinformation supplied in support of the

36Technical Support Document for the Petition tothe United States Environmental Protection Agencyfor the Addition of illinois, Indiana, Kentucky,Michigan, North carolina, Ohio, Tennessee,Virginia and West Virginia to the Ozone TransportRegion (December 9, 2013) (EPA—HQ—OAR—2016—0596—0002 docket number) (hereinafter “PetitionTSD”).

petition, there have been significantchanges to emissions levels, regulatoryrequirements, and ambient air qualitythat have occurred in the interim sincethe petition was submitted in December2013. The EPA has taken into accountthis additional supporting air qualityinformation, including current airquality conditions, some recent on-the-books control strategies, and significantchanges in emissions inventories thathave occurred over the past severalyears. In general, commenters did notcall into question the EPA’s view atproposal that ozone levels across thenation and the OTR have been decliningand are expected to further decline overthe next several years (82 FR 6520). Asa separate matter, neither petitioners norcommenters provided informationsupporting the reasonableness ofimposing the suite of section 184 of theCAA control strategies as a whole toaddress any remaining interstate airquality impact that states named in thepetition would have with respect to the2008 ozone NAAQS. In its proposeddenial, the agency emphasized itspreference for continuing the moretailored, flexible, and cost-effectiveapproach of addressing interstatetransport of ozone under CAA section110(a)(2)(D)(i)(I). In response tocomments asserting that the agencyfailed to more fully address thetechnical information underlying thepetition, the agency will respond brieflyregarding why it believes theinformation presented in support of thepetition is insufficient given the totalityof information the agency considered,including more recent air qualityinformation.

The air quality information reliedupon, in part, by petitioners includedthe EPA’s CAW modeling from 2005,which is now over 10 years old, and theCSAPR base case modeling from 2011.These two sets of modeling do notcapture the reductions in ozoneprecursors that have occurred as a resultof the implementation of either theCSAPR, which went into effect in 2015,

or the CSAPR Update, which went intoeffect for the 2017 ozone season and wasspecifically designed to address the2008 ozone NAAQS at issue in thispetition. Petitioners’ data also do notcapture other changes in the emissionsinventory and pollution controlrequirements that have occurred sincethat time. As the EPA noted in theproposal, 82 FR 6519, the modeling forthe final CSAPR Update in 2016, themodeling currently underway to addressstates’ remaining interstate transportobligations for the 2008 ozone NAAQS,

37 TSD 4—14.



and recent air quality monitor designvalues provide a more current picture ofair quality issues and projections.

The EPA acknowledges that thepetitioners originally may havesubmitted information reflective of airquality prior to December 2013, but theEPA believes it is appropriate toconsider all relevant informationavailable at the time it takes action onthe petition, not only the informationprovided in the petition, but morecurrent information reflecting additionaldevelopments in federal regulations andchanges in air quality. The EPA believesit would be unreasonable for the agencyto consider OTR expansion and subjectstates to OTR requirements withoutconsidering the most recent informationthat is directly relevant to the 2008.ozone NAAQS air quality problemsintended to be addressed by thepetitioners. The EPA notes that at thetime the petitioners submitted thepetition in December 2013, the CSAPRimplementation requirements had beenvacated by the D.C. Circuit, and therewas uncertainty regarding if and whenthe rule’s emissions reductions wouldtake effect. However, subsequent to thepetitioners filing the petition, on April29, 2014, the Supreme Court issued adecision reversing the D.C. Circuit’sdecision on the CSAPR and on October23, 2014, the lower court granted theEPA’s request to lift the stay on theCSAPR. In addition to the emissionsreductions as a result of CSAPR, theEPA has issued the CSAPR Updatewhich further reduces NOx emissionduring the ozone season for a number ofeastern states. Because the data used bythe petitioners are now dated, they donot reflect the sustained trend ofdeclining emissions and improved airquality. As noted in the proposal, since2013 when the petition was submitted,there has been a long-term trend ofimproving air quality in the eastern U.S.For instance, petitioners identified 2012preliminary design values showing thatthe designated nonattainment areas ofCharlotte-Rock Hill, NC-SC; ChicagoNaperville, IL-IN-WI; Cincinnati, IN-KY-OH; Cleveland-Akron-Lorain, OH;Columbus, OH; Knoxville, TN;Memphis, AR-MS-TN; and St. Louis-St.Charles-Farmington, IL-MO would be inviolation of the 2008 ozone NAAQS.Further the petitioners extrapolated the2012 design values to 2015 to projectthat the designated nonattainment areasof Cificago-Naperville, IL-IN-WI;Cincinnati, IN-KY-OH; ClevelandAkron-Lorain, OH; and Columbus, OHwould continue to violate the NAAQS.However, most of these areas are now

measuring attainment of the NAAQS.36Thus, the nature of the remaining 2008ozone NAAQS nonattainment issues inthe non-OTR states is not as severe interms of the number of nonattainmentareas as it appeared to be in the past.39These improvements have been drivenin part by CSAPR and other airpollution control programs and rules,see Section W.C of this notice, as wellas a well-documented, long-term trendof transition toward sources ofelectricity generation in the powersector that have lowered NOemissions 40

The EPA also observes an analyticalgap in the information submitted insupport of this petition as to thereasonableness of the remedy thatwould be imposed by application of thesuite of requirements under CAAsection 184 to address the air qualityproblems at issue. The EPA need notdispute now (nor did it at proposal] thatthe states named in the petition mayimpact air quality at downwind areas instates within the OTR, at least as of thetime of the CSAPR Update modeling.See 82 FR 6518. In the agency’s view,however, the air quality informationsubmitted here, standing alone, does notautomatically warrant expanding theOTR to this group of states at this time.Under the approach the EPA hashistorically taken to identify controlmeasures to address regional interstatetransport (in the NO SW Call, CAW,CSAPR, and CSAPR Update), a linkageto a downwind air quality problemwould not automatically result inimposition of mandatory controls, suchas those that would be required underCAA section 184 if this petition weregranted. Rather, the EPA has alsohistorically considered thereasonableness of application of controlstrategies available within a linked state,usually by examining which precursorsto ozone formation it would be mosteffective to control, as well as thecosteffectiveness of those controls.Neither petitioners nor commenters insupport of the petition supply ananalysis regarding the reasonableness ofapplying the controls that would berequired under CAA section 184 if thepetition were granted, such as providing

38Status of Designated Areas for the Ozone-8Hr(2008) NAAQS, https:llwww3.epa.gov/airquality/urbanair/sipstatus/reports/ozone-Bhr_2008_areabynaaqs.htrnl (last visited September 20, 2017).

39Further, the statutory basis for granting a CAAsection 176A petition is tied to interstate transportof air pollutants. See 42 U.S.C. 7506a(a). Intrastateair quality problems, in and of themselves, wouldnot be a basis for granting this petition.

40 Plant Emission Trends (NOx Tab),https:fiwww3.epa.gov/airmarkets/progressfdatatrends/index.html (last visited September 20,2017).

an analysis of their effectiveness inaddressing the interstate transportproblem at issue or the costs associatedwith those mandatory controls. As theEPA emphasized at proposal, 82 FR6520 and 6521, application ofappropriate controls through anexamination of which precursors andsources to address and the costeffectiveness of available controlstrategies has been an integral principleof its efforts to address interstatetransport of air pollution in federalregional transport rules.41 As discussedin Section V.B. of this notice, there aregood grounds to question thereasonableness of application of at leastsome CAA section 184 requirements inthe non-OTR states in this petition. Theagency is, therefore, well-justified incontinuing to rely primarily on its CAAsection 110(a)(2](D)(i)(I) authority intransport rules to focus on thepollutants and the sources in a mannerthat most effectively and efficientlyaddresses long range ozone transport.

B. Effectiveness of Ozone PrecursorEmissions Reductions

Some commenters highlighted thebenefits of the OTC, as well as thebenefits of RACT, I/M, and NSR.Commenters believed the EPA’s relianceon other CAA tools to justify denial isinadequate because the EPA has notanalyzed the costs of those tools oracknowledged that the cost per ton ofemission reduced is lower in the nonOTR states than in the 0Th states. Theyasserted that the EPA is overestimatingcontrol cost and underselling the abilityof sources to meet more stringent limits.

Other commenters that support denialof the petition questioned theeffectiveness of VOC emissionreductions on air quality in areas withinthe OTR. The commenters claimed thatVOC emissions from the states outsideof the current OTR states are noteffective and would not improve airquality or reduce the ozoneconcentrations in the Baltimore,Philadelphia, New York andConnecticut areas.

Response: While the EPAacknowledges that the OTR has been aneffective tool for addressing widespreadand persistent ozone transport problemsin the East, petitioners have notdemonstrated that the suite ofmandatory controls that would apply tonew states added to the OTR would bea more effective means than its currentapproach under the good neighborprovision for addressing any remainingozone transport problems with respect

41See, e.g., EPA v. EMS Homer City Generation,L.P., 134 S. Ct. 1584, 1606—07 (2014).


51248 Federal Register/Vol. 82, No. 212/friday, November 3, 2017/Notices

to the 2008 ozone NAAQS. Theseexisting efforts represent a better use oflimited EPA and state resources. TheEPA appreciates that the processprovided by the 0Th regulations, viathe OTC, has fostered a collaborativeprocess for current 0TR states toaddress ozone transport issues.However, at this time, we do not believethat the benefits of this processoutweigh the concerns that themandatory requirements imposed in the0Th are not the measures best suited toaddressing any remaining downwind airquality problems in the most reasonablemanner, i.e., by focusing on thosesources and precursor emissions mostlikely to lead to cost-effectivedownwind air quality benefits.

For instance, the EPA has previouslyexplained that “authoritativeassessments of ozone controlapproaches” have concluded that VOCreductions are generally most effectivefor addressing ozone locally, includingin dense urbanized areas and“immediately downwind.” See CSAPRFinal Rule, 76 FR 48222; see also 82 FR6517 (citing 63 FR 57381). Yet grantingthis petition would require mandatoryVOC controls pursuant to section 184(b)over a vast region that would not belocal to or nearby the remaining ozoneproblems in the 0TR that the petitionaims to address. Petitioners have notconnected these types of VOCreductions over such a wide region withspecific air quality benefits within theexisting OTR. The EPA continues tobelieve that N0 emission reductionsstrategies are more effective than VOCreductions in lowering ozoneconcentrations over longer distances.The EPA believes that regional ozoneformation is primarily due to N0. butVOCs are also important because VOCsinfluence how efficiently ozone isproduced by NOx, particularly in denseurban areas. Reductions inanthropogenic VOC emissions willtypically have less of an impact on thelong-range transport of ozone, althoughthese emission reductions can beeffective in reducing ozone in nearbyurban areas where ozone productionmay be limited by the availability ofVOCs. Therefore, a combination oflocalized VOC reductions in urban areaswith additional NOx reductions across alarger region will help to reduce ozoneand precursors in nonaftainment areas,as well as downwind transport acrossthe eastern U.S. Further, N0reductions will reduce peak ozoneconcentrations in nonattainment areas.As noted in the proposal, modelassessments have looked at impacts onpeak ozone concentrations after

potential emission reduction scenariosfor NOx and VOCs for NOx-limited andVOC-limited areas. Specifically, onestudy42 concluded that N0 emissionreductions strategies would be effectivein lowering ozone mixing ratios inurban areas and another study showedN0 reductions would reduce peakozone concentrations in nonattainmentareas in the Mid-Atlantic (i.e., a 10percent reduction in EGU and non-EGUN0 emissions would result inapproximately a 6 ppb reduction inpeak ozone concentrations inWashington, DC).43

C. Efficiency in Addressing StatutoryInterstate Transport Requirements

Commenters in support of grantingthe petition believed expansion of 0This an efficient method to addressinterstate transport of pollution thatcould satisfy the intent of the goodneighbor provision and give upwindstates a successful coordination processfor addressing ozone pollution. Somecommenters believed the collaborativeprocess inherent in the OTC’s mission isefficient and uniquely suited to addresstransport and achieve timely attainmentof the ozone NAAQS and clean air.They believed there are two importantmechanisms in the 0Th process thatwould reduce ozone levels: (1) Theestablishment of a minimum baselinefor emissions control in the area, and (2)a framework for states to collaborate inthe development and implementation ofadditional measures if necessary tosolve the ozone problem. They alsobelieved OTR expansion would obviatethe need for future good neighbor FWsand CAA section 126 petitions. Theyargue that the EPA has a history of“inaction, delay, and failure” toadequately address interstate transportunder CAA sections 110(a)(2)(D)(i)(I)and 126. One commenter claimed thatstates have not taken the initiative toaddress interstate transportrequirements until required by the EPA.In addition the commenter believes thatthey have to force EPA to fulfill itsstatutory obligations by litigation. Theybelieved the CSAPRUpdate isinadequate because it addresses only apart of most states’ interstate transportobligations. They further noted theEPA’s delayed action on CAA section126 petitions. The commenter asserted

42Jiang, G.; Fast, J.D. (2004) Modeling the effectsof voc and NO emission sources on ozoneformation in Houston during the TexAQS 2000 fieldcampaign. Atmospheric Environment 38: 5071—5085.

43Liao, K. et al. (2013) Impacts of interstatetransport of pollutants on high ozone events overthe Mid-Atlantic United States. AtmosphericEnvironment 84, 100—112.

that these statutory tools are resourceintensive and time-consuming. Theybelieved the EPA should expand the0Th to include all the states thatcontribute materially to regional ozonelevels because it will facilitate thedevelopment of a more efficient state-led response to address interstate ozonetransport. Another commenter believedthat the EPA cannot selectively choosenot to use CAA section 176A as a toolbecause it prefers other provisions, andthat this ignores the statutory goal thatstates attain the standard asexpeditiously as practicable.

Response: The EPA appreciates thetime and resources needed for theagency and states to take action toaddress interstate transport obligations.However, the agency disagrees thatexpansion of the 0Th would necessarilybe a faster or more efficient method toaddress interstate ozone transport thancontinuing to work within the well-established framework of the EPA’shistorical approach to addressinginterstate transport pursuant to the goodneighbor provision. Because addressingthe good neighbor obligation is requiredof all states following NAAQSpromulgation, and not just those areasthat are eventually designatednonattainment, states are required tosubmit their plans for addressing theirCAA section 110(a)(2)(D) obligations 3years after the promulgation of aNAAQS. 42 U.S.C. 7410(a). Thus, theCAA section 110(a)(2)(D)(i)(I) process onits face provides a faster timeframe forimplementation of interstate transportrequirements for a new NAAQS thanapplication of OTR requirements, whichrun from the effective date ofdesiguations and are set under CAAsection 182 through a separaterulemaking process.

In any case, both the 0Th SW processand the good neighbor process are state-driven in the first instance. States areexpected to submit approvableimplementation plans by the deadlinesrequired in the statute and states canchoose to submit plans—under eitherthe good neighbor or 0Th process—thatachieve greater emission reductionsfaster than required by the CAA. Eventhough the EPA has sometimes beenrequired to apply FIPs to address goodneighbor obligations, which have inturn been litigated, the good neighborprovision process has proven to besuccessful historically. Moreover, givenincreasing experience applying theEPA’s prior interstate transport rulesand the fact that many interstatetransport issues have already beenaddressed through litigation, the statesand the EPA are increasingly positionedto implement this provision in a



timelier fashion. Lastly, it is importantto note that, notwithstanding the factthat OTR states do have OTR controlrequirements, the EPA has generally(most recently via the CSAPR Update)had to seek additional emissionreductions from OTR states through thegood neighbor process to addressinterstate transport and help areaswithin and outside the OTR reduceozone concentrations.

Some commenters alleged that theEPA has delayed or failed to act on CAAsection 126 petitions from states. All ofthe CAA section 126 petitions submittedby the states in the 0Th (i.e.,Connecticut, Delaware and Maryland)for the 2008 ozone NAAQS weresubmitted in 2016, and the agency iscontinuing to review these petitions.Action on these petitions is beyond thescope of this action. However, the EPAobserves that four of the six petitionsthe EPA has received from OTR statessince 2016 concern sources withinanother OTR state, which tends todemonstrate limitations in somerespects to the efficacy of the OTRprocess.

D. Equity Among States

Commenters stated that the“disparity” between environmentalperformance of sources within the OTRand those outside the 0Th has grown.One commenter estimated that thedifference in cost of controls for furtherreductions from OTR sources could bein the range of $10,000 to $40,000 perton, while in the non-OTR states itcould be as low as $500 to $1,200 perton. Commenters further stated thatdenial of the petition will continue toleave OTR states at a competitivedisadvantage, as the controlrequirements within the OTR increasethe costs to business and industry,while the non-OTR states are allowed toemit at far higher levels.

Other commenters asserted in contrastthat OTR control requirements arecostly and burdensome. They claimedthe mandatory requirements wouldimpose a substantial cost burden uponboth the permitting authorities and theregulated communities. One commenterasserted that the petitioners’ notion ofeconomic fairness as a basis for thepetition is inappropriate and states thatthe EPA has no authority to requirecontrols on that basis. This commentersuggested that 0Th states should berequired to address their requirementsfirst before seeking an expansion. Thecommenter contended that OTR statesare not fuliy implementing requiredOTR and other ozone controls, and, ifthey were, it may sufficiently control

ozone to obviate the need for expansionof the 0Th.

Response: As an initial matter, thestatutory basis for granting a CAAsection 176A petition is tied to theinterstate transport of air pollutants. See42 U.S.C. 7506a(a). The EPA recognizes,however, that equity, or fairness, canplay a role in apportioningresponsibility for addressing air qualityproblems to which multiple states arecontributing. These concerns haveplayed a role in the legal analysis of theEPA’s past rulemaldngs under CAAsection 110(a)(2)(D)(i)(I). In EPA v. EMEHomer City, the Supreme Court upheldthe agency’s approach in the CSAPR ofeliminating amounts of air pollutionthat can cost effectively be reduced asan efficient and equitable solution to theallocation problem of the good neighborprovision. 134 S. Ct. 1584, 1607 (2014).The Court noted that the EPA’sapproach was “[e]quitable because, byimposing uniform cost thresholds onregulated states, EPA’s rule subjects tostricter regulation those .States that havedone relatively less in the past tocontrol their pollution.” Id. Thus, theagency’s approach to implementing thegood neighbor provision explicitlyconsiders the equity concerns raised bycommenters when apportioningemission reduction responsibilityamong multiple upwind states.However, the agency does not believeCongress intended for it to exercise itsdiscretion under CAA section 176A toresolve an alleged economic disparity orcompetitive disadvantage that isinherent in the creation of the OTRunder CAA section 184 in a manner thatis unrelated to the primary purpose ofaddressing interstate transport. Nor havepetitioners provided meaningfulinformation to substantiate that allegeddisparity. Commenters’ passingreference to the potential for obtainingreductions at costs-per-ton of $500 to$1,200 in the non-OTR states, ratherthan $10,000 to $40,000 per ton in theOTR states, was not submitted withsupporting evidence. In any case, evenif we assumed those numbers were truefor some types of control measures, it isby no means clear (and is in fact highlydoubtful) that all of the mandatorycontrol requirements that would berequired of a new OTR state under CAAsection 184 would be at that level ofcost effectiveness. By contrast, theEPA’s approach under the goodneighbor provision, as recognized by theSupreme Court, operates fairly byestablishing control levels andapportioning responsibility amongstates based on a uniform level ofcontrol, represented by cost.

F. Statutory Intent of CAA Section 1 76A(or 184)

Some commenters believe that thecurrent geography of the OTR no longerreflects the region most relevant to thenature of interstate ozone pollution inthe East as it is now understood; theypoint out that New England states (e.g.,New Hampshire, Maine andMassachusetts) no longer exceed theNAAQS, and their sources contributeless at downwind receptors than thestates requested to be added to the 0Th.They asserted that Congress createdCAA section 176A to address changes inthe geographical distribution of theozone problem by providing a processfor adding or removing states from the0Th. Therefore, they claimed that theEPA must set the boundaries of thetransport region based on the scientificevidence presented and its own relatedanalyses to provide the proper forum forstates to address their obligations withrespect to ozone transport. Thecommenters concluded that eachiteration of the EPA’s own transportrules have identified a larger area.

Response: As an initial matter, theagency does not have before it a petitionto remove any states from the OTR. Inaddition, the EPA already adjusts goodneighbor remedies in transport rules tocapture the geographical distribution ofstates that are most effective inaddressing each specific NAAQS ozonepollution issue. For example, states likeMassachusetts, Rhode Island, andConnecticut were included in the N0SIP Call to address the 1979 ozoneNAAQS. In contrast, those three stateswere not included in the CSAPR, whichaddressed the 1997 ozone NAAQS.furthermore, states like Texas andOklahoma are included in the CSAPRUpdate that addresses the 2008 ozoneNAAQS but were not included in theNOx SW Call or CAW to address priorozone NAAQS issues.

F. Comments on the 2015 OzoneNAAQS

A number of commenters raisedconcerns relating to the 2015 ozoneNAAQS stating that: (1) The EPA shouldnot limit the petition response to 2008ozone NAAQS interstate transportissues, (2) if the EPA were to grant thepetition, the OTR requirements wouldhelp states attain the 2015 ozoneNAAQS, and (3) the petition responseshould apply to any and all future ozoneNAAQS. One commenter suggested thatthe EPA’s response should be limited tothe 2008 ozone NAAQS because thepetitioners’ data focuses on the 2008NAAQS, interstate transport SIPs for the2015 ozone NAAQS are not due yet, and


51250 Federal Register / Vol. 82, No. 212 / Friday, November 3, 2017 / Notices

designations have not yet occurred forthe 2015 ozone NAAQS.

Response: Comments regarding the2015 ozone NAAQS are outside thescope of this action. The petitionrequested the EPA to expand the OTRon the basis of alleged air qualityproblems associated with attaining andmaintaining the 2008 ozone NAAQS.The December 2013 petition wassubmitted prior to the EPAstrengthening the ozone NAAQS in2015. Consequently, the EPA’s proposalfocused on the appropriate mechanismto address interstate transport issuesrelative to the 2008 ozone NAAQS—notthe 2015 ozone NAAQS. The EPA is,therefore, limiting this final action tothe 2008 ozone NAAQS. Comments onany determinations made in priorrulemaking actions to identifydownwind air quality problems relativeto the 2015 ozone NAAQS or to quantifyupwind state emission reductionobligations relative to those air qualityproblems, including the EPA’s decisionto focus on certain precursor emissionsor sources, are not within the scope ofthis action.

VI. final Action To Deny the CAASection 176A Petition

Based on the considerations outlinedat proposal, after considering allcomments, and for the reasonsdescribed in this action, the EPA isdenying the CAA section 176A petitionsubmitted by nine petitioning states inDecember 2013. The EPA continues tobelieve an expansion of the OTR isunnecessary at this time and would notbe the most efficient or effective way toaddress the remaining interstatetransport issues for the 2008 ozoneNAAQS in states currently included inthe 0Th. Additional local and regionalozone precursor emissions reductionsare expected in the coming years fromalready on-the-books rules. The EPAbelieves its authority and the states’authority under other CAA provisions(including CAA section110(a)(2)(D)(i)(I)) will allow the agencyand states to develop a more effectiveremedy for addressing any remaining airquality problems for the 2008 ozoneNAAQS identified by the petitioners.

VII. Judicial Review andDeterminations Under Section 307(b)(1)of the CAA

Section 307(b) (1) of the CAA indicateswhich Federal Courts of Appeal havevenue for petitions of review of finalactions by the EPA. This sectionprovides, in part, that petitions forreview must be filed in the Court ofAppeals for the District of ColumbiaCircuit if (i) the agency action consists

of “nationally applicable regulationspromulgated, or final action taken, bythe Administrator,” or (ii) such action islocally or regionally applicable, if “suchaction is based on a determination ofnationwide scope or effect and if intaking such action the Administratorfinds and publishes that such action isbased on such a determination.”

This final action is “nationallyapplicable.” Additionally, the EPA findsthat this action is based on adetermination of “nationwide scope andeffect.” This action makes adetermination on a petition from ninestates in the Northeast, which wouldimpact another nine states in the Mid-Atlantic, Southern, and Midwesternareas of the U.S. These 18 states spanfive regional federal judicial circuits aswell as the District of Columbia. Thedeterminations on which this action isbased rest in part on the scope andeffect of certain other nationallyapplicable rulemakings under the CAA,including the CSAPR and the CSAPRUpdate. For these reasons, this finalaction is “nationally applicable,” andthe Administrator also finds that thisaction is based on a determination ofnationwide scope and effect forpurposes of CAA section 307(b)(1).

Pursuant to CAA section 307(b)(1),any petitions for review of this finalaction should be filed in the Court ofAppeals for the District of ColumbiaCircuit within 60 days from the date thisaction is published in the FederalRegister.

VIII. Statutory Authority

42 U.S.C. 7401 et seq.

Dated: October 27, 2017.

F. Scott Pruiti,

Administrator.[FR Doc. 2017—23983 Filed 11—2—17; 8:45 am]

BILLING CODE 6560-50-P

FEDERAL COMMUNICATIONSCOMMISSION

[0MB 3060—1166]

Information Collection Approved bythe Office of Management and Budget

AGENCY: Federal CommunicationsCommission.ACTION: Notice.

SUMMARY: The Federal CommunicationsCommission (FCC) has received Officeof Management and Budget (0MB)approval for a revision of a currentlyapproved public information collectionpursuant to the Paperwork ReductionAct of 1995. An agency may not conductor sponsor a collection of information

unless it displays a currently valid 0MBcontrol number, and no person isrequired to respond to a collection ofinformation unless it displays acurrently valid control number.Comments concerning the accuracy ofthe burden estimates and anysuggestions for reducing the burdenshould be directed to the person listedin the FOR FURTHER INFORMATIONCONTACT section below.FOR FURTHER INFORMATION CONTACT:Cathy Williams, Office of the ManagingDirector, at (202) 418—2918, or email:[email protected] INFORMATION: The totalannual reporting burdens and costs forthe respondents are as follows:

0MB Control Number: 3060—1166.0MB Approval Date: October 23,

2017.0MB Expiration Date: October 31,

2020.Title: Section 1.21001, Participation

in Competitive Bidding for Support;Section 1.2 1002, Prohibition of CertainCommunications During theCompetitive Bidding Process.

Form Number: N/A.Number of Respondents and

Responses: 750 respondents and 750responses.

Estimated Time per Response: 1.5hours.

Frequency of Response: On occasionreporting requirement.

Total Annual Burden: 1,125 hours.Total Annual Cost: No cost.Obligation To Respond: Required to

obtain or retain benefits. Statutoryauthority for this information collection47 U.S.C. 154, 254 and 303(r).

Nature and Extent of Confidentiality:There is no need for confidentiality.Information collected in eachapplication for universal service supportwill be made available for publicinspection, and the Commission is notrequesting that respondents submitconfidential information to theCommission as part of the pre-auctionapplication process. Respondentsseeking to have information collected onan application for universal servicesupport withheld from publicinspection may request confidentialtreatment of such information pursuantto section 0.459 of the Commission’srules, 47 CFR Section 0.459.

Privacy Act Impact Assessment: Noimpact(s).

Needs and Uses: The Commissionwill use the information collected underthis collection to determine whetherapplicants are eligible to participate inauctions for Universal Service Fundsupport. On November 18, 2011, theCommission released an order


CERTIFICATE OF SERVICE

I hereby certify that pursuant to Circuit Rule 15(a), a copy of the foregoing

Petition for Review was served on December 22, 2017 by certified mail, return

receipt requested on the following:

Hon. E. Scott Pruitt, AdministratorOffice of the Administrator (1 lOlA)Environmental Protection Agency1200 Pennsylvania Ave., NWWashington DC 20460

Hon. Jeff SessionsAttorney General of the United States

U.S. Department of Justice950 Pennsylvania Ave., NWWashington, DC 20530

Correspondence Control UnitOffice of General Counsel (2311)U.S. Environmental Protection Agency1200 Pennsylvania Ave., NWWashington, DC 20460

Dated: December 22, 2017 /4ii2iUiMORGA?4 A. COSTELLO


district clerk for the district of columbia circu] t l. …[epa—oar—2016—0596;...

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