Proposed Rule2022-22892
Air Plan Disapproval; AL; Interstate Transport Requirements for the 2015 8-Hour Ozone National Ambient Air Quality Standards
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 25, 2022
Issuing agencies
Environmental Protection Agency
Abstract
Pursuant to the Federal Clean Air Act (CAA or the Act), the Environmental Protection Agency (EPA or Agency) is proposing to disapprove the State Implementation Plan (SIP) submittal from Alabama dated June 21, 2022, regarding the interstate transport requirements for the 2015 8-hour ozone national ambient air quality standards (NAAQS or standard). The "Good Neighbor" or "Interstate Transport" provision of the Act requires that each State's implementation plan contain adequate provisions to prohibit emissions from within the State from significantly contributing to nonattainment or interfering with maintenance of the NAAQS in other states. This requirement is part of the broader set of "infrastructure" requirements, which are designed to ensure that the structural components of each State's air quality management program are adequate to meet the State's responsibilities under the CAA. If EPA finalizes this disapproval, the Agency will continue to be subject to an obligation to promulgate a Federal Implementation Plan (FIP) for Alabama to address the relevant interstate transport requirements, which was triggered by a finding of failure to submit published on June 22, 2022. Disapproval does not start a mandatory sanctions clock.
Full Text
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<title>Federal Register, Volume 87 Issue 205 (Tuesday, October 25, 2022)</title>
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[Federal Register Volume 87, Number 205 (Tuesday, October 25, 2022)]
[Proposed Rules]
[Pages 64412-64427]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-22892]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2021-0841; EPA-HQ-OAR-2021-0663; FRL-10291-01-R4]
Air Plan Disapproval; AL; Interstate Transport Requirements for
the 2015 8-Hour Ozone National Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
[[Page 64413]]
ACTION: Proposed rule.
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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the
Environmental Protection Agency (EPA or Agency) is proposing to
disapprove the State Implementation Plan (SIP) submittal from Alabama
dated June 21, 2022, regarding the interstate transport requirements
for the 2015 8-hour ozone national ambient air quality standards (NAAQS
or standard). The ``Good Neighbor'' or ``Interstate Transport''
provision of the Act requires that each State's implementation plan
contain adequate provisions to prohibit emissions from within the State
from significantly contributing to nonattainment or interfering with
maintenance of the NAAQS in other states. This requirement is part of
the broader set of ``infrastructure'' requirements, which are designed
to ensure that the structural components of each State's air quality
management program are adequate to meet the State's responsibilities
under the CAA. If EPA finalizes this disapproval, the Agency will
continue to be subject to an obligation to promulgate a Federal
Implementation Plan (FIP) for Alabama to address the relevant
interstate transport requirements, which was triggered by a finding of
failure to submit published on June 22, 2022. Disapproval does not
start a mandatory sanctions clock.
DATES: Written comments must be received on or before November 25,
2022.
ADDRESSES: You may submit comments, identified by Docket No. EPA-R04-
OAR-2021-0841, through the Federal eRulemaking Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a> following the online instructions for submitting
comments.
Instructions: All submissions received must include the Docket No.
EPA-R04-OAR-2021-0841 for this rulemaking. Comments received may be
posted without change to <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>, including any
personal information provided. For detailed instructions on submitting
comments and additional information on the rulemaking process, see the
``Public Participation'' heading of the SUPPLEMENTARY INFORMATION
section of this document. The EPA Docket Office can be contacted at
(202) 566-1744, and is located at EPA Docket Center Reading Room, WJC
West Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC
20004. For further information on EPA Docket Center services and the
current hours of operation at the EPA Docket Center, please visit us
online at <a href="https://www.epa.gov/dockets">https://www.epa.gov/dockets</a>.
FOR FURTHER INFORMATION CONTACT: Evan Adams of the Air Regulatory
Management Section, Air Planning and Implementation Branch, Air and
Radiation Division, U.S. Environmental Protection Agency, Region 4, 61
Forsyth Street SW, Atlanta, Georgia 30303-8960. Mr. Adams can be
reached by telephone at (404) 562-9009, or via electronic mail at
<a href="/cdn-cgi/l/email-protection#d6b7b2b7bba5f8b3a0b7b896b3a6b7f8b1b9a0"><span class="__cf_email__" data-cfemail="c0a1a4a1adb3eea5b6a1ae80a5b0a1eea7afb6">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Public Participation: Submit your comments,
identified by Docket No. EPA-R04-OAR-2021-0841, at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Once submitted, comments cannot be edited or
removed from the docket. EPA may publish any comment received to its
public docket. Do not submit to EPA's docket at <a href="https://www.regulations.gov">https://www.regulations.gov</a> any information you consider to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Multimedia submissions (audio, video, etc.) must
be accompanied by a written comment. The written comment is considered
the official comment and should include discussion of all points you
wish to make. EPA will generally not consider comments or comment
contents located outside of the primary submission (i.e., on the web,
cloud, or other file sharing system).
There are two dockets supporting this action, EPA-R04-OAR-2021-0841
and EPA-HQ-OAR-2021-0663. Docket No. EPA-R04-OAR-2021-0841 contains
information specific to Alabama, Mississippi, Tennessee, and
Kentucky,\1\ including this notice of proposed rulemaking. Docket No.
EPA-HQ-OAR-2021-0663 contains additional modeling files, emissions
inventory files, technical support documents, and other relevant
supporting documentation regarding interstate transport of emissions
for the 2015 8-hour ozone NAAQS which are being used to support this
action. All comments regarding information in either of these dockets
are to be made in Docket No. EPA-R04-OAR-2021-0841. For the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>.
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\1\ EPA previously proposed action related to another Alabama
SIP submission addressing the 2015 ozone interstate transport
requirements in a notice of proposed rulemaking that included
Mississippi's and Tennessee's SIP submissions addressing these same
requirements. EPA is using that same docket for the proposed action
related to Alabama's June 21, 2022, submittal addressing the 2015
ozone interstate transport requirements. EPA is not reopening for
public comment the notice of proposed rulemaking published in the
Federal Register at 87 FR 9545 on February 22, 2022.
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The indices to Docket No. EPA-R04-OAR-2021-0841 and Docket No. EPA-
R04-OAR-2021-0663 are available electronically at <a href="http://www.regulations.gov">www.regulations.gov</a>.
While all documents in each docket are listed in their respective
index, some information may not be publicly available due to docket
file size restrictions or content (e.g., CBI).
Table of Contents
I. Background
A. Description of Statutory Background
B. Description of EPA's Four Step Interstate Transport
Regulatory Process
C. Background on EPA's Ozone Transport Modeling Information
D. EPA's Approach to Evaluating Interstate Transport SIPs for
the 2015 8-Hour Ozone NAAQS
II. Summary of Alabama's 2015 8-Hour Ozone Transport SIP Submissions
A. Prior Submissions
B. Current Submission
III. EPA's Evaluation of Alabama's 2015 Ozone Interstate Transport
SIP Submission
A. Results of EPA's Step 1 and Step 2 Modeling and Findings for
Alabama
B. Evaluation of Information Provided by Alabama Regarding Step
1
C. Evaluation of Information Provided by Alabama Regarding Step
2
D. Evaluation of Information Provided by Alabama Regarding Step
3
E. Evaluation of Information Provided by Alabama Regarding Step
4
IV. Conclusion for Alabama
V. Proposed Action
VI. Statutory and Executive Order Reviews
I. Background
The following provides background for EPA's proposed action related
to the interstate transport requirements for the 2015 8-hour ozone
NAAQS for Alabama.
A. Description of Statutory Background
On October 1, 2015, EPA promulgated a revision to the ozone NAAQS
(2015 8-hour ozone NAAQS), lowering the level of both the primary and
secondary standards to 0.070 parts per million (ppm).\2\ Section
110(a)(1) of the CAA requires states to submit, within 3 years after
promulgation of a new or revised standard, SIP submissions meeting the
applicable requirements of section 110(a)(2).\3\ One of these
applicable
[[Page 64414]]
requirements is found in CAA section 110(a)(2)(D)(i)(I), otherwise
known as the ``good neighbor'' or ``interstate transport'' provision,
which generally requires SIPs to contain adequate provisions to
prohibit in-state emissions activities from having certain adverse air
quality effects on other states due to interstate transport of
pollution. There are two so-called ``prongs'' within CAA section
110(a)(2)(D)(i)(I). A SIP for a new or revised NAAQS must contain
adequate provisions prohibiting any source or other type of emissions
activity within the State from emitting air pollutants in amounts that
will significantly contribute to nonattainment of the NAAQS in another
State (prong 1) or interfere with maintenance of the NAAQS in another
State (prong 2). EPA and states must give independent significance to
prong 1 and prong 2 when evaluating downwind air quality problems under
CAA section 110(a)(2)(D)(i)(I).\4\
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\2\ National Ambient Air Quality Standards for Ozone, Final
Rule, 80 FR 65292 (October 26, 2015). Although the level of the
standard is specified in the units of ppm, ozone concentrations are
also described in parts per billion (ppb). For example, 0.070 ppm is
equivalent to 70 ppb.
\3\ SIP revisions that are intended to meet the applicable
requirements of section 110(a)(1) and (2) of the CAA are often
referred to as infrastructure SIPs and the applicable elements under
section 110(a)(2) are referred to as infrastructure requirements.
\4\ See North Carolina v. EPA, 531 F.3d 896, 909-11 (D.C. Cir.
2008).
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B. Description of EPA's Four Step Interstate Transport Regulatory
Process
EPA is using the 4-step interstate transport framework (or 4-step
framework) to evaluate the SIP submittal from the Alabama Department of
Environmental Management (ADEM or Alabama) addressing the interstate
transport provision for the 2015 8-hour ozone NAAQS. EPA has addressed
the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I)
with respect to prior ozone NAAQS in several regional regulatory
actions, including the Cross-State Air Pollution Rule (CSAPR), which
addressed interstate transport with respect to the 1997 ozone NAAQS as
well as the 1997 and 2006 fine particulate matter standards,\5\ and the
Cross-State Air Pollution Rule Update (CSAPR Update) \6\ and the
Revised CSAPR Update, both of which addressed the 2008 ozone NAAQS.\7\
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\5\ See Federal Implementation Plans: Interstate Transport of
Fine Particulate Matter and Ozone and Correction of SIP Approvals,
76 FR 48208 (August 8, 2011).
\6\ Cross-State Air Pollution Rule Update for the 2008 Ozone
NAAQS, 81 FR 74504 (October 26, 2016).
\7\ In 2019, the United States Court of Appeals for the District
of Columbia Circuit (D.C. Circuit) remanded the CSAPR Update to the
extent it failed to require upwind states to eliminate their
significant contribution by the next applicable attainment date by
which downwind states must come into compliance with the NAAQS, as
established under CAA section 181(a). Wisconsin v. EPA, 938 F.3d
303, 313 (DC Cir. 2019). The Revised CSAPR Update for the 2008 Ozone
NAAQS, 86 FR 23054 (April 30, 2021), responded to the remand of the
CSAPR Update in Wisconsin and the vacatur of a separate rule, the
``CSAPR Close-Out,'' 83 FR 65878 (December 21, 2018), in New York v.
EPA, 781 F. App'x 4 (D.C. Cir. 2019).
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Through the development and implementation of the CSAPR rulemakings
and prior regional rulemakings pursuant to the interstate transport
provision,\8\ EPA, working in partnership with states, developed the
following 4-step interstate transport framework to evaluate a State's
obligations to eliminate interstate transport emissions under the
interstate transport provision for the ozone NAAQS: (1) Identify
monitoring sites that are projected to have problems attaining and/or
maintaining the NAAQS (i.e., nonattainment and/or maintenance
receptors); (2) identify states that impact those air quality problems
in other (i.e., downwind) states sufficiently such that the states are
considered ``linked'' and therefore warrant further review and
analysis; (3) identify the emissions reductions necessary (if any),
applying a multifactor analysis, to eliminate each linked upwind
state's significant contribution to nonattainment or interference with
maintenance of the NAAQS at the locations identified in Step 1; and (4)
adopt permanent and enforceable measures needed to achieve those
emissions reductions.
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\8\ In addition to the CSAPR rulemakings, other regional
rulemakings addressing ozone transport include the ``NO<INF>X</INF>
SIP Call,'' 63 FR 57356 (October 27, 1998), and the ``Clean Air
Interstate Rule'' (CAIR), 70 FR 25162 (May 12, 2005).
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C. Background on EPA's Ozone Transport Modeling Information
In general, EPA has performed nationwide air quality modeling to
project ozone design values which are used in combination with measured
data to identify nonattainment and maintenance receptors. To quantify
the contribution of emissions from specific upwind states on 2023 ozone
design values for the identified downwind nonattainment and maintenance
receptors, EPA performed nationwide, State-level ozone source
apportionment modeling for 2023. The source apportionment modeling
provided contributions to ozone at receptors from precursor emissions
of anthropogenic nitrogen oxides (NO<INF>X</INF>) and volatile organic
compounds (VOCs) in individual upwind states.
EPA has released several documents containing projected ozone
design values, contributions, and information relevant to evaluating
interstate transport with respect to the 2015 8-hour ozone NAAQS.
First, on January 6, 2017, EPA published a notice of data availability
(NODA) in which the Agency requested comment on preliminary interstate
ozone transport data including projected ozone design values and
interstate contributions for 2023 using a 2011 base year platform.\9\
In the NODA, EPA used the year 2023 as the analytic year for this
preliminary modeling because that year aligns with the expected
attainment year for Moderate ozone nonattainment areas for the 2015 8-
hour ozone NAAQS.\10\ On October 27, 2017, EPA released a memorandum
(October 2017 memorandum) containing updated modeling data for 2023,
which incorporated changes made in response to comments on the NODA,
and noted that the modeling may be useful for states developing SIPs to
address interstate transport obligations for the 2008 ozone NAAQS.\11\
On March 27, 2018, EPA issued a memorandum (March 2018 memorandum)
noting that the same 2023 modeling data released in the October 2017
memorandum could also be useful for identifying potential downwind air
quality problems with respect to the 2015 8-hour ozone NAAQS at Step 1
of the 4-step interstate transport framework.\12\ The March 2018
memorandum also included the then newly available contribution modeling
data for 2023 to assist states in evaluating their impact on potential
downwind air quality problems for the 2015 8-hour ozone NAAQS under
Step 2 of the 4-step interstate transport framework.\13\ EPA
subsequently issued
[[Page 64415]]
two more memoranda in August and October 2018, providing additional
information to states developing interstate transport SIP submissions
for the 2015 8-hour ozone NAAQS concerning, respectively, potential
contribution thresholds that may be appropriate to apply in Step 2 of
the 4-step interstate transport framework, and considerations for
identifying downwind areas that may have problems maintaining the
standard at Step 1 of the 4-step interstate transport framework.\14\
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\9\ See Notice of Availability of the Environmental Protection
Agency's Preliminary Interstate Ozone Transport Modeling Data for
the 2015 8-hour Ozone National Ambient Air Quality Standard (NAAQS),
82 FR 1733 (January 6, 2017).
\10\ See 82 FR 1733, 1735.
\11\ See Information on the Interstate Transport State
Implementation Plan Submissions for the 2008 Ozone National Ambient
Air Quality Standards under Clean Air Act Section
110(a)(2)(D)(i)(I), October 27, 2017 (``October 2017 memorandum''),
available in Docket ID No. EPA-HQ-OAR-2021-0663 or at <a href="https://www.epa.gov/interstate-air-pollution-transport/interstate-air-pollution-transport-memos-and-notices">https://www.epa.gov/interstate-air-pollution-transport/interstate-air-pollution-transport-memos-and-notices</a>.
\12\ See Information on the Interstate Transport State
Implementation Plan Submissions for the 2015 Ozone National Ambient
Air Quality Standards under Clean Air Act Section
110(a)(2)(D)(i)(I), March 27, 2018 (``March 2018 memorandum''),
available in Docket ID No. EPA-HQ-OAR-2021-0663 or at <a href="https://www.epa.gov/interstate-air-pollution-transport/interstate-air-pollution-transport-memos-and-notices">https://www.epa.gov/interstate-air-pollution-transport/interstate-air-pollution-transport-memos-and-notices</a>.
\13\ The March 2018 memorandum, however, provided, ``While the
information in this memorandum and the associated air quality
analysis data could be used to inform the development of these SIPs,
the information is not a final determination regarding states'
obligations under the good neighbor provision. Any such
determination would be made through notice-and-comment rulemaking.''
\14\ See Analysis of Contribution Thresholds for Use in Clean
Air Act Section 110(a)(2)(D)(i)(I) Interstate Transport State
Implementation Plan Submissions for the 2015 Ozone National Ambient
Air Quality Standards, August 31, 2018) (``August 2018
memorandum''), and Considerations for Identifying Maintenance
Receptors for Use in Clean Air Act Section 110(a)(2)(D)(i)(I)
Interstate Transport State Implementation Plan Submissions for the
2015 Ozone National Ambient Air Quality Standards, October 19, 2018
(``October 2018 memorandum''), available in Docket ID No. EPA-HQ-
OAR-2021-0663 or at <a href="https://www.epa.gov/sites/default/files/2018-10/documents/maintenance_receptors_flexibility_memo.pdf">https://www.epa.gov/sites/default/files/2018-10/documents/maintenance_receptors_flexibility_memo.pdf</a>.
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Since the release of the modeling data shared in the March 2018
memorandum, EPA performed updated modeling using a 2016-based emissions
modeling platform (i.e., 2016v1). This emissions platform was developed
under the EPA/Multi-Jurisdictional Organization (MJO)/State
collaborative project.\15\ This collaborative project was a multi-year
joint effort by EPA, MJOs, and states to develop a new, more recent
emissions platform for use by EPA and states in regulatory modeling as
an improvement over the dated 2011-based platform that EPA had used to
project ozone design values and contribution data provided in the 2017
and 2018 memoranda. EPA used the 2016v1 emissions to project ozone
design values and contributions for 2023. On October 30, 2020, in the
Notice of Proposed Rulemaking for the Revised CSAPR Update, EPA
released and accepted public comment on 2023 modeling that used the
2016v1 emissions platform.\16\ Although the Revised CSAPR Update
addressed transport for the 2008 ozone NAAQS, the projected design
values and contributions from the 2016v1 platform are also useful for
identifying downwind ozone problems and linkages with respect to the
2015 8-hour ozone NAAQS.\17\
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\15\ The results of this modeling, as well as the underlying
modeling files, are included in Docket ID No. EPA-HQ-OAR-2021-0663.
\16\ See 85 FR 68964, 68981.
\17\ See the Air Quality Modeling Technical Support Document for
the Final Revised Cross-State Air Pollution Rule Update, included in
Docket ID No. EPA-HQ-OAR-2021-0663.
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Following the Revised CSAPR Update final rule, EPA made further
updates to the 2016 emissions platform to include mobile emissions from
EPA's Motor Vehicle Emission Simulator (MOVES3) model \18\ and updated
emissions projections for electric generating units (EGUs) that reflect
the emissions reductions from the Revised CSAPR Update, recent
information on plant closures, and other sector trends. The construct
of the updated emissions platform, 2016v2, is described in the
emissions modeling technical support document (TSD) included in the
docket for this proposed rulemaking.\19\ EPA performed air quality
modeling of the 2016v2 emissions using the most recent public release
version of the Comprehensive Air Quality Modeling with Extensions
(CAMx) photochemical modeling, version 7.10.\20\ EPA proposes to
primarily rely on modeling based on the updated and newly available
2016v2 emissions platform in evaluating these submissions with respect
to Steps 1 and 2 of the 4-step interstate transport framework. By using
the updated modeling results, EPA is using the most recently available
and technically appropriate information for this proposed rulemaking.
Section III of this document and the Air Quality Modeling TSD for 2015
Ozone NAAQS Transport SIP Proposed Actions included in Docket No. EPA-
HQ-OAR-2021-0663 contain additional detail on the modeling performed
using the 2016v2 emissions modeling.
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\18\ Additional details and documentation related to the MOVES3
model can be found at <a href="https://www.epa.gov/moves/latest-version-motor-vehicle-emission-simulator-moves">https://www.epa.gov/moves/latest-version-motor-vehicle-emission-simulator-moves</a>.
\19\ See Technical Support Document (TSD) Preparation of
Emissions Inventories for the 2016v2 North American Emissions
Modeling Platform included in the Docket ID No. EPA-HQ-OAR-2021-
0663.
\20\ Ramboll Environment and Health, January 2021, <a href="http://www.camx.com">www.camx.com</a>.
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In this document, EPA is accepting public comment on this updated
2023 modeling, which uses the 2016v2 emissions platform. Comments on
EPA's air quality modeling should be submitted in Docket No. EPA-R04-
OAR-2021-0841. Comments are not being accepted in Docket No. EPA-HQ-
OAR-2021-0663.
States may have chosen to rely on the results of EPA modeling and/
or alternative modeling performed by states or MJOs to evaluate
downwind air quality problems and contributions as part of their
submissions. In Section III of this document, EPA evaluates how Alabama
used air quality modeling information in their submission.
D. EPA's Approach to Evaluating Interstate Transport SIPs for the 2015
8-Hour Ozone NAAQS
EPA proposes to apply a consistent set of policy judgments across
all states for purposes of evaluating interstate transport obligations
and the approvability of interstate transport SIP submittals for the
2015 8-hour ozone NAAQS. These policy judgments reflect consistency
with relevant case law and past agency practice as reflected in CSAPR
and related rulemakings. Nationwide consistency in approach is
particularly important in the context of interstate ozone transport,
which is a regional-scale pollution problem involving many smaller
contributors. Effective policy solutions to the problem of interstate
ozone transport going back to the NO<INF>X</INF> SIP Call have
necessitated the application of a uniform framework of policy judgments
in order to ensure an ``efficient and equitable'' approach. See EME
Homer City Generation, LP v. EPA, 572 U.S. 489, 519 (2014).
In the March, August, and October 2018 memoranda, EPA recognized
that states may be able to establish alternative approaches to
addressing their interstate transport obligations for the 2015 8-hour
ozone NAAQS that vary from a nationally uniform framework. EPA
emphasized in these memoranda, however, that such alternative
approaches must be technically justified and appropriate in light of
the facts and circumstances of each particular State's submittal. In
general, EPA continues to believe that deviation from a nationally
consistent approach to ozone transport must be substantially justified
and have a well-documented technical basis that is consistent with
relevant case law. Where states submitted SIPs that rely on any such
potential concepts as may have been identified or suggested in the
past, EPA will evaluate whether the State adequately justified the
technical and legal basis for doing so.
EPA notes that certain potential concepts included in an attachment
to the March 2018 memorandum require unique consideration, and these
ideas do not constitute Agency guidance with respect to transport
obligations for the 2015 8-hour ozone NAAQS. Attachment A to the March
2018 memorandum identified a ``Preliminary List of Potential
Flexibilities'' that could potentially inform SIP development.\21\
However, EPA made clear in that attachment that the list of ideas were
not suggestions endorsed by the Agency but rather ``comments provided
in various forums'' on which EPA sought
[[Page 64416]]
``feedback from interested stakeholders.'' \22\ Further, Attachment A
stated, ``EPA is not at this time making any determination that the
ideas discussed below are consistent with the requirements of the CAA,
nor are we specifically recommending that states use these
approaches.'' \23\ Attachment A to the March 2018 memorandum,
therefore, does not constitute Agency guidance, but was intended to
generate further discussion around potential approaches to addressing
ozone transport among interested stakeholders. To the extent states
sought to develop or rely on these ideas in support of their SIP
submittals, EPA will thoroughly review the technical and legal
justifications for doing so.
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\21\ March 2018 memorandum, Attachment A.
\22\ Id. at A-1.
\23\ Id.
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The remainder of this section describes EPA's proposed framework
with respect to analytic year, definition of nonattainment and
maintenance receptors, selection of contribution threshold, and
multifactor control strategy assessment.
1. Selection of Analytic Year
In general, the states and EPA must implement the interstate
transport provision in a manner ``consistent with the provisions of
[title I of the CAA.]'' See CAA section 110(a)(2)(D)(i). This requires,
among other things, that these obligations are addressed consistently
with the timeframes for downwind areas to meet their CAA obligations.
With respect to ozone NAAQS, under CAA section 181(a), this means
obligations must be addressed ``as expeditiously as practicable'' and
no later than the schedule of attainment dates provided in CAA section
181(a)(1).\24\ Several D.C. Circuit court decisions address the issue
of the relevant analytic year for the purposes of evaluating ozone
transport air-quality problems. On September 13, 2019, the D.C. Circuit
issued a decision in Wisconsin v. EPA, remanding the CSAPR Update to
the extent that it failed to require upwind states to eliminate their
significant contribution by the next applicable attainment date by
which downwind states must come into compliance with the NAAQS, as
established under CAA section 181(a). See 938 F.3d 303, 313.
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\24\ For attainment dates for the 2015 8-hour ozone NAAQS, refer
to CAA section 181(a), 40 CFR 51.1303, and Additional Air Quality
Designations for the 2015 Ozone National Ambient Air Quality
Standards, 83 FR 25776 (June 4, 2018, effective August 3, 2018).
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On May 19, 2020, the D.C. Circuit issued a decision in Maryland v.
EPA that cited the Wisconsin decision in holding that EPA must assess
the impact of interstate transport on air quality at the next downwind
attainment date, including Marginal area attainment dates, in
evaluating the basis for EPA's denial of a petition under CAA section
126(b). Maryland v. EPA, 958 F.3d 1185, 1203-04 (D.C. Cir. 2020). The
court noted that ``section 126(b) incorporates the Good Neighbor
Provision,'' and, therefore, ``EPA must find a violation [of section
126] if an upwind source will significantly contribute to downwind
nonattainment at the next downwind attainment deadline. Therefore, the
agency must evaluate downwind air quality at that deadline, not at some
later date.'' Id. at 1204 (emphasis added). EPA interprets the court's
holding in Maryland as requiring the states and the Agency, under the
good neighbor provision, to assess downwind air quality as
expeditiously as practicable and no later than the next applicable
attainment date,\25\ which is now the Moderate area attainment date
under CAA section 181 for ozone nonattainment. The Moderate area
attainment date for the 2015 8-hour ozone NAAQS is August 3, 2024.\26\
EPA believes that 2023 is now the appropriate year for analysis of
interstate transport obligations for the 2015 8-hour ozone NAAQS,
because the 2023 ozone season is the last relevant ozone season during
which achieved emissions reductions in linked upwind states could
assist downwind states with meeting the August 3, 2024, Moderate area
attainment date for the 2015 8-hour ozone NAAQS.
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\25\ EPA notes that the court in Maryland did not have occasion
to evaluate circumstances in which EPA may determine that an upwind
linkage to a downwind air quality problem exists at Steps 1 and 2 of
the interstate transport framework by a particular attainment date,
but for reasons of impossibility or profound uncertainty the Agency
is unable to mandate upwind pollution controls by that date. See
Wisconsin, 938 F.3d at 320. The D.C. Circuit noted in Wisconsin that
upon a sufficient showing, these circumstances may warrant
flexibility in effectuating the purpose of the interstate transport
provision.
\26\ See CAA section 181(a); 40 CFR 51.1303; Additional Air
Quality Designations for the 2015 Ozone National Ambient Air Quality
Standards, 83 FR 25776 (June 4, 2018, effective August 3, 2018).
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EPA recognizes that the attainment date for nonattainment areas
classified as Marginal for the 2015 8-hour ozone NAAQS was August 3,
2021. Under the Maryland holding, any necessary emissions reductions to
satisfy interstate transport obligations should have been implemented
by no later than this date. At the time of the statutory deadline to
submit interstate transport SIPs (October 1, 2018), many states relied
upon EPA modeling of the year 2023, and no State provided an
alternative analysis using a 2021 analytic year (or the prior 2020
ozone season). However, EPA must act on SIP submittals using the
information available at the time it takes such action. In this
circumstance, EPA does not believe it would be appropriate to evaluate
states' obligations under CAA section 110(a)(2)(D)(i)(I) as of an
attainment date that is wholly in the past, because the Agency
interprets the interstate transport provision as forward looking. See
86 FR 23054, 23074, April 30, 2021; see also Wisconsin, 938 F.3d at
322. Consequently, in this proposal EPA will use the analytical year of
2023 to evaluate Alabama's CAA section 110(a)(2)(D)(i)(I) SIP
submission with respect to the 2015 8-hour ozone NAAQS.
2. Step 1 of the 4-Step Interstate Transport Framework
In Step 1, EPA identifies monitoring sites that are projected to
have problems attaining and/or maintaining the NAAQS in the 2023
analytic year. Where EPA's analysis shows that a site does not fall
under the definition of a nonattainment or maintenance receptor, that
site is excluded from further analysis under EPA's 4-step interstate
transport framework. For sites that are identified as a nonattainment
or maintenance receptor in 2023, EPA proceeds to the next step of the
4-step interstate transport framework by identifying the upwind state's
contribution to those receptors.
EPA's approach to identifying ozone nonattainment and maintenance
receptors in this action is consistent with the approach used in
previous transport rulemakings. EPA's approach gives independent
consideration to both the ``contribute significantly to nonattainment''
and the ``interfere with maintenance'' prongs of CAA section
110(a)(2)(D)(i)(I), consistent with the D.C. Circuit's direction in
North Carolina v. EPA.\27\
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\27\ See North Carolina v. EPA, 531 F.3d 896, 910-11 (D.C. Cir.
2008) (holding that EPA must give ``independent significance'' to
each prong of CAA section 110(a)(2)(D)(i)(I)).
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For the purpose of this proposal, EPA identifies nonattainment
receptors as those monitoring sites that are projected to have average
design values that exceed the NAAQS and that are also measuring
nonattainment based on the most recent monitored design values. This
approach is consistent with prior transport rulemakings, such as the
CSAPR Update, where EPA defined nonattainment receptors as those areas
that both currently measure nonattainment and that EPA projects
[[Page 64417]]
will be in nonattainment in the future analytic year (i.e., 2023).\28\
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\28\ See 81 FR 74504 (October 26, 2016). This same concept,
relying on both current monitoring data and modeling to define
nonattainment receptors, was also applied in CAIR. See 70 FR 25162
at 25241, 25249 (January 14, 2005); see also North Carolina, 531
F.3d at 913-14 (affirming as reasonable EPA's approach to defining
nonattainment in CAIR).
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In addition, in this proposal, EPA identifies a receptor to be a
``maintenance'' receptor for purposes of defining interference with
maintenance, consistent with the method used in CSAPR and upheld by the
D.C. Circuit in EME Homer City Generation, L.P. v. EPA, 795 F.3d 118,
136 (D.C. Cir. 2015).\29\ Specifically, EPA identified maintenance
receptors as those receptors that would have difficulty maintaining the
relevant NAAQS in a scenario that takes into account historical
variability in air quality at that receptor. The variability in air
quality was determined by evaluating the ``maximum'' future design
value at each receptor based on a projection of the maximum measured
design value over the relevant base period. EPA interprets the
projected maximum future design value to be a potential future air
quality outcome consistent with the meteorology that yielded maximum
measured concentrations in the ambient data set analyzed for that
receptor (i.e., ozone conducive meteorology). EPA also recognizes that
previously experienced meteorological conditions (e.g., dominant wind
direction, temperatures, air mass patterns) promoting ozone formation
that led to maximum concentrations in the measured data may reoccur in
the future. The maximum design value gives a reasonable projection of
future air quality at the receptor under a scenario in which such
conditions do, in fact, reoccur. The projected maximum design value is
used to identify upwind emissions that, under those circumstances,
could interfere with the downwind area's ability to maintain the NAAQS.
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\29\ See 76 FR 48208 (August 8, 2011). The CSAPR Update and
Revised CSAPR Update also used this approach. See 81 FR 74504
(October 26, 2016) and 86 FR 23054 (April 30, 2021).
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Recognizing that nonattainment receptors are also, by definition,
maintenance receptors, EPA often uses the term ``maintenance-only'' to
refer to those receptors that are not nonattainment receptors.
Consistent with the concepts for maintenance receptors, as described
above, EPA identifies ``maintenance-only'' receptors as those
monitoring sites that have projected average design values above the
level of the applicable NAAQS, but that are not currently measuring
nonattainment based on the most recent official design values. In
addition, those monitoring sites with projected average design values
below the NAAQS, but with projected maximum design values above the
NAAQS are also identified as ``maintenance-only'' receptors, even if
they are currently measuring nonattainment based on the most recent
official design values.
3. Step 2 of the 4-Step Interstate Transport Framework
In Step 2, EPA quantifies the contribution of each upwind state to
each receptor in the 2023 analytic year. The contribution metric used
in Step 2 is defined as the average impact from each State to each
receptor on the days with the highest ozone concentrations at the
receptor based on the 2023 modeling. If a State's contribution value
does not equal or exceed the threshold of 1 percent of the NAAQS (i.e.,
0.70 ppb for the 2015 8-hour ozone NAAQS), the upwind state is not
``linked'' to a downwind air quality problem, and EPA, therefore,
concludes that the State does not significantly contribute to
nonattainment or interfere with maintenance of the NAAQS in the
downwind states. However, if a State's contribution equals or exceeds
the 1 percent threshold, the State's emissions are further evaluated in
Step 3, considering both air quality and cost as part of a multi-factor
analysis, to determine what, if any, emissions might be deemed
``significant'' and, thus, must be eliminated under CAA section
110(a)(2)(D)(i)(I).
EPA is proposing to rely in the first instance on the 1 percent
threshold for the purpose of evaluating a State's contribution to
nonattainment or maintenance of the 2015 8-hour ozone NAAQS (i.e., 0.70
ppb) at downwind receptors. This is consistent with the Step 2 approach
that EPA applied in CSAPR for the 1997 ozone NAAQS, which has
subsequently been applied in the CSAPR Update when evaluating
interstate transport obligations for the 2008 ozone NAAQS. EPA
continues to find 1 percent to be an appropriate threshold. For ozone,
as EPA found in CAIR, CSAPR, and the CSAPR Update, a portion of the
nonattainment problems from anthropogenic sources in the U.S. results
from the combined impact of relatively small contributions from many
upwind states, along with contributions from in-state sources and, in
some cases, substantially larger contributions from a subset of
particular upwind states. EPA's analysis shows that much of the ozone
transport problem being analyzed in this proposed rulemaking is the
result of the collective impacts of contributions from many upwind
states. Therefore, application of a consistent contribution threshold
is necessary to identify those upwind states that should have
responsibility for addressing their contribution to the downwind
nonattainment and maintenance problems to which they collectively
contribute. Continuing to use 1 percent of the NAAQS as the screening
metric to evaluate collective contribution from many upwind states also
allows EPA (and states) to apply a consistent framework to evaluate
interstate emissions transport under the interstate transport provision
from one NAAQS to the next. See 81 FR at 74518, October 26, 2016; see
also 86 FR at 23085, April 30, 2021 (reviewing and explaining rationale
from CSAPR, 76 FR at 48237-38, August 8, 2011, for selection of 1
percent threshold).
The following describes EPA's experience with alternative Step 2
thresholds. EPA's August 2018 memorandum recognized that in certain
circumstances, a State may be able to establish that an alternative
contribution threshold of 1 ppb is justifiable. Where a State relies on
this alternative threshold, and where that State determined that it was
not linked at Step 2 using the alternative threshold, EPA will evaluate
whether the State provided a technically sound assessment of the
appropriateness of using this alternative threshold based on the facts
and circumstances underlying its application in the particular SIP
submission.
EPA here shares further evaluation of its experience since the
issuance of the August 2018 memorandum regarding use of alternative
thresholds at Step 2. This experience leads the Agency to now believe
it may not be appropriate to continue to attempt to recognize
alternative contribution thresholds at Step 2. The August 2018
memorandum stated that ``it may be reasonable and appropriate'' for
states to rely on an alternative threshold of 1 ppb at Step 2.\30\ (The
memorandum also indicated that any higher alternative threshold, such
as 2 ppb, would likely not be appropriate.) However, EPA also provided
that ``air agencies should consider whether the recommendations in this
guidance are appropriate for each situation.'' Following receipt and
review of 49 good neighbor SIP submittals for the 2015 8-hour ozone
NAAQS, EPA's experience has been that nearly every State that attempted
to rely on a 1 ppb threshold did not provide sufficient
[[Page 64418]]
information and analysis to support a determination that an alternative
threshold was reasonable or appropriate for that State.
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\30\ See August 2018 memorandum at 4.
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For instance, in nearly all submittals, the states did not provide
EPA with analysis specific to their State or the receptors to which its
emissions are potentially linked. In one case, the proposed approval of
Iowa's SIP submittal, EPA expended its own resources to attempt to
supplement the information submitted by the State, in order to more
thoroughly evaluate the state-specific circumstances that could support
approval.\31\ It was at EPA's sole discretion to perform this analysis
in support of the State's submittal, and the Agency is not obligated to
conduct supplemental analysis to fill the gaps whenever it believes a
State's analysis is insufficient. The Agency no longer intends to
undertake supplemental analysis of SIP submittals with respect to
alternative thresholds at Step 2 for purposes of the 2015 8-hour ozone
NAAQS.
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\31\ Air Plan Approval; Iowa; Infrastructure State
Implementation Plan Requirements for the 2015 Ozone National Ambient
Air Quality Standard, 85 FR 12232 (March 2, 2020). The Agency
received adverse comment on this proposed approval and has
subsequently formally withdrawn the proposed approval. See 87 FR
9477 (February 22, 2022).
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Furthermore, EPA's experience since 2018 is that allowing for
alternative Step 2 thresholds may be impractical or otherwise
inadvisable for a number of additional policy reasons. For a regional
air pollutant such as ozone, consistency in requirements and
expectations across all states is essential. Based on its review of
submittals to-date and after further consideration of the policy
implications of attempting to recognize an alternative Step 2 threshold
for certain states, the Agency now believes the attempted use of
different thresholds at Step 2 with respect to the 2015 8-hour ozone
NAAQS raises substantial policy consistency and practical
implementation concerns.\32\ The availability of different thresholds
at Step 2 has the potential to result in inconsistent application of
good neighbor obligations based solely on the strength of a State's
implementation plan submittal at Step 2 of the 4-step interstate
transport framework. From the perspective of ensuring effective
regional implementation of good neighbor obligations, the more
important analysis is the evaluation of the emissions reductions
needed, if any, to address a State's significant contribution after
consideration of a multifactor analysis at Step 3, including a detailed
evaluation that considers air quality factors and cost. Where
alternative thresholds for purposes of Step 2 may be ``similar'' in
terms of capturing the relative amount of upwind contribution (as
described in the August 2018 memorandum), nonetheless, use of an
alternative threshold would allow certain states to avoid further
evaluation of potential emission controls while other states must
proceed to a Step 3 analysis. This can create significant equity and
consistency problems among states.
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\32\ EPA notes that Congress has placed on EPA a general
obligation to ensure the requirements of the CAA are implemented
consistently across states and regions. See CAA section 301(a)(2).
Where the management and regulation of interstate pollution levels
spanning many states is at stake, consistency in application of CAA
requirements is paramount.
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Further, it is not clear that national ozone transport policy is
best served by allowing for less stringent thresholds at Step 2. EPA
recognized in the August 2018 memorandum that there was some similarity
in the amount of total upwind contribution captured (on a nationwide
basis) between 1 percent and 1 ppb. However, EPA notes that while this
may be true in some sense, that is hardly a compelling basis to move to
a 1 ppb threshold. Indeed, the 1 ppb threshold has the disadvantage of
losing a certain amount of total upwind contribution for further
evaluation at Step 3 (e.g., roughly 7 percent of total upwind state
contribution was lost according to the modeling underlying the August
2018 memorandum; \33\ in EPA's updated modeling, the amount lost is 5
percent). Considering the core statutory objective of ensuring
elimination of all significant contribution to nonattainment or
interference of the NAAQS in other states and the broad, regional
nature of the collective contribution problem with respect to ozone,
there does not appear to be a compelling policy imperative in allowing
some states to use a 1 ppb threshold while others rely on a 1 percent
of the NAAQS threshold.
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\33\ See August 2018 memorandum at 4.
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Consistency with past interstate transport actions such as CSAPR,
and the CSAPR Update and Revised CSAPR Update rulemakings (which used a
Step 2 threshold of 1 percent of the NAAQS for two less stringent ozone
NAAQS), is also important. Continuing to use a 1 percent of NAAQS
approach ensures that as the NAAQS are revised and made more stringent,
an appropriate increase in stringency at Step 2 occurs, so as to ensure
an appropriately larger amount of total upwind-state contribution is
captured for purposes of fully addressing interstate transport. See 76
FR 48208, 48237-38, August 8, 2011.
Therefore, notwithstanding the August 2018 memorandum's recognition
of the potential viability of alternative Step 2 thresholds, and in
particular, a potentially applicable 1 ppb threshold, EPA's experience
since the issuance of that memorandum has revealed substantial
programmatic and policy difficulties in attempting to implement this
approach. As discussed further below, the basis for disapproval of
Alabama's SIP submission with respect to the Step 2 analysis is, in the
Agency's view, warranted even under the terms of the August 2018
memorandum.
4. Step 3 of the 4-Step Interstate Transport Framework
Consistent with EPA's longstanding approach to eliminating
significant contribution or interference with maintenance, at Step 3,
states linked at Steps 1 and 2 are generally expected to prepare a
multifactor assessment of potential emissions controls. EPA's analysis
at Step 3 in prior Federal actions addressing interstate transport
requirements has primarily focused on an evaluation of cost-
effectiveness of potential emissions controls (on a marginal cost-per-
ton basis), the total emissions reductions that may be achieved by
requiring such controls (if applied across all linked upwind states),
and an evaluation of the air quality impacts such emissions reductions
would have on the downwind receptors to which a State is linked; other
factors may potentially be relevant if adequately supported. In
general, where EPA's or alternative air quality and contribution
modeling establishes that a State is linked at Steps 1 and 2, it will
be insufficient at Step 3 for a State merely to point to its existing
rules requiring control measures as a basis for approval. In general,
the emissions-reducing effects of all existing emissions control
requirements are already reflected in the air quality results of the
modeling for Steps 1 and 2. If the State is shown to still be linked to
one or more downwind receptor(s), states must provide a well-documented
evaluation determining whether their emissions constitute significant
contribution or interference with maintenance by evaluating additional
available control opportunities by preparing a multifactor assessment.
While EPA has not prescribed a particular method for this assessment,
EPA expects states at a minimum to present a sufficient technical
evaluation. This would typically include information on emissions
sources, applicable control technologies, emissions reductions, costs,
cost effectiveness, and downwind air quality impacts of the estimated
reductions, before concluding that no
[[Page 64419]]
additional emissions controls should be required.\34\
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\34\ As examples of general approaches for how such an analysis
could be conducted for their sources, states could look to the CSAPR
Update, 81 FR 74504, 74539-51, October 26, 2016; CSAPR, 76 FR 48208,
48246-63, August 8, 2011; CAIR, 70 FR 25162, 25195-229; or the NOx
SIP Call, 63 FR 57356, 57399-405, October 27, 1998. See also the
Revised CSAPR Update, 86 FR 23054, 23086-23116, April 30, 2021.
Consistently across these rulemakings, EPA has developed emissions
inventories, analyzed different levels of control stringency at
different cost thresholds, and assessed resulting downwind air
quality improvements.
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5. Step 4 of the 4-Step Interstate Transport Framework
At Step 4, states (or EPA) develop permanent and federally
enforceable control strategies to achieve the emissions reductions
determined to be necessary at Step 3 to eliminate significant
contribution to nonattainment or interference with maintenance of the
NAAQS. For a State linked at Steps 1 and 2 to rely on an emissions
control measure at Step 3 to address its interstate transport
obligations, that measure must be included in the State's
implementation plan so that it is permanent and federally enforceable.
See CAA section 110(a)(2)(D) (``Each such [SIP] shall . . . contain
adequate provisions. . . .''). See also CAA section 110(a)(2)(A);
Committee for a Better Arvin v. EPA, 786 F.3d 1169, 1175-76 (9th Cir.
2015) (holding that measures relied on by a State to meet CAA
requirements must be included in the SIP).
II. Summary of Alabama's 2015 8-Hour Ozone Transport SIP Submissions
The following section provides information related to Alabama's
June 21, 2022, SIP submission addressing the interstate transport
requirements for the 2015 8-hour ozone NAAQS, as well as information
related to previous submittals for the 2015 8-hour ozone NAAQS.
A. Prior Submissions
On August 20, 2018, Alabama submitted multiple SIP revisions under
one cover letter, including an interstate transport SIP revision for
the 2015 8-hour ozone NAAQS which relied on modeling released with the
March 2018 memorandum. EPA initially proposed approval of Alabama's
interstate transport SIP revision for the 2015 8-hour ozone NAAQS,
based on the modeling provided in the March 2018 memorandum. See 84 FR
71854, 71859 (December 30, 2019). When EPA completed updating the
modeling of 2023 in 2020, using a 2016-based emissions modeling
platform (2016v1), it became evident that Alabama was projected to be
linked above 1 percent of the NAAQS to downwind nonattainment and
maintenance receptors (see footnote 47 of this document).
As a result, EPA deferred acting on Alabama's interstate transport
SIP submittal when EPA published a supplemental proposal in 2021 to
approve four other southeastern states' good neighbor SIP submissions
using the updated 2023 modeling. See 86 FR 37942, 37943 (July 19,
2021). The next update to the 2023 modeling used an updated 2016-based
emissions modeling platform (2016v2), and it confirms the prior 2016-
based modeling of 2023 in that it continues to show Alabama is linked
to at least one downwind nonattainment or maintenance receptor above 1
percent of the NAAQS.
Subsequently, EPA proposed to disapprove Alabama's August 20, 2018,
interstate transport SIP submission on February 22, 2022, based in part
on the updated modeling using the 2016v2 emissions modeling platform,
discussed in Section I.C. of this document. See 87 FR 9545, 9562.
Additionally, EPA withdrew its 2019 proposed approval on Alabama's
August 20, 2018, interstate transport SIP revision as published on
December 30, 2019. See 84 FR 71854.
Subsequently, on April 21, 2022, ADEM withdrew the August 20, 2018,
submission that EPA had proposed to disapprove.\35\ On the same day,
April 21, 2022, ADEM provided a replacement submission for its August
20, 2018, submission addressing the interstate requirements for the
2015 ozone standards. Based on EPA's review of that new submission and
the completeness criteria for SIPs (40 CFR part 51, Appendix V), EPA
determined Alabama's April 21, 2022, submission was incomplete and
provided that determination to Alabama in a letter dated June 14,
2022.\36\ On June 15, 2022, EPA signed a document (published in the
Federal Register on June 22, 2022), finding that the State failed to
submit a complete submission addressing the 2015 ozone interstate
transport requirements through the transmission of Alabama's April 21,
2022, submittal. See 87 FR 37235.
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\35\ ADEM's April 21, 2022, withdrawal letter is provided in
Docket ID No. EPA-R04-OAR-2021-0841.
\36\ See EPA's June 14, 2022, incompleteness letter to ADEM in
Docket ID No. EPA-R04-OAR-2021-0841.
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B. Current Submission
On June 21, 2022, Alabama submitted a SIP revision addressing the
CAA section 110(a)(2)(D)(i)(I) good neighbor interstate transport
requirements for the 2015 8-hour ozone NAAQS. The SIP submission
purported to address the issues identified in the EPA's June 15, 2022,
incompleteness letter. The June 21, 2022, SIP submission provides
Alabama's evaluation of its impact on downwind states and concludes
that emissions from the State will not significantly contribute to
nonattainment or interfere with maintenance of the 2015 8-hour ozone
NAAQS in other states in 2023.
Alabama's June 21, 2022, submittal identifies existing SIP-approved
regulations and Federal programs \37\ that regulate ozone precursor
emissions from sources in the State, including the CSAPR trading
programs, which, according to Alabama, are the reason for the decline
of ozone precursor emissions in the State.\38\ Alabama's submission
acknowledges that CSAPR does not address interstate transport for the
2015 ozone standard but does provide residual NO<INF>X</INF> emission
reductions and notes that the CSAPR NO<INF>X</INF> ozone season trading
programs were adopted into the Alabama SIP on August 31, 2016, and
October 6, 2017.\39\ Alabama notes that the implementation of the
existing SIP-approved regulations and Federal programs provide for a
decline in ozone precursor emissions in the State. Alabama also states
there are no nonattainment or maintenance areas in Alabama and that
ozone precursor emissions would continue to decline in the State.
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\37\ Alabama's submission cites the following SIP approved
regulations: Administrative Code Rule 335-3-6, ``Control of Organic
Emissions'', 335-3-8, ``Control of Nitrogen Oxides Emissions'', 335-
3-14-.01, ``General Provisions'', 335-3-14-.02, ``Permit
Procedures'', 335-3-14-.03, ``Standards for Granting Permits'', 335-
3-14-.04, ``Air Permits Authorizing Construction in Clean Air Areas
[Prevention of Significant Deterioration Permitting (PSD)]'' and
335-3-14-.05, ``Air Permits Authorizing Construction in or Near
Nonattainment Areas.'' Alabama's Submission cites the following
Federal Rules: EPA's Tier 1 and 2 mobile source rules, EPA's nonroad
Diesel Rule, EPA's 2007 Heavy-duty Highway Rule, New Source
Performance Standards, National Emission Standards for Hazardous Air
Pollutants, and CSAPR.
\38\ Alabama's SIP references CSAPR, which covers the
NO<INF>X</INF> ozone season trading program established in EPA's
2011 CSAPR, 76 FR 48208 (August 8, 2011). In addition, Alabama's
submittal includes a reference to the SIP-approved rules that
adopted the CSAPR Update, 81 FR 74504 (October 26, 2016). See 82 FR
46674 (October 6, 2017).
\39\ See 81 FR 59869 (August 31, 2016), 82 FR 46674 (October 6,
2017) (adopting Alabama Administrative Code Rule 335-3-8, ''Control
of Nitrogen Oxides Emissions'' and adopting revisions to Rule 335-3-
8 into the SIP).
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[[Page 64420]]
The State's submission also includes a weight of evidence (WOE)
analysis \40\ that evaluates data related to Alabama in EPA's 2016v2
emissions modeling platform.\41\ The WOE analysis begins by
acknowledging that EPA's January 2022 2016v2 modeling platform results
indicate that Alabama is predicted to contribute above 0.70 ppb to one
predicted nonattainment monitor and one predicted maintenance monitor.
The WOE analysis then evaluates meteorological influence, Alabama
emission sources, model performance, and the ``significance threshold''
(in fact, what EPA would refer to as the ``contribution threshold'').
EPA summarizes the State's qualitative and quantitative analysis below.
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\40\ See Attachment A of Alabama's June 21, 2022, 2015 ozone
transport SIP submission provided in Docket ID No. EPA-R04-OAR-2021-
0841.
\41\ EPA notes that Alabama's SIP submission is not organized
around EPA's 4-Step Framework for assessing good neighbor
obligations, but EPA summarizes the submission using that framework
for clarity here.
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Based on this information, Alabama's submission states that
emissions from Alabama do not contribute above 1 ppb of the 2015 8-hour
ozone NAAQS at any projected nonattainment or maintenance receptors at
Step 2 of the 4-Step Framework (using EPA's approach to defining such
receptors). ADEM then concludes that emissions from Alabama sources
will not significantly contribute to nonattainment or interfere with
maintenance of the 2015 8-hour ozone NAAQS in any other State.
1. Alabama's Weight of Evidence Analysis
Alabama's June 21, 2022, submittal includes a WOE analysis of the
data related to Alabama in EPA's 2016v2 modeling platform. The analysis
begins by acknowledging that EPA's modeling shows sources in Alabama
contributing greater than one percent of the NAAQS to downwind
nonattainment and maintenance receptors at Harris County and Denton
County, Texas, respectively, in 2023. Alabama states that EPA's 2016v2
modeling does not establish that Alabama is linked to any receptors in
2023, and the modeling does not identify any downwind linkages greater
than one percent in 2026. Alabama states that based on an assessment of
all available information and weighing the data by considering the
relevance and quality of the information through both qualitative and
quantitative analyses, emissions from Alabama do not significantly
contribute to downwind nonattainment or maintenance receptors for the
2015 8-hr ozone NAAQS. Below is a summary of Alabama's WOE analysis.
a. Identifying Maintenance Receptors--Step 1 of 4-Step Framework
Alabama's analysis suggests that determining significance should be
different for nonattainment and maintenance receptors and cites EPA's
October 2018 memorandum, which discusses alternative methods to
identifying maintenance receptors. Alabama indicates that an approach
for identification of maintenance receptors could include relying on
the continued decline of emissions in an area out to the attainment
date of the receptor. Applying this approach, Alabama asserts that it
should be excluded as a significant contributor to the Denton County,
Texas receptor because the modeled average concentration is 70.4 ppb
and maximum concentration is 72.2 ppb in 2023, and there will be
continuing emissions reductions at Alabama point sources, which Alabama
asserts are the only emissions it can reasonably control.
b. Alternative Significant Contribution Threshold--Step 2 of 4-Step
Framework
Alabama points to EPA's 2018 March and August 2018 memoranda and
states that the two documents provide for flexibility in determining
significance and support Alabama's argument establishing 1 ppb as a
sufficient threshold. Alabama goes on to assert that there is precedent
for setting a 1 ppb significance threshold for ozone in the PSD
permitting program and that since the purpose of the PSD permitting
program is to show compliance with the NAAQS, 1 ppb should be
consistent for determining future year significance against the ozone
NAAQS.
c. Modeling Performance--Step 2 of 4-Step Framework
Alabama asserts that a threshold of 0.71 ppb is within the margin
of error for the model. Alabama goes on to reference EPA's TSD for the
2016v2 platform modeling and suggests that, considering that there is
bias and error in the modeling (ranging from +/-2.9 to 6.1 ppb in the
southeast and +/-7.8 to 9.1 ppb in the south, according to Alabama),
the 0.70 ppb threshold could not accurately represent ``with true
accuracy'' impacts hundreds of miles from a downwind receptor.
d. Meteorological Influence and Back Trajectories--Step 2 of 4-Step
Framework
Alabama's WOE analysis includes Hybrid Single Particle Lagrangian
Integrated Trajectory (HYSPLIT) model back trajectory analysis to the
Denton County and Harris County, Texas, receptors.\42\ This HYSPLIT
analysis evaluates back trajectories of 72 hours in time for the 2018-
2020 3-year period.\43\ Alabama claims that during the period 2018-
2020, the HYSPLIT model showed that, for Harris County, air moved over
Alabama on only four of 31 exceedance days, and for Denton County, air
moved over Alabama on only four of 26 exceedance days. Alabama asserts
that of those days, weather patterns do not indicate that upper-level
transport of emissions from Alabama would have contributed to
concentrations at those monitors. Alabama also asserts that on days
when wind flow suggests that Alabama could have contributed to
exceedances at the Texas monitors, the air quality index (AQI)
indicated good or moderate air quality in Alabama. Alabama thus
concludes that, based on the back trajectories, monitored exceedances
at the Texas receptors are locally driven. Alabama also notes that the
design values for the two Texas monitors have been stagnant, while
design values in Alabama continue to trend downward.
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\42\ According to Alabama, the HYSPLIT analysis were generated
using EPA's 2015 Ozone Designation Mapping Tool, available at
https://www.epa.gov/ozone-designations/ozone-designations-guidance-
and-
data#:~:text=The%20ozone%20designations%20mapping%20tool,for%20the%20
2015%20Ozone%20NAAQS.
\43\ See Attachment A of Alabama's June 21, 2022, SIP submission
in Docket ID No. EPA-R04-OAR-2021-0841.
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e. Alabama NO<INF>X</INF> Emission Trends--Step 3 of 4-Step Framework
Alabama reviewed their statewide NO<INF>X</INF> emissions for point
and mobile sources. Alabama indicates that the highest contributor of
NO<INF>X</INF> emissions in the State are from mobile sources but
indicated that NO<INF>X</INF> emissions from this source category have
decreased and would continue to decrease nationwide due to turnover in
the gasoline and diesel fleets and due to the rise in use of electric
vehicles. Alabama asserts that statewide NO<INF>X</INF> emissions from
point sources (EGU and non-EGU) continue to decline and asserts there
has been ``a precipitous drop in tonnage in our major source emissions
inventory.'' Alabama claims that the 2017 NEI indicates that
NO<INF>X</INF> emissions will ``continue to decline'' from point
sources and ``continue to increase'' from mobile sources. Alabama
asserts that controls on mobile sources should be evaluated first.
Lastly, the State acknowledges that the largest NO<INF>X</INF> emission
sources are in the Birmingham area (Jefferson County and Shelby
[[Page 64421]]
County) and the Mobile area (Mobile County and Escambia County) and, of
these sources, the biggest emitters are EGUs. However, Alabama asserts
that NO<INF>X</INF> emissions from EGUs have declined on the order of
80 percent and that an overwhelming majority of these EGUs are already
fully controlled.
2. ADEM's Response to Comments
Alabama received two sets of comments during their State public
comment period from Alabama Power and Southern Company (jointly
referred to as Alabama Power) and from Sierra Club.\44\ Alabama's
``Reconciliation of Comments Received'' \45\ states that Alabama
Power's comments were generally supportive of [ADEM]'s proposed plan
and included additional information which bolsters the Department's
reasoning for adopting the plan. The comments did provide some
additional information for supporting the proposed plan. Therefore, the
Department is making a modification of the proposed plan by adding the
following statement: ``It is also important to note that the 2016v2
modeling platform does not identify any significant (>1%) linkages for
Alabama in 2026.'' ADEM acknowledged that Sierra Club submitted adverse
comments opposed to the proposed plan, and stated that ``none of the
comments led ADEM to conclude that changes to the proposed plan were
necessary,'' but did not address the substance of these comments.
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\44\ See comments submitted with Alabama's June 21, 2022, 2015
ozone transport SIP package found in Docket ID No. EPA-R04-OAR-2021-
0841.
\45\ See Part C, pdf p. 76, in Alabama's June 21, 2022, SIP
submission in Docket ID No. EPA-R04-OAR-2021-0841.
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Apart from the statements noted above, the State does not
explicitly discuss Alabama Power's or Sierra Club's legal, technical,
and policy arguments. Therefore, EPA will treat Alabama's June 21,
2022, ozone transport SIP narrative and WOE analysis as not relying on
the legal, technical, or policy arguments provided in comments except
as expressly stated by Alabama.
III. EPA's Evaluation of Alabama's 2015 Ozone Interstate Transport SIP
Submission
EPA is proposing to find that Alabama's June 21, 2022, SIP
submission does not meet Alabama's obligations with respect to
prohibiting emissions that contribute significantly to nonattainment or
interfere with maintenance of the 2015 8-hour ozone NAAQS in any other
State based on EPA's evaluation of the SIP submission using the 4-step
interstate transport framework. EPA is therefore proposing to
disapprove Alabama's June 21, 2022, submission.
A. Results of EPA's Step 1 and Step 2 Modeling and Findings for Alabama
As described in Section I of this document, EPA performed updated
air quality modeling to project design values and contributions for
2023. These data were examined to determine if Alabama contributes at
or above the threshold of 1 percent of the 2015 8-hour ozone NAAQS
(0.70 ppb) to any downwind nonattainment or maintenance receptor. As
shown in Table 1, the data \46\ indicate that in 2023, emissions from
Alabama contribute greater than 1 percent of the standard to a
nonattainment receptor in Harris County, Texas (ID#: 482010055) and a
maintenance-only receptor in Denton County, Texas (ID#: 481210034).\47\
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\46\ The ozone design values and contributions at individual
monitoring sites nationwide are provided in the file
``2016v2_DVs_state_contributions.xlsx'' which is included in Docket
ID No. EPA-HQ-OAR-2021-0663.
\47\ These modeling results are consistent with the results of a
prior round of 2023 modeling using the 2016v1 emissions platform
which became available to the public in the fall of 2020 in the
Revised CSAPR Update, as noted in Section I of this document. That
modeling showed that Alabama had a maximum contribution greater than
0.70 ppb to at least one nonattainment or maintenance-only receptor
in 2023. These modeling results are included in the file ``Ozone
Design Values And Contributions Revised CSAPR Update.xlsx'' in
Docket ID No. EPA-HQ-OAR-2021-0663.
Table 1--Alabama Linkage Results Based on EPA Updated 2023 Modeling
----------------------------------------------------------------------------------------------------------------
2023 Average 2023 Maximum Alabama
Receptor ID Location Nonattainment/ design value design value contribution
maintenance (ppb) (ppb) (ppb)
----------------------------------------------------------------------------------------------------------------
482010055................ Harris County, Nonattainment.... 71.0 72.0 0.88
Texas.
481210034................ Denton County, Maintenance...... 70.4 72.2 0.71
Texas.
----------------------------------------------------------------------------------------------------------------
B. Evaluation of Information Provided by Alabama Regarding Step 1
At Step 1 of the 4-step interstate transport framework, Alabama
relied on EPA's 2016v2 modeling platform to identify nonattainment and
maintenance receptors in 2023. As described in Section I.D. of this
document, EPA's 2016v2 modeling platform relies on the most recently
available and technically appropriate information. EPA proposes to rely
on this modeling to identify nonattainment and maintenance receptors in
2023. That information establishes that there are two receptors to
which Alabama is projected to be linked in 2023.
1. Evaluation of Alabama's Approach to Maintenance Receptors
Based on this information, the State attempted to apply an
alternative definition of a maintenance receptor utilizing the
potential concepts included in the October 2018 memorandum. This
memorandum included a description of the approach that EPA has
historically used to identify maintenance-only receptors \48\ and
identified potential alternative ways to define maintenance receptors
based on certain criteria suggested in the memorandum, including an
evaluation of meteorology conducive to ozone formation, review of ozone
monitored concentrations, and precursor emissions trends.
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\48\ See Section I.D., of this document for a discussion of
EPA's approach to identify maintenance receptors.
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EPA recognized in the October 2018 memorandum that states could
potentially, with sufficient justification, establish an approach for
addressing maintenance receptors that gives independent significance to
prong 2 in some manner different than EPA's approach. In addition, the
October 2018 memorandum identified two potential concepts that states
could use to identify maintenance receptors: (1) States may, in some
cases, eliminate a site as a maintenance receptor if the site is
currently measuring clean data, or (2) in some cases, use a design
value from the base period that is not the maximum design value. For
either of these alternative methods, to adequately consider areas
struggling to meet the NAAQS, EPA also indicated that it
[[Page 64422]]
expects states to include with their SIP demonstration a technical
analysis showing that the following three criteria are met:
<bullet> Meteorological conditions in the area of the monitoring
site were conducive to ozone formation during the period of clean data
or during the alternative base period design value used for
projections; \49\
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\49\ See Attachment A of EPA's October 2018 memorandum to assess
whether particular summers had ozone-conducive or unconducive
meteorology within the 10-year period 2008 through 2017. The
memorandum states that meteorological conditions including
temperature, humidity, winds, solar radiation, and vertical mixing
affect the formation and transport of ambient ozone concentrations.
The memorandum suggests generally that above-average temperatures
are an indication that meteorology is conducive to ozone formation
and below average temperatures indicate that conditions are
unconducive to ozone formation. Within a particular summer season,
the degree that meteorology is conducive for ozone formation can
vary from region to region and fluctuate with time within a
particular region.
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<bullet> Ozone concentrations have been trending downward at the
site since 2011 (and ozone precursor emissions of NO<INF>X</INF> and
VOC have also decreased); and
<bullet> Emissions are expected to continue to decline in the
upwind and downwind states out to the attainment date of the receptor.
EPA's October 2018 memorandum explained that the intent of the
analysis is to demonstrate that monitoring sites that would be
identified as maintenance receptors under EPA's historical approach
could nonetheless be shown to be very unlikely to violate the NAAQS in
the future analytic year.
However, Alabama's WOE analysis provides limited supporting
information to show that the Denton County, Texas, maintenance receptor
is unlikely to violate the NAAQS in 2023. Regarding the first
criterion, ADEM does not identify any periods of clean data for the
Denton County, Texas, maintenance receptor for which meteorological
conditions could be assessed to determine whether particular summers
had ozone-conducive or unconducive meteorology during a period of clean
data. Alabama also does not attempt to discuss or consider how
meteorological factors identified in the October 2018 memorandum (such
as temperature, humidity, solar radiation, vertical mixing, and/or
other meteorological indicators such as cooling-degree days) confirm
whether conditions affecting the monitor may have been conducive to
ozone formation, nor did ADEM identify a specific calendar timeframe.
With respect to the second criterion, ADEM's submission does not
establish that there is a downward ozone design value trend for the
Denton monitor. Furthermore, EPA does not observe any consistent
downward trend for the 3-year average of the 4th highest daily maximum
8-hour ozone concentration at the Denton County receptor from 2011
through 2021.\50\ The available information in the submittal (see pdf
p. 145) shows that DVs at this receptor are flat or increasing.
---------------------------------------------------------------------------
\50\ See measured 2015 8-hour ozone design values from Table 6--
``Monitor Trends'' in the file
O3_DesignValues_2019_2021_FINAL_05_25_22 at <a href="https://www.epa.gov/air-trends/air-quality-design-values">https://www.epa.gov/air-trends/air-quality-design-values</a>.
---------------------------------------------------------------------------
With respect to the third criterion, ADEM alludes to expected
emissions reductions from fully controlled EGUs in Alabama for
NO<INF>X</INF> for point sources, fleet turnover of gas and diesel
mobile sources in coming years, a rise in the use of electric vehicles,
and existing SIP-approved and Federal regulations of point sources and
mobile sources. However, the State does not quantify the NO<INF>X</INF>
emission reduction potential of existing controlled EGUs, fleet
turnover of mobile sources, increase in electric vehicles, or current
regulations for point and mobile sources such that their downwind
contribution is addressed.\51\ Additionally, while the State does make
summary statements, Alabama does not provide details to demonstrate why
or how NO<INF>X</INF> emissions from sources in Alabama or Texas are
expected to continue to decline through the next attainment date for
the Dallas-Fort Worth-Arlington, Texas, area.
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\51\ EPA accounts for, and projects whether, receptors may have
trouble attaining the NAAQS through the use of projected maximum
design values in the relevant analytic year. Further, EPA's modeling
of the relevant analytic year also already accounts for projected
emissions trends of the upwind state (among others) and may (and
often does) identify a linkage to areas that may struggle to
maintain the NAAQS despite an overall declining emissions trend.
This is not surprising. First, most maintenance receptors in EPA's
projections are currently measuring nonattainment, meaning that,
despite projecting improved air quality in the future analytic year,
the receptor location is currently, and may continue to be, near the
level of the NAAQS. Second, ozone levels are influenced by
meteorological variability and thus high ozone levels may persist
despite declining emissions as a result of recurring or worsening
ozone-conducive atmospheric conditions (e.g., higher temperatures).
---------------------------------------------------------------------------
Alabama's analysis supporting the use of an alternative definition
for a maintenance receptor is insufficient. Furthermore, EPA does not
observe any consistent downward trend for the 3-year average of the 4th
highest daily maximum 8-hour ozone concentration at the Denton County
receptor from 2011 through 2021. Thus, under the terms of the October
2018 memorandum, Alabama's SIP submission does not adequately establish
a basis for eliminating the Denton County monitoring site as a
maintenance receptor.
C. Evaluation of Information Provided by Alabama Regarding Step 2
In this action, EPA proposes to rely on the Agency's most recently
available modeling to identify upwind contributions and ``linkages'' to
downwind air quality problems in 2023 using a threshold of 1 percent of
the NAAQS. See Section I.D of this document for a general explanation
of the use of 1 percent of the NAAQS. EPA evaluates Alabama's use of an
alternative threshold of 1 ppb in Section III.C.3. of this document
below. As shown in Table 1 of this document, updated EPA modeling
identifies Alabama's maximum contribution to downwind nonattainment and
maintenance receptors as greater than 1 percent of the standard (i.e.,
0.70 ppb). Therefore, the State is linked to a downwind air quality
problem at Steps 1 and 2 in 2023.\52\ Alabama acknowledges EPA's 2016v2
updated modeling platform's projected contributions to nonattainment
and maintenance receptors in 2023, but concludes Alabama does not
contribute above 1 ppb of the NAAQS at any monitors that are projected
to be in nonattainment or maintenance, and argues that is an acceptable
threshold to use. EPA proposes to disapprove Alabama's SIP submission
based on EPA's finding that the State is linked to receptors in 2023
using the one percent threshold, and the State's arguments in support
of using a 1 ppb threshold are not approvable.
---------------------------------------------------------------------------
\52\ Alabama states in its submission that EPA's 2016v2 modeling
platform does not identify any significant linkages for Alabama to
downwind receptors, greater than one percent of ozone NAAQS in 2026.
EPA agrees that this is what the 2016v2 modeling shows; however,
that does not diminish the conclusion that a linkage does exist in
the relevant analytic year for the next attainment date, which is
2023.
---------------------------------------------------------------------------
1. Evaluation of Alabama's Analysis of 2016v2 Modeling Platform
Performance
The Alabama SIP submission states that EPA's 2016v2 modeling
platform cannot account for a 0.71 ppb threshold which Alabama claims
is within the margin of error for the model, asserting that when
considering the magnitude of the so-called margin of error, the small
threshold could not accurately account for impacts hundreds of miles
away to a downwind receptor. (EPA interprets these statements as
relating to the one-percent threshold, which is 0.70 ppb for the 2015
ozone NAAQS.) Alabama's WOE analysis cites EPA's Modeling TSD, ``Air
Quality Modeling for the 2016v2 Emissions Platform Technical
[[Page 64423]]
Support Document: Appendix A,'' which Alabama claims identifies that
there is bias and error in the modeling ranging from <plus-minus>2.9 to
6.1 ppb in the Southeast region (which includes Alabama, Georgia,
Florida, South Carolina, North Carolina, and Virginia) and <plus-
minus>7.8 to 9.1 ppb in the South region (which includes Texas,
Louisiana, Mississippi, Arkansas, Oklahoma, and Kansas).
Alabama misunderstands the meaning of the terms and figures
provided by EPA in this TSD and conflates two different concepts: model
bias and model error. For days with maximum daily average 8-hour (MDA8)
concentrations greater than or equal to 60 ppb, EPA's TSD found average
bias was -2.9 ppb in the Southeast region and -7.8 ppb in the South
region, whereas average error was 6.1 ppb in the Southeast and 9.1 ppb
in the South. Model bias can be positive or negative, but model error
is always a positive value. Thus, EPA's TSD identifies model bias of -
2.9 and -7.8 ppb and model error of 6.1 ppb and 9.1 ppb in the
Southeast and South regions, respectively. In other words, EPA found
that the model tended to under-predict actual ozone levels at
monitoring sites in these regions. Note that EPA evaluates linkages
using the multi-day average contribution from each upwind state to each
downwind receptor based on daily contributions from the State to the
receptor for the days with the highest model-predicted future year
concentrations. The modeled data are intended to represent future year
ozone concentrations and contributions associated with ozone conducive
meteorological conditions and transport patterns typical for high ozone
episodes at the receptor. In this regard, base year model performance
statistics that are derived from measured and modeled data strictly
paired in space and time are not useful as the sole measure for gauging
the ability of the model to adequately estimate future year average
contributions on the order of 0.70 ppb on high ozone days
representative of the magnitude of measured concentrations at the
receptor. Further, with respect to model ``error,'' as explained in
EPA's TSD, the performance of our modeling is within the generally
accepted performance parameters for modeling of this type.\53\ Finally,
while EPA concedes that its modeling cannot perfectly project air
quality levels and contributions in a future year, EPA has successfully
applied its CAMx modeling platform across many CAA regulatory actions
and continues to find the modeling reliable for purposes of the Step 1
and Step 2 analyses of the 4-Step Framework. If EPA were unable to draw
reasonable conclusions from the results of its future-year modeling
projections at ppb intervals smaller than 6.1 or 9.1 ppb, it would
effectively mean the Agency is incapable of making virtually any
conclusions with respect to interstate ozone transport, which would
frustrate the purposes of the Act. EPA must implement its statutory
mandates in the face of uncertainty unless that uncertainty is ``so
profound that it precludes . . . reasoned judgment.'' Wisconsin, 938
F.3d at 319; see also EME Homer City v. EPA, 795 F.3d 118, 135 (D.C.
Cir. 2015) (``We will not invalidate EPA's predictions solely because
there might be discrepancies between those predictions and the real
world.''). We do not believe the modeling, our evaluation of that
modeling, or the record overall prevents the Agency from rendering a
reasonable judgment that Alabama contributes above 1 percent of the
NAAQS at the two receptors in Texas in 2023 based on the 2016v2
modeling. See Sierra Club v. EPA, 939 F.3d 649, 686-87 (5th Cir. 2019)
(upholding EPA's modeling in the face of complaints regarding an
alleged ``margin of error,'' noting challengers face a ``considerable
burden'' in overcoming a ``presumption of regularity'' afforded ``the
EPA's choice of analytical methodology'') (citing BCCA Appeal Grp. v.
EPA, 355 F.3d 817, 832 (5th Cir. 2003)).
---------------------------------------------------------------------------
\53\ See Air Quality Modeling Technical Support Document,
Appendix A, in Docket ID No. EPA-HQ-OAR-2021-0663.
---------------------------------------------------------------------------
2. Evaluation of Alabama's Consideration of an Alternative Significant
Contribution Threshold
In their June 21, 2022, SIP submission, Alabama states that EPA's
March and August 2018 memoranda allow for flexibility to determine
significance and establish a significance level of 1 ppb as a
sufficient threshold. Alabama then determines that the threshold should
be set at 1 ppb to support their conclusion that Alabama would not be
linked to any projected downwind nonattainment or maintenance
receptors. See Section II.B of this document. Alabama does not argue in
its submittal that 1 percent of the NAAQS would not be an appropriate
threshold for upwind contribution to the Texas receptors. Alabama's
submission instead asserts that the State is not linked at Step 2
because the March and August 2018 memoranda identified a 1 ppb
threshold as a sufficient threshold.
EPA proposes to find that Alabama's reliance on an alternative
contribution threshold of 1 ppb at Step 2 is not approvable. EPA
acknowledges that the August 2018 memorandum generally recognized that
a 1 ppb threshold may be appropriate for states to use, but also made
clear that this guidance would be applied under the facts and
circumstances of each SIP submittal.\54\ However, Alabama did not
provide a technical analysis to sufficiently justify use of an
alternative 1 ppb threshold at the linked, downwind monitors. Alabama's
SIP submission simply states that ADEM agrees with EPA's rationale set
out in the August 2018 memorandum that the amount of upwind collective
contribution captured with the 1 percent and 1 ppb thresholds was
generally comparable. But the guidance anticipated that states would
evaluate whether the alternative threshold was appropriate under their
specific facts and circumstances, not that the use of the alternative
threshold would be automatically approvable.\55\ With respect to the
assertion that 1 ppb was generally comparable to 1 percent, Alabama
does not provide discussion or analysis containing information specific
to the State or a receptor analysis for the affected monitors, as
anticipated in the August 2018 memorandum, to evaluate whether the
alternative threshold was appropriate to apply with respect to the
monitors to which Alabama was linked. Such state-specific information
is necessary to thoroughly evaluate the state-specific circumstances
that could support approval.
---------------------------------------------------------------------------
\54\ See August 2018 memorandum at 1.
\55\ As an example of the type of analysis that EPA anticipated
states might conduct under the guidance, in one instance, EPA itself
attempted to conduct a state- and receptor-specific analysis that
could support approval of the use of a 1 ppb threshold. See Air Plan
Approval; Iowa; Infrastructure State Implementation Plan
Requirements for the 2015 Ozone National Ambient Air Quality
Standard, 85 FR 12232 (March 2, 2020). The Agency received adverse
comment on this proposed approval and has subsequently formally
withdrawn the proposed approval. See 87 FR 9477 (February 22, 2022).
---------------------------------------------------------------------------
Alabama's SIP also claims there is precedent for setting a 1 ppb
``significance'' threshold for ozone in the PSD permitting program.
However, the State's implementation plan submission does not elaborate
on this assertion. EPA has provided guidance identifying a 1.0 ppb 8-
hour ozone NAAQS significant impact level (SIL) for use by PSD
permitting authorities.\56\ The PSD program applies in areas that are
designated attainment or
[[Page 64424]]
unclassifiable for the NAAQS,\57\ and a SIL is a screening tool used to
determine whether a PSD permit applicant is required to perform a
comprehensive, cumulative modeling analysis that involves evaluating
the impact of the new facility in addition to impacts from other
existing sources in the area. Good neighbor analysis for the ozone
NAAQS, by contrast, addresses the degree of significant contribution to
nonattainment and interference with maintenance of the NAAQS resulting
at downwind receptors from the collective contribution of many upwind
sources. This fundamental difference in purpose between SIL thresholds
and the interstate transport contribution threshold used under CAA
section 110(a)(2)(D)(i)(I) has been recognized since at least the 2005
Clean Air Interstate Rule.\58\ Further, it is not correct to conflate
the use of the term ``significance,'' as used in the SIL guidance, with
the term ``contribution,'' which is the appliable statutory term that
EPA applies at Step 2 of the 4-step interstate transport framework.
(``Significance'' within the 4-step framework is evaluated at Step 3
through a multifactor analysis for those states that are determined to
``contribute'' to downwind receptors at Steps 1 and 2. See Section
I.D.4. of this document). Given the fundamentally different statutory
objectives and context, EPA disagrees with Alabama's contention that
the SIL guidance is applicable in the good neighbor context.
---------------------------------------------------------------------------
\56\ See Guidance on Significant Impact Levels for Ozone and
Fine Particles in the Prevention of Significant Deterioration
Permitting Program, April 17, 2018, available at <a href="https://www.epa.gov/sites/default/files/2018-04/documents/sils_policy_guidance_document_final_signed_4-17-18.pdf">https://www.epa.gov/sites/default/files/2018-04/documents/sils_policy_guidance_document_final_signed_4-17-18.pdf</a>.
\57\ Pursuant to section 107(d) of the CAA, EPA must designate
areas as either ``nonattainment,'' ``attainment,'' or
``unclassifiable.'' During initial designations for the ozone NAAQS,
EPA has designated most areas that do not meet the definition of
nonattainment as ``unclassifiable/attainment'' or ``attainment/
unclassifiable.'' This category includes areas that have air quality
monitoring data meeting the NAAQS and areas that do not have
monitors but for which EPA has no evidence that the areas may be
violating the NAAQS or contributing to a nearby violation.
\58\ See 70 FR at 25191, May 12, 2005 (``The implication of the
[SIL] thresholds cited by the commenters is not that single-source
contributions below these levels indicate the absence of a
contribution. Rather, these thresholds address whether further, more
comprehensive, multi-source review or analysis of appropriate
control technology and emissions offsets are required of the source.
A source with estimated impacts below these levels is recognized as
still affecting the airshed and is subject to meeting applicable
control requirements, including best available control technology,
designed to moderate the source's impact on air quality.'')
(emphasis added).
---------------------------------------------------------------------------
Given the absence of technical analysis to support the use of a 1
ppb threshold under the facts and circumstances relevant to Alabama and
its linked receptors, EPA proposes that the use of 1 ppb as a
contribution threshold is not approvable. As discussed in Section
I.D.3.of this document above, EPA no longer intends to dedicate
resources to supplement State submittals with insufficient analysis in
this regard and also has identified other policy and programmatic
concerns with attempting to recognize alternative thresholds at Step 2
or otherwise deviating from its historical, consistent practice of
applying a threshold of 1 percent of the NAAQS. EPA views the 1 percent
of NAAQS threshold as the more appropriate threshold, as explained
elsewhere in this document.\59\ EPA's experience with the alternative
Step 2 thresholds is further discussed in Section I.D.3. of this
document.
---------------------------------------------------------------------------
\59\ EPA notes the explanation for how the 1 percent
contribution threshold was originally derived is available in the
2011 CSAPR rulemaking. See 76 FR 48208, 48237-38, August 8, 2011.
Further, in the CSAPR Update, EPA re-analyzed the threshold for
purposes of the 2008 ozone NAAQS and determined it was appropriate
to continue to apply this threshold. See 81 FR 74504, 74518-19,
October 26, 2016.
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3. Evaluation of Alabama's Analysis of Meteorological Influence and
HYSPLIT Back Trajectories
Alabama's WOE analysis includes a HYSPLIT model back trajectory
analysis to the Denton County and Harris County, Texas, receptors.\60\
This HYSPLIT analysis evaluates back trajectories of 72 hours in time,
for the 2018-2020 3-year period.\61\ Alabama used these HYSPLIT back
trajectories to emphasize the local nature of the ozone precursor
emissions at the two Texas receptors.\62\ However, the information
provided by Alabama is not adequate to support approval of the State's
implementation plan submittal on this basis.
---------------------------------------------------------------------------
\60\ According to Alabama, the HYSPLIT analysis were generated
using EPA's 2015 Ozone Designation Mapping Tool, available at
https://www.epa.gov/ozone-designations/ozone-designations-guidance-
and-
data#:~:text=The%20ozone%20designations%20mapping%20tool,for%20the%20
2015%20Ozone%20NAAQS.
\61\ See Attachment A of Alabama's June 21, 2022, SIP submission
in Docket ID No. EPA-R04-OAR-2021-0841.
\62\ See id.
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Alabama asserts that on days when wind flow suggests that could
have contributed to exceedances at the Texas monitors, the AQI
indicated good or moderate air quality in Alabama. Alabama explains
that in the HYSPLIT model for Harris County, during 2018-2020, only
four of 31 exceedance days showed air that moved over Alabama, and in
Denton County, during the same period, only three of 26 exceedance days
showed air that moved over Alabama. Alabama asserts that of those days,
weather patterns do not indicate that upper-level transport of
emissions from Alabama would have contributed to concentrations at
those monitors. Alabama thus concludes that, based on the back
trajectories, monitored exceedances at the Texas receptors are locally
driven. Alabama also notes that the design values for the two Texas
monitors have been stagnant, while design values in Alabama continue to
trend downward.
As an initial matter, the images supplied by ADEM showing a map of
the south-central and southeast United States with ozone concentration
gradients on specific days do not reveal any information that would
call into question the results of EPA's photochemical grid modeling.
These images purport to show that on days when there are high ozone
levels at the receptor areas in Dallas and Houston, or in the days
preceding those high-ozone events, ozone concentrations in the State of
Alabama were relatively low. However, it has long been understood that
ozone concentrations in downwind areas are affected not by the
transport of ozone per se from upwind areas, but from ozone formed
downwind from the ozone-precursor emissions, such as NO<INF>X</INF>, in
the upwind state. Thus, it is not at all unusual that an upwind source
area could have relatively low ozone levels in the days preceding a
high ozone event at a downwind receptor area; sources and other
emissions activities in that State nonetheless may be emitting ozone-
precursor emissions in amounts sufficient to contribute ozone above one
percent of the NAAQS to the high-ozone event that occurs at the
downwind receptor.\63\
---------------------------------------------------------------------------
\63\ See Moghani, M., The effects of transport, climate, and
emissions on ozone pollution in the U.S. University of Delaware
Press, 2020. <a href="https://udspace.udel.edu/handle/19716/27961">https://udspace.udel.edu/handle/19716/27961</a>; Atkinson,
R., ``Atmospheric chemistry of VOCs and NO<INF>X</INF>. Atmospheric
Environment 34 (2000) 2063-2101; National Research Council 1991.
Rethinking the Ozone Problem in Urban and Regional Air Pollution.
Washington, DC. The National Academies Press. <a href="http://doi.org/10.17226/1889">http://doi.org/10.17226/1889</a>.
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Further, ADEM uses HYSPLIT back trajectories to purport to
demonstrate that air parcels transporting from Alabama do not transect
Alabama for a long enough period of time to have a meaningful impact at
the downwind receptor. But once again, the data supplied by the State
do not call into question the results of EPA's photochemical grid
modeling. First, the back trajectories supply limited information,
showing only the pathway of air currents that reach a receptor area
during a high-ozone event. They do not display emissions levels in the
areas traversed by and transported by those air currents. Further, the
figures provided by ADEM establish that air
[[Page 64425]]
parcels do in fact move over Alabama during meteorological patterns
that result in high ozone levels at downwind receptors. In addition,
the vectors of the back trajectories only show the center line of air
flow. In other words, the breadth of the air currents represented by
the back trajectory is much wider than the single line displayed in the
images, and thus, a broader parcel of air covering a wider region can
assume to be transported based on the line displayed. Thus, the back
trajectories supplied by ADEM do not provide compelling evidence that
EPA's photochemical grid modeling is unreliable.
D. Evaluation of Information Provided by Alabama Regarding Step 3
At Step 3 of the 4-step interstate transport framework, a State's
emissions are further evaluated, in light of multiple factors,
including air quality and cost considerations, to determine what, if
any, emissions significantly contribute to nonattainment or interfere
with maintenance and, thus, must be eliminated under CAA section
110(a)(2)(D)(i)(I).
To effectively evaluate which emissions in the State should be
deemed ``significant'' and therefore prohibited, states generally
should prepare an accounting of sources and other emissions activity
for relevant pollutants and assess potential, additional emissions
reduction opportunities and resulting downwind air quality
improvements. EPA has consistently applied this general approach (i.e.,
Step 3 of the 4-step interstate transport framework) when identifying
emissions contributions that the Agency has determined to be
``significant'' (or interfere with maintenance) in each of its prior
Federal, regional ozone transport rulemakings, and this interpretation
of the statute has been upheld by the Supreme Court. See EME Homer
City, 572 U.S. 489, 519 (2014). While EPA has not directed states that
they must conduct a Step 3 analysis in precisely the manner EPA has
done in its prior regional transport rulemakings, State implementation
plans addressing the obligations in CAA section 110(a)(2)(D)(i)(I) must
prohibit ``any source or other type of emissions activity within the
State'' from emitting air pollutants which will contribute
significantly to downwind air quality problems. Thus, states must
complete something similar to EPA's analysis (or an alternative
approach to defining ``significance'' that comports with the statute's
objectives) to determine whether and to what degree emissions from a
State should be ``prohibited'' to eliminate emissions that will
``contribute significantly to nonattainment in or interfere with
maintenance of'' the NAAQS in any other State. Alabama does not include
such an analysis in its SIP submission.
Alabama's SIP submission does not contain a Step 3 analysis
regarding future emissions reduction opportunities beyond pointing to
NO<INF>X</INF> emission reductions from SIP-approved and Federal
measures. Alabama's submission cursorily evaluates NO<INF>X</INF>
emissions from point and mobile source categories from the 2017 NEI and
suggests a steep decline in the major source emissions inventory. This
includes an assertion that NO<INF>X</INF> emissions from EGUs have
declined on the order of 80 percent and that an overwhelming majority
of these EGUs are already fully controlled. However, these claims are
not supported in the submittal with any specific timeframe or baseline
from which the asserted decline in point source or mobile source
emissions have been measured, or a quantitative demonstration that
explains how or why the asserted decline in NO<INF>X</INF> emission
would be sufficient to eliminate Alabama's significant contribution.
Alabama does not include a comprehensive accounting of facilities in
the State and does not include a sufficient analysis of potential
NO<INF>X</INF> emissions control technologies, their associated costs,
estimated emissions reductions, and downwind air quality improvements
for the purpose of identifying what additional emission controls may be
necessary to eliminate their significant contribution.
Alabama's SIP also argues that the highest NO<INF>X</INF> emissions
in the State are from mobile sources, not point sources, suggesting
that ozone is created and remains locally in Alabama rather than
transported to downwind states. However, these claims are not supported
by any evidence. The State's back trajectories do not provide any
technical demonstration that supports the claim that NO<INF>X</INF>
emissions, specifically mobile emissions, remain local (see Section
III.C. of this document).
Further, Alabama asserts that since mobile source emissions are the
``highest'' source category of emissions in the State, they should be
evaluated first for purposes of interstate transport. However, the
State conducted no such analysis of methods or control techniques that
could be used to reduce mobile source emissions in the State, instead
insinuating that it cannot ``reasonably'' control mobile source
emissions.\64\ States do have options, however, to reduce emissions
from certain aspects of their mobile source sectors, and to the extent
the State is attributing its contribution to out of State receptors to
its mobile sources, it could have conducted an analysis of possible
programs or measures that could achieve emissions reductions from those
sources. (For example, a general list of types of transportation
control measures can be found in CAA section 108(f).\65\
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\64\ See Alabama's WOE Analysis in the June 21, 2022, submittal
(pdf p. 106), stating that ``Alabama point source NO<INF>X</INF>
emissions [are] the only emissions that Alabama can reasonably
control.''
\65\ In making this observation, EPA is not suggesting that
mobile source emissions reductions are necessarily required to
address Alabama's good neighbor obligations, but merely pointing out
that if the State itself attributes the problem to mobile sources,
then it is reasonable to expect that further analysis of such
control strategies would be explored.
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Alabama provides information related to programs that potentially
reduced NO<INF>X</INF> emissions in the State, such as SIP-approved and
State regulations, Federal programs (including the CSAPR Update), and
turnover in gasoline and diesel fleets and the rise in electric
vehicles. Alabama thus determined that the SIP contains adequate
provisions to prohibit emissions that will significantly contribute to
nonattainment or interfere with maintenance of the 2015 8-hour ozone
NAAQS in any other State. However, the State does not analyze total
ozone precursors that continue to be emitted from sources and other
emissions activity within the State, nor does ADEM quantify the
NO<INF>X</INF> emission reduction potential of SIP-approved regulations
or Federal programs or on-the-way measures for 2023 or consider the
cost-effectiveness of potential additional emissions controls, the
total emissions reductions that may be achieved by requiring these
controls, or the air quality impacts such emissions reductions would
have on the downwind receptors to which Alabama is linked. Identifying
a range of on-the-books emissions control measures that have been or
may be enacted at the State or local level, without analysis of the
impact of those measures on the downwind receptors, is not a sufficient
analysis. Additionally, EPA's modeling already takes account of on-the-
book measures. Despite these existing emissions controls, the State is
projected in the most recently available modeling to be linked to at
least one downwind nonattainment receptor and one maintenance receptor.
The State was therefore obligated at Step 3 to
[[Page 64426]]
assess additional control measures using a multifactor analysis.
Among the Federal programs referenced in Alabama's submission was
the CSAPR Update NO<INF>X</INF> ozone season Group 2 trading program
for the 2008 ozone standard, which ADEM adopted into the Alabama
SIP.\66\ This reference suggests that Alabama may have intended to rely
on its EGUs being subject to the CSAPR Update (which reflected a
stringency at the nominal marginal cost threshold of $1,400/ton (in
2011 dollars) for the 2008 8-hour ozone NAAQS) to argue that it has
already implemented all cost-effective emissions reductions at EGUs.
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\66\ See 81 FR 59869 (August 31, 2016), 82 FR 46674 (October 6,
2017) (adopting Alabama Administrative Code Rule 335-3-8, ''Control
of Nitrogen Oxides Emissions'' and adopting revisions to Rule 335-3-
8 into the SIP).
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EPA does not support the concept that reliance on the CSAPR Update
is appropriate to conclude that no further emissions reductions are
necessary under Step 3 for the 2015 8-hour ozone NAAQS. Relying on the
CSAPR Update's (or any other CAA program's) determination of cost-
effectiveness without further Step 3 analysis is not approvable. Cost-
effectiveness must be assessed in the context of the specific CAA
program; assessing cost-effectiveness in the context of ozone transport
should reflect a more comprehensive evaluation of the nature of the
interstate transport problem, the total emissions reductions available
at several cost thresholds, and the air quality impacts of the
reductions at downwind receptors. While EPA has not established a
benchmark cost-effectiveness value for 2015 8-hour ozone NAAQS
interstate transport obligations, it is reasonable to expect control
measures or strategies to address interstate transport under this NAAQS
to reflect higher marginal control costs because the 2015 8-hour ozone
NAAQS is a more stringent and more protective air quality standard. As
such, the marginal cost threshold of $1,400/ton for the CSAPR Update
(which addresses the 2008 ozone 8-hour NAAQS and is in 2011 dollars) is
not an appropriate cost threshold and cannot be approved as a benchmark
to use for interstate transport SIP submissions for the 2015 8-hour
ozone NAAQS. In addition, the updated EPA modeling captures all
existing CSAPR trading programs in the baseline, and that modeling
confirms that these control programs were not sufficient to eliminate
Alabama's linkage at Steps 1 and 2 under the 2015 8-hour ozone NAAQS
(even acknowledging that the CSAPR Update provisions have been adopted
into Alabama's SIP). The State was therefore obligated at Step 3 to
assess additional control measures using a multifactor analysis.
As mentioned above, the 2016v2 modeling on which Alabama has relied
in its June 2022 submittal indicates sources in Alabama are linked to
downwind air quality problems for the 2015 ozone standard. Alabama's
SIP submittal does not include an accounting of emissions sources and
activity in the State along with an analysis of potential
NO<INF>X</INF> emissions control technologies, their associated costs,
estimated emissions reductions, and downwind air quality improvements.
Nor does Alabama present an alternative approach to assess which of its
emissions should be deemed ``significant.'' EPA proposes to find that
Alabama's analysis is insufficient to support the State's claim that
its SIP adequately prohibits emissions within Alabama in a manner
sufficient to address the State's interstate transport obligations for
the 2015 8-hour ozone. Therefore, EPA proposes to disapprove Alabama's
August 20, 2018, interstate transport SIP submission on the separate,
additional basis that the SIP submittal did not assess additional
emissions control opportunities.
E. Evaluation of Information Provided by Alabama Regarding Step 4
Step 4 of the 4-step interstate transport framework calls for
development of permanent and federally enforceable control strategies
to achieve the emissions reductions determined to be necessary at Step
3 to eliminate significant contribution to nonattainment or
interference with maintenance of the NAAQS. As mentioned in Section
III.D. of this document, Alabama's SIP submission did not contain an
evaluation of additional emissions control opportunities (or establish
that no additional controls are required), thus no information was
provided at Step 4. As a result, EPA proposes to disapprove Alabama's
August 20, 2018, submittal on the separate, additional basis that the
State has not developed permanent and enforceable emissions reductions
necessary to meet the obligations of CAA section 110(a)(2)(d)(i)(I).
The previous section explained why EPA views Alabama's analysis at
Step 3 as insufficient to demonstrate that the emissions reductions it
asserts have occurred or may occur are sufficient to address the
State's interstate transport obligations. At Step 4, EPA finds that
ADEM has also not provided SIP revisions that would ensure the
reductions it claims to rely on are rendered permanent and enforceable.
As just one example, while Alabama stated that mobile source emissions
would decline as use of electric vehicles grows, the State cited to no
State program or enforceable measures to implement such an emissions-
reduction strategy. See Committee for a Better Arvin v. EPA, 786 F.3d
1169, 1175-76 (9th Cir. 2015) (holding that measures relied on by a
State to meet CAA requirements must be included in the SIP). As a
result, EPA proposes to disapprove Alabama's June 21, 2022, submittal
on the separate, additional basis that the State has not developed
permanent and enforceable emissions reductions necessary to meet the
obligations of CAA section 110(a)(2)(d)(i)(I).
IV. Conclusion for Alabama
Based on EPA's evaluation of Alabama's SIP submission and after
consideration of updated EPA modeling using the 2016-based emissions
modeling platform, EPA is proposing to find that Alabama's June 21,
2022, SIP submission addressing CAA section 110(a)(2)(D)(i)(I) does not
meet the State's interstate transport obligations because it fails to
contain the necessary provisions to eliminate emissions that will
contribute significantly to nonattainment or interfere with maintenance
of the 2015 8-hour ozone NAAQS in any other State.
V. Proposed Action
EPA is proposing to disapprove the 2015 ozone good neighbor
interstate transport SIP revision from Alabama, dated June 21, 2022. If
EPA finalizes this disapproval, EPA will continue to be subject to an
obligation to promulgate a FIP to address the relevant interstate
transport requirements, which was triggered by the finding of failure
to submit published on June 22, 2022. However, under the CAA, a good
neighbor SIP disapproval does not start a mandatory sanctions clock.
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
The proposed action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget for
review.
B. Paperwork Reduction Act (PRA)
The proposed action does not impose an information collection
burden under the PRA because it does not contain any information
collection activities.
[[Page 64427]]
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA (5
U.S.C. 601 et seq.). This action merely proposes to disapprove a SIP
submission as not meeting the CAA.
D. Unfunded Mandates Reform Act (UMRA)
The proposed action does not contain any unfunded mandate as
described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or
uniquely affect small governments. This proposed action imposes no
enforceable duty on any State, local, or tribal governments or the
private sector.
E. Executive Order 13132: Federalism
The proposed action does not have federalism implications. It will
not have substantial direct effects on the states, on the relationship
between the national government and the states, or on the distribution
of power and responsibilities among the various levels of government.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
The proposed action does not have tribal implications as specified
in Executive Order 13175. The proposed action does not apply on any
Indian reservation land, any other area where EPA or an Indian tribe
has demonstrated that a tribe has jurisdiction, or non-reservation
areas of Indian country. Thus, Executive Order 13175 does not apply to
this action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that EPA has reason to believe may disproportionately affect children,
per the definition of ``covered regulatory action'' in section 2-202 of
the Executive Order. This proposed action is not subject to Executive
Order 13045 because it merely proposes to disapprove a SIP submission
from Alabama as not meeting the CAA.
H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution or Use
The proposed action is not subject to Executive Order 13211,
because it is not a significant regulatory action under Executive Order
12866.
I. National Technology Transfer and Advancement Act
This proposed rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
EPA believes the human health or environmental risk addressed by
this proposed action will not have potential disproportionately high
and adverse human health or environmental effects on minority, low-
income or indigenous populations. This proposed action merely proposes
to disapprove a SIP submission as not meeting the CAA.
K. CAA Section 307(b)(1)
Section 307(b)(1) of the CAA governs judicial review of final
actions by EPA. This section provides, in part, that petitions for
review must be filed in the D.C. Circuit: (i) when the agency action
consists of ``nationally applicable regulations promulgated, or final
actions taken, by the Administrator,'' or (ii) when such action is
locally or regionally applicable, if ``such action is based on a
determination of nationwide scope or effect and if in taking such
action the Administrator finds and publishes that such action is based
on such a determination.'' For locally or regionally applicable final
actions, the CAA reserves to EPA complete discretion whether to invoke
the exception in (ii).\67\
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\67\ In deciding whether to invoke the exception by making and
publishing a finding that an action is based on a determination of
nationwide scope or effect, the Administrator takes into account a
number of policy considerations, including his judgment balancing
the benefit of obtaining the D.C. Circuit's authoritative
centralized review versus allowing development of the issue in other
contexts and the best use of agency resources.
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If EPA takes final action on this proposed rulemaking, the
Administrator intends to exercise the complete discretion afforded to
him under the CAA to make and publish a finding that the final action
(to the extent a court finds the action to be locally or regionally
applicable) is based on a determination of ``nationwide scope or
effect'' within the meaning of CAA section 307(b)(1). Through this
rulemaking action (in conjunction with a series of related actions on
other SIP submissions for the same CAA obligations), EPA interprets and
applies section 110(a)(2)(d)(i)(I) of the CAA for the 2015 8-hour ozone
NAAQS based on a common core of nationwide policy judgments and
technical analysis concerning the interstate transport of pollutants
throughout the continental U.S. In particular, EPA is applying here
(and in other proposed actions related to the same obligations) the
same, nationally consistent 4-step framework for assessing good
neighbor obligations for the 2015 8-hour ozone NAAQS. EPA relies on a
single set of updated, 2016-base year photochemical grid modeling
results of the year 2023 as the primary basis for its assessment of air
quality conditions and contributions at Steps 1 and 2 of that
framework. Further, EPA proposes to determine and apply a set of
nationally consistent policy judgments to apply the 4-step framework.
EPA has selected a nationally uniform analytic year (2023) for this
analysis and is applying a nationally uniform approach to nonattainment
and maintenance receptors and a nationally uniform approach to
contribution threshold analysis.\68\ For these reasons, the
Administrator intends, if this proposed action is finalized, to
exercise the complete discretion afforded to him under the CAA to make
and publish a finding that this action is based on one or more
determinations of nationwide scope or effect for purposes of CAA
section 307(b)(1).\69\
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\68\ A finding of nationwide scope or effect is also appropriate
for actions that cover states in multiple judicial circuits. In the
report on the 1977 Amendments that revised section 307(b)(1) of the
CAA, Congress noted that the Administrator's determination that the
``nationwide scope or effect'' exception applies would be
appropriate for any action that has a scope or effect beyond a
single judicial circuit. See H.R. Rep. No. 95-294 at 323, 324,
reprinted in 1977 U.S.C.C.A.N. 1402-03.
\69\ EPA may take a consolidated, single final action on all of
the proposed SIP disapproval actions with respect to obligations
under CAA section 110(a)(2)(D)(i)(I) for the 2015 8-hour ozone
NAAQS. Should EPA take a single final action on all such
disapprovals, this action would be nationally applicable, and EPA
would also anticipate, in the alternative, making and publishing a
finding that such final action is based on a determination of
nationwide scope or effect.
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List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Ozone.
Authority: 42 U.S.C. 7401 et seq.
Dated: October 17, 2022.
Daniel Blackman,
Regional Administrator, Region 4.
[FR Doc. 2022-22892 Filed 10-24-22; 8:45 am]
BILLING CODE 6560-50-P
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</html>Indexed from Federal Register on October 25, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.