[Federal Register Volume 82, Number 212 (Friday, November 3, 2017)]
[Notices]
[Pages 51238-51250]
[FR Doc No: 2017-23983]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-OAR-2016-0596; FRL-9970-36-OAR]
RIN 2060-AT22

Response to December 9, 2013, Clean Air Act Section 176A Petition
From Connecticut, Delaware, Maryland, Massachusetts, New Hampshire, New
York, Pennsylvania, Rhode Island and Vermont

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of final action on petition.

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SUMMARY: The Environmental Protection Agency (EPA) is denying a Clean
Air Act (CAA) petition filed on December 9, 2013, by the states of
Connecticut, Delaware, Maryland, Massachusetts, New Hampshire, New
York, Pennsylvania, Rhode Island and Vermont. The petition requested
that the EPA expand the Ozone Transport Region (OTR) by adding the
states of Illinois, Indiana, Kentucky, Michigan, North Carolina, Ohio,
Tennessee, West Virginia and the areas of Virginia not already in the
OTR in order to address the interstate transport of air pollution with
respect to the 2008 ozone national ambient air quality standards
(NAAQS). As a result of this denial, the geographic scope and
requirements of the OTR will remain unchanged. However, the EPA and
states will continue to implement programs to address interstate
transport of ozone pollution with respect to the 2008 ozone.

DATES: This final action is effective on November 3, 2017.

ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OAR-2016-0596. All documents in the docket are
listed and publicly available at http://www.regulations.gov. Although
listed in the index, some information is not publicly available, i.e.,
Confidential Business Information or other information whose disclosure
is restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically in the docket or in hard copy at the
Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Avenue NW.,
Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding legal holidays. The telephone
number for the Public Reading Room is<PHONE_NUMBER>, and the telephone
number for the Office of Air and Radiation Docket and Information
Center is<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: Ms. Gobeail McKinley, U.S.
Environmental Protection Agency, Office of Air Quality Planning and
Standards, Air Quality Policy Division, Mail code C539-01, Research
Triangle Park, NC 27711, telephone<PHONE_NUMBER>; email at
[email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

    Throughout this document, wherever ``we,'' ``us,'' or ``our'' is
used, we mean the U.S. EPA.

A. How is this action organized?

    The information in this Supplementary Information section of this
preamble is organized as follows:

I. General Information
    A. How is this action organized?
    B. Where can I get a copy of this document and other related
information?
    C. What acronyms, abbreviations and units are used in this
preamble?
II. Executive Summary of the EPA's Decision on the CAA Section 176A
Petition
III. Background and Legal Authority
    A. Ozone and Public Health
    B. Sections 176A and 184 of the CAA and the OTR Process
    C. Legal Standard for This Action
    D. The CAA Section 176A Petition and Related Correspondence
IV. The EPA's Decision on the CAA Section 176A Petition
    A. The CAA Good Neighbor Provisions
    B. The EPA's Interstate Transport Rulemaking Under the Good
Neighbor Provision
    C. Additional Rules That Reduce NOX and VOC Emissions
    D. Summary of Rationale for the Decision on the CAA Section 176A
Petition
V. Major Comments on the Proposed Denial
    A. Adequacy of the EPA's Rationale
    B. Effectiveness of Ozone Precursor Emissions Reductions
    C. Efficiency in Addressing Statutory Interstate Transport
Requirements
    D. Equity Among States
    E. Statutory Intent of CAA Section 176A (or 184)
    F. Comments on the 2015 Ozone NAAQS
VI. Final Action to Deny the CAA Section 176A Petition
VII. Judicial Review and Determinations Under Section 307(b)(1) of
the CAA
VIII. Statutory Authority

B. Where can I get a copy of this document and other related
information?

    In addition to being available in the docket, an electronic copy of
this action will be posted at https://www.epa.gov/ozone-pollution/2008-ozone-national-ambient-air-quality-standards-naaqs-section-176a-petitions.

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

APA Administrative Procedure Act
CAA or Act Clean Air Act
CFR Code of Federal Regulations
D.C. Circuit United States Court of Appeals for the District of
Columbia Circuit
EGU Electric Generating Unit
EPA U.S. Environmental Protection Agency
FIP Federal Implementation Plan
FR Federal Register
NAAQS National Ambient Air Quality Standards

NEI National Emissions Inventory
NESHAP National Emission Standards for Hazardous Air Pollutants
NOX Nitrogen Oxides
NSPS New Source Performance Standard
NSR New Source Review
OMB Office of Management and Budget
OTAG Ozone Transport Assessment Group
OTC Ozone Transport Commission
OTR Ozone Transport Region
PM Particulate Matter
RACT Reasonably Available Control Technology
RTC Response to Comment
SIP State Implementation Plan
SO2 Sulfur Dioxide
VOC Volatile Organic Compound

II. Executive Summary of the EPA's Decision on the CAA Section 176A
Petition

    In December 2013, the petitioning states of Connecticut, Delaware,
Maryland, Massachusetts, New Hampshire, New York, Pennsylvania, Rhode
Island and Vermont (petitioners) submitted a petition under section
176A of the CAA that requests the EPA to expand the OTR by adding nine
states to the region.\1\ In January 2017, the EPA issued a proposal to
deny the CAA section 176A(a) petition. The agency solicited comments on
this proposal. The EPA received oral testimony from 17 speakers at a
public hearing on the proposal on April 13, 2017. The EPA also received
over 100 comments on the proposed denial. This final action addresses
the major comments the agency received. The remaining comments are
addressed in the Response to Comment (RTC) document available in the
docket for this action.
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    \1\ The nine states are Illinois, Indiana, Kentucky, Michigan,
North Carolina, Ohio, Tennessee, West Virginia and Virginia. The
parts of northern Virginia included in the Washington, DC
Consolidated Metropolitan Statistical Area are already in the OTR.
The petition seeks to add the remainder of the state of Virginia to
the OTR. See Response to December 9, 2013, Clean Air Act Section
176A Petition From Connecticut, Delaware, Maryland, Massachusetts,
New Hampshire, New York, Pennsylvania, Rhode Island and Vermont,
Notice of Proposed Action on Petition, 82 FR 6509 (January 19,
2017).
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    In this final action, the EPA is denying the petition to expand the
OTR. In making this decision, the EPA reviewed the incoming petition,
the public comments received, the relevant statutory authorities and
other relevant materials. Section 176A of the CAA provides the
Administrator with discretion to determine whether to expand an
existing transport region. In light of existing control requirements
both within and outside the OTR, the agency's ongoing implementation of
the ``good neighbor'' provision (CAA section 110(a)(2)(D)(i)(I))
through updates to the Cross State Air Pollution Rule (CSAPR), and the
emission reductions achieved pursuant to federal and state programs
promulgated pursuant to these and other CAA authorities, which have
improved, and will continue to improve, air quality in the OTR and
throughout the United States (U.S.), the EPA denies the section 176A
petition to add states to the OTR for the purpose of addressing
interstate transport of the 2008 ozone NAAQS. The EPA believes that
other CAA provisions (e.g., section 110(a)(2)(D)(i)(I)) provide a
better pathway for states and the EPA to develop a tailored remedy that
is most effective for addressing any remaining air quality problems for
the 2008 ozone NAAQS identified by the petitioners. The states and the
EPA have historically and effectively reduced ozone and the interstate
transport of ozone pollution using these other CAA authorities. For
purposes of addressing interstate transport with respect to the 2008
ozone NAAQS, the EPA believes that continuing its longstanding and
effective utilization of the existing and expected control programs
under the CAA's mandatory good neighbor provision embodied in section
110(a)(2)(D)(i)(I) is a more effective means of addressing regional
ozone pollution transport for the areas within the OTR that must attain
the NAAQS than expanding the OTR as requested. Furthermore, the EPA
believes that reliance on these other CAA authorities is a more
appropriate use of the agency's limited resources. In addition, in
light of comments asking the agency to look more closely at the
technical merits of the petition, the EPA has reassessed the technical
information submitted in support of the petition, both by petitioners
and commenters on the proposed denial, and finds there to be sufficient
analytical gaps to justify this denial action. Accordingly, the EPA
denies the CAA section 176A petition filed by the nine petitioning
states.

III. Background and Legal Authority

A. Ozone and Public Health

    Ground-level ozone is not emitted directly into the air, but is a
secondary air pollutant created by chemical reactions between oxides of
nitrogen (NOX) and volatile organic compounds (VOCs) in the
presence of sunlight. For a discussion of ozone-formation chemistry,
interstate transport issues, and health effects, see 82 FR 6511.
    On March 12, 2008, the EPA promulgated a revision to the NAAQS,
lowering both the primary and secondary standards to 75 parts per
billion (ppb).\2\ On October 1, 2015, the EPA strengthened the ground-
level ozone NAAQS, based on extensive scientific evidence about ozone's
effects on public health and welfare.\3\ As stated at proposal, this
action does not address any CAA requirements with respect to the 2015
ozone NAAQS.
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    \2\ See National Ambient Air Quality Standards for Ozone, Final
Rule, 73 FR 16436 (March 27, 2008).
    \3\ See National Ambient Air Quality Standards for Ozone, Final
Rule, 80 FR 65292 (October 26, 2015).
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B. Sections 176A and 184 of the CAA and the OTR Process

    Subpart 1 of title I of the CAA includes provisions governing
general plan requirements for designated nonattainment areas. This
subpart includes provisions providing for the development of transport
regions to address the interstate transport of pollutants that
contribute to NAAQS violations. In particular, section 176A(a) of the
CAA provides that, on the Administrator's own motion or by a petition
from the governor of any state, whenever the Administrator has reason
to believe that the interstate transport of air pollutants from one or
more states contributes significantly to a violation of the NAAQS in
one or more other states, the Administrator may establish, by rule, a
transport region for such pollutant that includes such states. The
provision further provides that the Administrator may add any state, or
portion of a state, to any transport region whenever the Administrator
has reason to believe that the interstate transport of air pollutants
from such state significantly contributes to a violation of the
standard in the transport region.
    Section 176A(b) of the CAA provides that when the Administrator
establishes a transport region, the Administrator shall establish an
associated transport commission, comprised of (at a minimum) the
following: Governor or designee of each state, the EPA Administrator or
designee, the Regional EPA Administrator and an air pollution control
official appointed by the governor of each state. The purpose of the
transport commission is to assess the degree of interstate pollution
transport throughout the transport region and assess control strategies
to mitigate the interstate pollution transport.
    Subpart 2 of title I of the CAA includes provisions governing
additional plan requirements for designated ozone nonattainment areas,
including specific provisions focused on the interstate transport of
ozone. In particular, subpart 2 includes section

184(a), which established a single transport region for ozone--the
OTR--comprised of the states of Connecticut, Delaware, Maine, Maryland,
Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode
Island, Vermont and the Consolidated Metropolitan Statistical Area that
includes the District of Columbia and certain parts of northern
Virginia.
    Section 184(b) of the CAA established certain control requirements
that each state in the OTR is required to implement within the state
and which require certain controls on sources of NOX and VOC
statewide. Section 184(b)(1)(A) of the CAA requires OTR states to
include in their state implementation plans (SIPs) enhanced vehicle
inspection and maintenance (I/M) programs.\4\ Section 184(b)(2) of the
CAA requires OTR-state SIPs to subject major sources of VOC in ozone
transport regions to the same requirements that apply to major sources
in designated ozone nonattainment areas classified as moderate,
regardless of whether the source is located in a nonattainment area.
Thus, the state must adopt rules to apply the nonattainment new source
review (NNSR) (pursuant to CAA section 173) and reasonably available
control technology (RACT) (pursuant to section 182(b)(2)) provisions
for major VOC sources statewide. Section 184(b)(2) of the CAA further
provides that, for purposes of implementing these requirements, a major
stationary source shall be defined as one that emits or has the
potential to emit at least 50 tons per year of VOCs. Under CAA section
184(b)(2), states must also implement Stage II vapor recovery programs,
incremental to Onboard Refueling Vapor Recovery achievements, or
measures that achieve comparable emissions reductions, for both
attainment and nonattainment areas.\5\
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    \4\ Enhanced vehicle I/M programs are required in metropolitan
statistical areas in the OTR with a 1990 Census population of
100,000 or more regardless of ozone attainment status.
    \5\ See May 16, 2012, Air Quality: Widespread Use for Onboard
Refueling Vapor Recovery and Stage II Waiver, 72 FR 28772 (May 16,
2012).
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    Section 182(f) requires states to apply the same requirements to
major stationary sources of NOX as are applied to major
stationary sources of VOC under subpart 2. Thus, the same NNSR and RACT
requirements that apply to major stationary sources of VOC in the OTR
also apply to major stationary sources of NOX.\6\ While
NOX emissions are necessary for the formation of ozone in
the lower atmosphere, a local decrease in NOX emissions can,
in some cases, increase local ozone concentrations, creating potential
``NOX disbenefits.'' Accordingly, CAA section 182(f) may be
exempt from certain requirements of the EPA's motor vehicle I/M
regulations and from certain federal requirements of general and
transportation conformity.\7\
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    \6\ See Nitrogen Oxides Supplement to the General Preamble, 57
FR 55622 (November 25, 1992).
    \7\ As stated in the EPA's I/M rule (November 5, 1992; 57 FR
52950) and conformity rules (November 14, 1995; 60 FR 57179 for
transportation rules and November 30, 1993; 58 FR 63214 for general
rules), certain NOX requirements in those rules do not
apply where the EPA grants an areawide exemption under CAA section
182(f).
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    Additionally, under section 184(c) of the CAA, the OTC may, based
on a majority vote of the governors on the Commission, recommend
additional control measures not specified in the statute to be applied
within all or part of the OTR if necessary to bring any areas in the
OTR into attainment by the applicable attainment dates. If the EPA
approves such a recommendation, under CAA section 184(c)(5), then the
Administrator must declare each state's implementation plan inadequate
to meet the requirements of CAA section 110(a)(2)(D) and must order the
states to include the approved control measures in their revised plans
pursuant to CAA section 110(k)(5). If a CAA section 110(k)(5) finding
is issued, then states have 1 year to revise their SIPs to include the
approved measures.
    States included in the OTR by virtue of CAA section 184(b)(1) were
required to submit SIPs to the EPA addressing these requirements within
2 years of the 1990 CAA amendments, or by November 15, 1992. Section
184(b)(1) of the CAA further provides that if states are later added to
the OTR pursuant to CAA section 176A(a)(1), such states must submit
SIPs addressing these requirements within 9 months after inclusion in
the OTR. When the ozone NAAQS are updated, as occurred in 2008 and
2015, the OTR states must submit RACT SIPs on the same timeframe as
areas designated as nonattainment--classified as Moderate or above. For
the 2008 ozone NAAQS, OTR RACT SIPs were due no later than 2 years
following the effective date of area designations (i.e., the SIPs were
due on July 20, 2014). \8\
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    \8\ 40 CFR 51.1116. See also 2008 Ozone NAAQS Implementation
Rule, 80 FR 12264, 12282 (March 6, 2015).
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C. Legal Standard for This Action

    Section 176A(a)(1) of the CAA states that the Administrator may add
a state to a transport region if the Administrator has reason to
believe that emissions from the state significantly contribute to a
violation of the NAAQS within the transport region. For the reasons
discussed in this section, the use of the discretionary term ``may'' in
CAA section 176A(a) means that the Administrator should exercise
reasonable discretion in implementing the requirements of the CAA with
respect to interstate pollution transport when determining whether or
not to approve or deny a CAA section 176A petition.
    The Administrator's discretion pursuant to CAA section 176A(a) has
been affirmed by the U.S. Court of Appeals for the District of Columbia
Circuit (D.C. Circuit). In Michigan v. EPA, plaintiffs challenged
whether the EPA may exercise its authority pursuant to CAA sections
110(k)(5) and 110(a)(2)(D) of the statute to address interstate
transport without first forming a transport commission pursuant to CAA
section 176A(b). 213 F.3d 663, 672 (2000). The D.C. Circuit held that
the agency is only required to establish a transport commission ``if
the agency exercises its discretion to create a transport region
pursuant to section 176A(a).'' Id. The court explained that ``EPA can
address interstate transport apart from convening a 176A/184 transport
commission as subsection (a) provides that EPA `may' establish a
transport region . . . .'' Id. Thus, the court held that the discretion
to create a transport region rests with the Administrator. So, too,
does the discretion to add states to or remove states from a transport
commission.
    Consistent with the Supreme Court's opinion in Massachusetts v.
EPA, 549 U.S. 497 (2007), the D.C. Circuit has held that agencies have
the discretion to determine how to best allocate resources in order to
prioritize regulatory actions in a way that best achieves the
objectives of the authorizing statute. In Defenders of Wildlife v.
Gutierrez, the court rejected a challenge to the National Marine
Fisheries Service's (NMFS) denial of a petition for emergency
rulemaking to impose speed restrictions to protect the right whale from
boating traffic pursuant to section 553(e) of the Endangered Species
Act, which requires agencies to ``give an interested person the right
to petition for the issuance, amendment, or repeal of a rule.'' 532
F.3d 913 (DC Cir 2008). The NMFS denied the petition on the grounds
that imposing such restrictions would divert resources from, and delay
development of, a more comprehensive strategy for protecting the whale
population. Id.at 916. The court determined that NMFS's explanation for
the denial was a reasonable decision to focus its resources on a
comprehensive strategy, which in light of the information before the
NMFS at the

time, was reasoned and adequately supported by the record. Id.
Similarly, in WildEarth Guardians v. EPA, the court reviewed the EPA's
denial of a petition to list coal mines for regulation under CAA
section 111(b)(1)(A). 751 F.3d 651 (D.C. Cir. 2014). Section
111(b)(1)(A) of the CAA provides that, as a means of developing
standards of performance for new stationary sources, the EPA shall, by
a date certain publish ``(and from time to time thereafter shall
revise) a list of categories of stationary sources.'' (emphasis added)
The provision provides that the Administrator ``shall include a
category of sources in such list if in his judgment it causes, or
contributes significantly to, air pollution which may reasonably be
anticipated to endanger public health and welfare.'' The EPA denied the
petition, explaining that it must prioritize its actions in light of
limited resources and ongoing budget uncertainties, and that denial of
the petition was not a determination as to whether coal mines should be
regulated as a source of air pollutants. 751 F.3d at 650. The EPA also
noted as part of its denial that it might in the future initiate a
rulemaking to do so. The D.C. Circuit held that the language in CAA
section 111(b)(1)(A)--``from time to time'' and ``in his judgment''--
means that the Administrator may exercise reasonable discretion in
determining when to add new sources to the list of source categories,
and that such language afforded agency officials discretion to
prioritize sources that are the most significant threats to public
health to ensure effective administration of the agency's regulatory
agenda. Id. at 651. In each of these cases previously discussed, the
acting agency has been entitled to broad discretion to act on a pending
petition so long as the agency provided a reasoned explanation.
Notably, as each of these decisions focused on the case-specific
circumstances relied upon by the acting agency to deny the pending
petition, the courts did not speak to whether the agency might reach a
different conclusion under different circumstances. Like the statutory
provisions evaluated by the courts in these cases, the term ``may'' in
CAA section 176A(a) means that the Administrator is permitted to
exercise reasonable discretion in determining when and whether to add
new states to a transport region. While the Administrator must
adequately explain the facts and policy concerns he relied on in acting
on the petition and conform such reasons with the authorizing statute,
review of such a decision is highly deferential. Thus, the agency is
entitled to broad discretion when determining whether to grant or deny
such a petition.

D. The CAA Section 176A Petition and Related Correspondence

    On December 9, 2013, the states of Connecticut, Delaware, Maryland,
Massachusetts, New Hampshire, New York, Rhode Island and Vermont
submitted a petition under CAA section 176A requesting that the EPA add
to the OTR the states of Illinois, Indiana, Kentucky, Michigan, North
Carolina, Ohio, Tennessee, West Virginia and the portion of Virginia
currently not within the OTR. On December 17, 2013, the petition was
amended to add the state of Pennsylvania as a state petitioner.
    The petitioners submitted a technical analysis with their petition,
which the petitioners contended demonstrates that the nine named upwind
states significantly contribute to violations of the 2008 ozone NAAQS
in the OTR. The petitioners acknowledged and included data used to
support rulemakings promulgated by the EPA that addressed interstate
transport with respect to both the 2008 ozone NAAQS, and prior ozone
NAAQS, in order to further support their request to expand the OTR.
Moreover, the petitioners identified those areas that are designated
nonattainment with respect to the 2008 ozone NAAQS within and outside
the OTR and conducted a linear extrapolation with preliminary 2012
design values to the year 2015 to predict that certain areas outside
the OTR will continue to be in nonattainment or will have difficulty
maintaining attainment of the NAAQS after the EPA's 2008 ozone NAAQS
final area designations in 2012. In addition, the petitioners included
supplemental modeling, which was used to project ozone design values to
the years 2018 and 2020. The petitioners' 2018 modeling purported to
show that, with ``on-the-way'' OTR measures, areas within the OTR and
within non-OTR states would continue to have problems attaining the
2008 ozone NAAQS. Lastly, their 2020 modeling purported to show that
even with a 58 percent NOX and 3 percent VOC anthropogenic
emissions reduction over the eastern U.S., there would be one area in
New Jersey that would continue to have trouble maintaining the NAAQS.
    The petitioners further noted that the OTR states have adopted and
implemented numerous and increasingly stringent controls on sources of
VOCs and NOX that may not currently be required for similar
sources in the upwind states. Petitioners contended that expansion of
the OTR to include these upwind states will help the petitioning states
attain the 2008 ozone NAAQS. The petitioners included two case studies
that identify the types of measures adopted throughout the current OTR,
including mobile source and stationary source control measures that
have been enacted to reduce emissions of NOX and VOCs. The
petitioners contended that the expansion of the OTR is warranted so
that the downwind states and the upwind states can work together to
address interstate ozone transport for the 2008 ozone NAAQS. Also, the
petitioners asserted that without immediate expansion of the OTR,
attainment of the 2008 ozone NAAQS in many areas in the U.S. will
remain ``elusive.''
    At the time the petition was submitted, the EPA's then most recent
effort to address the interstate transport of ozone pollution (i.e.,
CSAPR) was subject to litigation in the D.C. Circuit. As discussed in
more detail later in this notice, the EPA issued CSAPR pursuant to
section 110(a)(2)(D)(i)(I) of the CAA in order to address interstate
transport with respect to the 1997 ozone NAAQS, as well as the 1997 and
2006 fine particulate matter (PM2.5) NAAQS. 76 FR 48208
(August 8, 2011). On August 21, 2012, the D.C. Circuit issued a
decision in EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C.
Cir. 2012), vacating CSAPR based on several holdings that would have
limited the EPA's authority pursuant to section 110(a)(2)(D)(i)(I). The
petitioners submitted the section 176A petition in December 2013.
Thereafter, on April 29, 2014, the Supreme Court issued a decision
reversing the D.C. Circuit's decision and upholding the EPA's
interpretation of its authority pursuant to CAA section 110. EPA v. EME
Homer City Generation, L.P., 134 S. Ct. 1584 (2014).
    Subsequent to the petition being filed, states and other
stakeholders submitted additional information to the agency in support
of, or, in opposition to, the petition. In the January 19, 2017, the
proposed denial, the EPA summarized the correspondence it had received.
These documents can be found in the docket for this action.

IV. The EPA's Decision on the CAA Section 176A Petition

    At proposal, the EPA explained its proposed basis for the denial of
the CAA section 176A petition. The EPA described other authorities
provided by the CAA for addressing the interstate transport of ozone
pollution and the flexibilities those provisions provide.

The EPA noted its historical use of these authorities to address the
interstate transport of ozone pollution and the advantages of those
rulemakings for addressing current ozone nonattainment problems for the
2008 ozone NAAQS. The EPA explained that it preferred to use these
authorities to address the remaining interstate transport problems with
respect to the 2008 ozone NAAQS because it believes these authorities
allow the agency to develop a tailored remedy that is most effective
for addressing any remaining air quality problems. Additionally, the
EPA described other measures that have achieved, and will continue to
achieve, significant reductions in emissions of NOX and VOCs
resulting in lower levels of transported ozone pollution that impact
attainment and maintenance of the 2008 ozone NAAQS. This section
summarizes the major points setting forth the EPA's reasons for denial
of the petition. The EPA's basis for denying the petition has not
fundamentally changed from the proposal; we continue to believe that
other CAA mechanisms are more flexible and effective than expanding the
OTR (pursuant to section 176A) for addressing current interstate ozone
transport issues with respect to the 2008 ozone NAAQS. In Section V of
this notice, and in the RTC document included in the docket for this
action, the agency provides additional supporting rationale for its
conclusion in light of the public comments.

A. The CAA Good Neighbor Provisions

    The CAA provision that states and the EPA have primarily relied on
to address interstate pollution transport is section
110(a)(2)(D)(i)(I), often referred to as the ``good neighbor''
provision, which requires states to prohibit certain emissions from in-
state sources impacting the air quality in other states. Specifically,
in keeping with the CAA's structure of shared state and federal
regulatory responsibility, CAA section 110(a)(2)(D)(i)(I) requires all
states, within 3 years of promulgation of a new or revised NAAQS, to
submit SIPs that contain adequate provisions prohibiting any source or
other type of emissions activity within the state from emitting any air
pollutant in amounts which will contribute significantly to
nonattainment in, or interfere with maintenance by, any other state
with respect to any NAAQS. Thus, each state is required to submit a SIP
that demonstrates the state is adequately controlling sources of
emissions that would impact downwind states' air quality relative to
the NAAQS in violation of the good neighbor provision.
    Once a state submits a good neighbor SIP, the EPA must evaluate the
SIP to determine whether it meets the statutory criteria of the good
neighbor provision, and then approve or disapprove, in whole or in
part, the state's submission in accordance with CAA section 110(k). In
the event that a state does not submit a required SIP addressing the
good neighbor provision, the EPA is required under the CAA to issue a
``finding of failure to submit'' that a state has failed to make the
required SIP submission. If the EPA disapproves a state's SIP
submission or if the EPA finds that a state has failed to submit a
required SIP, then the action triggers the EPA's obligations under
section 110(c) of the CAA, to promulgate a federal implementation plan
(FIP) within 2 years, unless the state corrects the deficiency, and the
EPA approves the plan or plan revision before the EPA promulgates a
FIP. Thus, in the event that a state does not address the good neighbor
provision requirements in a SIP submission, the statute provides that
the EPA must address the requirements in the state's stead.
    Section 110(k)(5) of the CAA also provides a means for the EPA to
require states to revise previously approved SIPs, including good
neighbor SIPs, if the EPA determines that an approved SIP is
substantially inadequate to attain or maintain the NAAQS, to adequately
mitigate interstate pollutant transport, or to otherwise comply with
requirements of the CAA. The EPA can use its authority under CAA
section 110(k)(5) to call for revision of the SIP by the state to
correct the inadequacies under CAA section 110(a)(2)(D)(i)(I), and if
the state fails to make the required submission, the EPA can promulgate
a FIP under CAA section 110(c) to address the inadequacies.
    Finally, section 126 of the CAA provides states with an additional
opportunity to bring to the EPA's attention specific instances where a
source or a group of sources in a specific state may be emitting in
excess of what the good neighbor provision would allow. Section 126(b)
of the CAA provides that any state or political subdivision may
petition the Administrator of the EPA to find that any major source or
group of stationary sources in upwind states emits or would emit any
air pollutant in violation of the prohibition of CAA section
110(a)(2)(D)(i).\9\ Petitions submitted pursuant to this section are
referred to as CAA section 126 petitions. Section 126(c) of the CAA
explains the impact of such a finding and establishes the conditions
under which continued operation of a source subject to such a finding
may be permitted. Specifically, CAA section 126(c) provides that it
would be a violation of section 126 of the Act and of the applicable
SIP: (1) For any major proposed new or modified source subject to a CAA
section 126 finding to be constructed or operate in violation of the
good neighbor prohibition of CAA section 110(a)(2)(D)(i); or (2) for
any major existing source for which such a finding has been made to
operate more than 3 months after the date of the finding. The statute,
however, also gives the Administrator discretion to permit the
continued operation of a source beyond 3 months if the source complies
with emission limitations and compliance schedules provided by the EPA
to bring about compliance with the requirements contained in CAA
sections 110(a)(2)(D)(i) and 126 as expeditiously as practicable but no
later than 3 years from the date of the finding. Where the EPA provides
such limitations and compliance schedules, CAA section 110(a)(2)(D)(ii)
further requires that good neighbor SIPs ensure compliance with these
limitations and compliance schedules.\10\
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    \9\ The text of CAA section 126 codified in the U.S. Code cross
references CAA section 110(a)(2)(D)(ii) instead of CAA section
110(a)(2)(D)(i). The courts have confirmed that this is a
scrivener's error and the correct cross reference is to CAA section
110(a)(2)(D)(i), See Appalachian Power Co. v. EPA, 249 F.3d 1032,
1040-44 (D.C. Cir. 2001).
    \10\ The EPA has received, but not yet acted upon, several CAA
section 126 petitions from a number of the petitioning states
regarding the contribution of specific electric generating units
(EGUs) to interstate ozone transport with respect to the 2008 and
2015 ozone NAAQS. Petitions have been submitted by Connecticut,
Delaware, and Maryland. The list of EGUs identified in one or more
of these petitions includes EGUs operating in Indiana, Kentucky,
Ohio, Pennsylvania and West Virginia.
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    The flexibility provided by these statutory provisions is different
from that provided by the requirements imposed upon states in the OTR.
Generally, states in the OTR must impose a uniform set of requirements
on sources within each state that meet the minimum requirements imposed
by the statute. The good neighbor provision, by contrast, provides both
the states and the EPA with the flexibility to develop a remedy that is
tailored to a particular air quality problem, including the flexibility
to tailor the remedy to address the particular precursor pollutants and
sources that would most effectively address the particular downwind air
quality problem. As described in the next section (Section IV.B. of
this notice) and in the proposal, the EPA has previously promulgated
four interstate transport rulemakings

pursuant to these authorities in order to quantify the specific
emission reductions required in certain eastern states to comply with
the requirements of CAA section 110(a)(2)(D)(i)(I) for downwind
nonattainment and maintenance concerns with respect to the NAAQS for
ozone and PM2.5.

B. The EPA's Interstate Transport Rulemakings Under the Good Neighbor
Provision

    To address the regional transport of ozone pursuant to the CAA's
good neighbor provision under section 110(a)(2)(D)(i)(I), the EPA has
promulgated four regional interstate transport rules focusing on the
reduction of NOX emissions, as the primary meaningful
precursor to address regional ozone transport across state boundaries,
from certain sources located in states in the eastern half of the U.S.
11 12 The four interstate transport rulemakings are the:
NOX SIP Call,\13\ Clean Air Interstate Rule (CAIR),\14\
CSAPR \15\ and the CSAPR Update.\16\
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    \11\ For purposes of these rulemakings, the western U.S. (or the
West) consists of the 11 western contiguous states of Arizona,
California, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon,
Utah, Washington and Wyoming.
    \12\ Two of these rulemakings also addressed the reduction of
annual NOX and sulfur dioxide (SO2) emissions
for the purposes of addressing the interstate transport of
particulate matter pollution pursuant to the good neighbor
provision.
    \13\ 62 FR 57356 (October 27, 1998).
    \14\ 70 FR 25162 (May 12, 2005).
    \15\ 76 FR 48208 (August 8, 2011).
    \16\ 81 FR 74504 (October 26, 2016).
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    The EPA summarized the history and key provisions of each of these
rulemakings in the January 19, 2017, proposed denial. See 82 FR 6516,
6517, 6518 and 6519. The CSAPR Update, which directly relates to the
2008 ozone NAAQS, is discussed in the next section. In each of these
rulemakings, the EPA identified those sources and pollutants that,
based on the available information at that time, were most effective in
addressing the particular air quality problem identified by the EPA's
analysis. This allowed the EPA to craft tailored remedies that provided
efficient and effective means of addressing the particular air quality
problem at issue. In each of the regional transport rules, the EPA's
analyses demonstrated that NOX is the ozone precursor that
is most effective to reduce when addressing regional transport of ozone
in the eastern U.S. The EPA has also focused each rule on those sources
that can most cost-effectively reduce emissions of NOX, such
as electric generating units (EGUs) and, in one rule, certain large
non-EGUs. These rulemakings demonstrate that the EPA has used and is
continuing to use its authority under CAA section 110(a)(2)(D)(i)(I) to
focus on those sources and precursors that most effectively address the
particular interstate ozone transport problems in the eastern U.S.
The CSAPR Update To Address the 2008 Ozone NAAQS
    On October 26, 2016, the EPA published an update to CSAPR that
addresses the good neighbor provision with respect to the 2008 ozone
NAAQS. 81 FR 74504 (CSAPR Update). The CSAPR Update requires sources in
22 states to reduce ozone season NOX emissions that
significantly contribute to nonattainment or interfere with maintenance
of the 2008 ozone NAAQS in other states. The EPA found that for each
state included in the CSAPR Update, the state had failed to submit or
the EPA had disapproved a complete SIP revision addressing the good
neighbor provision for the 2008 ozone NAAQS. The EPA promulgated FIPs
for each of the 22 states covered by the CSAPR Update. To accomplish
implementation aligned with the applicable attainment deadline for the
2008 ozone NAAQS, the FIPs require affected EGUs to participate in the
regional allowance trading program to achieve emission reductions
beginning with the 2017 ozone season (i.e., May-September 2017).
    The CSAPR Update analysis found that emissions from eight of the
nine states named in the CAA section 176A petition to be added to the
OTR, in addition to a number of other states, were linked to downwind
projected air quality problems, referred to as nonattainment and/or
maintenance receptors, in the eastern U.S. in 2017 with respect to the
2008 ozone NAAQS. 81 FR 74506, 74538 and 74539. For one state named in
the CAA section 176A petition, North Carolina, the EPA determined in
the CSAPR Update that the state was not linked to any downwind air
quality problems and, therefore, will not significantly contribute to
nonattainment or interfere with maintenance of the 2008 ozone NAAQS in
any other state pursuant to the good neighbor provision. 81 FR 74506,
74537 and 74538.
    For those states linked to downwind air quality problems, the EPA
next evaluated timely and cost-effective emissions reductions
achievable by sources in each state in order to quantify the amount of
emissions constituting each state's significant contribution to
nonattainment and interference with maintenance of the standard
pursuant to the good neighbor provision. The EPA focused its analysis
on: (1) Emissions reductions achievable by 2017 in order to assist
downwind states with meeting the applicable attainment deadline for the
2008 ozone NAAQS (81 FR 74521); (2) reductions in only NOX
emissions, consistent with past ozone transport rules (81 FR 74514);
and (3) cost-effective NOX emissions reductions from EGUs.
The EPA, therefore, calculated emissions budgets for each affected
state based on the cost-effective NOX emissions reductions
achievable from EGUs for the 2017 ozone season.
    The EPA concluded that the emissions reductions achieved by
implementation of the budgets constitute a portion of most affected
states' significant contribution to nonattainment or interference with
maintenance of the 2008 ozone NAAQS at these downwind receptors. 81 FR
74508, 74522.\17\ For most states, the EPA could not determine that it
had fully addressed emissions reduction obligations pursuant to the
good neighbor provision because certain states were projected to remain
linked to downwind air quality problems in 2017 even after
implementation of the quantified emissions reductions and because the
EPA did not quantify further NOX reduction potential from
EGUs beyond 2017 or any NOX reduction potential from non-
EGUs. In order to determine the level of NOX control
stringency necessary to quantify those emissions reductions that fully
constitute each state's significant contribution to downwind
nonattainment or interference with maintenance, the EPA explained in
promulgating the final CSAPR Update that it would likely need to
evaluate further emission reductions from EGU and non-EGU control
strategies that could be implemented on longer timeframes. The CSAPR
Update represented a significant first step by the EPA to quantify
states' emission reduction obligations under the good neighbor
provision for the 2008 ozone NAAQS. Even though the CSAPR Update did
not fully address most upwind states' emission reduction obligation
pursuant to the good neighbor provision, the implementation of the
emissions budgets quantified in that rule are helping to address or
resolve projected air quality problems in the eastern U.S., including
the

designated nonattainment areas within the OTR.
---------------------------------------------------------------------------

    \17\ For one state named in the CAA section 176A petition,
Tennessee, the EPA determined that the emissions reductions required
by the CSAPR Update would fully address the state's significant
contribution to nonattainment and interference with maintenance of
the 2008 ozone NAAQS in other states.
---------------------------------------------------------------------------

    The EPA is actively continuing the work with states necessary to
address any remaining obligations under the good neighbor provision
with respect to the 2008 ozone NAAQS. The EPA is performing updated
ozone transport air quality modeling and analysis to characterize
interstate transport beyond 2017.\18\ The results of this analysis will
provide updated information on any remaining ozone problems and
linkages between states.
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    \18\ In January 2017, the EPA also shared preliminary 2023
interstate transport data and solicited input from states on the
EPA's interstate transport assessment for the 2015 ozone NAAQS. 82
FR 1733 (January 6, 2017). The EPA included input and feedback
received from the public submitted in response to the Notice of Data
Availability in conducting the updated modeling.
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C. Additional Rules That Reduce NOX and VOC Emissions

    In addition to the significant efforts to implement the good
neighbor provision for the 2008 and prior ozone NAAQS, there are also
numerous federal and state emission reduction rules that have already
been adopted, which have resulted or will result in the further
reduction of ozone precursor emissions, including emissions from states
named in the CAA section 176A petition and petitioning states. Many of
these rules directly require sources to achieve reductions of
NOX, VOC, or both, and others require actions that will
indirectly result in such reductions. As a result of these emissions
reductions, the interstate transport of ozone has been and will
continue to be reduced over time.
    The majority of man-made NOX and VOC emissions that
contribute to ozone formation in the U.S. comes from the following
sectors: On-road and nonroad mobile sources, industrial processes
(including solvents), consumer and commercial products, and the
electric power industry. In 2014, the most recent year for which the
National Emissions Inventory (NEI) is available, the largest
contributors of annual NOX emissions nationally are on-road
and nonroad mobile sources (accounted for about 56 percent) and the
electric power industry (EGUs; accounted for about 13 percent). With
respect to VOCs, the largest contributors of annual man-made emissions
nationally are industrial processes (including solvents; accounted for
about 48 percent) and mobile sources (accounted for about 27
percent).19 20
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    \19\ The VOC percentages are for anthropogenic VOCs only.
Emissions from natural sources, such as trees, also comprise around
70 percent of total VOC emissions nationally, with a higher
proportion occurring during the ozone season and in areas with more
vegetative cover.
    \20\ For more information, see the ``2014 NEI Summary
Spreadsheet'' in the docket.
---------------------------------------------------------------------------

    The EPA establishes emissions standards under various CAA
authorities for numerous classes of automobile, truck, bus, motorcycle,
earth mover, aircraft, and locomotive engines, and for the fuels used
to power these engines. The pollutant reduction benefits from new
engine standards increase each year as older and more-polluting
vehicles and engines are replaced with newer, cleaner models. The
benefits from fuel programs generally begin as soon as a new fuel is
available. Further, the ongoing emission reductions from mobile source
federal programs, such as those listed previously, will provide for
substantial emissions reductions well into the future, and will
complement state and local efforts to attain the 2008 ozone NAAQS.
    There are several existing national rules that continue to achieve
emission reductions through 2025 and beyond with more protective
emission standards for on-road vehicles that include: Control of Air
Pollution from Motor Vehicles: Tier 3 Motor Vehicle Emission and Fuel
Standards; \21\ Control of Air Pollution from New Motor Vehicles: Tier
2 Motor Vehicle Emissions Standards and Gasoline Sulfur Control
Requirements; \22\ Control of Air Pollution from New Motor Vehicles:
Heavy-Duty Engine and Vehicle Standards and Highway Diesel Fuel Sulfur
Control Requirements; \23\ Model Year 2017 and Later Light-Duty Vehicle
Greenhouse Gas Emissions and Corporate Average Fuel Economy Standards;
\24\ Model Year 2012-2016 Light-Duty Vehicle Greenhouse Gas Emission
Standards and Corporate Average Fuel Economy Standards; \25\ Greenhouse
Gas Emissions and Fuel Efficiency Standards for Medium- and Heavy-Duty
Engines and Vehicles--Phase 2; \26\ Phase 1 Greenhouse Gas Emissions
Standards and Fuel Efficiency Standards for Medium- and Heavy-Duty
Engines and Vehicles \27\ and Control of Hazardous Air Pollutants from
Mobile Sources.\28\
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    \21\ 81 FR 23414 (April 28, 2014).
    \22\ 65 FR 6698 (February 10, 2000).
    \23\ 66 FR 5002 (January 18, 2001).
    \24\ 77 FR 62624 (October 15, 2012).
    \25\ 75 FR 25324 (May 7, 2010).
    \26\ 81 FR 73478 (October 25, 2016).
    \27\ 76 FR 57106 (September 15, 2011).
    \28\ 72 FR 8428 (February 26, 2007).
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    Similarly, already adopted regulations for non-road engines and
equipment that will achieve further reductions include: Control of
Emissions of Air Pollution from Nonroad Diesel Engines and Fuel; \29\
Republication for Control of Emissions of Air Pollution from Locomotive
Engines and Marine Compression-Ignition Engines Less Than 30 Liters per
Cylinder; \30\ Control of Emissions from New Marine Compression-
Ignition Engines at or Above 30 Liters per Cylinder; \31\ the
International Maritime Organization's Emission Control Area to Reduce
Emissions from Ships in the U.S. Caribbean; Control of Air Pollution
From Aircraft and Aircraft Engines; \32\ Emission Standards and Test
Procedures; Control of Emissions from Nonroad Large Spark-Ignition
Engines, and Recreational Engines (Marine and Land-Based); \33\ and
Control of Emissions from Nonroad Spark-Ignition Engines and
Equipment.\34\
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    \29\ 69 FR 38958 (June 29, 2004).
    \30\ 73 FR 37096 (June 30, 2008).
    \31\ 75 FR 22896 (April 30, 2010).
    \32\ 77 FR 36342 (June 18, 2012).
    \33\ 67 FR 68242 (November 8, 2002).
    \34\ 73 FR 59034 (October 8, 2008).
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    As a result of the rules and programs listed in this section,
various other state programs and efforts, and wider economic trends,
ozone levels across the nation and the OTR have been declining--e.g.,
down by more than 30 percent since 1980 nationwide. Ozone levels across
the nation are expected to further decline over the next several years
due to emissions controls already in place. The EPA's emissions
projections in support of the 2015 ozone NAAQS modeling show declining
emissions of NOX and VOCs between 2017 and 2025. In the
states comprising the OTR plus the nine upwind states named in the CAA
section 176A petition, total NOX emissions over the upcoming
7-year period (2017-2025) are expected to decline by almost 20 percent
on average and VOC emissions are expected to decline by more than 10
percent on average over the same period.\35\
---------------------------------------------------------------------------

    \35\ For more information, see the ``2011, 2017 and 2025 NEI
Summary Spreadsheet'' in the docket.
---------------------------------------------------------------------------

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

    As proposed, the EPA is finalizing its denial of the CAA section
176A petition because we believe that the statute provides other, more
effective means of addressing the impact of interstate ozone transport
on any remaining air quality problems within the OTR with respect to
the 2008 ozone NAAQS. Continuing those existing efforts is a better use
of the agency's limited resources. As described at proposal, the
statute provides several provisions that

allow states and the EPA to address interstate ozone transport with a
remedy better tailored to the nature of the particular air quality
problem, focusing on those precursor emissions and sources that most
directly impact downwind ozone nonattainment and maintenance problems
and which can be controlled most cost effectively. The EPA and states
are actively using these provisions, and numerous federal and state
measures have reduced, and will continue to reduce, the VOC and
NOX emissions that contribute to ozone formation and the
interstate transport of ozone pollution. The EPA does not believe that
it is necessary to add more states to the OTR at this time in order to
effectively address transported pollution in the OTR relative to the
2008 ozone NAAQS.
    While the CAA contains several provisions, both mandatory and
discretionary, to address interstate pollution transport, the EPA's
decision whether to grant or deny a CAA section 176A petition to expand
an existing transport region is discretionary. Section 176A of the CAA
states that the Administrator may add any state or portion of a state
to an existing transport region whenever the Administrator has reason
to believe that the interstate transport of air pollutants from such
state significantly contributes to a violation of the standard in the
transport region. The EPA does not dispute that certain named upwind
states in the petition might impact air quality in one or more downwind
states that are measuring violations of the 2008 ozone NAAQS. However,
the EPA believes that states and the EPA can effectively address the
upwind states' impacts on downwind ozone air quality through the good
neighbor provision. The EPA has already taken steps to address
interstate transport with respect to the 2008 ozone NAAQS through the
promulgation of the CSAPR Update, which reduces emissions starting with
the 2017 ozone season. The EPA used the authority of CAA sections
110(a)(2)(D)(i)(I) and 110(c) to tailor a remedy focused on the
precursor pollutant most likely to improve ozone levels (currently
NOX) in downwind states and those sources that can most
cost-effectively reduce emissions within a limited timeframe (i.e.,
EGUs). The EPA further implemented the remedy through an allowance
trading program that achieves emission reductions while providing
sources with the flexibility to implement the control strategies of
their choice.
    We believe that the continued use of the authority provided by the
good neighbor provision to address the interstate transport of ozone
pollution plus other regulations that are already in place will permit
the states and the EPA to achieve any additional mandatory reductions
to address the 2008 ozone NAAQS without the need to implement the
additional requirements that inclusion in the OTR would entail. As
described in the proposal, this approach to address the interstate
transport of ozone is a proven, efficient, and cost-effective means of
addressing downwind air quality concerns that the agency has employed
and refined over nearly two decades. However, the EPA notes that the
addition of states to the OTR pursuant to the CAA section 176A
authority--and the additional planning requirements that would entail--
could be given consideration as an appropriate means to address the
interstate transport requirements of the CAA should the agency's
approach or other circumstances change in the future.
    As described in this action, the CAA provides the agency and states
with the authority to mitigate the specific sources that contribute to
interstate pollution through implementation plans to satisfy the
requirements of the good neighbor provision, CAA section
110(a)(2)(D)(i)(I), and through the related petition process under CAA
section 126. This authority gives the EPA and states numerous potential
policy approaches to address interstate pollution transport of ozone,
and the EPA has consistently and repeatedly used its authority under
CAA section 110(a)(2)(D)(i)(I) to approve state plans for reducing
ozone transport or to promulgate FIPs to specifically focus on the
sources of ozone transport both within and outside the OTR. The
NOX SIP Call, CAIR, CSAPR, CSAPR Update and numerous
individual SIP approvals demonstrate that the EPA has a long history of
using its CAA section 110 authority to specifically address interstate
pollution transport in a tailored way that is specific to a NAAQS and
set of pollution sources that are the primary contributors to
interstate pollution transport. As described in Section IV.B of this
notice, using the authority of the good neighbor provision has allowed
the EPA to focus its efforts on pollution sources that are responsible
for the largest contributions to ozone transport and that can cost-
effectively reduce emissions, and also enables the agency to focus on
NOX as the primary driver of long range ozone transport--an
approach the courts have found to be a reasonable means of addressing
interstate ozone transport. Michigan v. EPA, 213 F.3d at 688 (``EPA
reasonably concluded that long-range ozone transport can only be
addressed adequately through NOX reductions''); see also EPA
v. EME Homer City Generation, L.P., 134 S. Ct. at 1607 (affirming as
``efficient and equitable'' the EPA's use of cost to apportion emission
reduction responsibility pursuant to the good neighbor provision).
    As explained previously, adding states to an OTR under CAA section
176A will not afford the states and EPA with the flexibility to focus
on specific sources and ozone precursor emissions tailored to address
the downwind state's current air quality problems and needed remedy to
achieve attainment of the 2008 NAAQS. The statute prescribes a specific
set of controls for a variety of sources to control emissions of both
VOCs and NOX. CAA section 110(a)(2)(D)(i)(I), on the other
hand, permits the EPA and the regulated community the flexibility to
focus controls on specific sources and pollutants that most efficiently
address the air quality problem being addressed. The EPA determined in
the CSAPR Update that regional NOX emissions reductions are
the most effective means for providing ozone benefits for areas in the
eastern United States, including the OTR, currently violating the 2008
ozone NAAQS, and that NOX reductions can be most efficiently
achieved by focusing on those sources that can cost-effectively reduce
emissions within a limited timeframe. Accordingly, the EPA does not
believe that the requirements which would be imposed upon states added
to the OTR would be the most effective means of addressing any
remaining interstate transport concerns with respect to the 2008 ozone
NAAQS.
    The implementation of controls within the OTR, when combined with
the numerous federal and state emission reduction programs that have
already been adopted that have resulted in the reduction of ozone
precursor emissions either directly or as a co-benefit of those
regulations, have helped to significantly reduce ozone levels. These
programs will continue to reduce ozone precursor emissions and ozone
concentrations both within and outside of the OTR over many years to
come. The EPA believes the most efficient way to address any remaining
2008 ozone NAAQS interstate transport problems is to continue to
address any required reductions through a combination of tailored
programs, including the implementation of the CSAPR Update, further
development of implementation plans pursuant to section 110,
development of local attainment plans, and, if appropriate,
consideration of

additional emissions limitations resulting from action on CAA section
126 petitions.
    The Administrator may exercise reasonable discretion in determining
whether or not to approve or deny a CAA section 176A petition. The EPA
has reviewed the request of the petitioners to add additional states to
the OTR in light of required control strategies for ozone transport
regions and the other statutory tools available to the agency and
states to address the interstate transport of ozone pollution. The
agency believes that continuing its longstanding and effective use of
the existing and expected control programs under the CAA's mandatory
good neighbor provision embodied in section 110(a)(2)(D)(i)(I),
including implementation of the CSAPR Update beginning in 2017 and
technical work now underway to fully address the good neighbor
provision for the 2008 NAAQS, is a more effective approach for
addressing regional interstate ozone transport problems relative to the
2008 ozone standard.
    The EPA, therefore, denies the petitioners' request to add at this
time additional states to the OTR for the purpose of addressing
interstate transport of the 2008 ozone NAAQS. The agency will instead
continue to use other authorities available within the CAA in order to
address the long-range, interstate transport of ozone pollution. This
response only considers the effectiveness of the OTR expansion to
achieve appropriate emission reductions to address the 2008 ozone
NAAQS. The EPA notes that, under different circumstances, the OTR
provisions have been an effective tool for air quality management, and
could be similarly effective in the future for addressing interstate
transport of ozone pollution. Accordingly, nothing in this document
should be read to limit states' ability to file a petition under CAA
section 176A in the future or to prejudge the outcome of such a
petition, if filed.

V. Major Comments on the Proposed Denial

    The EPA solicited comment on the proposed denial of the petition
based on the EPA's preference for addressing interstate transport with
respect to the 2008 ozone NAAQS pursuant to other CAA authorities. This
section addresses significant comments received on the January 19,
2017, proposed denial. Remaining comments are addressed in a separate
RTC document found in the docket for this action.

A. Adequacy of the EPA's Rationale

    Commenters believed that the EPA's explanation for denial in the
proposal was inadequate. Commenters stated that the EPA's explanation
for the proposed denial of the petition failed to provide a technical
review of the data submitted by the petitioners and instead focused on
the availability of other CAA programs. Commenters asserted the EPA
``must adequately explain the facts and policy concerns relied on in
acting on the petition and conform such reasons with the authorizing
statute.'' For example, they claimed, the EPA offered no analysis of
relative costs of other tools and the efficiency of those approaches
nor did the EPA propose to find the petition technically inadequate
with respect to the air quality data presented in the technical support
document (TSD) for the petition.\36\ Commenters stated that the agency
failed to provide empirical evidence to support the basis for the
proposed denial. Some commenters believed empirical data are required
in order for the agency to respond to a CAA section 176A petition. Some
commenters believed that the EPA's supporting technical data for the
CAIR and CSAPR rules technically justify expansion of the OTR, pointing
in particular to the Petition TSD. Commenters in support of the
proposed denial claimed there are errors with the petitioners'
supporting data. In addition, some commenters acknowledged that recent
air quality measurements and emission reductions of ozone precursor
pollutants show that air quality has improved. In contrast, some
commenters opposed to the proposed denial encouraged the EPA to grant
the petition in part based on data provided by petitioners that showed
that some of the states outside the OTR were violating the NAAQS and
believed the OTR requirements would also help those areas meet the
NAAQS.
---------------------------------------------------------------------------

    \36\ Technical Support Document for the Petition to the United
States Environmental Protection Agency for the Addition of Illinois,
Indiana, Kentucky, Michigan, North Carolina, Ohio, Tennessee,
Virginia and West Virginia to the Ozone Transport Region (December
9, 2013) (EPA-HQ-OAR-2016-0596-0002 docket number) (hereinafter
``Petition TSD'').
---------------------------------------------------------------------------

    Response: The EPA disagrees that it bears the burden of conducting
extensive air quality or other empirical analysis in response to a CAA
section 176A petition. Petitioners for administrative action generally
should establish the merits of their petition in the first instance.
See, e.g., Radio-Television News Dirs. Ass'n v. FCC, 184 F.3d 872, 881
(D.C. Cir. 1999). While the agency has reviewed the technical
information supplied in support of the petition, there have been
significant changes to emissions levels, regulatory requirements, and
ambient air quality that have occurred in the interim since the
petition was submitted in December 2013. The EPA has taken into account
this additional supporting air quality information, including current
air quality conditions, some recent on-the-books control strategies,
and significant changes in emissions inventories that have occurred
over the past several years. In general, commenters did not call into
question the EPA's view at proposal that ozone levels across the nation
and the OTR have been declining and are expected to further decline
over the next several years (82 FR 6520). As a separate matter, neither
petitioners nor commenters provided information supporting the
reasonableness of imposing the suite of section 184 of the CAA control
strategies as a whole to address any remaining interstate air quality
impact that states named in the petition would have with respect to the
2008 ozone NAAQS. In its proposed denial, the agency emphasized its
preference for continuing the more tailored, flexible, and cost-
effective approach of addressing interstate transport of ozone under
CAA section 110(a)(2)(D)(i)(I). In response to comments asserting that
the agency failed to more fully address the technical information
underlying the petition, the agency will respond briefly regarding why
it believes the information presented in support of the petition is
insufficient given the totality of information the agency considered,
including more recent air quality information.
    The air quality information relied upon, in part, by petitioners
included the EPA's CAIR modeling from 2005, which is now over 10 years
old, and the CSAPR base case modeling from 2011.\37\ These two sets of
modeling do not capture the reductions in ozone precursors that have
occurred as a result of the implementation of either the CSAPR, which
went into effect in 2015, or the CSAPR Update, which went into effect
for the 2017 ozone season and was specifically designed to address the
2008 ozone NAAQS at issue in this petition. Petitioners' data also do
not capture other changes in the emissions inventory and pollution
control requirements that have occurred since that time. As the EPA
noted in the proposal, 82 FR 6519, the modeling for the final CSAPR
Update in 2016, the modeling currently underway to address states'
remaining interstate transport obligations for the 2008 ozone NAAQS,

and recent air quality monitor design values provide a more current
picture of air quality issues and projections.
---------------------------------------------------------------------------

    \37\ Petition TSD 4-14.
---------------------------------------------------------------------------

    The EPA acknowledges that the petitioners originally may have
submitted information reflective of air quality prior to December 2013,
but the EPA believes it is appropriate to consider all relevant
information available at the time it takes action on the petition, not
only the information provided in the petition, but more current
information reflecting additional developments in federal regulations
and changes in air quality. The EPA believes it would be unreasonable
for the agency to consider OTR expansion and subject states to OTR
requirements without considering the most recent information that is
directly relevant to the 2008 ozone NAAQS air quality problems intended
to be addressed by the petitioners. The EPA notes that at the time the
petitioners submitted the petition in December 2013, the CSAPR
implementation requirements had been vacated by the D.C. Circuit, and
there was uncertainty regarding if and when the rule's emissions
reductions would take effect. However, subsequent to the petitioners
filing the petition, on April 29, 2014, the Supreme Court issued a
decision reversing the D.C. Circuit's decision on the CSAPR and on
October 23, 2014, the lower court granted the EPA's request to lift the
stay on the CSAPR. In addition to the emissions reductions as a result
of CSAPR, the EPA has issued the CSAPR Update which further reduces
NOX emission during the ozone season for a number of eastern
states. Because the data used by the petitioners are now dated, they do
not reflect the sustained trend of declining emissions and improved air
quality. As noted in the proposal, since 2013 when the petition was
submitted, there has been a long-term trend of improving air quality in
the eastern U.S. For instance, petitioners identified 2012 preliminary
design values showing that the designated nonattainment areas of
Charlotte-Rock Hill, NC-SC; Chicago-Naperville, IL-IN-WI; Cincinnati,
IN-KY-OH; Cleveland-Akron-Lorain, OH; Columbus, OH; Knoxville, TN;
Memphis, AR-MS-TN; and St. Louis-St. Charles-Farmington, IL-MO would be
in violation of the 2008 ozone NAAQS. Further the petitioners
extrapolated the 2012 design values to 2015 to project that the
designated nonattainment areas of Chicago-Naperville, IL-IN-WI;
Cincinnati, IN-KY-OH; Cleveland-Akron-Lorain, OH; and Columbus, OH
would continue to violate the NAAQS. However, most of these areas are
now measuring attainment of the NAAQS.\38\ Thus, the nature of the
remaining 2008 ozone NAAQS nonattainment issues in the non-OTR states
is not as severe in terms of the number of nonattainment areas as it
appeared to be in the past.\39\ These improvements have been driven in
part by CSAPR and other air pollution control programs and rules, see
Section IV.C of this notice, as well as a well-documented, long-term
trend of transition toward sources of electricity generation in the
power sector that have lowered NOX emissions.\40\
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    \38\ Status of Designated Areas for the Ozone-8Hr (2008) NAAQS,
https://www3.epa.gov/airquality/urbanair/sipstatus/reports/ozone-8hr__2008__areabynaaqs.html (last visited September 20, 2017).
    \39\ Further, the statutory basis for granting a CAA section
176A petition is tied to interstate transport of air pollutants. See
42 U.S.C. 7506a(a). Intrastate air quality problems, in and of
themselves, would not be a basis for granting this petition.
    \40\ Power Plant Emission Trends (NOX Tab), https://www3.epa.gov/airmarkets/progress/datatrends/index.html (last visited
September 20, 2017).
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    The EPA also observes an analytical gap in the information
submitted in support of this petition as to the reasonableness of the
remedy that would be imposed by application of the suite of
requirements under CAA section 184 to address the air quality problems
at issue. The EPA need not dispute now (nor did it at proposal) that
the states named in the petition may impact air quality at downwind
areas in states within the OTR, at least as of the time of the CSAPR
Update modeling. See 82 FR 6518. In the agency's view, however, the air
quality information submitted here, standing alone, does not
automatically warrant expanding the OTR to this group of states at this
time. Under the approach the EPA has historically taken to identify
control measures to address regional interstate transport (in the
NOX SIP Call, CAIR, CSAPR, and CSAPR Update), a linkage to a
downwind air quality problem would not automatically result in
imposition of mandatory controls, such as those that would be required
under CAA section 184 if this petition were granted. Rather, the EPA
has also historically considered the reasonableness of application of
control strategies available within a linked state, usually by
examining which precursors to ozone formation it would be most
effective to control, as well as the costeffectiveness of those
controls. Neither petitioners nor commenters in support of the petition
supply an analysis regarding the reasonableness of applying the
controls that would be required under CAA section 184 if the petition
were granted, such as providing an analysis of their effectiveness in
addressing the interstate transport problem at issue or the costs
associated with those mandatory controls. As the EPA emphasized at
proposal, 82 FR 6520 and 6521, application of appropriate controls
through an examination of which precursors and sources to address and
the cost effectiveness of available control strategies has been an
integral principle of its efforts to address interstate transport of
air pollution in federal regional transport rules.\41\ As discussed in
Section V.B. of this notice, there are good grounds to question the
reasonableness of application of at least some CAA section 184
requirements in the non-OTR states in this petition. The agency is,
therefore, well-justified in continuing to rely primarily on its CAA
section 110(a)(2)(D)(i)(I) authority in transport rules to focus on the
pollutants and the sources in a manner that most effectively and
efficiently addresses long range ozone transport.
---------------------------------------------------------------------------

    \41\ See, e.g., EPA v. EME Homer City Generation, L.P., 134 S.
Ct. 1584, 1606-07 (2014).
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B. Effectiveness of Ozone Precursor Emissions Reductions

    Some commenters highlighted the benefits of the OTC, as well as the
benefits of RACT, I/M, and NSR. Commenters believed the EPA's reliance
on other CAA tools to justify denial is inadequate because the EPA has
not analyzed the costs of those tools or acknowledged that the cost per
ton of emission reduced is lower in the non-OTR states than in the OTR
states. They asserted that the EPA is overestimating control cost and
underselling the ability of sources to meet more stringent limits.
    Other commenters that support denial of the petition questioned the
effectiveness of VOC emission reductions on air quality in areas within
the OTR. The commenters claimed that VOC emissions from the states
outside of the current OTR states are not effective and would not
improve air quality or reduce the ozone concentrations in the
Baltimore, Philadelphia, New York and Connecticut areas.
    Response: While the EPA acknowledges that the OTR has been an
effective tool for addressing widespread and persistent ozone transport
problems in the East, petitioners have not demonstrated that the suite
of mandatory controls that would apply to new states added to the OTR
would be a more effective means than its current approach under the
good neighbor provision for addressing any remaining ozone transport
problems with respect

to the 2008 ozone NAAQS. These existing efforts represent a better use
of limited EPA and state resources. The EPA appreciates that the
process provided by the OTR regulations, via the OTC, has fostered a
collaborative process for current OTR states to address ozone transport
issues. However, at this time, we do not believe that the benefits of
this process outweigh the concerns that the mandatory requirements
imposed in the OTR are not the measures best suited to addressing any
remaining downwind air quality problems in the most reasonable manner,
i.e., by focusing on those sources and precursor emissions most likely
to lead to cost-effective downwind air quality benefits.
    For instance, the EPA has previously explained that ``authoritative
assessments of ozone control approaches'' have concluded that VOC
reductions are generally most effective for addressing ozone locally,
including in dense urbanized areas and ``immediately downwind.'' See
CSAPR Final Rule, 76 FR 48222; see also 82 FR 6517 (citing 63 FR
57381). Yet granting this petition would require mandatory VOC controls
pursuant to section 184(b) over a vast region that would not be local
to or nearby the remaining ozone problems in the OTR that the petition
aims to address. Petitioners have not connected these types of VOC
reductions over such a wide region with specific air quality benefits
within the existing OTR. The EPA continues to believe that
NOX emission reductions strategies are more effective than
VOC reductions in lowering ozone concentrations over longer distances.
The EPA believes that regional ozone formation is primarily due to
NOX, but VOCs are also important because VOCs influence how
efficiently ozone is produced by NOX, particularly in dense
urban areas. Reductions in anthropogenic VOC emissions will typically
have less of an impact on the long-range transport of ozone, although
these emission reductions can be effective in reducing ozone in nearby
urban areas where ozone production may be limited by the availability
of VOCs. Therefore, a combination of localized VOC reductions in urban
areas with additional NOX reductions across a larger region
will help to reduce ozone and precursors in nonattainment areas, as
well as downwind transport across the eastern U.S. Further,
NOX reductions will reduce peak ozone concentrations in
nonattainment areas. As noted in the proposal, model assessments have
looked at impacts on peak ozone concentrations after potential emission
reduction scenarios for NOX and VOCs for NOX-
limited and VOC-limited areas. Specifically, one study \42\ concluded
that NOX emission reductions strategies would be effective
in lowering ozone mixing ratios in urban areas and another study showed
NOX reductions would reduce peak ozone concentrations in
nonattainment areas in the Mid-Atlantic (i.e., a 10 percent reduction
in EGU and non-EGU NOX emissions would result in
approximately a 6 ppb reduction in peak ozone concentrations in
Washington, DC).\43\
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    \42\ Jiang, G.; Fast, J.D. (2004) Modeling the effects of VOC
and NOX emission sources on ozone formation in Houston
during the TexAQS 2000 field campaign. Atmospheric Environment 38:
5071-5085.
    \43\ Liao, K. et al. (2013) Impacts of interstate transport of
pollutants on high ozone events over the Mid-Atlantic United States.
Atmospheric Environment 84, 100-112.
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C. Efficiency in Addressing Statutory Interstate Transport Requirements

    Commenters in support of granting the petition believed expansion
of OTR is an efficient method to address interstate transport of
pollution that could satisfy the intent of the good neighbor provision
and give upwind states a successful coordination process for addressing
ozone pollution. Some commenters believed the collaborative process
inherent in the OTC's mission is efficient and uniquely suited to
address transport and achieve timely attainment of the ozone NAAQS and
clean air. They believed there are two important mechanisms in the OTR
process that would reduce ozone levels: (1) The establishment of a
minimum baseline for emissions control in the area, and (2) a framework
for states to collaborate in the development and implementation of
additional measures if necessary to solve the ozone problem. They also
believed OTR expansion would obviate the need for future good neighbor
FIPs and CAA section 126 petitions. They argue that the EPA has a
history of ``inaction, delay, and failure'' to adequately address
interstate transport under CAA sections 110(a)(2)(D)(i)(I) and 126. One
commenter claimed that states have not taken the initiative to address
interstate transport requirements until required by the EPA. In
addition the commenter believes that they have to force EPA to fulfill
its statutory obligations by litigation. They believed the CSAPR Update
is inadequate because it addresses only a part of most states'
interstate transport obligations. They further noted the EPA's delayed
action on CAA section 126 petitions. The commenter asserted that these
statutory tools are resource intensive and time-consuming. They
believed the EPA should expand the OTR to include all the states that
contribute materially to regional ozone levels because it will
facilitate the development of a more efficient state-led response to
address interstate ozone transport. Another commenter believed that the
EPA cannot selectively choose not to use CAA section 176A as a tool
because it prefers other provisions, and that this ignores the
statutory goal that states attain the standard as expeditiously as
practicable.
    Response: The EPA appreciates the time and resources needed for the
agency and states to take action to address interstate transport
obligations. However, the agency disagrees that expansion of the OTR
would necessarily be a faster or more efficient method to address
interstate ozone transport than continuing to work within the well-
established framework of the EPA's historical approach to addressing
interstate transport pursuant to the good neighbor provision. Because
addressing the good neighbor obligation is required of all states
following NAAQS promulgation, and not just those areas that are
eventually designated nonattainment, states are required to submit
their plans for addressing their CAA section 110(a)(2)(D) obligations 3
years after the promulgation of a NAAQS. 42 U.S.C. 7410(a). Thus, the
CAA section 110(a)(2)(D)(i)(I) process on its face provides a faster
timeframe for implementation of interstate transport requirements for a
new NAAQS than application of OTR requirements, which run from the
effective date of designations and are set under CAA section 182
through a separate rulemaking process.
    In any case, both the OTR SIP process and the good neighbor process
are state-driven in the first instance. States are expected to submit
approvable implementation plans by the deadlines required in the
statute and states can choose to submit plans--under either the good
neighbor or OTR process--that achieve greater emission reductions
faster than required by the CAA. Even though the EPA has sometimes been
required to apply FIPs to address good neighbor obligations, which have
in turn been litigated, the good neighbor provision process has proven
to be successful historically. Moreover, given increasing experience
applying the EPA's prior interstate transport rules and the fact that
many interstate transport issues have already been addressed through
litigation, the states and the EPA are increasingly positioned to
implement this provision in a

timelier fashion. Lastly, it is important to note that, notwithstanding
the fact that OTR states do have OTR control requirements, the EPA has
generally (most recently via the CSAPR Update) had to seek additional
emission reductions from OTR states through the good neighbor process
to address interstate transport and help areas within and outside the
OTR reduce ozone concentrations.
    Some commenters alleged that the EPA has delayed or failed to act
on CAA section 126 petitions from states. All of the CAA section 126
petitions submitted by the states in the OTR (i.e., Connecticut,
Delaware and Maryland) for the 2008 ozone NAAQS were submitted in 2016,
and the agency is continuing to review these petitions. Action on these
petitions is beyond the scope of this action. However, the EPA observes
that four of the six petitions the EPA has received from OTR states
since 2016 concern sources within another OTR state, which tends to
demonstrate limitations in some respects to the efficacy of the OTR
process.

D. Equity Among States

    Commenters stated that the ``disparity'' between environmental
performance of sources within the OTR and those outside the OTR has
grown. One commenter estimated that the difference in cost of controls
for further reductions from OTR sources could be in the range of
$10,000 to $40,000 per ton, while in the non-OTR states it could be as
low as $500 to $1,200 per ton. Commenters further stated that denial of
the petition will continue to leave OTR states at a competitive
disadvantage, as the control requirements within the OTR increase the
costs to business and industry, while the non-OTR states are allowed to
emit at far higher levels.
    Other commenters asserted in contrast that OTR control requirements
are costly and burdensome. They claimed the mandatory requirements
would impose a substantial cost burden upon both the permitting
authorities and the regulated communities. One commenter asserted that
the petitioners' notion of economic fairness as a basis for the
petition is inappropriate and states that the EPA has no authority to
require controls on that basis. This commenter suggested that OTR
states should be required to address their requirements first before
seeking an expansion. The commenter contended that OTR states are not
fully implementing required OTR and other ozone controls, and, if they
were, it may sufficiently control ozone to obviate the need for
expansion of the OTR.
    Response: As an initial matter, the statutory basis for granting a
CAA section 176A petition is tied to the interstate transport of air
pollutants. See 42 U.S.C. 7506a(a). The EPA recognizes, however, that
equity, or fairness, can play a role in apportioning responsibility for
addressing air quality problems to which multiple states are
contributing. These concerns have played a role in the legal analysis
of the EPA's past rulemakings under CAA section 110(a)(2)(D)(i)(I). In
EPA v. EME Homer City, the Supreme Court upheld the agency's approach
in the CSAPR of eliminating amounts of air pollution that can cost
effectively be reduced as an efficient and equitable solution to the
allocation problem of the good neighbor provision. 134 S. Ct. 1584,
1607 (2014). The Court noted that the EPA's approach was ``[e]quitable
because, by imposing uniform cost thresholds on regulated states, EPA's
rule subjects to stricter regulation those States that have done
relatively less in the past to control their pollution.'' Id. Thus, the
agency's approach to implementing the good neighbor provision
explicitly considers the equity concerns raised by commenters when
apportioning emission reduction responsibility among multiple upwind
states. However, the agency does not believe Congress intended for it
to exercise its discretion under CAA section 176A to resolve an alleged
economic disparity or competitive disadvantage that is inherent in the
creation of the OTR under CAA section 184 in a manner that is unrelated
to the primary purpose of addressing interstate transport. Nor have
petitioners provided meaningful information to substantiate that
alleged disparity. Commenters' passing reference to the potential for
obtaining reductions at costs-per-ton of $500 to $1,200 in the non-OTR
states, rather than $10,000 to $40,000 per ton in the OTR states, was
not submitted with supporting evidence. In any case, even if we assumed
those numbers were true for some types of control measures, it is by no
means clear (and is in fact highly doubtful) that all of the mandatory
control requirements that would be required of a new OTR state under
CAA section 184 would be at that level of cost effectiveness. By
contrast, the EPA's approach under the good neighbor provision, as
recognized by the Supreme Court, operates fairly by establishing
control levels and apportioning responsibility among states based on a
uniform level of control, represented by cost.

E. Statutory Intent of CAA Section 176A (or 184)

    Some commenters believe that the current geography of the OTR no
longer reflects the region most relevant to the nature of interstate
ozone pollution in the East as it is now understood; they point out
that New England states (e.g., New Hampshire, Maine and Massachusetts)
no longer exceed the NAAQS, and their sources contribute less at
downwind receptors than the states requested to be added to the OTR.
They asserted that Congress created CAA section 176A to address changes
in the geographical distribution of the ozone problem by providing a
process for adding or removing states from the OTR. Therefore, they
claimed that the EPA must set the boundaries of the transport region
based on the scientific evidence presented and its own related analyses
to provide the proper forum for states to address their obligations
with respect to ozone transport. The commenters concluded that each
iteration of the EPA's own transport rules have identified a larger
area.
    Response: As an initial matter, the agency does not have before it
a petition to remove any states from the OTR. In addition, the EPA
already adjusts good neighbor remedies in transport rules to capture
the geographical distribution of states that are most effective in
addressing each specific NAAQS ozone pollution issue. For example,
states like Massachusetts, Rhode Island, and Connecticut were included
in the NOX SIP Call to address the 1979 ozone NAAQS. In
contrast, those three states were not included in the CSAPR, which
addressed the 1997 ozone NAAQS. Furthermore, states like Texas and
Oklahoma are included in the CSAPR Update that addresses the 2008 ozone
NAAQS but were not included in the NOX SIP Call or CAIR to
address prior ozone NAAQS issues.

F. Comments on the 2015 Ozone NAAQS

    A number of commenters raised concerns relating to the 2015 ozone
NAAQS stating that: (1) The EPA should not limit the petition response
to 2008 ozone NAAQS interstate transport issues, (2) if the EPA were to
grant the petition, the OTR requirements would help states attain the
2015 ozone NAAQS, and (3) the petition response should apply to any and
all future ozone NAAQS. One commenter suggested that the EPA's response
should be limited to the 2008 ozone NAAQS because the petitioners' data
focuses on the 2008 NAAQS, interstate transport SIPs for the 2015 ozone
NAAQS are not due yet, and

designations have not yet occurred for the 2015 ozone NAAQS.
    Response: Comments regarding the 2015 ozone NAAQS are outside the
scope of this action. The petition requested the EPA to expand the OTR
on the basis of alleged air quality problems associated with attaining
and maintaining the 2008 ozone NAAQS. The December 2013 petition was
submitted prior to the EPA strengthening the ozone NAAQS in 2015.
Consequently, the EPA's proposal focused on the appropriate mechanism
to address interstate transport issues relative to the 2008 ozone
NAAQS--not the 2015 ozone NAAQS. The EPA is, therefore, limiting this
final action to the 2008 ozone NAAQS. Comments on any determinations
made in prior rulemaking actions to identify downwind air quality
problems relative to the 2015 ozone NAAQS or to quantify upwind state
emission reduction obligations relative to those air quality problems,
including the EPA's decision to focus on certain precursor emissions or
sources, are not within the scope of this action.

VI. Final Action To Deny the CAA Section 176A Petition

    Based on the considerations outlined at proposal, after considering
all comments, and for the reasons described in this action, the EPA is
denying the CAA section 176A petition submitted by nine petitioning
states in December 2013. The EPA continues to believe an expansion of
the OTR is unnecessary at this time and would not be the most efficient
or effective way to address the remaining interstate transport issues
for the 2008 ozone NAAQS in states currently included in the OTR.
Additional local and regional ozone precursor emissions reductions are
expected in the coming years from already on-the-books rules. The EPA
believes its authority and the states' authority under other CAA
provisions (including CAA section 110(a)(2)(D)(i)(I)) will allow the
agency and states to develop a more effective remedy for addressing any
remaining air quality problems for the 2008 ozone NAAQS identified by
the petitioners.

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

    Section 307(b)(1) of the CAA indicates which Federal Courts of
Appeal have venue for petitions of review of final actions by the EPA.
This section provides, in part, that petitions for review must be filed
in the Court of Appeals for the District of Columbia Circuit if (i) the
agency action consists of ``nationally applicable regulations
promulgated, or final action taken, by the Administrator,'' or (ii)
such action is locally or regionally applicable, if ``such action is
based on a determination of nationwide scope or effect and if in taking
such action the Administrator finds and publishes that such action is
based on such a determination.''
    This final action is ``nationally applicable.'' Additionally, the
EPA finds that this action is based on a determination of ``nationwide
scope and effect.'' This action makes a determination on a petition
from nine states in the Northeast, which would impact another nine
states in the Mid-Atlantic, Southern, and Midwestern areas of the U.S.
These 18 states span five regional federal judicial circuits as well as
the District of Columbia. The determinations on which this action is
based rest in part on the scope and effect of certain other nationally
applicable rulemakings under the CAA, including the CSAPR and the CSAPR
Update. For these reasons, this final action is ``nationally
applicable,'' and the Administrator also finds that this action is
based on a determination of nationwide scope and effect for purposes of
CAA section 307(b)(1).
    Pursuant to CAA section 307(b)(1), any petitions for review of this
final action should be filed in the Court of Appeals for the District
of Columbia Circuit within 60 days from the date this action is
published in the Federal Register.

VIII. Statutory Authority

    42 U.S.C. 7401 et seq.

    Dated: October 27, 2017.
E. Scott Pruitt,
Administrator.
[FR Doc. 2017-23983 Filed 11-2-17; 8:45 am]
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