[Federal Register Volume 87, Number 35 (Tuesday, February 22, 2022)]
[Proposed Rules]
[Pages 9484-9498]
[FR Doc No: 2022-02946]

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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

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

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

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

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

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

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

SUPPLEMENTARY INFORMATION: Public Participation: Submit your comments,

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

I. Background

A. Description of Statutory Background

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A. New York

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

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

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

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

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

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

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

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

B. New Jersey

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

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

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

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

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

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

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

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

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

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

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

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

III. EPA Evaluation

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

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

A. New York

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

B. New Jersey

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

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

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

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

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

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

IV. Proposed Action

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

V. Statutory and Executive Order Reviews

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

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

B. Paperwork Reduction Act (PRA)

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

C. Regulatory Flexibility Act (RFA)

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

D. Unfunded Mandates Reform Act (UMRA)

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

E. Executive Order 13132: Federalism

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

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

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

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

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

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

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

I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

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

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

K. CAA Section 307(b)(1)

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

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

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

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

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

List of Subjects in 40 CFR Part 52

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

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

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