[Federal Register Volume 86, Number 210 (Wednesday, November 3, 2021)]
[Proposed Rules]
[Pages 60602-60612]
[FR Doc No: 2021-23638]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2021-0631; FRL-9125-01-R2]

Disapproval of Interstate Transport Requirements for the 2008
Ozone National Ambient Air Quality Standards; New York and New Jersey

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing to disapprove State Implementation Plan
(SIP) submissions from New York and New Jersey regarding the
requirements of section 110(a)(2)(D)(i)(I) of the Clean Air Act (CAA)
for the 2008 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. This requirement is part of the broader
``infrastructure'' requirements of CAA section 110(a)(2), 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.

DATES: Written comments must be received on or before December 3, 2021.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R02-OAR-2021-0631 at http://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. The EPA may publish any
comment received to its public docket. Do not submit electronically 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). For additional submission methods, the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit

http://www2.epa.gov/dockets/commenting-epa-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:

I. Background
II. The 4-Step Interstate Transport Framework and EPA's Revised
Cross-State Air Pollution Rule Update
III. Summary of New York's SIP Revision and the EPA's Analysis
IV. Summary of New Jersey's SIP Revision and the EPA's Analysis
V. What action is EPA taking?
VI. Statutory and Executive Order Reviews

I. Background

    Section 110(a) of the CAA imposes an obligation upon states to
submit SIPs that provide for the implementation, maintenance, and
enforcement of a new or revised NAAQS within 3 years following the
promulgation of that NAAQS. Section 110(a)(2) lists specific
requirements that states must meet in these SIP submissions, as
applicable. The EPA refers to this type of SIP submission as the
``infrastructure'' SIP because the SIP ensures that states can
implement, maintain, and enforce the air standards. Within these
requirements, CAA section 110(a)(2)(D)(i)(I) contains requirements to
address interstate transport of NAAQS pollutants or their precursors.
CAA section 110(a)(2)(D)(i)(I), which is also known as the ``good
neighbor'' provision, requires SIPs to contain provisions prohibiting
any source or other type of emissions activity within the State from
emitting any air pollutant in amounts that will contribute
significantly to nonattainment of the NAAQS in any other state
(commonly referred to as prong 1) or interfere with maintenance of the
NAAQS in any other state (prong 2). A SIP revision submitted under this
provision is often referred to as an ``interstate transport SIP'' or a
good neighbor SIP. In this action, EPA proposes to disapprove SIP
submissions from the states of New York and New Jersey with respect to
these good neighbor requirements.
    On March 12, 2008, EPA strengthened the NAAQS for ozone. 73 FR
16435 (March 27, 2008). The EPA revised the level of the 8-hour ozone
NAAQS from 0.08 parts per million (ppm) to 0.075 ppm. The EPA also
revised the secondary 8-hour standard to the level of 0.075 ppm making
it identical to the revised primary standard. Infrastructure SIPs
addressing the revised standard, including the interstate transport
requirements, were due March 12, 2011.\1\
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    \1\ See CAA section 110(a)(1).
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    On April 4, 2013, the New York State Department of Environmental
Conservation (NYSDEC) submitted a revision to its SIP to address
requirements under section 110(a)(2) of the CAA (i.e., the
infrastructure requirements) related to the 2008 ozone NAAQS, including
interstate transport. The EPA disapproved the portion of that submittal
addressing the good neighbor provision (i.e., CAA section
110(a)(2)(D)(i)(I) (prongs 1 and 2)) for the 2008 ozone NAAQS on August
12, 2016.\2\ The EPA's August 12, 2016 disapproval of the portion of
New York's submittal addressing the good neighbor provision for the
2008 ozone NAAQS was based on the EPA's determination that New York's
SIP was deficient for a number of reasons.\3\
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    \2\ 81 FR 58849 (August 26, 2016).
    \3\ See id.
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    On October 17, 2014, the New Jersey Department of Environmental
Protection (NJDEP) submitted a revision to its SIP to address
requirements under section 110(a)(2) of the CAA (the infrastructure
requirements) related to the 2008 ozone NAAQS, including interstate
transport. On March 30, 2016, New Jersey withdrew the portion of the
submittal addressing the good neighbor provision for the 2008 ozone
NAAQS.
    On October 26, 2016, the EPA published the Cross-State Air
Pollution Rule Update (or CSAPR Update),\4\ which promulgated Federal
Implementation Plans (FIPs) for 22 states, including New York and New
Jersey, that the EPA found failed to either submit a complete good
neighbor SIP, or for which EPA issued a final rule disapproving their
good neighbor SIPs for the 2008 ozone NAAQS. The FIPs promulgated for
these states included new nitrogen oxide (NOX) ozone season
emissions budgets for Electric Generating Units (EGUs). These emissions
budgets took effect in 2017 in order to assist downwind states with
attainment of the 2008 ozone NAAQS by the Moderate area attainment date
of July 11, 2018. In the CSAPR Update, based on the information
available at the time, the EPA acknowledged that the promulgated FIPs
for all of the 22 states except Tennessee only partially addressed good
neighbor obligations under the 2008 ozone NAAQS.
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    \4\ ``Cross-State Air Pollution Rule Update for the 2008 Ozone
NAAQS,'' 81 FR 74504 (October 26, 2016).
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    In October 2017, the EPA issued guidance \5\ to states to
facilitate their efforts to develop SIPs that address their outstanding
good neighbor obligations for the 2008 ozone NAAQS. The EPA guidance
provided future year ozone design values and contribution modeling
outputs for monitors in the United States based on air quality modeling
for 2023. The EPA's modeling indicated that there were no monitoring
sites, outside of California, projected to have nonattainment or
maintenance problems in 2023.
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    \5\ ``Supplemental Information on the Interstate Transport State
Implementation Plan Submissions for the 2008 Ozone National Ambient
Air Quality Standards under Clean Air Act Section
1110(a)(2)(D)(i)(I)'', October 27, 2017. Available at https://www.epa.gov/sites/production/files/2017-10/documents/final_2008_o3_naaqs_transport_memo_10-27-17b.pdf.
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    On December 21, 2018, the EPA published the Cross-State Air
Pollution Rule Close-Out (or CSAPR Close-Out),\6\ which found, in the
exercise of the EPA's FIP authority under CAA section 110(c), that the
CSAPR Update was a complete remedy based on air quality analysis of the
year 2023. This finding was based on the same modeling results released
in EPA's October 2017 guidance described in this section.
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    \6\ ``Determination Regarding Good Neighbor Obligations for the
2008 Ozone National Ambient Air Quality Standard,'' 83 FR 65878
(December 21, 2018).
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    On September 25, 2018, the NYSDEC submitted a SIP revision to
address the EPA's August 26, 2016 disapproval of the portion of New
York's April 4, 2013 submittal addressing the good neighbor provision
for the 2008 ozone NAAQS. On May 13, 2019, New Jersey submitted a SIP
revision, which also addressed the good neighbor provision for the 2008
ozone NAAQS.\7\ These SIP submittals were not required as EPA's finding
in the CSAPR Close-out was that there were no further obligations in
addition to the CSAPR Update FIPs for either of these states.
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    \7\ New Jersey's SIP revision also addressed infrastructure and
good neighbor provisions for the 2015 ozone NAAQS. The EPA will act
on that portion of the submittal in separate actions at a later
date.
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    On September 13, 2019, the United States Court of Appeals for the
District of Columbia Circuit (D.C. Circuit) remanded the CSAPR Update,
concluding that it unlawfully allowed upwind states to continue their
significant contributions to downwind air quality problems beyond the
statutory dates by which downwind States must demonstrate their
attainment of ozone air quality standards. Wisconsin v. EPA, 938 F.3d
303, 318-20 (D.C. Cir. 2019) (Wisconsin) (per curiam); see also id.
336-37 (concluding that remand without vacatur was appropriate).
Subsequently, on October 1, 2019, in a judgment order,

the D.C. Circuit vacated the CSAPR Close-Out on the same grounds on
which it had remanded without vacatur the CSAPR Update in Wisconsin.
New York v. EPA, 781 Fed. App'x 4, 7 (D.C. Cir. 2019) (New York). The
court found the CSAPR Close-Out inconsistent with the Wisconsin holding
because the rule analyzed the year 2023 rather than 2021 and failed to
demonstrate that it was an impossibility to address significant
contribution by the 2021 Serious area attainment date (``the next
applicable attainment date'').
    In response to the Wisconsin remand and the New York vacatur, on
March 15, 2021, the EPA finalized the Revised Cross-State Air Pollution
Rule Update (or Revised CSAPR Update).\8\ The Revised CSAPR Update
amended the CSAPR Update FIPs for New York and New Jersey for the 2008
ozone NAAQS by issuing revised EGU NOX ozone season budgets
that reflect additional emissions reductions beginning with the 2021
ozone season. In accordance with Wisconsin and New York, the EPA
aligned its analysis and the implementation of emissions reductions
required to address significant contribution with the 2021 ozone
season, which corresponds to the July 20, 2021, Serious area attainment
date for the 2008 ozone NAAQS.\9\ The EPA further determined which
emissions reductions would be impossible to achieve by the 2021
attainment date and whether any such additional emissions reductions
would be required beyond that date. See Wisconsin, 938 F.3d at 320; New
York, 781 Fed. App'x at 7.
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    \8\ ``Revised Cross-State Air Pollution Rule Update for the 2008
Ozone NAAQS,'' 86 FR 23054 (April 30, 2021).
    \9\ See CAA section 181(a); 40 CFR 51.1103.
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II. The 4-Step Interstate Transport Framework and EPA's Revised Cross-
State Air Pollution Rule Update

    The EPA is using the 4-step interstate transport framework (or 4-
step framework) to evaluate New York 's September 25, 2018 SIP
submittal and New Jersey's May 13, 2019 SIP submittal addressing the
good neighbor provision for the 2008 ozone NAAQS. In particular, EPA is
applying the results of the Agency's analyses and determinations for
the Revised CSAPR Update in evaluating New York and New Jersey's good
neighbor SIP submittals.
    Through the development and implementation of several previous
rulemakings, the EPA, working in partnership with states, established
the following 4-step framework to address the requirements of the good
neighbor provision for ground-level ozone NAAQS: (1) Identifying
downwind receptors that are expected to have problems attaining or
maintaining the NAAQS; (2) determining which upwind states contribute
to these identified problems in amounts sufficient to ``link'' them to
downwind air quality problems; (3) for states linked to downwind air
quality problems, identifying upwind emissions that significantly
contribute to downwind nonattainment or interfere with downwind
maintenance of the NAAQS; and (4) for states that are found to have
emissions that significantly contribute to downwind nonattainment or
interfere with maintenance of the NAAQS downwind, implementing the
necessary emissions reductions through enforceable measures. The EPA
applied this 4-step framework in both the CSAPR Update and the Revised
CSAPR Update.
    Consistent with Wisconsin and New York, the EPA used 2021 as the
analytic year in the Revised CSAPR Update for assessing significant
contribution. The year 2021 is appropriate because it coincides with
the July 20, 2021 Serious area attainment date under the 2008 ozone
NAAQS. The Revised CSAPR Update used the most up-to-date information
that the EPA had developed to inform the analysis of upwind state
linkages to downwind air quality problems at steps 1 and 2. The EPA
used air quality modeling \10\ and the latest available ambient air
quality measurements to (1) identify locations in the U.S. where the
EPA expects nonattainment or maintenance problems (i.e., nonattainment
or maintenance receptors), and (2) quantify the projected contributions
from upwind states to downwind ozone concentrations at those receptors.
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    \10\ The EPA used CAMx version 7 beta 6, which was most recent
version of CAMx available at the time, for identifying projected
nonattainment and maintenance sites. The EPA is not reopening the
modeling analysis for further public comment in this rulemaking for
the evaluation of New York and New Jersey's 2008 ozone NAAQS good
neighbor SIP submittals.
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    For the Revised CSAPR Update (as well as other previous transport
rulemakings), the EPA defined ``nonattainment'' receptors as those
monitoring sites that were projected to exceed the NAAQS in the
appropriate future analytic year, while ``maintenance'' receptors are
monitoring sites that are projected to have difficulty maintaining the
relevant NAAQS in a scenario that takes into account historical
variability in air quality at that receptor. Based on the EPA's
analysis at step 1, the Agency identified four nonattainment and/or
maintenance receptors in 2021 (i.e., three receptors in Connecticut and
one in Texas).
    At step 2, the EPA used air quality modeling to quantify the
contributions in 2021 from upwind states to ozone concentrations at
individual monitoring sites. Once quantified, the EPA then evaluated
these contributions relative to a screening threshold of 1 percent of
the NAAQS (i.e., 0.75 parts per billion (ppb)) for those monitoring
sites identified as nonattainment and/or maintenance receptors in step
1. States with contributions that equal or exceed 1 percent of the
NAAQS were identified as warranting further analysis. States with
contributions below 1 percent of the NAAQS were found to not
significantly contribute to nonattainment or interfere with maintenance
of the NAAQS in downwind states.
    At step 3, the EPA applied the multi-factor test, which considered
downwind air quality impacts, cost, and available emissions reductions
to determine the amount of linked upwind states' emissions that
``significantly'' contribute to downwind nonattainment or maintenance
receptors. The EPA applied the multi-factor test to both EGU and non-
EGU source categories and assessed potential emissions reductions in
all years for which there is a potential remaining interstate ozone
transport problem (i.e., through 2025), in order to ensure a full
remedy. After assessing potential control strategies, the EPA
identified an EGU control stringency that reflected the optimization of
existing Selective Catalytic Reduction (SCR) controls and installation
of state-of-the-art NOX combustion controls, represented by
a cost of $1,600 per ton of NOX reduced, and the
optimization of existing Selective Non-Catalytic Reduction (SNCR)
controls, represented by a cost of $1,800 per ton of NOX
reduced. At the selected EGU control stringency, downwind ozone air
quality improvements continue to be maximized relative to a
representative marginal cost. That is, the ratio of emissions
reductions to marginal cost and the ratio of ozone improvements to
marginal cost are maximized relative to the other control stringency
levels evaluated. The EPA determined that these cost-effective EGU
NOX reductions will make meaningful and timely improvements
in downwind ozone air quality.
    The EPA also concluded that there are relatively fewer emissions
reductions available for non-EGU sources at a cost threshold comparable
to the cost threshold selected for EGUs. In EPA's

judgment, such reductions were estimated to have a much smaller effect
on any downwind receptor in the year by which the EPA found such
controls could be installed. For those reasons, the EPA found that
limits on ozone season NOX emissions from non-EGU sources
were not required to eliminate significant contribution or interference
with maintenance under the 2008 ozone NAAQS.
    Based on the EPA's analysis at step 3, the Agency promulgated EGU
NOX ozone season emissions budgets developed using a uniform
control stringency of optimization of existing SCRs and SNCRs, and
installation of state-of-the-art NOX combustion controls for
certain states. The EPA determined that with implementation of this
control strategy, the EPA will have fully addressed good neighbor
obligations for the 2008 ozone NAAQS for New York and New Jersey, among
other states.
    The EPA aligned the implementation of emissions budgets with
relevant attainment dates for the 2008 ozone NAAQS, consistent with CAA
requirements and the D.C. Circuit's decisions in Wisconsin and New
York. The implementation of these emissions budgets starts with the
2021 ozone season in alignment with the July 20, 2021 Serious
attainment date. The EPA further determined which emissions reductions
were impossible to achieve by the 2021 attainment date and whether any
such additional emissions reductions should be required beyond that
date. The EPA estimated that one part of the selected control
strategy--installation of state-of-the-art NOX combustion
controls--requires approximately one to six months depending on the
unit. Recognizing that the final rule would become effective slightly
after the start of the 2021 ozone season, the EPA determined it was not
possible to install state-of-the-art NOX combustion controls
on a regional scale by the 2021 ozone season. Therefore, the 2021 ozone
season emissions budgets reflect only the optimization of existing SCR
and SNCR controls at the affected EGUs, but the emission budgets for
the 2022 ozone season and beyond reflect both the continued
optimization of existing SCR and SNCR controls and installation of
state-of-the-art NOX combustion controls.
    The EPA's air quality projections anticipate that with the
implementation of the identified control strategy for EGUs, downwind
nonattainment and maintenance problems for the 2008 ozone NAAQS will
persist through the 2024 ozone season. Therefore, the EPA adjusted
emission budgets for upwind states that remain linked to downwind
nonattainment and maintenance problems through the 2024 ozone season to
incentivize the continued optimization of existing SCR and SNCR
controls, and installation of state-of-the-art NOX
combustion controls. The 2024 emission budgets then continue to apply
in each year thereafter.
    To apply the fourth step of the 4-step framework (i.e.,
implementation), the EPA included enforceable measures in the
promulgated FIPs to achieve the required emission reductions in each of
the linked upwind states, including New York and New Jersey. In
particular, following the model of prior CSAPR rulemakings, the EPA
implemented an interstate emissions trading program (the Group 3
trading program) for the linked upwind states to implement the EGU
emissions budgets established at step 3.
    Additional information regarding the provisions and supporting
analysis for the Revised CSAPR Update can be found in the final rule
and in the technical supporting documents for the rulemaking.\11\
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    \11\ See Docket ID No. EPA-HQ-OAR-2020-0272 at the
www.regulations.gov website. Additional information is also
available at www.epa.gov/csapr/revised-cross-state-air-pollution-rule-update.
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III. Summary of New York's SIP Revision and the EPA's Analysis

What did New York submit?

    In its September 25, 2018 SIP submittal, New York followed the 4-
step framework for determining its good neighbor obligations. New York
provided air quality modeling 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 2008 ozone NAAQS.
    New York submitted projection modeling for 2023 based on the
Community Multiscale Air Quality Model (CMAQ) that shows the Westport,
CT monitoring site as a nonattainment receptor in 2023. New York also
submitted state-by-state contribution modeling for 2023 based on the
Comprehensive Model with Extensions (CAMx) modeling performed by the
Maryland Department of the Environment (MDE). New York coupled its CMAQ
projection modeling with MDE's CAMx contribution modeling to show that
New York is linked to the Westport monitoring site \12\ using a 1
percent of the NAAQS threshold. Based on this information, New York
conceded that it was linked to at least one Connecticut receptor at
steps 1 and 2.
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    \12\ In the CAMx modeling Westport was not projected to be a
nonattainment or maintenance receptor in 2023.
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    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 has been required on major sources of NOX
throughout the State since 1995, and has 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 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 control units. 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
Delaware. 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'' \13\ units), which New York noted would benefit the NYMA 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).
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    \13\ 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.
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    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 their 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'' (site
090010017), based on the University of Maryland CAMx modeling.\14\
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    \14\ See Appendix C of New York's submittal.
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    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.''

EPA's Review

    The EPA is proposing to find that the New York September 2018 SIP
revision does not meet the State's obligations with respect to
prohibiting emissions that will contribute significantly to
nonattainment or interfere with maintenance of the 2008 ozone NAAQS in
any other state.
    As previously indicated in this section, New York acknowledged
linkages to a downwind receptor using modeling it submitted. New York
evaluated contributions in 2023 rather than 2021. Although EPA's
October 27, 2017 guidance memorandum had recommended that 2023 be used
for states to develop, supplement, or resubmit good neighbor SIPs for
the 2008 ozone NAAQS to fully address their interstate transport
obligations, that guidance memorandum was issued prior to the Wisconsin
and New York decisions by the D.C. Circuit. After Wisconsin and New
York, the year 2023 is no longer an appropriate analytic year because
that is past the next applicable attainment date. New York's SIP
revision relied on the incorrect analytic year. Given the July 20,
2021, Serious attainment date, the appropriate analytic year is 2021.
    Based on the air quality analysis for the Revised CSAPR Update, the
EPA identified potential nonattainment receptors in 2021 in Stratford,
Connecticut (monitor ID 090013007) and Westport, Connecticut (monitor
ID 090019003), and maintenance areas in Madison, Connecticut (monitor
ID 090099002) and Houston, Texas (monitor ID 482010024). New York was
linked to the nonattainment and maintenance receptor sites at the
Connecticut sites based on contribution above the threshold of 1
percent of the 2008 ozone NAAQS (i.e., 0.75 ppb). The levels of New
York State contribution to each nonattainment and maintenance receptor
in 2021 are shown in Table 1:

             Table 1--New York Contributions to Downwind Nonattainment and Maintenance Areas in 2021
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                                          Nonattainment receptors                  Maintenance receptors
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              State                  Stratford, CT
                                         (ppb)        Westport, CT (ppb)  Madison, CT  (ppb)  Houston, TX  (ppb)
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New York........................              14.42               14.44               12.54                0.00
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    As previously noted, 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 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.''
    The State, however, did not adequately demonstrate that it was
controlling its emissions, despite the fact that New York conceded its
emissions were linked to a Connecticut receptor (at step 1). The SIP
submittal pointed to 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 meet its good neighbor obligations.
However, the State did not analyze whether additional control measures
could reduce the impact of New York's emissions on out of state
receptors. Any additional control measures identified by the analysis
would need to be submitted to the EPA for approval into the SIP,
approved by the EPA, and made federally enforceable. Step 3 of the good
neighbor framework requires that the state (or the EPA in the case of a
FIP) conduct a more rigorous analysis of what emission controls are
necessary to eliminate ``significant'' contribution to a downwind
nonattainment or maintenance receptor. Merely 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 insufficient as an
analytical matter. Further, step 4 of the good neighbor framework calls
for those measures identified in step 3 which are necessary to
eliminate significant contribution to be included in the state's SIP,
so that they may be approved by EPA and rendered permanent and
federally enforceable.
    As previously indicated in this section, the 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.\15\ 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 \16\ limit), and May 1, 2025 (25 ppmvd limit for gas and 42 ppmvd
limit for oil).\17\ 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 \18\ with compliance dates of May 1, 2021 and May 1, 2025.\19\
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.\20\ 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.\21\ 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,\22\ requiring more stringent VOC limits for coatings.\23\ 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.\24\ 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.\25\ Updates to Part 235, which require compliance by January
1, 2022, include revising and establishing VOC contents for consumer
products.\26\
---------------------------------------------------------------------------

    \15\ New York regulations are available at https://www.dec.ny.gov/regulations/regulations.html.
    \16\ The NOX emission limits are on a parts per
million dry volume basis (ppmvd), corrected to 15 percent oxygen.
    \17\ New York submitted for SIP approval to the EPA on May 18,
2020. The EPA finalized approval on August 3, 2021. 86 FR 43956
(August 11, 2021).
    \18\ 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 all of 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).
    \19\ New York submitted for SIP approval to the EPA on October
15, 2020.
    \20\ New York submitted for SIP approval to the EPA on February
23, 2021.
    \21\ As of September 1, 2021, New York had not submitted a
revised version of subpart 218-7 to the EPA for SIP approval.
    \22\ 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.
    \23\ New York submitted for SIP approval to the EPA on October
15, 2020.
    \24\ New York submitted for SIP approval to the EPA on November
5, 2019. The EPA finalized approval on April 19, 2020. 85 FR 28490
(May 13, 2020).
    \25\ New York submitted for SIP approval to the EPA on March 3,
2021.
    \26\ New York submitted for SIP approval to the EPA on March 3,
2021.
---------------------------------------------------------------------------

    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.\27\ 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.\28\
---------------------------------------------------------------------------

    \27\ 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.
    \28\ 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).
---------------------------------------------------------------------------

    As of September 1, 2021, New York had not yet adopted revisions to
6 NYCRR Part 203, ``Oil and Gas Sector,'' \29\ or NYCRR Part 228,
Subpart 228-1, ``Motor Vehicle and Mobile Equipment Refinishing and
Recoating Operation.''
---------------------------------------------------------------------------

    \29\ New York filed a notice of proposed rulemaking on April 20,
2021. See https://www.dec.ny.gov/regulations/122829.html.
---------------------------------------------------------------------------

    EPA also notes that several of New York's rules that were approved
into the SIP after EPA's receipt of this September 2018 submittal, such
as NOX limits on combustion turbines that operate as peaking
units, will not be phased in until 2023-2025, which is past the July
20, 2021, Serious area attainment date for the 2008 ozone NAAQS.
    Under the Wisconsin decision, states and 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. The
submission did not offer a demonstration of impossibility of earlier
implementation of control measures that would go into effect after
2021.\30\
---------------------------------------------------------------------------

    \30\ 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.
---------------------------------------------------------------------------

    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
their I/M and anti-idling standards play in eliminating their
significant contribution.
    The EPA acknowledges that New York'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. However, in light of continuing contribution to out of state
receptors from the State (at step 1) despite these measures, New York's
SIP submission failed to evaluate the availability of any additional
air quality controls to improve downwind air quality at nonattainment
and maintenance receptors at step 3.
    In the analysis performed for the Revised CSAPR Update, the EPA
determined that there are cost-effective controls available for EGUs in
New York at a lower cost threshold than $5,500 per ton of
NOX reduced. Based on EPA's analysis in the Revised CSAPR
Update, the EPA has determined that New York State NOX
emissions significantly impact nonattainment and interfere

with maintenance of the 2008 ozone NAAQS in other states. Additionally,
the EPA has determined the NOX emission reductions necessary
to eliminate New York State's significant contribution and has
finalized a NOX ozone season emissions budget for the State.
    Specifically, after assessing potential control strategies, the EPA
identified an EGU control stringency that reflected the optimization of
existing SCR controls and installation of state-of-the-art
NOX combustion controls, represented by a cost of $1,600 per
ton of NOX reduced; and the optimization of existing SNCR
controls, represented by a cost of $1,800 per ton of NOX
reduced. The EPA then finalized EGU NOX ozone season
emissions budgets reflecting the identified EGU control stringency. New
York's NOX ozone season emission budget as determined by the
EPA under the Revised CSAPR Update is 3,416 tons in 2021, and is
further lowered to 3,403 tons in 2024, after which no further
adjustments are required. The NOX ozone season budgets from
2021 thru 2024 represent a two percent \31\ reduction from a 2021-2024
baseline \32\ to eliminate New York's significant contribution to
nonattainment or interference with maintenance of the 2008 ozone NAAQS.
---------------------------------------------------------------------------

    \31\ See Ozone Transport Policy Analysis Final Rule TSD
available from the Revised CSAPR Update Docket ID No. EPA-HQ-OAR-
2020-0272, via the Federal eRulemaking Portal: https://www.regulations.gov.
    \32\ Emissions projected in New York for each year in the
absence of the Revised CSAPR Update.
---------------------------------------------------------------------------

    The SIP revision submitted by New York does not provide a
demonstration that the existing permanent and federally enforceable
control measures contained in the State's SIP achieve the emissions
reductions needed to meet the obligations for New York in the CSAPR
NOX Ozone Season Group 3 Trading Program established in the
Revised CSAPR Update The EPA modeling performed to evaluate New York's
contributions and emissions reduction obligations already takes into
consideration many of the emissions reduction programs identified by
the State and, in the Revised CSAPR Update, the EPA found continuing
contribution from New York to receptors in Connecticut in 2021 and
later years. At a minimum, then, in order for the EPA to approve a SIP
revision to replace the FIP promulgated in the Revised CSAPR Update,
the State's SIP must obtain through federally enforceable emission
controls the same or greater level of emissions reduction achieved by
the FIP.
    As provided in Section VII.D.3 of the preamble for the Revised
CSAPR Update, should a state submit a SIP revision to replace the FIP
that achieves the necessary emissions reductions but does not use the
CSAPR NOX Ozone Season Group 3 Trading Program, in order to
best ensure its approvability, the SIP revision should include the
following general elements: (1) A comprehensive baseline 2021 statewide
NOX emission inventory (which includes existing control
requirements), which should be consistent with the 2021 emission
inventory that EPA used to calculate the required state budget in this
final action (unless the state can explain the discrepancy); (2) a list
and description of control measures to satisfy the state emission
reduction obligation and a demonstration showing when each measure
would be in place to meet the 2021 and successive control periods; (3)
fully-adopted state rules providing for such NOX controls
during the ozone season; (4) for EGUs greater than 25 MWe, monitoring
and reporting under 40 CFR part 75, and for other units, monitoring and
reporting procedures sufficient to demonstrate that sources are
complying with the SIP (see 40 CFR part 51 subpart K (``source
surveillance'' requirements)); and (5) a projected inventory
demonstrating that state measures along with federal measures will
achieve the necessary emission reductions in time to meet the 2021
compliance deadline.\33\
---------------------------------------------------------------------------

    \33\ See 86 FR 23054, 23147-23148 (April 30, 2021) (describing
expected elements needed to replace a Revised CSAPR Update FIP). In
addition, should a state wish to adopt the Group 3 trading program
itself into its SIP, the EPA regulations address replacing the
Revised CSAPR Update FIP with a Revised CSAPR Update SIP at 40 CFR
52.38(b)(12).
---------------------------------------------------------------------------

    The New York SIP submittal did not provide a sufficient
demonstration that the existing permanent and federally enforceable
control measures already contained in the State's SIP achieve the
emissions reductions needed to meet the obligations for New York in the
CSAPR NOX Ozone Season Group 3 Trading Program. The State
did not apply the suggested analysis for making such a demonstration,
nor did it provide an alternative method for doing so. Based on the
deficiencies identified in the New York analysis, the EPA is proposing
to disapprove the 2008 ozone New York Infrastructure SIP submission for
both the prong 1 and prong 2 requirements of CAA section
110(a)(2)(D)(i)(I).

IV. Summary of New Jersey's SIP Revision and the EPA's Analysis

What did New Jersey submit?

    In its May 13, 2019 SIP submittal, New Jersey followed the 4-step
framework for evaluating its significant contribution. New Jersey
provided air quality monitoring and modeling data, as well as a list of
its adopted and implemented air pollution control measures to
demonstrate that it satisfied its transport obligations for the 2008
ozone NAAQS.
    New Jersey identified downwind air quality problems based on
evaluating 2017 actual monitoring data. Nonattainment and maintenance
receptor sites were identified at fourteen sites in Connecticut (in
Fairfield, Middlesex, New Haven, and New London Counties), New York (in
Richmond, and Suffolk Counties), and Pennsylvania (in Bucks and
Philadelphia Counties) based on 2015-2017 design values exceeding 75
ppb. The highest reported concentrations were measured at two
monitoring sites in Fairfield County, Connecticut (site numbers
90013007 and 90019003), which both had a 2015-2017 design value of 83
ppb.
    In its SIP submittal to the EPA, New Jersey indicated that the
State potentially significantly contributed to all fourteen
nonattainment and maintenance receptors sites based on a predicted New
Jersey contribution of more than 1 percent of the NAAQS (0.75 ppb) in
2017 based on EPA modeling performed for the CSAPR Update. New Jersey
contribution ranged from 0.93 ppb to 11.90 ppb in 2017; the largest
predicted contribution from New Jersey was to the Richmond County, New
York monitoring site (site number 360850067).
    New Jersey indicated in its submittal that the State was being
conservative in its analysis for determining potential significant
contribution by using 2017 actual data, rather than predicted
concentrations from modeling for 2017 or 2023. New Jersey noted that
2023 is past the applicable date of evaluation when control measures
are needed upwind to help downwind monitors reach attainment for either
a Moderate classification attainment date of July 20, 2018, or a
Serious classification attainment date of July 20, 2021. New Jersey
also noted the State evaluated 2023 modeling \34\ performed by the
Ozone Transport Committee (OTC), and all monitors that New Jersey
potentially significantly contributes to (i.e., in the

OTC/MANE-VU modeling domain 12-km modeling domain) were predicted to
comply with the 2008 ozone NAAQS based on average and maximum projected
design values below 75 ppb by 2023.
---------------------------------------------------------------------------

    \34\ OTC modeling included in Appendix I of NJ submittal.
---------------------------------------------------------------------------

    New Jersey asserted that it has demonstrated that it meets the good
neighbor SIP requirements of the Clean Air Act for the 2008 ozone NAAQS
by implementing statewide control measures that are more stringent than
other upwind and nearby states. New Jersey asserted that considering
air quality, 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 contribution 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, 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 \35\ of its post-2002 adopted
NOX and VOC control measures, including estimated cost-
effectiveness ($ (dollar) per ton of NOX reduced or VOC
reduced), and EPA's approval date \36\ 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 their control measures:
---------------------------------------------------------------------------

    \35\ Table 5 of the SIP submittal.
    \36\ 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 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.

    Furthermore, New Jersey asserts that it has implemented its control
measures before the 2008 attainment deadlines. 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 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 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 \37\ 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.
---------------------------------------------------------------------------

    \37\ Table 5 of the New Jersey SIP submittal.
---------------------------------------------------------------------------

    In its submittal to the EPA, New Jersey indicated that it believes
the methodology that the EPA traditionally has used for evaluating the
cost of implementing controls, using a ratio of annual emission
reductions to the annualized cost, does not reflect the use of EGUs
solely used during HEDD. New Jersey suggested an alternative
methodology using a ratio of daily emission reduction on a HEDD day to
the annualized cost (or DERACR) to address the higher HEDD
NOX emissions that far exceed an annual or ozone season
average. New Jersey also noted that a short-term standard, such as the
8-hour ozone standard, should have a short-term cost-effectiveness
formula. Further, using a short-term evaluation formula demonstrates
that sources that emit high emissions on high ozone days, but have a
low annual average, can be controlled using highly cost-effective
measures. New Jersey included an example of this methodology in its
submittal.

EPA's Review

    EPA is proposing to find that the New Jersey SIP submittal does not
meet the State's obligations with respect to prohibiting emissions that
will contribute significantly to nonattainment or interfere with
maintenance of the of the 2008 ozone NAAQS in any other state.
    As previously indicated in this section, New Jersey acknowledged
that it is linked to downwind receptors. New Jersey identified an even
greater number of linkages to nonattainment and maintenance sites in
other states than the EPA by using a more conservative approach.
Specifically, the State analyzed current receptors using measured
values rather than projected future receptors using modeling. Their
analysis confirms the EPA's analysis in the Revised CSAPR Update that
New Jersey is linked to nonattainment and/or maintenance receptors in
downwind states. The State identified fourteen

nonattainment and maintenance sites in Connecticut, New York, and
Pennsylvania based on 2015-2017 monitored design values exceeding the
2008 ozone NAAQS. New Jersey indicated that it potentially
significantly contributed to all of the sites based on the predicted
New Jersey contribution of more than 1 percent of the NAAQS (0.75 ppb)
in 2017 using the EPA contribution modeling performed for the CSAPR
Update.
    Based on the air quality analysis for the Revised CSAPR Update, the
EPA identified potential nonattainment receptors in 2021 in Stratford,
Connecticut (monitor ID 090013007), and Westport, Connecticut (monitor
ID 090019003), and maintenance area receptors in Madison, Connecticut
(monitor ID 090099002), and Houston, Texas (monitor ID 482010024). New
Jersey was linked to the nonattainment and maintenance receptor sites
at the Connecticut sites based on contribution above the threshold of 1
percent of the 2008 ozone NAAQS (i.e., 0.75 ppb). The levels of New
Jersey State contribution to each nonattainment and maintenance
receptor in 2021 are shown in Table 2:

                Table 2--New Jersey Contributions to Downwind Nonattainment and Maintenance Areas
----------------------------------------------------------------------------------------------------------------
                                          Nonattainment receptors                  Maintenance receptors
                                 -------------------------------------------------------------------------------
              State                  Stratford, CT
                                         (ppb)        Westport, CT (ppb)   Madison, CT (ppb)   Houston, TX (ppb)
----------------------------------------------------------------------------------------------------------------
New Jersey......................               7.70                8.62                5.71                0.00
----------------------------------------------------------------------------------------------------------------

    As previously noted in this section, 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 contribution to downwind nonattainment and
maintenance areas. New Jersey stated that control measures were adopted
and implemented before attainment deadlines and go beyond previously
established 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
control measures.
    New Jersey, however, did not adequately demonstrate that the State
was controlling its emissions despite the fact that the State conceded
that it was potentially significantly contributing to 14 receptors in
2017 at steps 1 and 2. The SIP submittal pointed to its existing
NOX and VOC control measures that were adopted by the State
to satisfy its good neighbor obligations. However, the State did not
analyze whether additional control measures could reduce the impact of
New Jersey's emissions on out of state receptors. Any additional
control measures identified by the analysis would need to be submitted
to the EPA for approval into the SIP, approved by the EPA, and made
federally enforceable. Step 3 of the good neighbor framework requires
that the state (or the EPA in the case of a FIP) conduct a more
rigorous analysis of what emission controls are necessary to eliminate
``significant'' contribution to a downwind nonattainment or maintenance
receptor. Merely 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 insufficient as an analytical matter. Further, step 4 of the good
neighbor framework calls for those measures identified in step 3 which
are necessary to eliminate significant contribution to be included in
the state's SIP, so that they may be approved by EPA and rendered
permanent and federally enforceable.
    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.
Additionally, 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. However, 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 evaluate the availability of any additional air
quality controls to improve downwind air quality at nonattainment and
maintenance receptors at step 3.
    In the Revised CSAPR Update, the EPA has determined that additional
NOX emissions reductions are available and necessary to
eliminate New Jersey's significant contribution and has finalized a
NOX ozone season emissions budget for the State's EGUs.
Specifically, after assessing potential control strategies, the EPA
identified an EGU control stringency that reflected the optimization of
existing SCR controls and installation of state-of-the-art
NOX combustion controls, represented by a cost of $1,600 per
ton of NOX reduced; and the optimization of existing SNCR
controls, represented by a cost of $1,800 per ton of NOX
reduced. The EPA then finalized EGU NOX ozone season
emissions budgets reflecting the identified EGU control stringency. New
Jersey's NOX ozone season emissions budget as determined by
the EPA under the Revised CSAPR Update is 1,253 tons in 2021 and
subsequent years. The NOX ozone season budgets from 2021 and
beyond represent an approximate seven percent \38\ reduction from a
2021 baseline of EGU emissions in New Jersey.\39\ In the Revised CSAPR
Update, the EPA determined that these reductions are necessary to
eliminate New Jersey's significant contribution to nonattainment or
interference with maintenance of the 2008 ozone NAAQS in other states.
---------------------------------------------------------------------------

    \38\ See Ozone Transport Policy Analysis Final Rule TSD
available from the Revised CSAPR Update Docket ID No. EPA-HQ-OAR-
2020-0272, via the Federal eRulemaking Portal: https://www.regulations.gov.
    \39\ Emissions projected in New Jersey for each year in the
absence of the Revised CSAPR Update.
---------------------------------------------------------------------------

    The SIP revision submitted by New Jersey does not provide a
demonstration that the existing permanent and federally enforceable
control measures already contained in the State's SIP achieve the
emissions reductions needed to meet New Jersey's obligations in the
CSAPR NOX Ozone Season Group 3 Trading Program established
in the Revised CSAPR Update. The EPA modeling performed to evaluate New
Jersey's contributions and emissions reduction obligations takes into
consideration many of the emissions reduction programs identified by
the State, and in the Revised CSAPR Update, yet the EPA found
continuing contribution from New Jersey to

receptors in Connecticut in 2021 and later years. At a minimum, then,
in order for EPA to approve a SIP revision to replace the FIP
promulgated in the Revised CSAPR Update, the State's SIP must obtain
through federally enforceable emission controls the same or greater
level of emissions reduction achieved by the FIP.
    As provided in Section VII.D.3 of the preamble for the Revised
CSAPR Update, should a state submit a SIP revision to replace the FIP
that achieves the necessary emissions reductions but does not use the
CSAPR NOX Ozone Season Group 3 Trading Program, in order to
best ensure its approvability, the SIP revision should include the
following general elements: (1) A comprehensive baseline 2021 statewide
NOX emissions inventory (which includes existing control
requirements), which should be consistent with the 2021 emission
inventory that EPA used to calculate the required state budget in this
final action (unless the state can explain the discrepancy); (2) a list
and description of control measures to satisfy the state emissions
reduction obligation and a demonstration showing when each measure
would be in place to meet the 2021 and successive control periods; (3)
fully-adopted state rules providing for such NOX controls
during the ozone season; (4) for EGUs greater than 25 MWe, monitoring
and reporting under 40 CFR part 75, and for other units, monitoring and
reporting procedures sufficient to demonstrate that sources are
complying with the SIP (see 40 CFR part 51 subpart K (``source
surveillance'' requirements)); and (5) a projected inventory
demonstrating that state measures along with federal measures will
achieve the necessary emissions reductions in time to meet the 2021
compliance deadline.\40\
---------------------------------------------------------------------------

    \40\ See 86 FR 23054, 23147-23148 (April 30, 2021) (describing
expected elements needed to replace a Revised CSAPR Update FIP). In
addition, should a state wish to adopt the Group 3 trading program
itself into its SIP, EPA regulations address replacing the Revised
CSAPR Update FIP with a Revised CSAPR Update SIP at 40 CFR
52.38(b)(12).
---------------------------------------------------------------------------

    The New Jersey SIP submittal did not provide a sufficient
demonstration that the existing permanent and federally enforceable
control measures already contained in the State's SIP achieve the
emissions reductions needed to meet New Jersey's obligations in the
CSAPR NOX Ozone Season Group 3 Trading Program. The State
did not apply the e suggested analysis for making such a demonstration,
nor did it provide an alternative method for doing so. Based on the
deficiencies identified in the New Jersey analysis, the EPA is
proposing to disapprove the 2008 ozone New Jersey Infrastructure SIP
submission for both the prong 1 and prong 2 requirements of CAA section
110(a)(2)(D)(i)(I).

V. What action is EPA taking?

    The EPA is proposing to disapprove the portion of the New York and
New Jersey SIP submittals pertaining to the requirements of CAA section
110(a)(2)(D)(i)(I) regarding interstate transport of air pollution that
will significantly contribute to nonattainment or interfere with
maintenance of the 2008 ozone NAAQS (i.e., CAA section
110(a)(2)(D)(i)(I) (prongs 1 and 2)) in other states. Disapproval does
not start a mandatory sanctions clock pursuant to CAA section 179
because this action does not pertain to either a part D plan for
nonattainment areas required under CAA section 110(a)(2)(I) or a SIP
call pursuant to CAA section 110(k)(5). The EPA has amended FIPs, in a
separate action finalizing the Revised CSAPR Update for the 2008 ozone
NAAQS, to reflect the additional emissions reductions necessary to
address New York's and New Jersey's significant contribution to
nonattainment and interference with maintenance. Therefore, this action
does not trigger a duty for the EPA to promulgate FIPs for either New
York or New Jersey. The EPA is soliciting public comment on the issues
discussed in this proposal. These comments will be considered before
the EPA takes final action. Interested parties may participate in the
Federal rulemaking procedure by following the directions in the
ADDRESSES section of this Federal Register document.

VI. Statutory and Executive Order Reviews

a. Executive Order 12866, Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the
terms of Executive Order (E.O.) 12866 (58 FR 51735, October 4, 1993)
and is therefore not subject to review under the E.O.

b. Paperwork Reduction Act

    This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.,
because this proposed disapproval of SIP revisions under CAA section
110 will not create any new information collection burdens but simply
proposes to disapprove certain State requirements for inclusion into
the SIP.

c. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant impact on a
substantial number of small entities under the RFA. This proposed rule
does not impose any requirements or create impacts on small entities.
This proposed SIP disapproval under CAA section 110 will not create any
new requirements but simply proposes to disapprove certain State
requirements, for inclusion into the SIP.

d. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538. 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, Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP
on which EPA is proposing action would not apply in Indian country
located in the state, and EPA notes that it will not impose substantial
direct costs on tribal governments or preempt tribal law. Thus,
Executive Order 13175 does not apply to this proposed action.

g. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern 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 simply proposes to disapprove certain state requirements for
inclusion into the SIP.

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

    This proposed rule 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 Population

    The EPA believes that this action is not subject to Executive Order
12898 (59 FR 7629, February 16, 1994) because it does not establish an
environmental health or safety standard.
    This action merely proposes to disapprove certain state
requirements for inclusion into the SIP.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental
relations, Incorporation by reference, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.

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

     Dated: October 26, 2021.
Walter Mugdan,
Acting Regional Administrator, Region 2.
[FR Doc. 2021-23638 Filed 11-2-21; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 79, Number 186 (Thursday, September 25, 2014)]
[Notices]
[Pages 57639-57640]
[FR Doc No: 2014-22784]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-73147; File No. SR-ISE-2014-09]

Self-Regulatory Organizations; International Securities Exchange,
LLC; Order Approving Proposed Rule Change Related to Market Maker Risk
Parameters

September 19, 2014.

I. Introduction

    On March 10, 2014, the International Securities Exchange, LLC (the
``Exchange'' or the ``ISE'') filed with the Securities and Exchange
Commission (``Commission''), pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934 (``Act''),\1\ and Rule 19b-4
thereunder,\2\ a proposed rule change to amend ISE Rules 722 and 804 to
mitigate market maker risk by adopting an Exchange-provided risk
management functionality. The proposed rule change was published for
comment in the Federal Register on March 26, 2014.\3\ The Commission
received no comments on the proposal. On May 7, 2014, pursuant to
Section 19(b)(2) of the Act,\4\ the Commission designated a longer
period within which to either approve the proposed rule change,
disapprove the proposed rule changes, or institute proceedings to
determine whether to disapprove the proposed rule change.\5\ On June
24, 2014, the Commission instituted proceedings to determine whether to
approve or disapprove the proposed rule change.\6\ In response to the
Order Instituting Proceedings, the Commission received five comment
letters on the proposal.\7\ This order approves the proposed rule
change.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 71759 (March 20,
2014), 79 FR 16850 (March 26, 2014) (SR-ISE-2014-09) (``Notice'').
    \4\ 15 U.S.C. 78s(b)(2).
    \5\ See Securities Exchange Act Release No. 72117, 79 FR 27360
(May 13, 2014). The Commission determined that it was appropriate to
designate a longer period within which to take action on the
proposed rule change so that it would have sufficient time to
consider the proposed rule change. Accordingly, the Commission
designated June 24, 2014, as the date by which it should approve,
disapprove, or institute proceedings to determine whether to
disapprove the proposed rule change.
    \6\ See Securities Exchange Act Release No. 72455, 79 FR 36849
(Jun. 30, 2014) (``Order Instituting Proceedings''). In the Order
Instituting Proceedings, the Commission noted, among other things,
that questions remains as to whether the Exchange's proposal is
consistent with the requirements of Section 6(b)(5) of the Act,
which requires, among other things, that the rules of a national
securities exchange be designed to prevent fraudulent and
manipulative acts and practices, to promote just and equitable
principles of trade, to perfect the mechanism of a free and open
market and a national market system, and not be designed to permit
unfair discrimination between customers, issuers, brokers, or
dealers. Additionally, the Commission questioned whether the
proposal is consistent with Section 6(b)(8) of the Act, which
requires that the rules of a national securities exchange do not
impose any burden on competition not necessary or appropriate in
furtherance of the purposes of the Act.
    \7\ See Letters to the Commission from Andrew Killion, Chief
Executive Officer, Akuna Securities LLC, dated July 24, 2014
(``Akuna Letter''); Brent Hippert, President/CCO, Hardcastle Trading
USA LLC, dated July 28, 2014 (``Hardcastle Letter''); John Kinahan,
Chief Executive Officer, Group One Trading, L.P., dated July 29,
2014 (``Group One Letter''); Sebastiaan Koeling, Chief Executive
Officer, Optiver US LLC, dated July 29, 2014 (``Optiver Letter'');
and Andrew Stevens, General Counsel, IMC Chicago, LLC d/b/a IMC
Financial Markets, dated August 18, 2014 (``IMC Letter'').
---------------------------------------------------------------------------

II. Description of the Proposal

    The Exchange proposes to amend ISE Rule 722 and ISE Rule 804 to
enhance its risk management offering for market maker quotes.\8\
---------------------------------------------------------------------------

    \8\ For a more complete description of the proposal, see Notice,
supra note 3.
---------------------------------------------------------------------------

    Currently, there are four parameters that can be set by market
makers on a class-by-class basis. These parameters are available for
market maker quotes in single options series and in complex instruments
on the complex order book. Market makers establish a time frame during
which the system calculates: (1) The number of contracts executed by
the market maker in an options class; (2) the percentage of the total
size of the market maker's quotes in the class that has been executed;
(3) the absolute value of the net between contracts bought and sold in
an options class, and (4) the absolute value of the net between (a)
calls purchased plus puts sold, and (b) calls sold plus puts purchased.
Once the limits for each of the four parameters are exceeded within the
prescribed time frame, the market maker's quotes in all series of that
class are automatically removed or curtailed. Additionally, ISE's rules
provide that if a specified number of curtailment events are exceeded
within the prescribed time period, the market maker quotes in all
classes will be automatically removed from ISE's trading system.\9\ The
Exchange now proposes to implement functionality to allow market maker
quotes to be removed from the trading system if a specified number of
curtailment events occur across both ISE and ISE Gemini, LLC (``ISE
Gemini'').
---------------------------------------------------------------------------

    \9\ See Securities Exchange Act Release Nos. 70132 (August 7,
2013), 78 FR 49311 (August 13, 2013) (SR-ISE-2013-38) and 71446
(January 30, 2014), 79 FR 6951 (February 5, 2014) (SR-ISE-2014-04).
---------------------------------------------------------------------------

    To the extent that a market maker utilizes the offered
functionality, ISE and ISE Gemini's trading systems will count the
number of times a market maker's pre-set curtailment events occur on
each exchange and aggregate them. Once a market maker's specified
number of curtailment events across both markets is reached, the
trading systems will remove the market maker's quotes in all classes on
both ISE and ISE Gemini. The Exchange will then reject any quotes sent
by the market maker after the parameters across both exchanges have
been triggered until the market maker notifies the market operations
staff of the Exchange that it is ready to come out of its curtailment.
Once notified by the market maker, the Exchange will reactivate the
market maker's quotes on the Exchange.
    The Exchange believes that the proposal will enhance the Exchange's
current risk management offering by allowing market makers to manage
their

risk across ISE and ISE Gemini. The Exchange also provides that the
proposal will protect market makers from inadvertent exposure to
excessive risk and thereby allow them to quote aggressively and provide
more liquidity with greater size to both markets. The Exchange further
represents that its proposal will operate consistently with the firm
quote obligations of a broker-dealer pursuant to Rule 602 of Regulation
NMS and that the functionality is not mandatory.

III. Summary of Comment Letters

    As noted above, the Commission received five comment letters in
response to the Order Instituting Proceedings.\10\ All of the
commenters support the proposal. Three of the five commenters are
registered options market makers on ISE,\11\ while the other two are
registered options market makers on both ISE and ISE Gemini.\12\
---------------------------------------------------------------------------

    \10\ See supra note 7.
    \11\ See Akuna Letter; Hardcastle Letter; and Group One Letter,
supra note 7.
    \12\ See Optiver Letter and IMC Letter, supra note 7.
---------------------------------------------------------------------------

    The commenters note that, while the current risk protections on the
Exchange help manage risk, systems and other issues that trigger such
risk parameters are normally not confined to a member firm's activity
on a single exchange.\13\ Accordingly, the commenters believe that the
Exchange's proposal to aggregate curtailment events across both ISE and
ISE Gemini would allow market makers to more effectively manage
risk.\14\ The commenters state that the proposed rule change would
allow market makers to continue to actively provide liquidity, while
facilitating effective management of the risks associated with quoting
a large number of option series across multiple exchanges.\15\ Further,
the commenters believe that allowing market makers to better manage
their risk would benefit the broader market, as it would reduce
disruptive trading events.\16\
---------------------------------------------------------------------------

    \13\ See Akuna Letter; Group One Letter, Hardcastle Letter; IMC
Letter; and Optiver Letter, supra note 7.
    \14\ See, e.g., Akuna Letter at 2; Hardcastle Letter at 2; and
Optiver Letter, supra note 7.
    \15\ See Optiver Letter and IMC Letter, supra note 7.
    \16\ See Akuna Letter at 2; Hardcastle Letter at 2; and Optiver
Letter, supra note 7.
---------------------------------------------------------------------------

    Two commenters who are registered market makers on ISE but not on
ISE Gemini also believe that the proposal is not unfairly
discriminatory in violation of Section 6(b)(5) of the Act.\17\ These
two commenters note that the proposal is optional to market makers and
is not unfairly discriminatory to firms who simply have no need for the
proposal's additional protections by virtue of only trading on either
ISE or ISE Gemini.\18\
---------------------------------------------------------------------------

    \17\ See Akuna Letter at 2 and Hardcastle Letter at 2, supra
note 7.
    \18\ Id. One commenter also states that it does not believe the
proposal places any undue burden on competition between options
exchanges. See Group One Letter at 2, supra note 7.
---------------------------------------------------------------------------

IV. Discussion and Commission Findings

    After careful review, the Commission finds that the proposed rule
change is consistent with the requirements of the Act and the rules and
regulations thereunder applicable to a national securities
exchange.\19\ Specifically, the Commission finds that the proposed rule
change is consistent with Section 6(b)(5) of the Act,\20\ which
requires, among other things, that the rules of a national securities
exchange be designed to prevent fraudulent and manipulative acts and
practices, to promote just and equitable principles of trade, to remove
impediments to and perfect the mechanism of a free and open market and
a national market system and, not be designed to permit unfair
discrimination between customers, issuers, brokers, or dealers.
---------------------------------------------------------------------------

    \19\ In approving this proposed rule change, the Commission has
considered the proposed rule's impact on efficiency, competition,
and capital formation. See 15 U.S.C. 78c(f).
    \20\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    The Commission believes that the proposal could assist ISE market
makers manage and reduce inadvertent exposure to excessive risk across
both ISE and ISE Gemini. The Commission notes that the proposed
functionality is not mandatory and must operate consistent with the
firm quote obligations of Rule 602 of Regulation NMS. The Commission
also notes that all five commenters expressed support for the proposal.
    For the foregoing reasons, the Commission believes that the
proposed rule change is consistent with the Act.

V. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the Act
\21\ that the proposed rule change (SR-ISE-2014-09) be, and it hereby
is, approved.
---------------------------------------------------------------------------

    \21\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\22\
---------------------------------------------------------------------------

    \22\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2014-22784 Filed 9-24-14; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 78, Number 134 (Friday, July 12, 2013)]
[Notices]
[Pages 41941-41942]
[FR Doc No: 2013-16715]

=======================================================================
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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

[Docket ID: FEMA-2013-0014; OMB No. 1660-0105]

Agency Information Collection Activities: Submission for OMB
Review; Comment Request.

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Notice.

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SUMMARY: The Federal Emergency Management Agency (FEMA) will submit the
information collection abstracted below to the Office of Management and
Budget for review and clearance in accordance with the requirements of
the Paperwork Reduction Act of 1995. The submission will describe the
nature of the information collection, the categories of respondents,
the estimated burden (i.e., the time, effort and resources used by
respondents to respond) and cost, and the actual data collection
instruments FEMA will use.

DATES: Comments must be submitted on or before August 12, 2013.

ADDRESSES: Submit written comments on the proposed information
collection to the Office of Information and Regulatory Affairs, Office
of Management and Budget. Comments should be addressed to the Desk
Officer for the Department of Homeland Security, Federal Emergency
Management Agency, and sent via electronic mail to
<EMAIL_ADDRESS>or faxed to<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: Requests for additional information or
copies of the information collection should be made to Director,
Records Management Division, 1800 South Bell Street, Arlington, VA
20598-3005, facsimile number<PHONE_NUMBER>, or email address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Collection of Information

    Title: Community Preparedness and Participation Survey.
    Type of information collection: Revision of a currently approved
collection
    Form Titles and Numbers: FEMA Form 008-0-15 Community Preparedness
Participation Survey.
    Abstract: The Individual and Community Preparedness Division uses
this information to more effectively improve the state of preparedness
and participation within the general public by customizing preparedness
education and training programs, messaging and public information
efforts, and strategic planning initiatives.
    Affected Public: Individuals or households.
    Estimated Number of Respondents: 6,000.
    Estimated Total Annual Burden Hours: 3,000.
    Estimated Cost: There are no recordkeeping, capital, start-up or
maintenance costs associated with this information collection.

    Dated: July 2, 2013.
Charlene D. Myrthil,
Director, Records Management Division, Mission Support Bureau, Federal
Emergency Management Agency, Department of Homeland Security.
[FR Doc. 2013-16715 Filed 7-11-13; 8:45 am]
BILLING CODE 9111-27-P