[Federal Register Volume 83, Number 36 (Thursday, February 22, 2018)]
[Notices]
[Pages 7710-7719]
[FR Doc No: 2018-03679]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OAR-2016-0347; FRL-9974-80-OAR]
RIN 2060-AT35

Response to June 1, 2016 Clean Air Act Section 126(b) Petition
From Connecticut

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed action on petition.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to deny
a section 126(b) petition submitted by the state of Connecticut
pursuant to the Clean Air Act (CAA or Act) on June 1, 2016. The
petition requested that EPA make a finding that emissions from Brunner
Island Steam Electric Station (Brunner Island), located in York County,
Pennsylvania, are significantly contributing to nonattainment and
interfering with maintenance of the 2008 ozone national ambient air
quality standards (NAAQS) in Connecticut in violation of the good
neighbor provision under the CAA. The EPA proposes to deny the petition
because Connecticut has not met its burden to demonstrate that the
source emits or would emit in violation of the good neighbor provision
such that it will significantly contribute to nonattainment or
interfere with maintenance of the 2008 ozone NAAQS in Connecticut. The
EPA is further proposing to deny the petition based on the conclusion
that the Brunner Island facility does not currently emit nor is it
expected to emit pollution in violation of the good neighbor provision
for the 2008 ozone NAAQS.

DATES: Comments. Comments must be received on or before March 26, 2018.
Public Hearing. The EPA is holding a public hearing on the EPA's
response to the June 1, 2016, CAA section 126(b) petition from
Connecticut on Friday, February 23, 2018. Additional information for
this public hearing is available in a separate Federal Register notice
published on February 14, 2018 (83 FR 6490).

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2016-0347, 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: Questions concerning this proposed
notice should be directed to Mr. Lev Gabrilovich, U.S. Environmental
Protection Agency, Office of Air Quality Planning and Standards, Air
Quality Policy Division, Mail Code C539-01, Research Triangle Park, NC
27711, telephone<PHONE_NUMBER>; email at [email protected].

SUPPLEMENTARY INFORMATION:
    The information in this document is organized as follows:

I. General Information
II. Background and Legal Authority
    A. Ozone and Public Health
    B. Clean Air Act Sections 110 and 126
    C. The EPA's Historical Approach to Addressing Interstate
Transport of Ozone under the Good Neighbor Provision
    D. The June 2016 CAA Section 126(b) Petition from Connecticut
    E. The Brunner Island Facility
III. The EPA's Proposed Decision on Connecticut's CAA Section 126(b)
Petition
    A. The EPA's Approach for Granting or Denying CAA Section 126(b)
Petitions Regarding the 2008 8-hour Ozone NAAQS
    B. The EPA's Proposal to Deny Connecticut's CAA Section 126(b)
Petition
IV. Statutory Authority

I. General Information

    Throughout this document wherever ``we,'' ``us,'' or ``our'' is
used, we mean the U.S. EPA. Where can I get a copy of this document and
other related information?
    The EPA has established a docket for this action under Docket ID
No. EPA-HQ-OAR-2016-0347 (available at http://www.regulations.gov). The
EPA has made available information related to the proposed action and
the public hearing at website: https://www.epa.gov/ozone-pollution/connecticut-126-petition.

II. Background and Legal Authority

A. Ozone and Public Health

    Ground-level ozone is not emitted directly into the air, but is a
secondary air pollutant created by chemical reactions between oxides of
nitrogen (NOX) and volatile organic compounds (VOCs) in the
presence of sunlight. For a discussion of ozone-formation chemistry,
interstate transport issues, and health effects, see the Cross-State
Air Pollution Rule Update for the 2008 Ozone NAAQS. 81 FR 74504, 74513-
4.

B. Clean Air Act Sections 110 and 126

    The statutory authority for this action is provided by the CAA
sections 126 and 110(a)(2)(D)(i). Section 126(b) of the CAA provides,
among other things, that any state or political subdivision may
petition the Administrator of the EPA to find that any major source or
group of stationary sources in an upwind state emits or would emit any
air pollutant in violation of the prohibition of CAA section
110(a)(2)(D)(i),\1\ which we describe later in detail. Findings by the
Administrator, pursuant to this section, that a source or group of
sources emits air pollutants in violation of the CAA section
110(a)(2)(D)(i) prohibition are commonly referred to as section CAA
126(b) findings. Similarly, petitions submitted pursuant to this
section are commonly referred to as CAA section 126(b) petitions.
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    \1\ The text of CAA section 126 codified in the U.S. Code cross-
references section 110(a)(2)(D)(ii) instead of section
110(a)(2)(D)(i). The courts have confirmed that this is a
scrivener's error and the correct cross-reference is to CAA section
110(a)(2)(D)(i), See Appalachian Power Co. v. EPA, 249 F.3d 1032,
1040-44 (DC Cir. 2001).
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    CAA section 126(c) explains the impact of a CAA section 126(b)
finding and establishes the conditions under which continued operation
of a source subject to such a finding may be permitted. Specifically,
CAA section 126(c) provides that it would be a violation of section 126
of the Act and of the applicable state implementation plan (SIP): (1)
For any major proposed new or modified source subject to a CAA section
126(b) finding to be constructed or operate in violation of the
prohibition of CAA section 110(a)(2)(D)(i); or (2) for any major
existing source for which such a finding has been made to operate more
than three months after the date of the finding. The statute, however,
also gives the Administrator discretion to permit the continued
operation of a source beyond 3 months if the source complies with
emission limitations and compliance schedules provided by the EPA to
bring about compliance with the requirements contained in CAA sections
110(a)(2)(D)(i) and 126 as expeditiously as practicable but no later
than 3 years from the date of the finding. Id.
    Section 126(b) of the CAA provides a mechanism for states and other
political subdivisions to seek abatement of pollution in other states
that may be affecting their air quality; however, it does not identify
specific criteria or a specific methodology for the Administrator to
apply when deciding whether to make a section 126(b) finding or deny a
petition. Therefore, the EPA has discretion to identify relevant
criteria and develop a reasonable methodology for determining whether a
section 126(b) finding should be made. See, e.g., Chevron, U.S.A., Inc.
v. NRDC, 467 U.S. 837, 842-43 (1984); Smiley v. Citibank, 517 U.S. 735,
744-45 (1996). As an initial matter, the EPA's historic approach to
evaluating CAA section 126(b) petitions looks first to see whether a
petition identifies or establishes a technical basis for the requested
section 126(b) finding. The EPA first evaluates the technical analysis
in the petition to see if that analysis, standing alone, is sufficient
to support a section 126(b) finding. The EPA focuses on the analysis in
the petition because the statute does not require the EPA to conduct an
independent technical analysis to evaluate claims made in section
126(b) petitions. The petitioner thus bears the burden of establishing,
as an initial matter, a technical basis for the specific finding
requested. The EPA has no obligation to prepare an analysis to
supplement a petition that fails, on its face, to include an initial
technical demonstration. Such a petition, or a petition that fails to
identify the specific finding requested, could be found insufficient.
    Nonetheless, the EPA may decide to conduct independent analyses
when helpful in evaluating the basis for a potential section 126(b)
finding or developing a remedy if a finding is made. As explained
later, given the EPA's concerns with the technical information
submitted as part of Connecticut's CAA section 126(b) petition, and the
fact that the EPA has previously issued a rulemaking defining and at
least partially addressing the same environmental concern that the
petition seeks to address, the EPA determined that it was appropriate
to conduct independent analysis to determine whether it should grant or
deny the petition. Such analysis, however, is not required by the
statute and may not be necessary or appropriate in other circumstances.
    Section 110(a)(2)(D)(i) of the CAA, often referred to as the ``good
neighbor'' or ``interstate transport'' provision of the Act, requires
states to prohibit certain emissions from in-state sources if such
emissions impact the air quality in downwind states. Specifically, CAA
sections 110(a)(1) and 110(a)(2)(D)(i)(I) requires all states, within 3
years of promulgation of a new or revised NAAQS, to submit SIPs that
contain adequate provisions prohibiting any source or other type of
emissions activity within the state from emitting any air pollutant in
amounts which will contribute significantly to nonattainment in, or
interfere with maintenance by, any other state with respect to any such
national primary or secondary ambient air quality standard. As
described further in section II.C, the EPA has developed a number of
regional rulemakings to address CAA section 110(a)(2)(D)(i)(I) for the
ozone NAAQS. The EPA's most recent rulemaking, the Cross-State Air
Pollution Rule Update (CSAPR Update), was promulgated to address
interstate transport under section 110(a)(2)(D)(i)(I) for the 2008
ozone NAAQS. 81 FR 74504 (October 26, 2016).
    Considering both section 110(a)(2)(D)(i) and section 126, the EPA
has consistently acknowledged that Congress created these provisions as
two independent statutory tools to address the problem of interstate
pollution transport. See, e.g., 76 FR 69052, 69054 (November 7,
2011).\2\ Congress provided both provisions without indicating any
preference for one over the other, suggesting it viewed either approach
as a legitimate means to produce the desired result. While the two
provisions unquestionably may be applied independently, they are also
closely linked in that a violation of the prohibition in CAA section

110(a)(2)(D)(i) is a condition precedent for action under CAA section
126(b) and, critically, that significant contribution and interference
with maintenance are construed identically for purposes of both
provisions (since the identical terms are naturally interpreted as
meaning the same thing in the two linked provisions). See Appalachian
Power Co. v EPA, 249 F. 3d at 1049-50. Thus, in interpreting the phrase
``emits or would emit in violation of the prohibition of section
[110(a)(2)(D)(i)],'' if the EPA or a state has adopted provisions that
eliminate the significant contribution to nonattainment or interference
with maintenance in downwind states, then there simply is no violation
of the CAA section 110(a)(2)(D)(i)(I) prohibition. Put another way,
requiring additional reductions would result in eliminating emissions
that do not contribute significantly to nonattainment or interfere with
maintenance of the NAAQS, an action beyond the scope of the prohibition
in CAA section 110(a)(2)(D)(i)(I) and therefore beyond the scope of
EPA's authority to make the requested finding under CAA section 126(b).
See EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584, 1604 n.18,
1608-09 (2014) (holding the EPA may not require sources in upwind
states to reduce emissions by more than necessary to eliminate
significant contribution to nonattainment or interference with
maintenance of the NAAQS in downwind states under the good neighbor
provision).
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    \2\ Courts have also upheld the EPA's position that CAA sections
110(a)(2)(D)(i) and section 126 are two independent statutory tools
to address the same problem of interstate transport. See GenOn REMA,
LLC v. EPA, 722 F.3d 513, 520-23 (3d Cir. 2013); Appalachian Power
Co. v. EPA, 249 F.3d at 1047.
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    Thus, it follows that if a state already has a SIP that the EPA
approved as adequate to meet the requirements of CAA section
110(a)(2)(D)(i)(I), the EPA would not find that a source in that state
was emitting in violation of the prohibition of CAA section
110(a)(2)(D)(i)(I) absent new information demonstrating that the SIP is
now insufficient to address the prohibition. Similarly, if a state had
failed to adopt an approvable SIP meeting the requirements of CAA
section 110(a)(2)(D)(i)(I) and the EPA consequently promulgated a
federal implementation plan (FIP) that fully addressed the deficiency,
the FIP would eliminate emissions that significantly contribute to
nonattainment or interfere with maintenance in a downwind state, and,
hence, absent new information to the contrary, sources in the upwind
state would not emit in violation of the section 110(a)(2)(D)(i)(I)
prohibition.\3\
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    \3\ Note however, a SIP or FIP implementing section
110(a)(2)(D)(i)(I) only means that a state's emissions are
adequately prohibited for the particular set of facts analyzed under
approval of a SIP or promulgation of a FIP. For example, if a
petitioner produces new data or information showing a different
level of contribution or other facts not considered when the SIP or
FIP was promulgated, compliance with a SIP or FIP may not be
determinative regarding whether the upwind sources would emit in
violation of the prohibition of section 110(a)(2)(D)(i)(I). See 64
FR 28250, 28274 n.15 (May 25, 1999); 71 FR 25328, 25336 n.6 (April
28, 2006); Appalachian Power, 249 F.3d at 1067 (later developments
can be the basis for another CAA section 126 petition).
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C. The EPA's Historical Approach To Addressing Interstate Transport of
Ozone Under the Good Neighbor Provision

    Given that ozone formation, atmospheric residence, and transport
occur on a regional scale (i.e., hundreds of miles) over much of the
eastern U.S., the EPA has historically addressed interstate transport
of ozone pursuant to the good neighbor provision through a series of
regional rulemakings focused on the reduction of NOX
emissions, routinely finding that downwind states' problems attaining
and maintaining the ozone NAAQS result in part from the contribution of
pollution from multiple upwind sources located in different upwind
states. For example, the EPA noted in the NOX SIP Call that
``[t]he fact that virtually every nonattainment problem is caused by
numerous sources over a wide geographic area is a factor suggesting
that the solution to the problem is the implementation over a wide area
of controls on many sources, each of which may have a small or
unmeasurable ambient impact by itself.'' 63 FR 57356, 57377 (October
27, 1998).
    The EPA has promulgated four regional interstate transport
rulemakings that have addressed the good neighbor provision with
respect to various ozone NAAQS. The EPA's first such rulemaking, the
NOX SIP Call, addressed interstate transport with respect to
the 1979 ozone NAAQS and was finalized on October 27, 1998. 63 FR
57356. The NOX SIP Call promulgated statewide emission
budgets and required upwind states to adopt SIPs which would decrease
NOX emissions by amounts that would significantly contribute
to nonattainment of the ozone NAAQS in downwind states. The EPA also
promulgated a model rule for a regional allowance trading program
called the NOX Budget Trading Program that states could
adopt in their SIPs as a mechanism to achieve some or all of the
required emission reductions. Id. All of the jurisdictions covered by
the NOX SIP Call ultimately chose to adopt the
NOX Budget Trading Program into their SIPs.\4\
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    \4\ The NOX Budget Trading Program operated from 2003
through 2008. Beginning in 2009, it was effectively replaced by the
ozone season NOX Budget Trading program under the Clean
Air Interstate Rule (CAIR).
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    In coordination with the NOX SIP Call rulemaking under
CAA section 110(a)(2)(D)(i)(I), the EPA also addressed several pending
CAA section 126(b) petitions submitted by eight northeastern states
regarding the same air quality issues (i.e., interstate ozone transport
for the 1979 ozone NAAQS) addressed by the NOX SIP Call.
These CAA section 126(b) petitions asked the EPA to find that ozone
emissions from numerous sources located in 22 states, and the District
of Columbia, had adverse air quality impacts on the petitioning
downwind states. Based on technical determinations made in the
NOX SIP Call regarding upwind state impacts on downwind air
quality, the EPA in May 1999 made technical determinations regarding
the claims in the petitions, but did not at that time make the CAA
section 126(b) findings requested by the petitions. 64 FR 28250. In
making these technical determinations, the EPA concluded that the
NOX SIP Call would itself fully address and remediate the
claims raised in these petitions, and that the EPA would therefore not
need to take separate action to remedy any potential violations of the
CAA section 110(a)(2)(D)(i) prohibition. 64 FR 28252 (May 25, 1999).
However, more than 2 years after the petitions were submitted,
subsequent litigation over the NOX SIP Call led the EPA to
``de-link'' the CAA section 126(b) petition response from the
NOX SIP Call, and the EPA made final CAA section 126(b)
findings for 12 states and the District of Columbia, finding sources in
the states emitted in violation of the prohibition in the good neighbor
provision with respect to the 1979 ozone NAAQS based on the affirmative
technical determinations made in the May 1999 rulemaking. In order to
remedy the violation under CAA section 126(c), the EPA promulgated
requirements for affected sources in the upwind states to participate
in a regional allowance trading program whose requirements were
designed to be interchangeable with the requirements of the optional
NOX Budget Trading Program model rule provided under the
NOX SIP Call. 65 FR 2674 (January 18, 2000).
    The EPA next promulgated the Clean Air Interstate Rule (CAIR) to
address interstate transport under the good neighbor provision with
respect to the 1997 ozone NAAQS, as well as the 1997 PM2.5
NAAQS. The EPA adopted the same framework to quantifying the level of
states' significant contribution to

downwind nonattainment in CAIR as it used in the NOX SIP
Call, based on the determination in the NOX SIP Call that
downwind ozone nonattainment is due to the impact of emissions from
numerous upwind sources and states. 70 FR 25162, 25172 (May 12, 2005).
Regarding the contribution to downwind pollution from upwind states,
the EPA explained that ``[t]ypically, two or more States contribute
transported pollution to a single downwind area, so that the
`collective contribution' is much larger than the contribution of any
single State.'' Id. at 25186. CAIR included two distinct regulatory
processes--a regulation to define significant contribution (i.e., the
emission reduction obligation) under the good neighbor provision and
provide for submission of SIPs eliminating that contribution, 70 FR
25162 (May 12, 2005), and a regulation to promulgate, where necessary,
FIPs imposing emission limitations, 71 FR 25328 (April 28, 2006). The
FIPs required electric generating units (EGUs) in affected states to
participate in regional allowance trading programs, which replaced the
previous NOX Budget Trading Program.
    In conjunction with the second CAIR regulation promulgating FIPs,
the EPA acted on a CAA section 126(b) petition received from the state
of North Carolina on March 19, 2004, seeking a finding that large EGUs
located in 13 states were significantly contributing to nonattainment
and/or interfering with maintenance of the 1997 ozone and 1997
PM2.5 NAAQS in North Carolina. Citing the analyses conducted
to support the promulgation of CAIR, the EPA denied the CAA section
126(b) petition in full based on a determination either that the named
states were not adversely impacting downwind air quality in violation
of the good neighbor provision, or that such impacts were fully
remedied by implementation of the emission reductions required by the
CAIR FIPs. 71 FR 25328, 25330 (April 28, 2006) (discussing the EPA's
basis for denial in part because the EPA promulgated FIPs concurrently
with the CAA section 126(b) response requiring elimination of the
interstate transport problems within petitioning states).
    CAIR was remanded to the EPA by the D.C. Circuit in July 2008 with
the instruction that the EPA replace the rule ``from the ground up.''
North Carolina v. EPA, 531 F.3d 896, 929 (D.C. Cir. 2008). Accordingly,
the EPA was required to redo its analysis and ensure that
implementation of the good neighbor provision would be consistent with
the D.C. Circuit's instructions in North Carolina.
    On August 8, 2011, the EPA promulgated the Cross-State Air
Pollution Rule (CSAPR) to replace CAIR. 76 FR 48208 (August 8, 2011).
CSAPR addressed the same ozone and PM2.5 NAAQS as CAIR and,
in addition, addressed interstate transport for the 2006
PM2.5 NAAQS by requiring 28 states to reduce SO2
emissions, annual NOX emissions, and/or ozone season
NOX emissions that would significantly contribute to other
states' nonattainment or interfere with other states' abilities to
maintain these air quality standards. Consistent with prior
determinations made in the NOX SIP Call and CAIR, the EPA
continued to find that multiple upwind states contributed to downwind
ozone nonattainment. Specifically, the EPA found ``that the total
`collective contribution' from upwind sources represents a large
portion of PM2.5 and ozone at downwind locations and that
the total amount of transport is composed of the individual
contribution from numerous upwind states.'' Id. at 48237. Accordingly,
the EPA conducted a regional analysis, calculated emission budgets for
affected states, and required EGUs in these states to participate in
new regional allowance trading programs in order to reduce statewide
emission levels. CSAPR was subject to nearly 4 years of litigation in
which the Supreme Court upheld EPA's approach to calculating emission
reduction obligations and apportioning upwind state responsibility
under the good neighbor provision, but also held that the EPA was
precluded from requiring more emission reductions than necessary to
address downwind air quality problems. EPA v. EME Homer City
Generation, L.P., 134 S. Ct. at 1607-1609.
    Most recently, the EPA promulgated the CSAPR Update to address the
good neighbor provision requirements for the 2008 ozone NAAQS. 81 FR
74504 (October 26, 2016). The final CSAPR Update built upon previous
efforts to address the collective contributions of ozone pollution from
states in the eastern U.S. to downwind air quality problems, including
the NOX SIP Call, CAIR, and the original CSAPR. The CSAPR
Update finalized EGU NOX ozone season emission budgets for
affected states that were developed using uniform control stringency
available at a marginal cost of $1,400 per ton of NOX
reduced. This level of control stringency represented the potential for
operating and optimizing existing selective catalytic reduction (SCRs)
controls; installing state-of-the-art NOX combustion
controls; and shifting generation to existing units with lower
NOX emission rates within the same state.
    The CSAPR Update finalized enforceable measures necessary to
achieve the emission reductions in each state by requiring power plants
in covered states to participate in the CSAPR NOX Ozone
Season Group 2 allowance trading program. The CSAPR Update's trading
programs and the EPA's prior emission trading programs (e.g., the
NOX Budget Trading Program associated with the
NOX SIP Call) provide a proven, cost-effective
implementation framework for achieving emission reductions. In addition
to providing environmental certainty (i.e., a cap on regional and
statewide emissions), these programs also provide regulated sources
with flexibility when choosing compliance strategies. This
implementation approach was shaped by previous rulemakings and reflects
the evolution of these programs in response to court decisions and
practical experience gained by states, industry, and the EPA.
    While some aspects of these rulemakings have been challenged in
court--and some aspects of these challenges have been upheld--each of
these rulemakings essentially followed the same four-step framework to
quantify and implement emission reductions necessary to address the
interstate transport requirements of the good neighbor provision. These
steps are:
    (1) Identifying downwind air quality problems relative to the ozone
NAAQS. The EPA has identified downwind areas with air quality problems
considering monitored ozone data where appropriate and air quality
modeling projections to a future compliance year. In CSAPR and the
CSAPR Update, the agency identified not only those areas expected to be
in nonattainment with the ozone NAAQS, but also those areas that may
struggle to maintain the NAAQS, despite clean monitored data or
projected attainment;
    (2) determining which upwind states are ``linked'' to these
identified downwind air quality problems and warrant further analysis
to determine whether their emissions violate the good neighbor
provision. In CSAPR and the CSAPR Update, the EPA identified such
upwind states as those modeled to contribute at or above a threshold
equivalent to one percent of the applicable NAAQS. Upwind states linked
to one of these downwind nonattainment or maintenance areas were then
evaluated to determine what level of emissions reductions, if any,
should be required of each state;

    (3) for states linked to downwind air quality problems, identifying
upwind emissions on a statewide basis that significantly contribute to
nonattainment or interfere with maintenance of a standard. In all four
of the EPA's prior rulemakings, the EPA apportioned emission reduction
responsibility among multiple upwind states linked to downwind air
quality problems using cost-based and air quality-based criteria to
quantify the amount of a linked upwind state's emissions that
significantly contribute to nonattainment or interfere with maintenance
in another state; and
    (4) for states that are found to have emissions that significantly
contribute to nonattainment or interfere with maintenance of the NAAQS
downwind, implementing the necessary emission reductions within the
state. The EPA has done this by requiring affected sources in upwind
states to participate in allowance trading programs to achieve the
necessary emission reductions.
    In finalizing the CSAPR Update, the EPA determined the rule may
only be a partial resolution of the good neighbor obligation and that
the emission reductions required by the rule ``may not be all that is
needed'' to address transported emissions. 81 FR 74521-522 (October 26,
2016). The EPA noted that the information available at that time
indicated that downwind air quality problems remained after
implementation of the CSAPR Update to which upwind states continued to
be linked at or above the one percent threshold. However, the EPA could
not determine whether, at step three of the four-step framework, the
EPA had quantified all emission reductions that may be considered
highly cost effective because the rule did not evaluate non-EGU ozone
season NOX reductions and further EGU control strategies
that are achievable on longer timeframes after 2017 (e.g., the
implementation of new post-combustion controls).
    Of particular relevance to this proposal, the EPA determined in the
CSAPR Update that emissions from Pennsylvania were linked to both
nonattainment and maintenance concerns for the 2008 ozone NAAQS in
Connecticut based on projections to 2017. 81 FR 74538, 74539. The EPA
found there were cost-effective emission reductions that could be
achieved within Pennsylvania, quantified an emission budget for the
state, and required EGUs located within the state, including the source
identified in Connecticut's petition, to comply with EPA's trading
program under the CSAPR Update. These emission budgets were imposed in
order to achieve necessary emission reductions and mitigate upwind
states', including Pennsylvania's, impact on downwind states' air
quality.

D. The June 2016 CAA Section 126(b) Petition From Connecticut

    On March 12, 2008, the EPA promulgated a revision to the ozone
NAAQS, lowering both the primary and secondary standards to 75 ppb.\5\
Subsequently, on June 1, 2016, the state of Connecticut, through the
Connecticut Department of Energy and Environmental Protection
(Connecticut), submitted a CAA section 126(b) petition alleging that
emissions from Brunner Island significantly contribute to nonattainment
and/or interfere with maintenance of the 2008 ozone NAAQS in
Connecticut.\6\ In particular, the petition contends that emissions
from Brunner Island significantly contribute to nonattainment and
interfere with maintenance of the 2008 ozone NAAQS at six out of 12
ozone monitors in Connecticut. In support of this assertion, the
petition contends that emissions from Brunner Island contribute levels
equal to or greater than one percent of the 2008 ozone NAAQS to
downwind nonattainment and maintenance receptors. The petition further
contends that Brunner Island is able to reduce emissions at a
reasonable cost using readily available control options. The petition
therefore concludes that, consistent with EPA's past approaches to
addressing interstate transport of ozone, NOX emissions from
Brunner Island significantly contribute to nonattainment and interfere
with maintenance of the 2008 ozone NAAQS in Connecticut. The petition
requests that the EPA direct the operators of Brunner Island to reduce
NOX emissions to eliminate this impact.
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    \5\ See National Ambient Air Quality Standards for Ozone, Final
Rule, 73 FR 16436 (March 27, 2008).
    \6\ Petition of the State of Connecticut Pursuant to Section 126
of the Clean Air Act, submitted June 1, 2016. The petition is
available in the docket for this action.
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    The petition cites several sources of data for its contention that
Brunner is impacting air quality in Connecticut. First, the petition
notes that 10 out of 12 air quality monitors in Connecticut were
violating the 2008 ozone NAAQS based on 2012-2014 data and preliminary
2013-2015 data available at the time the petition was submitted.\7\ The
petition further cites to modeling conducted by the EPA to support
development of the CSAPR Update to claim that four ozone monitors in
Connecticut were projected to have nonattainment or maintenance
concerns in 2017.\8\
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    \7\ Of the 12 monitors in Connecticut, 7 are violating the 2008
ozone NAAQS based on 2014-2016 data. See ozone design value table
available at https://www.epa.gov/air-trends/air-quality-design-values#report.
    \8\ The petition referred to modeling conducted for purposes of
the proposed CSAPR Update in 2015. See 80 FR 75706, 75725-726
(December 3, 2015). The EPA conducted updated modeling to support
the final rulemaking, which also identified four projected
nonattainment and maintenance receptors in 2017. 81 FR 74533.
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    To support the conclusion that Brunner Island impacts air quality
at some of these monitoring sites, Connecticut provides a technical
memorandum from Sonoma Technologies, Inc., outlining the results of
modeling that analyzed the impact of NOX emissions from
Brunner Island on Connecticut. According to the petition, this modeling
shows that emissions from Brunner Island contributed an amount greater
than one percent of the 2008 ozone NAAQS at six monitoring sites in
Connecticut based on emissions from the facility during the 2011 ozone
season, and is therefore linked to Connecticut's air quality problems.
    Connecticut further alleges that Brunner Island has cost-effective
and readily available control technologies that can reduce its
NOX emissions. The petition first notes that Brunner Island
currently has no NOX post-combustion controls installed at
any of the units but that the facility was planning to add the
capability to use natural gas fuel at all three of its units by the
summer of 2017, and argues that a federally enforceable mechanism to
ensure Brunner Island uses natural gas fuel would eliminate Brunner
Island's significant contribution to ozone levels in Connecticut. The
petition states that current federal and state rules will not require
Brunner Island to operate on natural gas, install post-combustion
controls, or otherwise limit NOX emissions beyond previously
allowable permit levels. The petition summarizes four potential ways by
which Brunner Island could reduce its NOX emissions:
Replacing coal combustion with natural gas fuel, modifying its boiler
furnace burners and combustion systems to operate at lower flame
temperatures, installing selective noncatalytic reduction (SNCR)
controls, and installing SCR controls.
    The petition further discusses the EPA's then-proposed CSAPR
Update. Connecticut suggests that the then-proposed CSAPR Update could
not be relied upon to control emissions from Brunner Island because:
(1) It was not final at the time the petition was submitted and was
therefore uncertain; and (2) the proposed rule would not require
Brunner Island to reduce its

emissions below the threshold of one percent of the NAAQS. The petition
notes that the modeling to support the proposed rule shows four
Connecticut monitors with nonattainment and maintenance problems after
implementation of the proposed emission budgets. Finally, the petition
suggests that the fact that EGUs may trade allowances within and
between states could result in emission levels in excess of the state's
budget, and thus suggest the rule will likely not affect Brunner
Island's emissions. In particular, the petition suggests that this
aspect of the CSAPR Update will not reduce emissions from Brunner
Island on high electric demand days or days with the highest ozone
levels.
    Based on the technical support provided in its petition,
Connecticut requests that the EPA make a CAA section 126(b) finding and
require that Brunner Island comply with emissions limitations and
compliance schedules to eliminate its significant contribution to
nonattainment and interference with maintenance in Connecticut.
    Section 126(b) of the Act requires the EPA to either make a finding
or deny a petition within 60 days of receipt of the petition and after
holding a public hearing. However, any action taken by the EPA under
CAA section 126(b) is also subject to the procedural requirements of
CAA section 307(d). See CAA section 307(d)(1)(N). One of these
requirements is that the EPA conduct notice-and-comment rulemaking,
including issuance of a notice of proposed action, a period for public
comment, and a public hearing before making a final determination
whether to make the requested finding. In light of the time required
for notice-and-comment rulemaking, CAA section 307(d)(10) provides for
a time extension, under certain circumstances, for rulemakings subject
to the section 307(d) procedural requirements. In accordance with
section 307(d)(10), the EPA determined that the 60-day period for
action on Connecticut's petition would be insufficient for the EPA to
complete the necessary technical review, develop an adequate proposal,
and allow time for notice and comment, including an opportunity for
public hearing. Therefore, on July 25, 2016, the EPA published a final
rule extending the deadline for the EPA to take final action on
Connecticut's CAA section 126(b) petition to January 25, 2017.\9\
---------------------------------------------------------------------------

    \9\ 81 FR 48348 (July 25, 2016).
---------------------------------------------------------------------------

    On April 25, 2017, a coalition of public health, conservation, and
environmental organizations submitted letters urging the EPA to
immediately grant the pending CAA section 126(b) petitions in front of
the agency, including Connecticut's, arguing that the petitions'
proposed remedies would also provide critical air quality benefits to
the communities surrounding the affected power plants in Indiana,
Kentucky, Ohio, Pennsylvania, and West Virginia, as well as other
downwind states, including New Jersey, New York, Maine, Massachusetts,
and Rhode Island.\10\ On April 28, 2017, Talen Energy Corp., the owner
and operator of Brunner Island, submitted a letter urging the EPA to
deny Connecticut's CAA section 126(b) petition due to alleged
deficiencies in the petition. The EPA acknowledges receipt of these
letters, and has made them available in the docket for this action.
However, the EPA is not in this action responding directly to these
letters. Rather, the EPA encourages interested parties to review this
proposal and then submit relevant comments during the public comment
period.
---------------------------------------------------------------------------

    \10\ The EPA has received five CAA section 126(b) petitions from
two other states (Delaware and Maryland) regarding the 2008 and 2015
ozone NAAQS, each claiming that one or more specific power plant
EGUs in upwind states emit or would emit in violation of the good
neighbor provision. However, the EPA notes that this rulemaking only
addresses Connecticut's CAA section 126 petition regarding Brunner
Island in Pennsylvania and the EPA is not requesting proposing
action or requesting comment on the other five petitions.
---------------------------------------------------------------------------

    On May 16, 2017, the state of Connecticut filed suit in the U.S.
District Court for the District of Connecticut alleging that the EPA
failed to take timely action on Connecticut's CAA section 126(b)
petition.\11\ On February 7, 2018, the court issued an order requiring
the EPA to hold a public hearing on the petition within 30 days and to
take final action within 60 days of the court's order. See Ruling on
Motions for Summary Judgment and Motion Concerning Remedy, State of
Connecticut v. EPA, No. 3:17-cv-00796 (D. Conn. February 7, 2018).
---------------------------------------------------------------------------

    \11\ Two citizen groups, Sierra Club and Connecticut Fund for
the Environment, intervened in this case on behalf of the state of
Connecticut.
---------------------------------------------------------------------------

E. The Brunner Island Facility

    Brunner Island is a 1,411 megawatt facility with three
tangentially-fired steam boiler EGUs, each equipped with low
NOX burner technology with closed-coupled/separated over
fire air (LNC3) combustion controls, located in York County in
southeastern Pennsylvania.\12\ The units were constructed starting in
1961 through 1969. For over 50 years, all three units at Brunner Island
have historically burned coal. Brunner Island recently installed a
natural gas connection pipeline allowing natural gas to be combusted to
serve Brunner Island's electric generators.\13\ Following installation
of this pipeline, Brunner Island primarily combusted natural gas as
fuel during the 2017 ozone season.\14\ Using primarily natural gas as
fuel during the 2017 ozone season reduced Brunner Island's actual ozone
season NOX emissions to 877 tons in 2017 from 3,765 tons in
2016 and reduced the facility's ozone season NOX emission
rate to 0.090 pounds per millions of British thermal units (lbs/mmBtu)
in 2017 from 0.370 lbs/mmBtu in 2016.\15\
---------------------------------------------------------------------------

    \12\ For tangentially-fired boiler types, LNC3 is state of the
art (See sections 3.9.2 and 5.2.1 on pages 3-25 and 5-5 of the
Integrated Planning Model (IPM) 5.13 documentation for details about
combustion controls. The IPM documentation is available at https://www.epa.gov/airmarkets/power-sector-modeling-platform-v513.
    \13\ The Connecticut CAA section 126(b) petition and the April
28, 2017, letter from Talen Energy Corp. indicate that Brunner
Island has taken necessary steps to construct a natural gas pipeline
and enable the combustion of natural gas. On June 7, 2016, an
article by S&P Global indicated that Talen Energy Corp. is in the
process of converting the Brunner Island plant to co-fire with
natural gas. These documents are available in the docket for this
action.
    \14\ Hourly emission rates reported to the EPA and fuel usage
reported to Environmental Impact Assessment demonstrate Brunner
Island predominately used natural gas during the ozone season. The
emissions data for 2017 are publicly available at https://www.epa.gov/ampd and the fuel usage data are available at https://www.eia.gov/electricity/data/eia923/.
    \15\ These data are publicly available at https://www.epa.gov/ampd. See Air Markets Program Data in the docket for this proposal.
---------------------------------------------------------------------------

III. The EPA's Proposed Decision on Connecticut's CAA Section 126(b)
Petition

A. The EPA's Approach for Granting or Denying CAA Section 126(b)
Petitions Regarding the 2008 8-Hour Ozone NAAQS

    As described in section II.B of this notice, as an initial matter
in reviewing CAA section 126(b) petitions, the EPA evaluates the
technical analysis in the petition to see if that analysis, standing
alone, is sufficient to support a CAA section 126(b) finding. In this
regard, the agency notes that certain elements of the analysis provided
in the petition appear to be deficient and thereby the conclusions that
the petition draws are not fully supported by Connecticut's technical
assessment. For example, in the context of interstate pollution
transport, in existing EPA analyses, the agency focuses its analysis on
contributions to high ozone days at the downwind receptor. The analysis
and metrics provided by the petitioner provide some information on the

frequency and magnitude of ozone impacts. However, the information is
unclear as to the modeled and/or measured ozone levels on those
days.\16\ We also note that, the Connecticut petition relied on
emissions data from 2011, which may not be representative of current
and/or future NOX emissions and ozone levels in Connecticut,
Pennsylvania, and the rest of the region.\17\
---------------------------------------------------------------------------

    \16\ Table two in the Sonoma Technologies, Inc. technical
memorandum that supports Connecticut's petition indicates that the
``maximum number of days any one monitor [in Connecticut] had a
significant ozone contribution'' was two.
    \17\ The Connecticut petition relies on air quality modeling
that uses 2011 emissions data. As an example of how emissions have
changed between 2011 and a recent historical year, the EPA notes
that Pennsylvania's 2017 EGU NOX ozone season emissions
were 79 percent below 2011 levels. Brunner Island is located in
Pennsylvania, which as a facility reduced its ozone season
NOX emissions by 88 percent in 2017 relative to 2011
levels (https://www.epa.gov/ampd).
---------------------------------------------------------------------------

    Nonetheless, the EPA's primary approach for reviewing the petition
involves EPA's independent technical analyses to help evaluate the
basis for a potential CAA section 126(b) finding. As described in
sections II.A and II.C of this notice, ozone is a regional pollutant
and previous EPA analyses and regulatory actions have evaluated the
regional interstate ozone transport problem using a four-step regional
analytic framework.
    The EPA applied this four-step framework in the promulgation of the
CSAPR Update under CAA section 110(a)(2)(D)(i)(I) to at least partially
address interstate transport with respect to the 2008 ozone NAAQS. The
CSAPR Update was promulgated in 2016 and finalized EGU NOX
ozone season emission budgets to address the good neighbor provision
for the 2008 ozone NAAQS. While CAA section 126(b) differs from CAA
section 110(a)(2)(D)(i)(I) in that CAA section 126(b) gives states the
ability to petition the EPA regarding compliance with the good neighbor
provision by a single source or group of sources, CAA section 126(b)
specifically cross-references the substantive prohibitions of the good
neighbor provision. To that end, CAA sections 110(a)(2)(D)(i)(I) and
126(b) both represent mechanisms to address the same functional
prohibition of emissions activity from upwind states that will
contribute significantly to nonattainment or interfere with maintenance
of the NAAQS in a downwind state.
    Given the specific cross-reference in CAA section 126(b) to the
substantive prohibition in CAA section 110(a)(2)(D)(i)(I), as discussed
in section II.B of this notice in more detail, the EPA believes any
prior findings made under the good neighbor provision are informative--
if not determinative--for a CAA section 126(b) action, and thus the
EPA's four-step approach under CAA section 110(a)(2)(D)(i)(I) is also
appropriate for evaluating under CAA section 126(b) whether a source or
group of sources will significantly contribute to nonattainment or
interfere with maintenance of the 2008 8-hour ozone NAAQS in a
petitioning state. Because the EPA interprets significant contribution
to nonattainment and interference with maintenance to mean the same
thing under both provisions, the EPA's decision whether to grant or
deny a CAA section 126(b) petition regarding the 2008 8-hour ozone
NAAQS depends on whether there is a downwind air quality problem in the
petitioning state (i.e., step one of the four-step framework); whether
the upwind state where the source subject to the petition is located is
linked to the downwind air quality problem (i.e., step two); and, if
such a linkage exists, whether there are additional feasible and cost-
effective emission reductions achievable at the source(s) named in the
CAA section 126(b) petition (i.e., step three).

B. The EPA's Proposal To Deny Connecticut's CAA Section 126(b) Petition

    As described earlier in section II.C of this notice, the EPA has
determined that a state may contribute significantly to nonattainment
or interfere with maintenance of the 2008 ozone NAAQS where emissions
from the state impact a downwind air quality problem (nonattainment or
maintenance receptor) at a level exceeding a one percent contribution
threshold, and where the sources in the state can implement emission
reductions through highly cost-effective control measures. See EPA v.
EME Homer City Generation, L.P., 134 S. Ct. at 1606-07.
    The EPA has already conducted such an analysis for the 2008 ozone
NAAQS with respect to Pennsylvania's impact on receptors in
Connecticut. As the petitioners note, the EPA determined that, based on
2017 modeling projections, Pennsylvania was linked to four air quality
monitors in Connecticut expected to have nonattainment or maintenance
concerns. However, contrary to the assertions made in Connecticut's
petition, the one percent threshold used in step two in the CSAPR
Update did not alone represent emissions that were considered to
``contribute significantly'' or ``interfere with maintenance'' of the
NAAQS. The conclusion that a state's emissions met or exceeded this
threshold only indicated that further analysis was appropriate to
determine whether any of the upwind state's emissions met the statutory
criteria of significantly contributing to nonattainment or interfering
with maintenance. As discussed in more detail in section II.C, this
further analysis in step three considers cost, technical feasibility
and air quality factors to determine whether any emissions deemed to
contribute to the downwind air quality factor must be controlled
pursuant to the good neighbor provision. Thus, while the EPA's modeling
conducted for the CSAPR Update did link emissions from Pennsylvania to
nonattainment and maintenance receptors in Connecticut in 2017, this
does not conclude the determination as to whether Brunner Island is
operating in violation of the good neighbor provision with respect to
the 2008 ozone NAAQS.
    Similarly, and for the same reasons, the impact of a single source
on downwind air quality is not necessarily determinative of whether
that source emits or would emit in violation of the good neighbor
provision. Thus, the modeling summary provided by Connecticut regarding
Brunner Island's potential impact on Connecticut monitors does not
indicate whether in step three of the EPA's framework there are
feasible and highly cost-effective emission reductions available at
Brunner Island such that EPA could determine that this facility emits
or would emit in violation of the good neighbor provision.
    With respect to the question of whether there are feasible and
highly cost-effective NOX emission reductions available at
Brunner Island, CAA section 126(b) indicates that a petitioner must
demonstrate that a major source or group of stationary sources ``emits
or would emit'' any air pollutant in violation of the prohibition of
CAA section 110(a)(2)(D)(i)(I). Congress did not specify the intended
meaning for these terms in either CAA section 126(b) itself or the
legislative history for this provision. Therefore, in the context of
this response to Connecticut's CAA section 126(b) petition regarding
Brunner Island for the 2008 ozone NAAQS, the EPA reasonably and
appropriately proposes to interpret these ambiguous terms in a
particular way given the facility's existing operating conditions, as
further described later in this section, and consistent with EPA's
historical approach to evaluating interstate ozone pollution transport
under the good neighbor provision. Specifically, the

EPA is proposing to interpret the phrase ``emits or would emit'' in
this context to mean, first, that a source may ``emit'' in violation of
the good neighbor provision if, based on current emission levels, the
upwind state contributes to downwind air quality problems and the
source may be further controlled through implementation of highly cost-
effective controls; and, second, that a source ``would emit'' in
violation of the good neighbor provision if, based on reasonably
anticipated future emission levels (accounting for existing
conditions), the upwind state contributes to downwind air quality
problems and the source could be further controlled through
implementation of highly cost-effective controls. This interpretation
is consistent with EPA's historic approach to addressing ozone
transport under the good neighbor provision wherein EPA's ozone
transport air quality and NOX reduction potential analyses
have used future emission projections that were derived considering
recent and projected emission levels. Accordingly, the EPA believes it
is reasonable to interpret the CAA section 126(b) requirements for
ozone transport in a consistent manner. Consistent with this
interpretation, the EPA has therefore evaluated whether Brunner Island
emits or would emit in violation of the good neighbor provision based
on both current and future anticipated emission levels.
    As described in more detail later in this section, Brunner Island
primarily burned natural gas with a low NOX emission rate in
the 2017 ozone season and the EPA expects the facility to continue
operating primarily by burning natural gas in future ozone seasons. As
such, the EPA does not find at this time that there are additional
feasible and highly cost-effective NOX emission reductions
available at Brunner Island. The EPA is therefore proposing to
determine, based on this context, that Brunner Island does not and
would not ``emit'' in violation of the good neighbor provision with
respect to the 2008 ozone NAAQS.
    Connecticut's CAA section 126(b) petition first proposes that the
operation of natural gas is an available cost-effective emission
reduction measure that could be implemented at Brunner Island. As noted
previously, Brunner Island completed construction of a natural gas
pipeline connection prior to the beginning of the 2017 ozone season
(i.e., by May 1, 2017). Brunner Island operated primarily using natural
gas as fuel for the 2017 ozone season. As a result, Brunner Island's
actual ozone season NOX emissions declined from 3,765 tons
in 2016 to 877 tons in 2017, and the facility's ozone season
NOX emission rate declined from 0.370 lbs/mmBtu in 2016 to
0.090 lbs/mmBtu in 2017. Thus, Brunner Island has already implemented
the emission reductions consistent with what Connecticut asserted would
qualify as a cost-effective strategy for reducing NOX
emissions. Connecticut's section 126(b) petition does not demonstrate
that, at this current level of emissions, Brunner Island ``emits'' in
violation of the good neighbor provision.
    The EPA also believes that Brunner Island will likely continue to
primarily use natural gas as fuel during future ozone seasons for
several reasons. First, compliance with the CSAPR Update provides an
economic incentive to cost-effectively reduce NOX emissions.
Specifically, Brunner Island's participation in the CSAPR
NOX ozone season Group 2 allowance trading program provides
an economic incentive to produce electricity in ways that lower ozone-
season NOX, such as by burning natural gas relative to
burning coal at this particular power plant. Under the CSAPR Update,
each ton of NOX emitted by a covered EGU has an economic
value--a direct cost in the case that a power plant must purchase an
allowance to cover that ton of emissions for CSAPR Update compliance or
an opportunity cost in the case that a power plant must use an
allowance that is in its account for compliance and thereby foregoes
the opportunity to sell that allowance on the market. The EPA notes
that Brunner Island's 2017 emissions would have been approximately
2,714 tons more than its actual 2017 emissions if it had operated as a
coal-fired generator, as it did in 2016.\18\ This reduction in
NOX emissions that is attributable to primarily burning
natural gas has an economic value in the CSAPR allowance trading
market.
---------------------------------------------------------------------------

    \18\ This estimated emissions difference was calculated as the
difference between 2017 reported NOX emissions and a
counterfactual 2017 NOX emissions estimate using 2017
operations (i.e., heat input), multiplied by the 2016 NOX
emission rate reflecting coal-fired generation.
---------------------------------------------------------------------------

    Second, there are continuing fuel-market based economic incentives
suggesting that Brunner Island will primarily burn natural gas during
the ozone season. Brunner Island elected to add the capability to
primarily utilize natural gas by way of a large capital investment in a
new natural gas pipeline capacity connection. Brunner Island's
operators would have planned for and constructed this project during
the recent period of relatively low natural gas prices. In the years
preceding the completion of this natural gas pipeline connection
project, average annual natural gas prices ranged from $2.52/mmBtu to
$4.37/mmBtu (i.e., between 2009 and 2016).\19\ The capital expenditure
to construct a natural gas pipeline connection suggests that natural
gas prices within this range make it economic (i.e., cheaper) for
Brunner Island to burn natural gas to generate electricity relative to
burning coal. As such, future natural gas prices in this same range
suggest that Brunner Island will continue to primarily burn natural gas
during future ozone seasons. The EPA and other independent analysts
expect future natural gas prices to remain low and within this 2009 to
2016 range due both to supply and distribution pipeline build-out. For
example, the Energy Information Administration's (EIA) 2018 Annual
Energy Outlook (AEO) natural gas price projections for Henry Hub spot
price range from $3.06/mmBtu in 2018 to $3.83/mmBtu in 2023.\20\
Moreover, the AEO short-term energy outlook and New York Mercantile
Exchange futures further support the estimates of a continued low-cost
natural gas supply.\21\ These independent analyses of fuel price data
and projections lead to the EPA's expectation that fuel-market
economics will continue to support Brunner Island's primarily burning
natural gas during future ozone seasons through at least 2023. Taken
together with projected continued broader downward trends in
NOX emissions resulting in improved air quality in
Connecticut, the EPA expects that Connecticut's ozone nonattainment and
maintenance problems will be resolved in the future and that Brunner
Island will likely continue to primarily burn natural gas during the
ozone season until that time.
---------------------------------------------------------------------------

    \19\ In the 2018 reference case Annual Energy Outlook (AEO)
released February 6, 2018, created by the U.S. Energy Information
Administration (EIA), natural gas prices for the power sector for
2018 through 2023. Available at https://www.eia.gov/outlooks/aeo/data/browser/#/?id=13-AEO2018&cases=ref2018&sourcekey=0.
    \20\ Projected delivered natural gas prices for the power sector
in the Middle Atlantic region, where Brunner Island is located,
ranged between $3.56 in 2018 and $3.99/mmBtu in 2023. The projected
delivered coal prices for the Middle Atlantic remain relatively
constant, ranging from $2.51 to $2.56/mmBtu. https://www.eia.gov/outlooks/aeo/data/browser/#/?id=3-AEO2018®ion=1-2&cases=ref2018&start=2016&end=2023&f=A&linechart=ref2018-d121317a.3-3-AEO2018.1-2↦=ref2018-d121317a.4-3-AEO2018.1-2&sourcekey=0 and http://tonto.eia.gov/dnav/ng/hist/rngwhhda.htm.
    \21\ AEO short-term energy outlook available at https://www.eia.gov/outlooks/steo/report/natgas.php.
---------------------------------------------------------------------------

    The context in which Brunner Island installed natural gas-firing
capability and burned natural gas is consistent

with observed recent trends in natural gas utilization within the power
sector, suggesting that Brunner Island's economic situation in which it
primarily burns gas as fuel during the ozone season is not unique or
limited. Comparing total heat input from 2014 with 2017 for all units
that utilize natural gas and report to the EPA's Clean Air Markets
Division, historical data showed an increased use of natural gas of 14
percent.\22\ This overall increase results from both an increase in
capacity from the construction of additional units and an increased
gas-fired utilization capacity factor. The available heat input
capacity increased six percent while average capacity factor based on
heat input increased by eight percent (23 percent to 25 percent).
---------------------------------------------------------------------------

    \22\ From 8.4 billion mmBtu to 9.6 billion mmBtu. See EPA's
Clean Air Markets Division data at https://ampd.epa.gov/ampd/.
---------------------------------------------------------------------------

    Accordingly, based on this information demonstrating that Brunner
Island can be expected to continue to primarily operate using natural
gas fuel in the future, the EPA cannot conclude that the facility
``would emit'' in violation of the good neighbor provision with respect
to the 2008 ozone NAAQS. The EPA notes that Connecticut's petition
relied on emission data from 2011 to attempt to demonstrate that
Brunner Island is significantly contributing to nonattainment or
interfering with maintenance. In light of recent changes in Brunner
Island's operations, the EPA does not believe this information provides
a current, reasonable estimate of how much NOX pollution
Brunner Island emits or would emit currently or in the future.\23\
---------------------------------------------------------------------------

    \23\ As noted above, Pennsylvania's 2017 EGU NOX
ozone season emissions were 79 percent below 2011 levels. Brunner
Island is located in Pennsylvania, which as a facility reduced its
ozone season NOX emissions by 88 percent in 2017 relative
to 2011 levels. Data regarding Brunner Island emissions available at
https://www.epa.gov/ampd.
---------------------------------------------------------------------------

    We do not agree with the petition to the extent that it asserts
that the ability to buy and bank allowances in the CSAPR Update's ozone
season NOX allowance trading program will incentivize
Brunner Island to increase its emissions. Connecticut fails to support
its contention and thus does not meet the demonstration burden imposed
on CAA section 126(b) petition. Moreover, Brunner Island's 2017
emission levels demonstrate that, contrary to Connecticut's assertions,
Brunner Island reduced emissions while operating in the context of the
CSAPR Update allowance trading program. This is also true for EGUs in
Pennsylvania more broadly, which had collective emissions of 13,646
tons, well below the Pennsylvania budget of 17,952 tons. The petition
also fails to support its contention that Brunner Island's
participation in the allowance trading program will result in increased
emissions on days with either high electricity demand or days with the
highest ozone levels.
    Finally, to the extent that Connecticut identifies other control
strategies that could potentially be implemented at Brunner Island in
order to reduce NOX emissions, including modifications to
combustion controls or implementation of post-combustion controls like
SCRs and SNCRs, the petition does not include any information or
analysis regarding the costs of such controls nor does it demonstrate
that such controls are highly cost effective considering potential
downwind air quality impacts. As noted previously, in the CSAPR Update,
the EPA quantified upwind states' obligations under the good neighbor
provision based on emission reductions available at a marginal cost of
$1,400/ton of NOX reduced. EPA's analysis showed that
additional NOX reductions at EGUs, including installation of
new SCRs and SNCRs at EGUs that lacked post-combustion controls, would
be more expensive.\24\ The cost of such new post-combustion controls at
Brunner Island would likely be even more expensive considering current
and anticipated emissions rates.
---------------------------------------------------------------------------

    \24\ See EGU NOX Mitigation Strategies Final Rule
Technical Support Document available at https://www.regulations.gov,
Docket ID No. EPA-HQ-OAR-2015-0500-0554.
---------------------------------------------------------------------------

    Under the EPA's approach to quantifying those amounts of emissions
that significantly contribute to nonattainment or interfere with
maintenance, the dollar-per-ton cost of reducing emissions is balanced
against two air quality factors: The amount of NOX emission
reductions available using a particular control strategy and the
downwind reductions in ozone at identified receptors that would result
from the emission reductions. Connecticut has not attempted to evaluate
what reductions in ozone would accrue from these additional control
strategies and thus has not demonstrated that the additional costs
associated with these controls would be justified by the downwind
reductions in ozone. Indeed, the petition includes no analysis of how
downwind air quality would be impacted by the emission reductions it
contends are necessary under the good neighbor provision. This element
is not only key to EPA's interpretation of the good neighbor provision
as it applies step three to ozone pollution transport, but necessary to
ensure that upwind emissions are not reduced by more than necessary to
improve downwind air quality, consistent with the Supreme Court's
holding in EPA v. EME Homer City Generation, L.P., 134 S. Ct. at 1604
n.18, 1608-09. Recent EPA analyses that projects emission levels to a
future year indicates that no air quality monitors in Connecticut are
projected to have nonattainment or maintenance problems with respect to
the 2008 ozone NAAQS by 2023.\25\ While this modeling is not
necessarily determinative of whether Brunner Island emits or would emit
in violation of the good neighbor provision before 2023, it does
suggest that, by that date, it may no longer be necessary to further
reduce emissions from any state to ensure attainment of the 2008 ozone
NAAQS in Connecticut.
---------------------------------------------------------------------------

    \25\ See Supplemental 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 2017), available in the docket for this
proposed action. The EPA is not making any final determination
regarding future downwind air quality in this action, and is
therefore not requesting comment on the air quality modeling
presented in the October 2017 memorandum.
---------------------------------------------------------------------------

    Based on the information discussed in this notice, the EPA proposes
to deny the petition because Connecticut has not met its burden to
demonstrate that Brunner Island emits or would emit in violation of the
good neighbor provision with respect to the 2008 ozone NAAQS.\26\ The
EPA also proposes to find, based on its own analysis, that there are no
additional cost-effective measures available at the source, and thus
Brunner Island does not emit nor would it emit in violation of the good
neighbor provision with respect to the 2008 ozone NAAQS. These proposed
determinations are based on the fact that Brunner Island combusted
primarily natural gas in the 2017 ozone season, resulting in a low
NOX emission rate for this facility, as well as the
expectation that future operation will be consistent with 2017
operations. The EPA requests comment on its proposed denial of
Connecticut's section 126(b) petition, including the bases for the
decision described herein.
---------------------------------------------------------------------------

    \26\ As previously discussed, the petition correctly identifies
that Pennsylvania is linked to downwind air quality problems in
Connecticut, and has been included in the CSAPR Update with respect
to its downwind impacts on Connecticut's attainment of the 2008
ozone NAAQS. While this action proposes to determine that no further
controls are necessary to ensure that Brunner Island does not and
would not ``emit'' in violation of the good neighbor provision for
the 2008 ozone NAAQS with respect to Connecticut, this proposal does
not make any broader determination as to the good neighbor
obligation for Pennsylvania.

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

IV. Statutory Authority

    42 U.S.C. 7410, 7426, 7601.

    Dated: February 15, 2018.
E. Scott Pruitt,
Administrator.
[FR Doc. 2018-03679 Filed 2-21-18; 8:45 am]
 BILLING CODE 6560-50-P


[Federal Register Volume 75, Number 249 (Wednesday, December 29, 2010)]
[Rules and Regulations]
[Pages 81856-81858]
[FR Doc No: 2010-32720]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2010-1087]
RIN 1625-AA87

Security Zone, Michoud Slip Position 30[deg]0'34.2'' N,
89[deg]55'40.7'' W to Position 30[deg]0'29.5'' N, 89[deg]55'52.6'' W

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Captain of the Port of New Orleans, under the authority of
the Magnuson Act, 33 CFR sections 165.30 and 165.33, has established a
security zone for the Michoud Slip encompassing the entire slip from
position 30[deg]0'34.2'' N, 89[deg]55'40.7'' W to position
30[deg]0'29.5'' N, 89[deg]55'52.6'' W across the mouth of the slip.
Vessels will not be allowed to enter this security zone without the
permission of the Captain of the Port, New Orleans. This security zone
is necessary to protect the Deepwater Horizon blowout preventer and
adjacent piers and infrastructure from destruction, loss or injury from
sabotage or other subversive acts, accidents or other causes of a
similar nature.

DATES: This rule is effective from January 1, 2011, through December
31, 2011.

ADDRESSES: Documents indicated in this preamble as being available in
the docket are part of docket USCG-2010-1087 and are available online
by going to http://www.regulations.gov, inserting USCG-2010-1087 in the
``Keyword'' box, and then clicking ``Search.'' They are also available
for inspection or copying at the Docket Management Facility (M-30),
U.S. Department of Transportation, West Building Ground Floor, Room
W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this
temporary rule, call or e-mail Lieutenant Commander (LCDR) Eva VanCamp,
Sector New Orleans, Coast Guard; telephone<PHONE_NUMBER>, e-mail
<EMAIL_ADDRESS>If you have questions on viewing the docket, call
Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-
9826.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    The Coast Guard is issuing this temporary final rule without prior
notice and opportunity to comment pursuant to authority under section
4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This
provision authorizes an agency to issue a rule without prior notice and
opportunity to comment when the agency for good cause finds that those
procedures are ``impracticable, unnecessary, or contrary to the public
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good
cause exists for not publishing a notice of proposed rulemaking (NPRM)
with respect to this rule because it would be impracticable and
contrary to public interest to delay the rule. Immediate action is
necessary to protect the Deepwater Horizon blowout preventer and
adjacent piers and infrastructure from destruction, loss or injury from
sabotage or other subversive acts, accidents or other causes of a
similar nature after a current temporary final rule (75 FR 65236,
October 22, 2010) providing a security zone for this area expires.
    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause
exists for making this rule effective less than 30 days after
publication in the Federal Register. This security zone is needed to
protect the Deepwater Horizon blowout preventer and adjacent piers and
infrastructure from destruction, loss or injury from sabotage or other
subversive acts, accidents or other causes of a similar nature.
Delaying the effective date of this temporary final rule is
impracticable and contrary to public interest.

Basis and Purpose

    An investigation associated with the Deepwater Horizon incident is
currently taking place in the vicinity of Michoud Slip. As noted above,
a security zone is currently established (75 FR 65236, October 22,
2010). It encompasses the entire slip from position 30[deg]0'34.2'' N,
89[deg]55'40.7'' W to position 30[deg]0'29.5'' N, 89[deg]55'52.6'' W
across the mouth of the slip. Vessels will not be allowed to enter this
security zone without the permission of the Captain of the Port, New
Orleans. This security zone is necessary to protect the Deepwater
Horizon blowout preventer and adjacent piers and infrastructure from
destruction, loss or injury from sabotage or other subversive acts,
accidents or other causes of a similar nature.

Discussion of Rule

    A security zone is an area of land, water, or land and water
established for a designated period of time to prevent damage or injury
to a specified vessel, waterfront facility or to safeguard ports,
harbors, territories, or waters of the United States. This security
zone encompasses the Michoud Slip and adjacent piers where the
Deepwater Horizon blowout preventer is located and is intended to
protect and safeguard the blowout preventer from destruction, loss, or
injury from sabotage or other subversive acts, accidents, or other
causes of a similar nature. This security zone is necessary until all
investigations related to the Deepwater Horizon are complete and the
blowout preventer is no longer needed for matters relating to the
Deepwater Horizon.

Regulatory Analyses

    We developed this rule after considering numerous statutes and
executive orders related to rulemaking. Below we summarize our analyses
based on 13 of these statutes or executive orders.

Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866, Regulatory Planning and Review, and does not
require an assessment of potential costs and benefits under section
6(a)(3) of that Order. The Office of Management and Budget has not
reviewed it under that Order.
    Because of its location, the impacts of this security zone on
routine navigation are expected to be minimal.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this rule would have a significant economic impact
on a substantial number of small entities. The term ``small entities''
comprises small businesses, not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.
    The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will
not have a significant economic impact on a substantial number of small
entities.
    This rule will affect the following entities, some of which may be
small entities: The owners or operators of vessels, intending to
transit the Michoud Slip, encompassing the entire slip from position
30[deg]0'34.2'' N, 89[deg]55'40.7'' W to position 30[deg]0'29.5'' N,
89[deg]55'52.6'' W across the mouth of the slip. This security zone
will not have significant impact on a substantial number of small
entities because of its location. If you are a small business entity
and are significantly affected by this regulation please contact
Lieutenant Commander (LCDR) Eva VanCamp, Sector New Orleans, at 504-
365-2392, or e-mail<EMAIL_ADDRESS>
Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small
entities in understanding the rule so that they can better evaluate its
effects on them and participate in the rulemaking process.
    Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247). The Coast Guard will not retaliate against small
entities that question or complain about this rule or any policy or
action of the Coast Guard.

Collection of Information

    This rule calls for no new collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

    A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of compliance on them. We have analyzed this rule under
that Order and have determined that it does not have implications for
federalism.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or Tribal government, in
the aggregate, or by the private sector of $100,000,000 or more in any
one year. Though this rule will not result in such an expenditure, we
do discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule will not affect a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.

Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.

Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. This rule
is not an economically significant rule and does not create an
environmental risk to health or risk to safety that may
disproportionately affect children.

Indian Tribal Governments

    This rule does not have Tribal implications under Executive Order
13175, Consultation and Coordination with Indian Tribal Governments,
because it does not have a substantial direct effect on one or more
Indian Tribes, on the relationship between the Federal Government and
Indian Tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian Tribes.

Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a ``significant
energy action'' under that order because it is not a ``significant
regulatory action'' under Executive Order 12866 and is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. The Administrator of the Office of Information and
Regulatory Affairs has not designated it as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through the Office of Management and Budget, with an explanation of why
using these standards would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., specifications of materials, performance, design, or
operation; test methods; sampling procedures; and related management
systems practices) that are developed or adopted by voluntary consensus
standards bodies.
    This rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.

Environment

    We have analyzed this rule under Department of Homeland Security
Management Directive 023-01 and Commandant Instruction M16475.lD, which
guide the Coast Guard in complying with the National Environmental
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded
this action is one of a category of actions which do not individually
or cumulatively have a significant effect on the human environment.
This rule is categorically excluded, under figure 2-1, paragraph
(34)(g), of the Instruction.
    An environmental analysis checklist and a categorical exclusion
determination will be uploaded to the docket as indicated under
ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.

0
For the reasons discussed in the preamble, the Coast Guard amends 33
CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for Part 165 continues to read as follows:

    Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50
U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.06-1, 6.05-6 AND 160.5; Pub. L.
107-295, 116 STAT. 2064; Department of Homeland Security Delegation
No. 0170.1.

0
2. A new temporary Sec.  165.T08-1087 is added to read as follows:

Sec.  165.T08-1087  Security Zone, Michoud Slip.

    (a) Location. The following area is a security zone: Michoud Slip,
encompassing the entire slip from position 30[deg]0'34.2'' N,
89[deg]55'40.7'' W to position 30[deg]0'29.5'' N, 89[deg]55'52.6'' W
across the mouth of the slip.
    (b) Effective period. This section is effective from January 1,
2011, through December 31, 2011.
    (c) Regulations. (1) In accordance with the general regulation in
33 CFR part 165, subpart D, vessels are prohibited from entering or
transiting the security zone created by this section.
    (2) Persons or vessels requiring deviations from this rule must
request permission from the Captain of the Port New Orleans. The
Captain of the Port New Orleans may be contacted at telephone (504)
365-2543.
    (3) All persons and vessels shall comply with the instructions of
the Captain of the Port New Orleans and designated personnel.
Designated personnel include commissioned, warrant and petty officers
of the U.S. Coast Guard assigned to units under the operational control
of USCG Sector New Orleans.

    Dated: December 8, 2010.
E.M. Stanton,
Captain, U.S. Coast Guard, Captain of the Port New Orleans.
[FR Doc. 2010-32720 Filed 12-28-10; 8:45 am]
BILLING CODE 9110-04-P