26666 Federal Register / Vol. 83, No. 111 / Friday, June 8, 2018 / Notices 

Impact Statement for License Renewal 

of Nuclear Plants Supplement 38 

Regarding Indian Point Nuclear 

Generating Unit Nos. 2 and 3, Review 

Period Ends: 07/09/2018, Contact: 

William Burton 301–415–6332 

EIS No. 20180121, Draft Supplement, 

USACE, NM, Middle Rio Grande 

Flood Protection Bernalillo to Belen 

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Reevaluation Report and 

Supplemental Environmental Impact 

Statement, Comment Period Ends: 07/ 

23/2018, Contact: Michael D. Porter 

505–342–3264 

EIS No. 20180122, Draft, NRC, LA, 

Generic Environmental Impact 

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Regarding River Bend Station, Unit 1, 

Comment Period Ends: 07/23/2018, 

Contact: David Drucker 301–415–6223 

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Comment Period Ends: 07/30/2018, 

Contact: Alan Mitchnick 202–502– 

6074 

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National Forest, Comment Period 

Ends: 09/06/2018, Contact: Deborah 

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Maintenance, Comment Period Ends: 

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7614 

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Statement for Issuing Annual Catch 

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Commission for a Subsistence Hunt 

on Bowhead Whales for the Years 

2019 and Beyond, Contact: John 

Henderschedt, 301–427–8385 

Dated: June 5, 2018. 

Rob Tomiak, 

Director, Office of Federal Activities. 

[FR Doc. 2018–12334 Filed 6–7–18; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[EPA–HQ–OAR–2018–0295; FRL–9979–20– 

OAR] 

RIN 2060–AT40, 2060–AT39, 2060–AT38, 

2060–AT37, 2060–AT36 

Response to Clean Air Act Section 

126(b) Petitions From Delaware and 

Maryland 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of proposed action on 

petitions. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to deny four 

petitions submitted by the state of 

Delaware and one petition submitted by 

the state of Maryland under Clean Air 

Act (CAA or Act) section 126(b). The 

petitions were submitted between July 

and November 2016. Each of Delaware’s 

four petitions requested that the EPA 

make a finding that emissions from 

individual sources in Pennsylvania or 

West Virginia are significantly 

contributing to Delaware’s 

nonattainment of the 2008 and 2015 

8-hour ozone national ambient air 

quality standards (NAAQS). Maryland’s 

petition requested that the EPA make a 

finding that emissions from 36 electric 

generating units in Indiana, Kentucky, 

Ohio, Pennsylvania, and West Virginia 

are significantly contributing to ozone 

levels that exceed the 2008 8-hour 

ozone NAAQS in Maryland, and, 

therefore, are interfering with 

nonattainment and maintenance of the 

2008 ozone NAAQS. The EPA proposes 

to deny all five petitions because 

Delaware and Maryland have not met 

their burden to demonstrate that the 

sources emit or would emit in violation 

of the CAA’s ‘‘good neighbor’’ provision 

(i.e., the petitions have not 

demonstrated that the sources will 

significantly contribute to 

nonattainment or interfere with 

maintenance of the 2008 or 2015 ozone 

NAAQS in the petitioning states). The 

EPA is further proposing to deny the 

petitions based on the agency’s 

independent analysis that the identified 

sources do not currently emit and are 

not expected to emit pollution in 

violation of the good neighbor provision 

for either the 2008 or 2015 ozone 

NAAQS. 

DATES: Comments. Comments must be 

received on or before July 23, 2018. 

Public Hearing. The EPA will hold a 

public hearing on the proposed action. 

Details will be announced in a separate 

Federal Register document. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2018–0295, 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 (e.g., 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 (919) 541–1496; email at 

gabrilovich.lev@epa.gov. 

SUPPLEMENTARY INFORMATION: The 

information in this document is 

organized as follows: 

I. General Information 

II. Executive Summary of the EPA’s Decision 

on CAA Section 126(b) Petitions From 

Delaware and Maryland 

III. 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 CAA Section 126(b) Petitions From 

Delaware 

E. The CAA Section 126(b) Petition From 

Maryland 

IV. The EPA’s Proposed Decision on 


amozie on DSK3GDR082PROD with NOTICES1
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1See National Ambient Air Quality Standards for 

Ozone, Final Rule, 73 FR 16436 (March 27, 2008). 

2See National Ambient Air Quality Standards for 

Ozone, Final Rule, 80 FR 65292 (October 26, 2015). 

3The text of CAA section 126 as 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 (D.C. Cir. 2001). 

Delaware’s and Maryland’s CAA Section 

126(b) Petitions 

A. The EPA’s Approach for Granting or 

Denying CAA Section 126(b) Petitions 

Regarding the 2008 and 2015 8-Hour 

Ozone NAAQS 

B. The EPA’s Evaluation of Whether the 

Petitions Are Sufficient To Support a 

Section 126(b) Finding 

C. The EPA’s Independent Analysis of the 

CAA Section 126(b) Petitions 

D. The EPA’s Independent Analysis of 

Sources Without Selective Catalytic 

Reduction Post Combustion Controls 

V. Conclusion 

VI. Determinations Under Section 307(b)(1) 

VII. Statutory Authority 

I. General Information 

Throughout this document, wherever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

the United States (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–2018–0295 (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/ozonenational-ambient-air-quality-standardsnaaqs-section-126-petitions. 

II. Executive Summary of the EPA’s 

Decision on CAA Section 126(b) 

Petitions From Delaware and Maryland 

In 2016, the states of Delaware and 

Maryland submitted a total of five 

petitions requesting that the EPA make 

findings pursuant to CAA section 126(b) 

that emissions from numerous upwind 

sources significantly contribute to 

nonattainment and/or interfere with 

maintenance of the ozone NAAQS in 

violation of CAA section 

110(a)(2)(D)(i)(I), otherwise known as 

the good neighbor provision. Delaware 

submitted four petitions, each alleging 

good neighbor violations related to the 

2008 and 2015 ozone NAAQS by 

individual sources located in 

Pennsylvania or West Virginia. 

Maryland submitted a single petition 

alleging good neighbor violations 

related to the 2008 ozone NAAQS by 36 

electric generating units (EGUs) in five 

states. 

The EPA is evaluating the petitions 

consistent with the same four-step 

regional analytic framework that the 

EPA has used in previous regulatory 

actions addressing regional interstate 

ozone transport problems. The EPA is 

therefore using this framework to 

evaluate whether the petitions meet the 

standard to demonstrate under CAA 

section 126(b) that the sources emit or 

would emit in violation of the good 

neighbor provision based on both 

current and anticipated future emissions 

levels. The EPA identifies two bases for 

denying the petitions. First, the agency’s 

historical approach to evaluating CAA 

section 126(b) petitions looks to see 

whether a petition, standing alone, 

identifies or establishes an analytic 

basis for the requested CAA section 

126(b) finding, and the agency 

identified several elements of the states’ 

analysis that are considered insufficient 

to support the states’ conclusions. 

Second, the EPA also can rely on its 

own independent analyses to evaluate 

the potential basis for the requested 

CAA section 126(b) finding. The EPA is, 

therefore, proposing to find, based on its 

own analysis, that there are no 

additional highly cost-effective 

emissions reductions available at the 

sources, and, thus, that none of the 

named sources currently emit or would 

emit in violation of the good neighbor 

provision with respect to the relevant 

ozone NAAQS. 

Section III of this notice provides 

background information regarding the 

EPA’s approach to addressing the 

interstate transport of ozone under CAA 

sections 110(a)(2)(D)(i) and 126(b), and 

provides a summary of the relevant 

issues raised in Delaware’s and 

Maryland’s CAA section 126(b) 

petitions. Section IV of this notice 

details the EPA’s proposed action to 

deny these petitions, including 

explaining the EPA’s approach for 

granting or denying CAA section 126(b) 

petitions regarding the 2008 and 2015 

8-hour ozone NAAQS, identifying 

technical insufficiencies in the 

petitions, and explaining the EPA’s own 

analysis evaluating whether the sources 

named in the petitions emit or would 

emit in violation of the good neighbor 

provision for the pertinent NAAQS. 

III. Background and Legal Authority 

A. Ozone and Public Health 

Ground-level ozone is not emitted 

directly into the air, but is a secondary 

air pollutant created by chemical 

reactions between nitrogen oxides 

(NOX) and volatile organic compounds 

(VOCs) in the presence of sunlight. 

These precursor emissions can be 

transported downwind directly or, after 

transformation in the atmosphere, as 

ozone. As a result, ozone formation, 

atmospheric residence, and transport 

can occur on a regional scale (i.e., 

hundreds of miles). For further 

discussion of ozone-formation 

chemistry, interstate transport issues, 

and health effects, see the Cross-State 

Air Pollution Rule Update for the 2008 

Ozone NAAQS (CSAPR Update), 81 FR 

74504, 74513–14 (October 26, 2016). 

On March 12, 2008, the EPA 

promulgated a revision to the ozone 

NAAQS, lowering both the primary and 

secondary standards to 75 parts per 

billion (ppb).1 On October 1, 2015, the 

EPA revised the ground-level ozone 

NAAQS to 70 ppb.2

B. Clean Air Act Sections 110 and 126 

The statutory authority for this action 

is provided by 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).3 Petitions 

submitted pursuant to this section are 

commonly referred to as CAA section 

126(b) petitions. Similarly, 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 

CAA section 126(b) findings. 

CAA section 126(c) explains the effect 

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 is 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 stay in 

operation more than 3 months after the 

date of the finding. The statute, 

however, also gives the Administrator 

discretion to permit the continued 

operation of a source beyond 3 months 

if the source complies with emissions 

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 in any event no later 


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4While the EPA has chosen to implement 

emission reductions through allowance trading 

programs for states found to have a downwind 

impact, upwind states can choose to submit a SIP 

that implements such reductions through other 

enforceable mechanisms that meets the 

requirements of the good neighbor provision. 

than 3 years from the date of the 

finding. Id. 

Section 110(a)(2)(D)(i) of the CAA, 

referred to as the good neighbor 

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) require 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 that NAAQS. As described 

further in Section III.C, the EPA has 

developed a number of regional 

rulemakings to address CAA section 

110(a)(2)(D)(i)(I) for the various ozone 

NAAQS. The EPA’s most recent 

rulemaking, the 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). The EPA 

notes that the petitions from both states 

were submitted before the 

implementation of the emissions 

budgets promulgated in the CSAPR 

Update. 

C. The EPA’s Historical Approach To 

Addressing Interstate Transport of 

Ozone Under the Good Neighbor 

Provision 

Given that formation, atmospheric 

residence, and transport of ozone 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. In 

developing these rulemakings, the EPA 

has typically found 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. 

The EPA has promulgated four 

regional interstate transport rulemakings 

that have addressed the good neighbor 

provision with respect to various ozone 

NAAQS considering the regional nature 

of ozone transport. Each of these 

rulemakings essentially followed the 

same four-step framework to quantify 

and implement emissions 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 (referred to as 

‘‘receptors’’) considering monitored 

ozone data where appropriate and air 

quality modeling projections to a future 

compliance year. Pursuant to the 

opinion in North Carolina v. EPA, 531 

F.3d 896, 908–911 (D.C. Cir. 2008), the 

agency identified areas expected to be in 

nonattainment with the ozone NAAQS 

and those areas that may struggle to 

maintain the NAAQS; 

(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 the EPA’s most recent 

rulemakings, the EPA identified such 

upwind states to be those modeled to 

contribute at or above a threshold 

equivalent to one percent of the 

applicable NAAQS. 

(3) for states linked to downwind air 

quality problems, identifying upwind 

emissions on a statewide basis that will 

significantly contribute to 

nonattainment or interfere with 

maintenance of a standard. In all four of 

the EPA’s prior rulemakings, the EPA 

apportioned emissions reduction 

responsibility among multiple upwind 

states linked to downwind air quality 

problems using cost- and air qualitybased criteria to quantify the amount of 

a linked upwind state’s emissions that 

must be prohibited pursuant to the good 

neighbor provision; 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 emissions 

reductions within the state. The EPA 

has done this for its federal 

implementation plans (FIPs) addressing 

the good neighbor provision for the 

ozone NAAQS by requiring affected 

sources in upwind states to participate 

in allowance trading programs to 

achieve the necessary emissions 

reductions.4

The EPA’s first such rulemaking, the 

NOX SIP Call, addressed interstate 

transport with respect to the 1979 ozone 

NAAQS. 63 FR 57356 (October 27, 

1998). The EPA concluded 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 NOX SIP Call promulgated 

statewide emissions budgets and 

required upwind states to adopt SIPs 

that would decrease NOX emissions by 

amounts that would meet these budgets, 

thereby eliminating the emissions that 

significantly contribute to 

nonattainment or interfere with 

maintenance 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 emissions reductions. All of 

the jurisdictions covered by the NOX

SIP Call ultimately chose to adopt the 

NOX Budget Trading Program into their 

SIPs. The NOX SIP Call was upheld by 

the U.S. Court of Appeals for the District 

of Columbia Circuit (D.C. Circuit) in all 

pertinent respects. See Michigan v. EPA, 

213 F.3d 663 (2000). 

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 addressed by the NOX

SIP Call (i.e., interstate ozone transport 

for the 1979 ozone NAAQS). 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 

(May 25, 1999). In making these 

technical determinations, the EPA 

concluded that the NOX SIP Call would 

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. 

However, 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; the 

EPA made final CAA section 126(b) 


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5On remand from the Supreme Court, the D.C. 

Circuit further affirmed various aspects of the 

CSAPR, while remanding the rule without vacatur 

for reconsideration of certain states’ emissions 

budgets, where it found those budgets ‘‘overcontrolled’’ emissions beyond what was necessary 

to address the good neighbor requirement. EME 

Homer City Generation, L.P. v. EPA, 795 F.3d 118 

(2015). The EPA addressed the remand in several 

rulemaking actions in 2016 and 2017. 

findings for 12 states and the District of 

Columbia. The EPA found that sources 

in these 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 required 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’s action on these section 126(b) 

petitions was upheld by the D.C. 

Circuit. See Appalachian Power Co. v. 

EPA, 249 F.3d 1032 (D.C. Cir. 2001). 

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 

fine particulate matter (PM2.5) NAAQS. 

The EPA adopted the same framework 

for 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). 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.’’ 70 FR 25186. CAIR 

included two distinct regulatory 

processes: (1) A regulation to define 

significant contribution (i.e., the 

emissions reduction obligation) under 

the good neighbor provision and 

provide for submission of SIPs 

eliminating that contribution, 70 FR 

25162 (May 12, 2005); and (2) a 

regulation to promulgate, where 

necessary, FIPs imposing emissions 

limitations, 71 FR 25328 (April 28, 

2006). The FIPs required 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 NAAQS 

and the 1997 PM2.5 NAAQS in North 

Carolina. Citing the analyses conducted 

to support the promulgation of CAIR, 

the EPA denied North Carolina’s CAA 

section 126(b) petition in full based on 

a determination that either the named 

states were not adversely impacting 

downwind air quality in violation of the 

good neighbor provision or such 

impacts were fully remedied by 

implementation of the emissions 

reductions required by the CAIR FIPs. 

71 FR 25328, 25330 (April 28, 2006). 

The D.C. Circuit found that EPA’s 

approach to section 110(a)(2)(D)(i)(I) in 

CAIR was ‘‘fundamentally flawed’’ in 

several respects, and the rule was 

remanded in July 2008 with the 

instruction that the EPA replace the rule 

‘‘from the ground up.’’ North Carolina v. 

EPA, 531 F.3d at 929. The decision did 

not find fault with the EPA’s general 

multi-step framework for addressing 

interstate ozone transport, but rather 

concluded the EPA’s analysis did not 

address all elements required by the 

statute. The EPA’s separate action 

denying North Carolina’s CAA section 

126(b) petition was not challenged. 

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 sulfur dioxide (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 again found 

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.’’ 76 FR 48237. 

Accordingly, the EPA conducted a 

regional analysis, calculated emissions 

budgets for affected states, and required 

EGUs in these states to participate in 

new regional allowance trading 

programs to reduce statewide emissions 

levels. CSAPR was subject to nearly 4 

years of litigation. Ultimately, the 

Supreme Court upheld the EPA’s 

approach to calculating emissions 

reduction obligations and apportioning 

upwind state responsibility under the 

good neighbor provision, but also held 

that the EPA was precluded from 

requiring more emissions reductions 

than necessary to address downwind air 

quality problems, or ‘‘over-controlling.’’ 

See EPA v. EME Homer City Generation, 

L.P., 134 S. Ct. 1584, 1607–09 (2014).5

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 22 states in the 

eastern U.S. to widespread downwind 

air quality problems, including the NOX

SIP Call, CAIR, and the original CSAPR. 

As was also the case for the previous 

rulemakings, the EPA identified 

emissions from large EGUs as 

significantly contributing and/or 

interfering with maintenance based on 

cost and air quality factors. The CSAPR 

Update finalized EGU NOX ozone 

season emissions 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 ozone season NOX

reductions that could be achieved in the 

2017 analytic year, which was relevant 

to the upcoming 2018 attainment date 

for moderate ozone nonattainment 

areas, and included the potential for 

operating and optimizing existing 

selective catalytic reduction (SCR) postcombustion controls; installing state-ofthe-art NOX combustion controls; and 

shifting generation to existing units with 

lower NOX emissions 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 

trading programs and the EPA’s prior 

emissions trading programs (e.g., the 

NOX Budget Trading Program associated 

with the NOX SIP Call) have provided 

a proven, cost-effective implementation 

framework for achieving emissions 

reductions. In addition to providing 

environmental certainty (i.e., a cap on 

regional and statewide emissions), these 

programs have also provided regulated 

sources with flexibility when choosing 


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6The EPA determined that the emission 

reductions required by the CSAPR Update satisfied 

the full scope of the good neighbor obligation for 

Tennessee with respect to the 2008 ozone NAAQS. 

81 FR 74551–52. 

7See modeling conducted for purposes of the 

proposed CSAPR Update in 2015. 80 FR 75706, 

75725–726 (December 3, 2015). 

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. 

In finalizing the CSAPR Update, the 

EPA determined the rule may only be a 

partial resolution of the good neighbor 

obligation for all but one of the states 

subject to that action, including those 

addressed in Delaware’s and Maryland’s 

petitions (Indiana, Kentucky, Ohio, 

Pennsylvania, and West Virginia), and 

that the emissions reductions required 

by the rule ‘‘may not be all that is 

needed’’ to address transported 

emissions.6 81 FR 74521–22 (October 

26, 2016). The EPA noted that the 

information available at that time 

indicated that downwind air quality 

problems would remain in 2017 after 

implementation of the CSAPR Update, 

and that upwind states continued to be 

linked to those downwind problems 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 

emissions 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 (i.e., the 

implementation of new post-combustion 

controls) that are achievable on 

timeframes extending beyond 2017 

analytic year. 

Of particular relevance to this action, 

the EPA determined in the CSAPR 

Update that emissions from the states 

identified in Maryland’s petition were 

linked to maintenance concerns for the 

2008 ozone NAAQS in Maryland based 

on air quality modeling projections to 

2017. 81 FR 74538–39. With respect to 

Delaware, the EPA in the CSAPR 

Update did not identify any downwind 

air quality problems in Delaware with 

respect to the 2008 ozone NAAQS, and, 

therefore, did not determine that 

emissions from any of the states 

identified in the four petitions would be 

linked to Delaware. The CSAPR Update 

modeling indicated no monitors in 

Delaware with a projected average or 

maximum design value above the level 

of the 2008 ozone NAAQS in 2017.7

For states linked to downwind air 

quality problems, the EPA in the CSAPR 

Update found there were cost-effective 

emissions reductions that could be 

achieved within upwind states at a 

marginal cost of $1,400 per ton, 

quantified an emissions budget for each 

state based on that level of control 

potential, and required EGUs located 

within the state, including the sources 

identified in Maryland and Delaware’s 

petitions, to comply with the EPA’s 

allowance trading program under the 

CSAPR Update beginning with the 2017 

ozone season. The EPA found that these 

emissions budgets were necessary to 

achieve the required emissions 

reductions and mitigate impacts on 

downwind states’ air quality in time for 

the July 2018 moderate area attainment 

date for the 2008 ozone NAAQS. 

D. The CAA Section 126(b) Petitions 

From Delaware 

In 2016, the state of Delaware, 

through the Delaware Department of 

Natural Resources and Environmental 

Control (Delaware), submitted four 

petitions claiming that four individual 

sources in Pennsylvania and West 

Virginia significantly contribute to 

Delaware’s nonattainment of the 2008 

and 2015 8-hour ozone NAAQS. In 

particular, Delaware’s petitions allege 

that emissions from the Harrison Power 

Station (Harrison), the Homer City 

Generating Station (Homer City), and 

the Brunner Island Steam Generating 

Station (Brunner Island) in 

Pennsylvania, and the Conemaugh 

Generating Station (Conemaugh) in 

West Virginia, significantly contribute 

to exceedances of the 2008 8-hour ozone 

NAAQS in the state of Delaware. The 

petitions identify a total of 59 

exceedance days in the six ozone 

seasons between 2010 and 2015. 

Furthermore, Delaware contends that if 

the 2015 8-hour ozone NAAQS had 

been in effect during this period, 

Delaware would have experienced a 

total of 113 exceedance days in those 

ozone seasons. Notably, Harrison is 

equipped with low NOX burners (LNBs), 

overfire air (OFA), and SCR for control 

of NOX emissions at all three units. 

Homer City is equipped with LNBs, 

OFA, and SCR for control of NOX

emissions at all three units. Conemaugh 

is equipped with LNBs, close-coupled 

and separated overfire air (CC/SOFA), 

and SCR for control of NOX emissions 

at both units. Brunner Island is 

equipped with LNBs and combustion air 

controls. 

1. Common Arguments in Delaware 

Petitions 

Each of the Delaware petitions alleges 

that an individual source significantly 

contributes to nonattainment of the 

2008 and 2015 8-hour ozone NAAQS in 

Delaware based on two common 

arguments. First, all four petitions allege 

that the EPA’s modeling conducted in 

support of the CSAPR Update shows 

that the states in which these sources 

are located contribute one percent or 

more of the 2008 8-hour ozone NAAQS 

to ozone concentrations in Delaware. 

Second, all four petitions point to 

additional modeling for support. The 

Brunner Island and Harrison petitions 

cite an August 6, 2015, technical 

memorandum from Sonoma 

Technology, Inc. (STI), which describes 

contribution modeling conducted with 

respect to Brunner Island. The 

Conemaugh and Homer City petitions 

cite October 24, 2016, CAMx modeling 

documentation. Delaware did not 

provide the EPA with this 

documentation. Based on this modeling, 

the petitions claim that all four sources 

had modeled contributions above one 

percent of the 2008 8-hour ozone 

NAAQS to locations in Delaware on 

select days during the 2011 ozone 

season. 

All four petitions also contend that 

the absence of short-term NOX

emissions limits causes the named 

sources to significantly contribute to 

Delaware’s nonattainment of the 2008 

and 2015 ozone NAAQS. The petitions, 

therefore, ask the EPA to implement 

short-term NOX emissions limits as a 

remedy under CAA section 126(c). The 

petitions identify existing regulatory 

programs aimed at limiting NOX

emissions at the sources, but argue that 

these programs are not effective at 

preventing emissions from significantly 

contributing to downwind air quality 

problems in Delaware. In the case of 

Brunner Island, Homer City, and 

Conemaugh, Delaware argues that the 

Pennsylvania NOX reasonable available 

control technology (RACT) regulation 

includes a 30-day averaging period for 

determining emissions rates, which will 

allow the facilities to emit above the rate 

limit on specific days while still 

meeting the 30-day average limit. 

Furthermore, the state argues that 

although all four facilities named in 

Delaware’s petitions have been subject 

to several NOX emissions cap-and-trade 

programs that effectively put a seasonal 

NOX emissions mass cap on the fleet of 

subject units, the subject units are not 

required to limit their NOX emissions 

over any particular portion of the ozone 

season as long as they are able to obtain 

sufficient NOX allowances to cover each 

unit’s actual ozone season NOX mass 

emissions. The state alleges that the 

sources have been able to attain 

compliance without having to make any 


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8See Petition from the state of Delaware under 

CAA section 126(b) requesting that the EPA find 

that Harrison Power Station’s EGUs are emitting air 

pollutants in violation of the provisions of CAA 

section 110(a)(2)(D)(i) of the CAA with respect to 

the 2008 and the 2015 ozone NAAQS, available in 

the docket for this action. 

9 Delaware states that as of the preparation of this 

petition, this permit amendment has not been 

approved and is therefore not yet in force. 10See Petition from the state of Delaware under 

CAA section 126(b) requesting that the EPA find 

that Homer City Generating Station’s EGUs are 

emitting air pollutants in violation of the provisions 

of CAA section 110(a)(2)(D)(i) of the CAA with 

respect to the 2008 and the 2015 ozone NAAQS, 

available in the docket for this action. 

11See Petition from the state of Delaware under 

CAA section 126(b) requesting that the EPA find 

that Conemaugh Generating Station’s EGUs are 

emitting air pollutants in violation of the provisions 

of CAA section 110(a)(2)(D)(i) of the CAA with 

respect to the 2008 and the 2015 ozone NAAQS, 

available in the docket for this action. 

12See Petition from the state of Delaware under 

CAA section 126(b) requesting that the EPA find 

that Brunner Island Facility’s EGUs are emitting air 

pollutants in violation of the provisions of section 

110(a)(2)(D)(i) of the CAA with respect to the 2008 

and the 2015 ozone NAAQS, available in the docket 

for this action. 

significant reductions in their ozone 

season average NOX emissions rates. 

Delaware also acknowledges that 

Brunner Island can use natural gas as 

fuel at all three units, lowering the 

units’ NOX emissions, but argues that 

Brunner Island’s ability to also use coal 

indicates that, without a short-term NOX

emissions limit, the units will continue 

to significantly contribute to 

nonattainment or interfere with 

maintenance of the ozone NAAQS in 

Delaware. In the case of Conemaugh, 

Harrison, and Homer City, Delaware 

similarly contends that current NOX

emissions regulations applicable to 

sources in Pennsylvania and West 

Virginia do not prevent significant 

contribution to Delaware’s 

nonattainment of the ozone NAAQS. As 

indicated in this notice, unlike Brunner 

Island, these sources all have SCR to 

control NOX emissions. Delaware argues 

that a review of emissions rates since 

the SCRs were installed indicates that 

the SCRs are being turned off or 

operated at reduced levels of 

effectiveness in the ozone season. Thus, 

in Delaware’s view, these sources also 

need a short-term NOX emissions limit 

to incentivize effective and consistent 

NOX control operation. The following 

sections describe additional information 

Delaware provided in each specific 

petition. 

2. Delaware’s Petition Regarding the 

Harrison Power Station 

Delaware’s August 8, 2016 CAA 

section 126(b) petition addresses the 

Harrison Power Station,8 identified as a 

2,052-megawatt facility located near 

Haywood, Harrison County, West 

Virginia, with three coal-fired steam 

EGUs. To support its petition, Delaware 

states that, based on the STI modeling, 

the Harrison Power Station had a 

modeled impact above one percent of 

the NAAQS on August 10, 2011. 

Delaware further states that a review of 

emissions data indicates that the facility 

emitted 61.588 tons of NOX on that day. 

Delaware concludes that emissions data 

indicate that daily ozone season NOX

emissions from the Harrison Power 

Station frequently exceed the 61.588 

tons/day value that the petition 

estimated had a significant impact on 

Delaware’s monitors. 

Delaware indicates that the Harrison 

Power Station is subject to operating 

permit NOX emissions rate limits and 

has been subject to various NOX

emissions allowance trading programs, 

which Delaware asserts put a seasonal 

NOX emissions mass cap on the fleet of 

subject units. Delaware asserts, 

however, that these programs do not 

require the subject units to limit their 

NOX emissions over any particular 

portion of the ozone season as long as 

each EGU is able to obtain sufficient 

NOX allowances to balance that unit’s 

actual ozone season NOX mass 

emissions. Delaware further indicates 

that the Harrison Power Station’s owner 

has submitted a permit amendment to 

install and operate a refined coal facility 

to produce lower-emitting coal as fuel 

for combustion in the Harrison Power 

Station’s coal-fired EGU steam 

generators. The amendment includes 

ozone season NOX emissions rate limits 

of 0.20 lb/MMBTU, 30-day average, for 

each of the three coal-fired EGUs.9

According to Delaware, from the 2010 

ozone season and beyond, the ozone 

season average NOX emissions rates for 

each of the three Harrison Power Station 

coal-fired EGUs were well above what 

might be expected from coal-fired EGUs 

with operating SCRs. Delaware contends 

these existing NOX emissions rate limits 

and seasonal NOX mass emissions 

regulatory requirements have not been 

sufficient to result in consistently low 

NOX emissions rates from the Harrison 

Power Station EGUs. Moreover, 

Delaware claims that emissions data 

indicate that decisions to operate the 

SCR NOX controls at the Harrison Power 

Station at reduced levels of effectiveness 

are made on both a seasonal and daily 

basis as a result of other EGU operating 

influences. 

3. Delaware’s Petition Regarding the 

Homer City Generating Station 

Delaware’s November 10, 2016, CAA 

section 126(b) petition cites the Homer 

City Generating Station,10 identified as 

a 2,012-megawatt facility located in 

Indiana County, Pennsylvania, with 

three coal-fired steam generators. To 

support their petition, Delaware states 

that, based on the STI modeling, the 

Homer City Generating station had a 

modeled impact above one percent of 

the NAAQS on July 18, 2011. Delaware 

further states that a review of the Homer 

City Generating Station’s emissions data 

indicates that, on that day, the facility 

emitted 38.153 tons of NOX. Delaware 

claims that between 2011 and 2016 the 

facility exceeded emissions of 38.153 

tons/day on multiple days. Thus, 

Delaware claims that, while weather 

patterns affect the frequency and 

magnitude of the impacts that the 

Homer City Generating Station’s NOX

emissions have on Delaware’s air 

quality, the data provide an indication 

that the NOX emissions from the Homer 

City Generating Station have historically 

been at levels sufficient to have a 

significant impact. 

4. Delaware’s Petition Regarding the 

Conemaugh Generating Station 

Delaware’s November 28, 2016, CAA 

section 126(b) petition cites the 

Conemaugh Generating Station,11

identified as a 1,872-megawatt facility 

located in Indiana County, 

Pennsylvania, with two coal-fired steam 

electric generating units. To support its 

petition, Delaware states that, based on 

the STI modeling, the Conemaugh 

Generating Station had a modeled 

impact above one percent on ten 

separate days in 2011, which coincided 

with daily NOX mass emissions from 

Conemaugh ranging between 54.516 and 

67.173 tons. Furthermore, Delaware 

indicated that Delaware monitors were 

exceeding the 2008 ozone NAAQS on 

eight of the days in 2011 with alleged 

significant impacts. Delaware analyzed 

air parcel trajectories modeled with the 

Hybrid Single Particle Lagrangian 

Integrated Trajectory (HYSPLIT) on 

selected days on which the state alleged 

it experienced significant impacts from 

the source. According to Delaware, 

these trajectories indicating contribution 

from Conemaugh’s NOX emissions, 

which coincided with the STI model’s 

estimated ozone impact events, show 

that emissions from Conemaugh are 

significantly contributing to ozone 

concentrations in Delaware. 

5. Delaware’s Petition Regarding the 

Brunner Island Electric Steam Station 

Delaware’s July 7, 2016, CAA section 

126(b) petition cites emissions from the 

Brunner Island Electric Steam Station,12

a 1,411-megawatt facility located in 


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13For tangentially-fired boiler types, LNC3 is 

state of the art control technology. 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-sectormodeling-platform-v513. 

14 81 FR 57461 (August 23, 2016). 

15 81 FR 66189 (September 27, 2016). 

16 81 FR 95884 (December 29, 2016). 

17 82 FR 7595 (January 23, 2017). 

18Note that the EPA designated certain areas of 

Delaware nonattainment for the 2008 ozone 

NAAQS. 77 FR 30088 (May 21, 2012). 

19See Petition to the United States Environmental 

Protection Agency Pursuant to Section 126 of the 

Clean Air Act for Abatement of Emissions from 36 

Coal-Fired Electric Generating Units at 19 Plants in 

Five States that Significantly Contribute to 

Nonattainment of, and Interfere with Maintenance 

of, the 2008 Ozone National Ambient Air Quality 

Standard in the State of Maryland, available in the 

docket for this action. 

York County, Pennsylvania with three 

tangentially-fired steam boiler EGUs, 

each equipped with low NOX burner 

technology with closed-coupled/ 

separated over fire air (LNC3) 

combustion controls.13

According to Delaware, a modeling 

analysis conducted by STI estimated 

that during the 2011 ozone season the 

Brunner Island facility’s NOX emissions 

had a significant impact on Delaware’s 

ambient ozone on 43 separate days 

relative to the 2015 8-hour ozone 

NAAQS of 70 ppb and on 41 separate 

days relative to the 2008 8-hour ozone 

NAAQS of 75 ppb. The highest 

estimated impact was predicted on June 

8, 2011, with a modeled impact value of 

4.83 ppb. Delaware states that the data 

also indicate that Brunner Island facility 

NOX emissions contributed at 

significant levels to ozone NAAQS 

exceedances in Delaware on 9 of the 15 

days in 2011. However, Delaware does 

not identify which of the identified days 

were exceedance days or the specific 

ozone NAAQS exceeded. Delaware also 

notes that the STI modeling information 

and Air Markets Program Data (AMPD) 

emissions data indicate that on 

September 13, 2011, Brunner Island had 

a modeled impact on Delaware ozone 

approximately twice the value 

identified as the threshold for 

significant impact (1.41 ppb estimated 

impact compared to 0.70 ppb for 

significant impact). According to the 

petition, this impact was caused by 

emissions amounting to about half of 

the facility’s recorded peak daily NOX, 

and is an indication that even lower 

amounts of Brunner Island facility NOX

mass emissions (compared to the 27.4 

tons/day value documented in the 

EPA’s AMPD) may still have significant 

impact on Delaware’s measured ozone 

levels under certain atmospheric 

conditions. However, the petition does 

not identify whether September 13, 

2011, was a day that exceeded the 2008 

ozone NAAQS. 

6. Subsequent Actions and 

Correspondence Regarding the Delaware 

Petitions 

Subsequent to receiving the petitions, 

the EPA published final rules extending 

the statutory deadline for the agency to 

take final action on all four of 

Delaware’s section 126(b) petitions. 

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 

subject to the procedural requirements 

of CAA section 307(d). See CAA section 

307(d)(1)(N). This section of the CAA 

requires the EPA to conduct notice-andcomment 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 CAA 

section 307(d)(10), the EPA determined 

that the 60-day period for action on 

Delaware’s petitions 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 August 23, 2016, the EPA 

published a notice extending the 

deadline to act on Delaware’s Brunner 

Island petition to March 5, 2017.14 On 

September 27, 2016, the EPA published 

a notice extending the deadline to act on 

Delaware’s Harrison Power Station 

petition to April 7, 2017.15 On 

December 29, 2016, the EPA published 

a notice extending the deadline to act on 

Delaware’s Homer City petition to July 

9, 2017.16 On January 23, 2017, the EPA 

published a notice extending the 

deadline to act on Delaware’s 

Conemaugh petition to August 3, 

2017.17 The notices extending these 

deadlines can be found in the docket for 

this rulemaking. 

On March 5, 2017, the Chesapeake 

Bay Foundation (CBF) submitted a letter 

in support of Delaware’s petition 

regarding Brunner Island. The CBF 

supports Delaware’s argument that 

emissions from the named coal-fired 

EGUs significantly contribute to 

nonattainment and interfere with 

maintenance of the ozone NAAQS in 

Delaware. On April 11, 2017, the CBF 

sent a second letter in support of 

Delaware’s petition regarding Harrison. 

The CBF supports Delaware’s argument 

that emissions data since 2011 

demonstrate that Harrison’s operators 

have either ceased to operate the SCR 

systems regularly or have chosen to 

operate them in a sub-optimal manner. 

In both letters, the CBF argued that the 

EPA should implement an emissions 

rate limit at both facilities based on 

short averaging periods and indicated 

that Delaware’s proposed remedy would 

help reduce nitrogen deposition to the 

Chesapeake Bay watershed, with 

beneficial effects upon the health of the 

Bay. 

On June 20, 2017, the Midwest Ozone 

Group (MOG) submitted a letter urging 

the EPA to deny the Conemaugh 

petition and asserted that Delaware does 

not have ozone nonattainment or 

maintenance problems upon which to 

base a CAA section 126(b) petition. The 

MOG contends that Delaware air quality 

currently meets the 2008 8-hour ozone 

NAAQS, was projected to attain the 

standard in 2017 18, and will continue to 

improve with the implementation of 

existing regulatory programs. The MOG 

also suggests that the EPA cannot grant 

a CAA section 126(b) petition for the 

2015 ozone NAAQS until after the EPA 

has issued designations for that 

standard. 

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. 

E. The CAA Section 126(b) Petition 

From Maryland 

On November 16, 2016, the state of 

Maryland, through the Maryland 

Department of the Environment, 

submitted a CAA section 126(b) petition 

alleging that emissions from 36 EGUs 

significantly contribute to ozone levels 

that exceed the 2008 ozone NAAQS in 

Maryland and therefore interfere with 

both attainment and maintenance of the 

NAAQS.19 These sources are coal-fired 

EGUs located in Indiana, Kentucky, 

Ohio, Pennsylvania, and West Virginia, 

which Maryland notes are states that 

EPA has already determined are 

significantly contributing to 

nonattainment in Maryland under the 

2008 ozone NAAQS. Maryland indicates 

that all of these sources have SCR or 


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20Maryland Petition, Appendix A, Part 2, 

available in the docket for this action. 

21See id. 

22 Id. Appendix B. 

23 Id. Appendix C. 

24 Id. Appendix D. 

25 Id. Appendix E. 

26 Id. Appendix F. 

27 Id. Appendix D. 

28 Id. Supplemental Appendix A. 

29 Id. Supplemental Appendix B. 

30 Id. Supplemental Appendix C. 

31 Id. Supplemental Appendix D. 

Selective Non-Catalytic Reduction 

(SNCR) to control NOX emissions. In 

addition, Maryland’s technical support 

document discusses modeling 

conducted by the University of 

Maryland, which claims to show that 

ozone concentrations would reduce if 

these EGUs were to optimize running 

their SCR and SNCR controls, and 

provides control optimization modeling 

scenarios which project the ozone 

impacts of optimizing emissions 

controls in 2018. Maryland suggests, by 

way of using its own state regulation as 

an example, that optimizing controls 

means operating controls consistent 

with technological limitations, 

manufacturers’ specifications, good 

engineering and maintenance practices, 

and good air pollution control practices 

for minimizing emissions. 

The petition further alleges that 

Maryland’s proposed remedy— 

discussed further below—will influence 

how areas in Maryland and other MidAtlantic states are designated under the 

new 2015 ozone NAAQS. According to 

Maryland, the proposed remedy, if 

implemented in 2017, would most 

likely allow the Baltimore area and the 

Washington, DC, multi-state area, which 

includes portions of Maryland, to both 

be designated attainment for the 2015 

ozone NAAQS. The EPA notes that the 

cover letter of Maryland’s petition 

specifically requests that EPA make a 

finding ‘‘that the 36 electric generating 

units (EGUs) . . . are emitting pollutants 

in violation of the provisions of Section 

110(a)(2)(D)(i)(I) of the CAA with 

respect to the 2008 ozone National 

Ambient Air Quality Standards,’’ and 

the petition throughout refers only to 

the 2008 ozone NAAQS when 

identifying alleged air quality problems 

in Maryland and the impacts from 

upwind sources. Accordingly, while 

Maryland suggests that its requested 

remedy for 2008 ozone will assist in 

achieving attainment of the 2015 ozone 

NAAQS, the state has not specifically 

requested that EPA make a finding with 

respect to the 2015 ozone NAAQS, and, 

therefore, the EPA is not evaluating the 

petition for this standard. 

Maryland alleges that, although the 36 

EGUs have existing post-combustion 

control mechanisms that should prevent 

significant contribution, the facilities 

have either ceased to operate the 

controls regularly during the ozone 

season or have chosen to operate them 

in a sub-optimal manner. Maryland 

presents an analysis based on 2005– 

2015 ozone season data to support this 

contention.20 Maryland argues that 

whether controls are optimally run can 

be determined by comparing current 

ozone season average emissions rates to 

the lowest ozone season average 

emissions rate after 2005 or after the 

unit installed SCR or SNCR. Maryland 

alleges that NOX emissions rates at the 

36 facilities have increased significantly 

since the SCR and SNCR installation 

and initial testing, indicating that these 

EGUs are not operating their postcombustion controls efficiently on each 

day of the ozone season. 

Maryland also submitted a number of 

technical memoranda to support its 

argument. Maryland submitted analyses 

of control technology optimization for 

coal-fired EGUs in eastern states, which 

they contend demonstrate that NOX

emissions rates at specific EGUs are 

well above what is considered 

representative of an EGU running postcombustion controls efficiently; that 

2015 and 2016 EPA data show that 

many EGUs have not been running their 

post combustion controls as efficiently 

as they have in the past during the 

ozone season; and that the EPA should 

therefore ensure these controls are 

operating during the 2017 ozone season 

by including requirements or permit 

conditions requiring each named EGU 

to minimize emissions by optimizing 

existing control technologies, enforced 

through use of a 30-day rolling average 

rate.21

Maryland also submitted the 

following documents: A review of its 

own NOX regulations for coal fired 

EGUs; 22 a detailed study conducted by 

Maryland and the University of 

Maryland regarding regional ozone 

transport research and analysis efforts in 

Maryland; 23 an August 6, 2015, STI 

report alleging that source 

apportionment modeling indicates that 

emissions from Brunner Island (a source 

not specifically addressed in Maryland’s 

petition) contribute significantly to 

ozone formation in Pennsylvania and 

neighboring states during the modeled 

ozone season; 24 a list of recommended 

language for the EPA to include in 

federal orders related to the named 

EGUs to remedy significant 

contribution; 25 and an evaluation of 

cost savings Maryland alleges the units 

have incurred in 2014 by not fully 

running their controls compared with 

the cost of running their controls at full 

efficiency.26 As discussed previously, 

Maryland also submitted a 

memorandum detailing modeling 

analyses conducted by the University of 

Maryland, which presents projected 

reductions in ozone concentrations in 

Maryland that would occur as a result 

of optimized SCR and SNCR operations 

at the 36 sources named in Maryland’s 

petition.27 Maryland argues that these 

projected reductions in ozone 

concentrations at Maryland monitors 

demonstrate that optimizing the postcombustion controls at the 36 units with 

SCR or SNCR would allow Maryland to 

attain, or come very close to attaining, 

the 2008 8-hour ozone NAAQS. 

Additionally, Maryland 

supplemented its petition with several 

further appendices submitted in 2017. 

Maryland submitted an additional 

optimization analysis comparing NOX

emissions rates in 2006, 2015, and 2016 

for EGUs listed in its petition; 28 a 

comparison of 2016 ozone season 

average emissions rates to the lowest 

demonstrated ozone season average 

emissions rates between 2005 and 2015 

at 369 coal-fired EGUs in 29 states 

identified as the Eastern Modeling 

Domain; 29 a comparison of average 

emissions data at 21 units in 

Pennsylvania in the first quarter of 2017 

to the lowest demonstrated ozone 

season average emissions rate between 

2005–2016; 30 and additional 

photochemical modeling conducted by 

the University of Maryland of the 

impact of the 36 EGUs in the five states 

on ozone concentrations in Maryland, 

which concludes that emissions from 

these units significantly contribute to 

ozone concentrations in Maryland and 

therefore contribute to nonattainment 

and interfere with the maintenance of 

the 8-hour ozone NAAQS.31

Maryland’s petition also requests a 

remedy that will compel the named 

units to optimize their SCR and SNCR. 

Maryland indicates that its petition is 

focused on ensuring controls are run at 

the units every day of the ozone season. 

According to Maryland, the CSAPR 

Update, earlier federal allowance 

trading programs, and many state 

regulations allow for longer term 

averaging, which means that controls do 

not necessarily need to be run 

effectively every day to comply with 

these requirements. Maryland claims 

that this has resulted in situations 

where sources in the five upwind states 

have not run their controls efficiently on 

many days with high ozone, and, 

therefore, these sources are impacting 


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32Although Maryland suggests emissions could 

potentially be reduced with no actual new costs to 

the EGUs, Maryland does not provide further 

information supporting its suggestion that zero-cost 

reductions may be available. To the contrary, 

Maryland states that the cost per ton range would 

be from $670 to $1000, depending on whether the 

SCR systems are in partial operation or totally 

idled. See Maryland Petition Appendix F, available 

in the docket for this action. 33 82 FR 22 (January 3, 2017). 

Maryland in violation of CAA section 

110(a)(2)(D)(i)(I). Maryland also claims 

that, on some of those days, the 36 EGUs 

in these states emitted in the aggregate 

over 300 more tons of NOX than they 

would have if they had run their control 

technologies efficiently. Additionally, 

Maryland states that these days are often 

the same days where downwind ozone 

levels are likely to be highest because of 

hot, ozone-conducive weather. 

Maryland supports its claim by alleging 

that over the entire ozone season, the 

relief requested in its petition could 

result in very large reductions. 

Maryland contends that in 2015, 

approximately 39,000 tons of NOX

reductions could have been achieved in 

the ozone season if the 36 targeted EGUs 

had simply run their controls 

efficiently. Therefore, Maryland states 

that, based on the EPA’s past 

approaches in establishing significant 

contributions based on highly costeffective controls, the NOX emissions 

from these 36 EGUs must be abated on 

each day of the ozone season starting in 

May of 2017. 

Maryland contends that emissions at 

the 36 EGUs can be reduced at 

reasonable cost, or with potentially no 

actual new costs to the EGUs at all,32

because this requested remedy rests on 

the use of existing control equipment. 

Maryland suggests two methods to 

ensure optimized use of controls at 

these sources. First, Maryland requests 

that the EPA include language in federal 

and state regulations or operating 

permits requiring the owners or 

operators of the relevant EGUs to use all 

installed pollution control technology 

consistent with technological 

limitations, manufacturers’ 

specifications, good engineering and 

maintenance practices, and good air 

pollution control practices. Second, 

Maryland requests that the EPA enforce 

this requirement by comparing each 

unit’s maximum 30-day rolling average 

emissions rate to the unit’s lowest 

reported ozone emissions rate. 

Maryland also requests that this remedy 

be implemented by 2017 to help areas 

in Maryland achieve attainment in time 

to inform the 2015 ozone NAAQS area 

designations 

1. Subsequent Actions and 

Correspondence Regarding the 

Maryland Petition 

Consistent with CAA section 307(d), 

as discussed in Section III.D of this 

notice, the EPA determined that the 60- 

day period for responding to Maryland’s 

petition is 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, on a proposed finding 

regarding whether the 36 EGUs 

identified in the petition significantly 

contribute to nonattainment or interfere 

with maintenance of the 2008 ozone 

NAAQS in Maryland. On January 3, 

2017, the EPA published a final rule 

extending the deadline for acting on 

Maryland’s section 126(b) petition to 

July 15, 2017.33

On May 17, 2017, the MOG submitted 

a letter asking the EPA to deny 

Maryland’s section 126(b) petition. The 

MOG argues that all monitors in 

Maryland are either attaining the 2008 

8-hour ozone NAAQS or are very close 

to attaining the standard, and that 

modeling indicates that all Maryland 

monitors will attain the 2008 8-hour 

ozone NAAQS in 2025. Furthermore, 

the MOG argues that the CSAPR Update 

moots Maryland’s petition. Finally, the 

MOG argues that the EPA must assess 

the impact of international emissions 

when reviewing a section 126(b) 

petition. On May 18, 2017, the Indiana 

Energy Association submitted a letter 

making similar assertions, and urged the 

EPA to deny Maryland’s section 126(b) 

petition. 

The EPA acknowledges receipt of 

these letters, and has made them 

available in the docket for this action. 

However, the EPA is not responding 

directly to these letters in this action. 

Rather, the EPA encourages interested 

parties to review this proposal and then 

submit relevant comments during the 

public comment period. 

IV. The EPA’s Proposed Decision on 

Delaware’s and Maryland’s CAA 

Section 126(b) Petitions 

A. The EPA’s Approach for Granting or 

Denying CAA Section 126(b) Petitions 

Regarding the 2008 and 2015 8-Hour 

Ozone NAAQS 

As discussed in Section III.B of this 

notice, 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 affect 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 CAA 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 CAA section 126(b) finding 

should be made. See, e.g., Appalachian 

Power, 249 F. 3d at 1050 (finding that 

given section 126(b)’s silence on what it 

means for a source to violate section 

110(a)(2)(D)(i), EPA’s approach, if 

reasonable, is entitled to deference 

under Chevron); 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 

historical approach to evaluating CAA 

section 126(b) petitions looks first to see 

whether a petition establishes a 

sufficient basis for the requested CAA 

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 CAA 

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 

CAA 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, 

can be denied as insufficient. 

Nonetheless, the EPA has the discretion 

to conduct independent analyses when 

helpful in evaluating the basis for a 

potential CAA section 126(b) finding or 

developing a remedy if a finding is 

made. See e.g., 76 FR 19662, 19666 

(April 7, 2011) (proposed response to 

petition from New Jersey regarding SO2

emissions from the Portland Generating 

Station); 83 FR 16064, 16070 (April 13, 

2018) (final response to petition from 

Connecticut regarding ozone emissions 

from the Brunner Island Steam Electric 

Station). As explained in the following 

sections, in this instance, given the 

EPA’s concerns with the adequacy of 

the information submitted as part of the 

CAA section 126(b) petitions, and the 

fact that the EPA has previously issued 

a rulemaking defining and at least 

partially addressing the same 

environmental concern that the 

petitions seek to address, the EPA 

determined that it was appropriate to 

conduct an independent analysis to 


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34Courts 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, 249 F.3d at 1047. 

35As previously discussed, step four comprises of 

implementing the necessary emission reductions for 

states that are found to have emissions that 

significantly contribute to nonattainment or 

interfere with maintenance of the NAAQS 

downwind under steps one, two, and three of the 

framework. If a state is not found to have 

downwind impacts through the first three steps, 

step four is simply not reached under the EPA’s 

analysis. 

36See Information on the Interstate Transport 

State Implementation Plan Submissions for the 

2015 Ozone National Ambient Air Quality 

Standards under Clean Air Act Section 

110(a)(2)(D)(i)(I) (March 2018), available in the 

docket for this proposed action. By operation of 

statute, SIPs to address the good neighbor provision 

for the 2015 ozone NAAQS are due in October 

2018. 

determine whether it should grant or 

deny the petitions. Such an analysis, 

however, is not required by the statute 

and may not be necessary or appropriate 

in other circumstances. 

With respect to the statutory 

requirements of both section 

110(a)(2)(D)(i) and section 126 of the 

CAA, 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).34 Congress provided two separate 

statutory processes to address interstate 

transport without indicating any 

preference for one over the other, 

suggesting it viewed either approach as 

a legitimate means to produce the 

desired result. While either provision 

may be applied to address interstate 

transport, 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 to 

nonattainment 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, 249 F. 3d at 1049– 

50. 

Thus, in addressing a CAA section 

126(b) petition that addresses ozone 

transport, the EPA believes it is 

appropriate to interpret these 

ambiguous terms consistent with the 

EPA’s historical approach to evaluating 

interstate ozone pollution transport 

under the good neighbor provision, and 

its interpretation and application of that 

related provision of the statute. As 

described in Sections III.A and III.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 most 

recently applied this four-step 

framework in the promulgation of the 

CSAPR Update to address interstate 

transport with respect to the 2008 ozone 

NAAQS under CAA section 

110(a)(2)(D)(i)(I). Given the specific 

cross-reference in CAA section 126(b) to 

the substantive prohibition in CAA 

section 110(a)(2)(D)(i), 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 fourstep approach under CAA section 

110(a)(2)(D)(i)(I) is also appropriate for 

evaluating under CAA section 126(b) 

whether an upwind source or group of 

sources will significantly contribute to 

nonattainment or interfere with 

maintenance of the 2008 8-hour ozone 

NAAQS in a petitioning downwind 

state. Because the EPA interprets the 

statutory phrases ‘‘significantly 

contribute to nonattainment’’ and 

‘‘interfere with maintenance,’’ which 

appear in both statutory provisions, to 

mean the same thing in both those 

contexts, the EPA’s decision whether to 

grant or deny a CAA section 126(b) 

petition regarding both the 2008 8-hour 

ozone and 2015 ozone NAAQS depends 

on: (1) Whether there is a downwind air 

quality problem in the petitioning state 

(i.e., step one of the four-step 

framework); (2) 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, (3) if such a linkage exists, 

whether there are additional highly 

cost-effective controls achievable at the 

source(s) named in the CAA section 

126(b) petition (i.e., step three).35 The 

application of the four-step framework 

to EPA’s analysis of a CAA section 

126(b) petition regarding the 2008 ozone 

NAAQS is appropriate given the EPA 

has previously interpreted significant 

contribution and interference with 

maintenance under CAA section 

110(a)(2)(D)(i) under this framework via 

the CSAPR Update. 

Unlike the 2008 ozone NAAQS, the 

EPA has not to date engaged in a 

rulemaking action to apply the good 

neighbor provision for the 2015 ozone 

NAAQS. However, the EPA has recently 

released technical information intended 

to inform states’ development of SIPs to 

address this standard.36 As part of the 

memo releasing the technical 

information, the EPA acknowledged that 

states have flexibility to pursue 

approaches that may differ from the 

EPA’s historical approach to evaluating 

interstate transport in developing their 

SIPs, which are due in October 2018. 

Nonetheless, the EPA’s technical 

analysis and the potential flexibilities 

identified in the memo generally 

followed the basic elements of the EPA’s 

historical four-step framework. Thus, in 

light of the EPA’s discretion to identify 

relevant criteria and develop a 

reasonable methodology for determining 

whether a CAA section 126(b) finding 

should be made, the EPA continues to 

evaluate the claims regarding the 2015 

ozone NAAQS in Delaware’s section 

126(b) petitions consistent with the 

EPA’s four-step framework. 

The EPA notes that Congress did not 

specify how the EPA should determine 

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) under the terms of 

section 126(b). Thus, the EPA also 

believes it is reasonable and appropriate 

at each step to consider whether the 

facility ‘‘emits or would emit’’ in light 

of the facility’s current operating 

conditions. Therefore, the EPA 

interprets the phrase ‘‘emits or would 

emit’’ in the context of acting on 

Delaware’s and Maryland’s petitions 

regarding the 2008 and 2015 ozone 

NAAQS to mean that a source may 

‘‘emit’’ in violation of the good neighbor 

provision if, based on current emissions 

levels, the upwind state contributes to 

downwind air quality problems (i.e., 

steps one and two), and the source may 

be further controlled through 

implementation of highly cost-effective 

controls (i.e., step 3). Similarly, a source 

‘‘would emit’’ in violation of the good 

neighbor provision if, based on 

reasonably anticipated future emissions 

levels (accounting for existing 

conditions), the upwind state 

contributes to downwind air quality 

problems (i.e., steps one and two) and 

the source could be further controlled 

through implementation of highly costeffective controls (i.e., step 3). 

Consistent with this interpretation, the 

EPA has therefore evaluated, in the 

following sections, whether the sources 

cited in the petitions emit or would emit 

in violation of the good neighbor 

provision based on both current and 

future anticipated emissions levels. 

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 already adopted 

provisions that eliminate the significant 

contribution to nonattainment or 

interference with maintenance of the 


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37See 80 FR 65296 (October 26, 2015) for a 

detailed explanation of the calculation of the 3-year 

8-hour average and the methodology set forth in 40 

CFR part 50, appendix U. 

38 81 FR 74517. 

39As 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, 

and reduced its individual ozone season NOX

emissions by 88 percent in 2017 relative to 2011 

levels. (https://www.epa.gov/ampd). Additional 

emissions data from 2011 and a recent historical 

year is included in the docket, which also shows 

that 2011 emissions are generally higher than 

emissions in recent years. See 2011 to 2017 NOX

Comparisons, Ozone Season, available in the docket 

for this action. 

NAAQS in downwind states, then there 

simply is no violation of the CAA 

section 110(a)(2)(D)(i)(I) prohibition, 

and hence no grounds to grant a section 

126(b) petition. 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 the 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. at 1604 n.18, 1608–09 (holding the 

EPA may not over-control by requiring 

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). 

Thus, for example, if the EPA has 

already approved a state’s SIP as 

adequate to meet the requirements of 

CAA section 110(a)(2)(D)(i)(I), the EPA 

will 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 the EPA has promulgated a 

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, EPA will not find that sources 

in the upwind state are emitting or 

would emit in violation of the CAA 

section 110(a)(2)(D)(i)(I) prohibition. 

The EPA notes that the approval of a 

SIP or promulgation of a FIP 

implementing section 110(a)(2)(D)(i)(I) 

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. 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 CAA 

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 provide the 

basis for another CAA section 126(b) 

petition). Thus, in circumstances where 

a SIP or FIP addressing CAA section 

110(a)(2)(D)(i)(I) is being implemented, 

the EPA will evaluate the CAA section 

126(b) petition to determine if it raises 

new information that merits further 

consideration. 

B. The EPA’s Evaluation of Whether the 

Petitions Are Sufficient To Support a 

Section 126(b) Finding 

As an initial matter in reviewing a 

CAA section 126(b) petition, the EPA 

evaluates the technical analysis in the 

petition to see if that analysis, standing 

alone, is sufficient to support the 

requested CAA section 126(b) findings. 

In this regard, the EPA has determined 

that material elements of the analysis 

provided in Delaware’s and Maryland’s 

petitions are technically deficient and, 

thereby, proposes to deny the petitions, 

in part, on the basis that the conclusions 

that the petitions draw are not 

supported by the petitions’ technical 

assessments. 

1. Petitions From Delaware 

As discussed in Section IV.A, the EPA 

interprets the good neighbor provision 

for purposes of the pending CAA 

section 126(b) petitions consistent with 

the EPA’s historical four-step 

framework. With respect to step one of 

the four-step framework, the EPA began 

by evaluating Delaware’s four petitions 

to determine if the state identified a 

downwind air quality problem 

(nonattainment or maintenance) that 

may be impacted by ozone transport 

from other states. EPA conducted this 

evaluation with regard to both the 2008 

and 2015 ozone NAAQS. 

First, with respect to the 2008 ozone 

NAAQS, Delaware does not provide 

sufficient information to indicate that 

there is a current or expected future 

downwind air quality problem in the 

state. While the Delaware petitions 

identify individual exceedances of the 

ozone standard in the state between the 

2000 and 2016 ozone seasons, this does 

not necessarily demonstrate that there is 

a resulting nonattainment or 

maintenance problem. Ozone NAAQS 

violations are determined based on the 

fourth-highest daily maximum ozone 

concentration, averaged across 3 

consecutive years.37 Thus, individual 

exceedances at monitors do not by 

themselves indicate that a state is not 

attaining or maintaining the NAAQS. 

Second, with respect to the 2015 

ozone NAAQS, Delaware argues that if 

that NAAQS had been in effect from 

2011 through 2016, Delaware monitors 

would have recorded more exceedances 

than they did under the 2008 ozone 

NAAQS. However, again, the 

identification of individual exceedances 

does not speak to whether there are 

current violations of the standard. 

Additionally, the EPA evaluates 

downwind ozone air quality problems 

for purposes of step one of the four-step 

framework using modeled future air 

quality concentrations for a year that 

considers the relevant attainment 

deadlines for the NAAQS.38 This 

approach is based on the EPA’s 

interpretation of the language in the 

good neighbor provision indicating that 

states should prohibit emissions that 

‘‘will’’ significantly contribute to 

nonattainment or interfere with 

maintenance of the NAAQS. See North 

Carolina, 531 F.3d at 913–914 (affirming 

as reasonable the EPA’s interpretation of 

‘‘will’’ to refer to future, projected ozone 

concentrations). However, the petitions 

do not provide any analysis indicating 

that Delaware may be violating or have 

difficulty maintaining the 2008 or 2015 

ozone NAAQS in a future year 

associated with the relevant attainment 

dates. 

Next, with respect to step two of the 

four-step framework, material elements 

of Delaware’s analysis regarding the 

contributions from the Brunner Island, 

Harrison, Homer City, and Conemaugh 

EGUs to air quality in Delaware are 

deficient and, therefore, the conclusions 

that the petitions draw are not 

supported by the technical assessment. 

As noted earlier, all four petitions rely 

upon air quality modeling that uses 

2011 emissions to quantify the 

contribution from each of the four 

named sources to locations in Delaware 

on individual days in 2011. However, 

2011 emissions are generally higher 

than, and therefore not representative 

of, current or future projected emissions 

levels at these EGUs and in the rest of 

the region, which the EPA believes is 

most relevant to determining whether a 

source ‘‘emits or would emit’’ in 

violation of the good neighbor 

provision.39 Thus, the 2011 modeling 

does not provide representative data 

regarding current or future contributions 


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40Existing EPA analyses of interstate ozone 

pollution transport focus on contributions to high 

ozone days at the downwind receptor in order to 

evaluate the impact on nonattainment and 

maintenance at the receptor. For example, in the 

CSAPR Update modeling, ozone contributions were 

calculated using data for the days with the highest 

future year modeled ozone concentrations. For the 

2008 ozone NAAQS, only the highest measured 

ozone days from each year are considered for the 

calculation of ozone design values (the values that 

determine whether there is a measured NAAQS 

violation). Therefore, measured ozone values that 

are far below the level of the NAAQS do not cause 

an exceedance or violation of the NAAQS. For this 

reason, only ozone contributions to days that are 

among the highest modeled ozone days at the 

receptor are relevant to determining if a state or 

source is linked to downwind nonattainment or 

maintenance issues. 41 81 FR 74543. 

42Similarly, the method used by Maryland to 

estimate the input NOX emissions rate—i.e., setting 

the estimated uncontrolled NOx rate as a factor of 

1 divided by 0.08—is not well supported. In its 

modeling with IPM, the EPA has used a value of 

90 percent reduction in NOx emissions to estimate 

the effect of adding an SCR up to a floor rate limit 

of 0.07 lb/mmBtu or 0.05 lb/mmBtu depending on 

coal type (see Table 5–5 in IPM 5.13 documentation 

available at https://www.epa.gov/sites/production/ 

files/2015-/documents/chapter_5_emission_

control_technologies_0.pdf). The reductions results 

from a combination of simultaneously upgrading 

combustion controls as well as adding postcombustion controls. Furthermore, Maryland does 

not provide any supporting argument for its 

assertion regarding the factor of 0.7 (i.e., 30 percent 

reduction) to account for low NOX burners and 

other emissions control reductions. 

from these EGUs. When evaluating a 

CAA section 126(b) petition, EPA 

believes it is important to rely on 

current and relevant data known at the 

time the agency takes action. Were the 

EPA to act based on non-representative 

information solely because it was 

provided in a petition, that result could 

be an arbitrary and unreasonable 

decision by the EPA, and could, for 

example, impose controls or emissions 

limitations that are not appropriately 

tailored to the nature of the problem at 

the time of the EPA’s final action or at 

the time when such controls or 

limitations would actually be 

implemented. This could result in 

unnecessary over-control (or undercontrol) of emissions, beyond (or short 

of) what is required to address the good 

neighbor provision, in violation of the 

Supreme Court’s holding in EPA v. EME 

Homer City Generation, L.P., 134 S. Ct. 

at 1608–09. 

Further, the analyses provided by 

Delaware regarding the alleged impacts 

of the four sources on downwind air 

quality includes some information on 

the frequency and magnitude of ozone 

impacts, but the information is unclear 

as to the modeled and/or measured 

ozone levels on those days.40 Delaware’s 

Homer City petition identifies modeled 

contributions from emissions at that 

upwind source to three downwind 

monitoring sites in Delaware on July 18, 

2011. However, the petition fails to 

identify whether there were measured 

and/or modeled exceedances of the 

ozone NAAQS on this day at those sites. 

Delaware’s Harrison and Brunner Island 

petitions identify the days, but not the 

monitoring sites where Delaware claims 

emissions from these sources 

contributed above the threshold. 

Moreover, these two petitions do not 

provide information on whether the 

contributions were to ozone values that 

exceed the ozone NAAQS. Delaware’s 

Conemaugh petition identifies 2011 

contributions on days in Delaware that 

exceeded the 2008 NAAQS, but the 

petition does not provide information to 

show that the contributions above the 

threshold were predicted at monitoring 

sites that were exceeding the 2008 or 

2015 ozone NAAQS. Accordingly, for 

the reasons described in this section, 

Delaware’s analysis in its four petitions 

does not allow the EPA to conclude that 

there is a current or future 

nonattainment or maintenance problem 

in Delaware, and therefore, the EPA 

cannot determine that emissions from 

the four sources cited in the petitions 

are significantly contributing to 

nonattainment or interfering with 

maintenance in Delaware with respect 

to either the 2008 or 2015 ozone 

NAAQS. 

2. Petition From Maryland 

The EPA has also evaluated and 

determined that material elements of the 

analysis provided in Maryland’s 

petition are technically deficient, and, 

thereby, proposes to deny the petition, 

in part based on the fact the conclusions 

that the petition draws are not 

supported by the technical assessment. 

As discussed in Section III.E of this 

notice, Maryland alleges that 36 named 

sources are operating their postcombustion controls sub-optimally 

based on a comparison of their lowest 

observed NOX emissions rates between 

2005 and 2008, which Maryland 

describes as the ‘‘best’’ observed 

emissions rates, to emissions rates from 

the 2015 and 2016 ozone seasons. 

Maryland contends that these sources 

are, therefore, emitting in violation of 

the prohibition CAA section 

110(a)(2)(D)(i)(I) in the absence of a 

short-term limit that requires that the 

controls be optimized. 

The EPA believes that the petition’s 

assumption about achievable operating 

rates presents a technical weakness 

because the lowest historical rate at any 

particular unit may not be a rate that 

can be consistently achieved on a 

continual operating basis for technical 

reasons. In the CSAPR Update, the EPA 

analyzed EGU NOX reduction potential 

and corresponding NOX ozone season 

emissions budgets based on NOX

emissions rates that can be consistently 

achieved for EGUs with SCRs that were 

not currently being optimized or which 

were currently idled at the time of the 

EPA’s analysis.41 To determine the rate 

that could be consistently achieved, the 

EPA evaluated coal-fired EGU NOX

ozone season emission data from 2009 

through 2015 and calculated an average 

NOX ozone season emissions rate across 

the fleet of coal-fired EGUs with SCR for 

each of these 7 years. The EPA 

considered and rejected the lowest or 

second lowest ozone season NOX rates, 

because the EPA determined that these 

rates may reflect new SCR systems and 

SCR systems all of whose components 

are new (e.g., due to simultaneous 

replacement of multiple layers of 

catalyst rather than routine replacement 

of a single layer). Data from these new 

systems are not representative of 

ongoing achievable NOX rates 

considering that some SCR systems may 

have some broken-in components and 

routine maintenance schedules entailing 

replacement of individual components. 

Thus, in the CSAPR Update, the EPA 

determined that the third lowest fleetwide average coal-fired EGU NOX rate 

for EGUs with operating SCRs is most 

representative of ongoing, achievable 

emission rates. The EPA observed in 

that rule that the third lowest fleet-wide 

average coal-fired EGU NOX rate for 

EGUs with SCR is 0.10 lbs/mmBtu. 81 

FR 74543. Reliance on the lowest 

historical emissions rate to evaluate the 

feasibility and cost effectiveness of 

controls would likely overestimate the 

emissions reductions and, consequently, 

underestimate the costs to restart idled 

or unoptimized controls.42 Therefore, 

EPA does not agree with Maryland’s 

conclusion that it is appropriate to 

identify whether controls are optimized 

at the EGUs addressed in the petition, 

and, thus, whether a short-term limit 

would be necessary, based on the units’ 

lowest observed emissions rates. Thus, 

the EPA cannot conclude based on 

Maryland’s petition that these sources 

emit or would emit in violation of CAA 

section 110(a)(2)(D)(i)(I) for the 2008 

ozone NAAQS. 

C. The EPA’s Independent Analysis of 

the CAA Section 126(b) Petitions 

As discussed in Section IV.A of this 

notice, the EPA may decide to conduct 

independent analyses when helpful in 

evaluating the basis for a potential CAA 

section 126(b) finding or developing a 

remedy if a finding is made. In this 


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43Air Quality Modeling Technical Support 

Document for the Final Cross-State Air Pollution 

Rule Update, 17 (August 2016). Available at https:// 

www.epa.gov/sites/production/files/2017-05/ 

documents/aq_modeling_tsd_final_csapr_

update.pdf. 

44See 2016 Design Value Reports, available at 

https://www.epa.gov/air-trends/air-quality-designvalues#report. The official designations for these 

areas and information relied upon for those 

designations are contained in the EPA’s designation 

actions for the 2015 ozone NAAQS. See 82 FR 

54232 (November 16, 2017) and the docket for 

Additional Air Quality Designations for the 2015 

Ozone National Ambient Air Quality Standards, 

EPA–HQ–OAR–2017–0548, and accompanying 

technical support documents. 

45See 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. 

instance, in conducting the independent 

analyses that it has decided to 

undertake to evaluate the petitions at 

issue, the EPA determined that, 

consistent with the EPA’s four-step 

framework for implementing CAA 

section 110(a)(2)(D)(i)(I) for the ozone 

NAAQS, the EPA’s decision whether to 

grant or deny a CAA section 126(b) 

petition based on the 2008 and 2015 

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, among other factors, there are 

additional highly cost-effective 

emissions reductions achievable at the 

source(s) named in the CAA section 

126(b) petition (i.e., step three). 

1. The EPA’s Step One and Two 

Analyses for Delaware and Maryland 

With regard to the Delaware petitions, 

while the EPA as discussed in Section 

IV.B believes that they do not 

adequately establish the presence of a 

current or future nonattainment or 

maintenance problem in Delaware,, the 

EPA also independently examined 

whether there is an air quality problem 

under the 2008 and 2015 ozone NAAQS 

(step one), and whether the states 

containing the named sources are linked 

to such a problem in Delaware (step 

two). 

The EPA first looked to air quality 

modeling projecting ozone 

concentrations at air quality monitoring 

sites to 2017, which was conducted for 

purposes of evaluating the first and 

second steps of the four-step framework 

to interstate transport for the 2008 ozone 

NAAQS as part of the CSAPR Update.43

The EPA used these projections for air 

quality monitoring sites and current 

ozone monitoring data at these sites to 

identify receptors that were anticipated 

to have problems attaining or 

maintaining the 2008 ozone NAAQS in 

2017. As noted in Section III.D, all four 

petitions allege that the EPA’s modeling 

conducted in support of the CSAPR 

Update shows that the states in which 

these sources are located contribute one 

percent or more of the 2008 8-hour 

ozone NAAQS to ozone concentrations 

in Delaware and, therefore, that those 

states’ sources are significantly 

impacting air quality within the state. 

However, this modeling indicated that 

Delaware was not projected to have any 

nonattainment or maintenance receptors 

in 2017 with respect to the 2008 ozone 

NAAQS. Therefore, the modeling in 

support of the CSAPR Update did not 

establish that the named states are 

linked to a downwind air quality 

problem regarding the 2008 ozone 

NAAQS. Furthermore, the EPA 

examined Delaware’s 2014–2016 design 

values, and found that no monitors were 

violating the 2008 ozone NAAQS. 

Accordingly, contrary to Delaware’s 

characterization of the EPA’s modeling, 

the EPA did not determine that any 

states, including those (Pennsylvania 

and West Virginia) where the sources 

named in Delaware’s petitions are 

located, will significantly contribute to 

nonattainment or interfere with 

maintenance of the 2008 ozone NAAQS 

in Delaware. Thus, the EPA has no basis 

to conclude that any of the sources 

named by Delaware in its petitions are 

linked to a downwind air quality 

problem in Delaware with regard to the 

2008 ozone NAAQS. 

Additionally, the EPA independently 

examined whether there is a downwind 

air quality problem in Delaware with 

regard to the 2015 ozone NAAQS. The 

modeling conducted in support of the 

CSAPR Update shows one monitor— 

monitor ID 100051003 in Sussex 

County—having a maximum 2017 

projected design value above the 2015 

ozone NAAQS, and the EPA further 

notes information indicating that two 

monitors may exceed the 2015 ozone 

NAAQS based on the 2014–2016 design 

values.44 However, as described in 

Section IV.B of this notice, the EPA 

evaluates downwind ozone air quality 

problems for the purposes of step one of 

the four-step framework using modeled 

future air quality concentrations for a 

year that considers the relevant 

attainment deadlines for the NAAQS. 

Recent analyses projecting emissions 

levels to a future year indicate that no 

air quality monitors in Delaware are 

projected to have nonattainment or 

maintenance problems with respect to 

the 2015 ozone NAAQS by 2023, which 

is the last year of ozone season data that 

will be considered in order to determine 

whether downwind nonattainment areas 

classified as moderate have attained the 

standard by the relevant 2024 

attainment date.45 Therefore, consistent 

with the EPA’s interpretation of the 

term ‘‘will’’ in the good neighbor 

provision discussed in Section IV.B.I., 

available future year information does 

not suggest Delaware will have air 

quality problems by the relevant 

attainment date for the 2015 ozone 

NAAQS. The EPA is proposing to 

determine that the named sources in all 

four of Delaware’s petitions are not in 

violation of the good neighbor provision 

with respect to Delaware for the 2008 

and 2015 NAAQS based, in part, on the 

EPA’s independent analyses of steps 

one, two, and three of the four-step 

framework. 

With respect to the Maryland petition, 

as the state noted in its petition, the 

EPA already conducted an analysis in 

the CSAPR Update regarding the impact 

of the five upwind states named in the 

state’s petition on downwind air quality 

in Maryland with respect to the 2008 

ozone NAAQS. In addition to using 

modeling to identify downwind air 

quality problems, the EPA also used air 

quality modeling to assess contributions 

from upwind states to these downwind 

receptors and evaluated these 

contributions relative to a screening 

threshold of one percent of the NAAQS. 

States with contributions that equal or 

exceed one percent of the NAAQS were 

identified as warranting further analysis 

to determine whether they significantly 

contribute to nonattainment or interfere 

with maintenance at the downwind 

receptors. States with contributions 

below one percent of the NAAQS were 

considered to not significantly 

contribute to nonattainment or interfere 

with maintenance of the NAAQS in 

downwind states. The EPA determined 

in the final CSAPR Update that, based 

on its 2017 modeling projections, 

statewide emissions from sources in 

Indiana, Kentucky, Ohio, Pennsylvania, 

and West Virginia were linked to 

monitor ID 240251001 in Harford 

County, Maryland; that monitor was 

expected to have nonattainment and 

maintenance problems for the 2008 

NAAQS. However, as discussed in 

Section III.C of this notice, the 

conclusion that a state’s emissions met 

or exceeded this threshold only indicate 

that further analysis is appropriate to 

determine whether any of the upwind 

state’s emissions meet the statutory 

criteria of significantly contributing to 

nonattainment or interfering with 


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46These facilities are located in Indiana (Alcoa 

Allowance Management Inc., Clifty Creek, Gibson, 

IPL—Petersburg Generating Station), Kentucky (East 

Bend Station, Elmer Smith Station, Tennessee 

Valley Authority Paradise Fossil Plant), Ohio 

(Killen Station, Kyger Creek, W. H. Zimmer 

Generating Station), Pennsylvania (Bruce 

Mansfield, Cheswick, Homer City, Keystone, 

Montour), and West Virginia (Harrison Power 

Station, Pleasants Power Station). 

47The CSAPR Update was signed on September 

7, 2016—approximately 8 months before the 

beginning of the 2017 ozone season on May 1. 

48As described in the CSAPR Update, optimized 

operation of combustion controls and SCR typically 

results in NOX emission rates of 0.10 lb/mmBtu or 

below. Combustion controls alone typically result 

in rates down to 0.2 lb/mmBtu but can at times 

achieve results in the range of 0.14 lb/mmBtu. 

Therefore, units equipped with SCR that have 

emission rates above 0.2 lb/mmBtu are likely not 

significantly utilizing their SCR. 

49See Discussion of Short-term Emission Limits, 

available in the docket for this action. 

50 Id. 

maintenance. The EPA’s independent 

step three analysis of the sources named 

in Maryland’s petition will be discussed 

in the following sections. 

2. The EPA’s Step Three Analysis With 

Respect to EGUs Equipped With SCRs 

Named in Delaware and Maryland’s 

Petitions 

The EPA next evaluated whether 

there are further highly cost-effective 

NOX emissions reductions available at 

the specific sources named in the 

petitions, consistent with step three of 

the framework. As discussed in more 

detail in Section III.C of this notice, 

further analysis in step three considers 

cost, technical feasibility, and air 

quality factors in a multifactor test to 

determine whether any emissions 

deemed to contribute to the downwind 

air quality factor must be controlled 

pursuant to the good neighbor 

provision. The EPA notes that we have 

already proposed to determine that 

Delaware’s petitions should be denied 

based on the EPA’s conclusions at steps 

one and two of the four-step framework. 

Nonetheless, the EPA is also evaluating 

the EGUs named in the Delaware 

petitions in this step three analysis 

because we believe it provides another 

independent basis for the proposed 

denial. The EPA is first analyzing this 

step with respect to those units 

identified in the Delaware and 

Maryland petitions equipped with SCR. 

The EPA will separately address units 

that are not equipped with SCR later in 

this section. 

Three of Delaware’s petitions identify 

EGUs (Conemaugh, Harrison, and 

Homer City) that are already equipped 

with SCRs. Similarly, 32 of the 36 EGUs 

identified in Maryland’s petition are 

also equipped with SCRs.46 All of the 

states in which these EGUs are located 

are subject to FIPs promulgated as part 

of the CSAPR Update that require EGUs 

in each state, including the EGUs named 

in the petitions, to participate in the 

CSAPR NOX Ozone Season Group 2 

allowance trading program, subject to 

statewide emissions budgets. In 

establishing the CSAPR Update EGU 

NOX ozone season emissions budgets, 

the agency quantified the emissions 

reductions achievable from all NOX

control strategies that were feasible to 

implement within one year 47 and costeffective at a marginal cost of $1,400 per 

ton of NOX removed. These EGU NOX

control strategies were: Optimizing NOX

removal by existing, operational SCR 

controls; turning on and optimizing 

existing idled SCR controls; installing 

state-of-the-art NOX combustion 

controls; and shifting generation to 

existing units with lower NOX

emissions rates within the same state. 

81 FR 74541. Thus, the CSAPR Update 

emissions budgets already reflect 

emissions reductions associated with 

the turning on and optimizing of 

existing SCR controls at the EGUs that 

are the subject of the petitions, which is 

the same control strategy identified in 

the petitions as being both feasible and 

cost effective. At step three of the fourstep framework, therefore, the EPA is 

proposing to determine that all 

identified highly cost-effective 

emissions reductions have already been 

implemented with respect to these 

sources, and that they therefore neither 

emit nor would emit in violation of the 

good neighbor provision. The EPA 

proposes to determine that this 

conclusion is appropriate with regard to 

both the 2008 ozone NAAQS (addressed 

in both states’ petitions) and the 2015 

ozone NAAQS (addressed in the 

Delaware petitions) because the EPA’s 

determination that the cost-effective 

control strategy is already being 

implemented in the context of the 

allowance trading program. applies 

regardless of which NAAQS is being 

addressed. In other words, because the 

strategy of optimizing existing controls 

has already been implemented for these 

sources via the CSAPR Update, there are 

no additional control strategies 

identified to further reduce NOX

emissions at these sources to address 

the more stringent standard. 

Both Delaware and Maryland contend 

that, based on data available at the time 

the petitions were filed, the sources are 

operating their SCR NOX emissions 

controls at low efficiency levels, or are 

not operating them at all at certain 

times. Delaware and Maryland therefore 

ask the EPA to impose unit-specific 30- 

day emissions rate limits or other 

requirements to ensure the controls will 

be continually operated. The EPA notes 

that the petitions from both states were 

submitted before the implementation of 

the emissions budgets promulgated in 

the CSAPR Update, and the information 

in the petitions therefore does not 

represent the most recent data regarding 

these EGUs’ operations. The EPA 

analyzed ozone-season emissions rates 

from all coal-fired units in the 

contiguous U.S. equipped with SCR and 

found that, based on 2017 emissions 

data reflecting implementation of the 

CSAPR Update, 260 of 274 units had 

ozone-season emissions rates below 0.2 

lb/mmBtu, indicating they were likely 

operating their post-combustion 

controls throughout the ozone season, 

including every unit with SCR named in 

Delaware’s and Maryland’s petitions.48

Five of the 14 units with emissions rates 

above 0.2 lb/mmBtu are not located in 

the CSAPR Update region.49

Consequently, the EPA finds that the 

named units are consistently operating 

their SCRs throughout the season. 

To the extent the petitions have 

alleged that short-term limits are 

necessary to prevent units from turning 

controls off intermittently on days with 

high ozone, the EPA examined the 

hourly NOX emissions data reported to 

the EPA and did not observe many 

instances of units selectively turning 

down or turning off their emissions 

control equipment during hours with 

high generation.50 SCR-controlled units 

generally operated with lower emissions 

rates on high generation hours, 

suggesting SCRs generally were in better 

operating condition—not worse, let 

alone idling—on those days/hours. In 

other words, the EPA compared NOX

rates on hours with high demand and 

compared them with seasonal average 

NOX rates and found very little 

difference. The data do not support the 

notion that units are reducing SCR 

operation on high demand days to 

harvest additional power that would 

otherwise be exhausted on control 

operation. Moreover, the auxiliary 

power used for the control operation is 

small—typically less than one percent 

of the generation at the facility. The 

EPA, therefore, concludes that increases 

in total emissions on days with high 

generation are a result of additional 

units coming online and units 

increasing hourly utilization, rather 

than units decreasing the functioning of 

control equipment. The petitions have 

not presented information that would 

contradict this conclusion. 

Moreover, to the extent that the 

petitions contend that the allowance 


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51See 81 FR 74521. For further information on 

national trends in ozone levels, see the EPA ozone 

trends website, available at https://www.epa.gov/ 

air-trends/ozone-trends. 

52See EGU NOX Mitigation Strategies Final Rule 

TSD (docket ID EPA–HQ–OAR–2015–0500–0554, 

available at http://www.regulations.gov). 

53Since the EPA does not agree, and Maryland 

has not demonstrated in the first instance, that the 

operation of SNCR at these units is cost effective, 

the EPA need not address Maryland’s claim that 

short-term emission limits may be appropriate. In 

any event, the EPA notes that the same concerns 

with relying on the lowest historical emission rate 

for purposes of determining what is achievable for 

SCRs, discussed in Section IV.B.2, would also apply 

to Maryland’s contentions with respect to SNCRs. 

54See 2015, 2016, and 2017 Ozone-Season NOX

rates (lbs/mmBtu) for 41 units named in the 

petitions, available in the docket for this action. 

trading program is an insufficient means 

of implementing the emissions 

reductions associated with the 

optimized operation of the SCRs at these 

units, seasonal NOX requirements have 

demonstrated success at reducing peak 

ozone concentrations. For example, over 

the past decade, there has been 

significant improvement in ozone across 

the eastern U.S., in part due to 

season-long allowance trading 

programs.51 As a result, areas are now 

attaining the 1997 ozone NAAQS. 

Further, the EPA notes that the standard 

is a 3-year average value of three 

individual seasonal values. Thus, a 

seasonal program is harmonious with 

the form of the standard. 

3. The EPA’s Step Three Analysis With 

Respect to the Named EGUs Equipped 

With SNCR 

Maryland also alleges that two 

facilities operating SNCR postcombustion controls (SNCR)—Cambria 

Cogen in Pennsylvania and Grant Town 

Power Plant in West Virginia—emit or 

would emit in violation of the good 

neighbor provision and asks that the 

agency impose emissions limits or other 

requirements to ensure that the facilities 

operate their SNCR during the ozone 

season. 

As discussed earlier in Section IV.C.2 

of this notice, the EPA evaluated control 

strategies in the CSAPR Update that 

were considered feasible to implement 

by the 2017 ozone season and 

determined that EGU control strategies 

available at a marginal cost of $1,400 

per ton of NOX reduced were cost 

effective. In evaluating and selecting 

this cost threshold, the EPA also 

examined other control strategies 

available at different cost thresholds, 

including turning on existing idled 

SNCR, which is the remedy proposed by 

Maryland in its petition. The EPA 

identified a marginal cost of $3,400 per 

ton as the level of uniform control 

stringency that represents turning on 

and fully operating idled SNCR 

controls.52 However, the CSAPR Update 

finalized emissions budgets using 

$1,400 per ton control stringency, 

finding within step 3 of the transport 

framework that this level of stringency 

represented the control level at which 

incremental EGU NOX reductions and 

corresponding downwind ozone air 

quality improvements were maximized 

with respect to marginal cost. In finding 

that use of the $1,400 control cost level 

was appropriate for the 2008 ozone 

NAAQS, the EPA established that the 

more stringent emissions budget level 

reflecting $3,400 per ton (representing 

turning on idled SNCR controls) yielded 

fewer additional emissions reductions 

and fewer air quality improvements per 

additional dollar of control costs. In 

other words, based on the information, 

assumptions, and analysis in the CSAPR 

Update, establishing emissions budgets 

at $3,400 per ton, and therefore 

developing budgets based on operation 

of idled SNCR controls, was not 

determined to be cost effective for 

addressing good neighbor provision 

obligations for the 2008 ozone NAAQS. 

81 FR 74550. Maryland has not 

provided any contradictory information 

demonstrating that fully operating 

SNCR is a cost-effective control for these 

units considering the marginal cost of 

implementation, the anticipated 

emissions reduction, the air quality 

benefits, and the increasing likelihood 

that other sectors might have more 

reductions as the cost threshold 

increases.53 The EPA is proposing to 

deny Maryland’s petition with respect 

to these sources based on its conclusion 

that fully operating with SNCR is not a 

cost-effective NOX emissions reduction 

strategy with respect to addressing 

transport obligations for the 2008 ozone 

NAAQS for these sources, and, 

therefore, that these sources do not emit 

and would not emit in violation of the 

good neighbor provision with respect to 

the 2008 ozone NAAQS. 

While the EPA did not determine that 

fully operating SNCR across the region 

was cost effective with respect to 

addressing transport obligations for the 

2008 ozone NAAQS, individual sources 

may nonetheless choose how to comply 

with the CSAPR ozone season NOX

allowance trading program. The 

operation of existing SNCR controls is 

one method to achieve emissions 

reductions needed to comply with the 

requirements of the trading program. 81 

FR 74561. For instance, during the 2017 

ozone season, in part as the result of 

economic incentives under the CSAPR 

Update, the two Cambria units with 

SNCR appear to have operated their 

controls, resulting in average NOX

emissions rates of 0.15 and 0.16 lbs/ 

mmBtu, respectively (a drop from the 

2016 rates of 0.23 and 0.24 lbs/mmBtu, 

respectively).54

4. The EPA’s Step Three Analysis With 

Respect to Brunner Island 

The remaining facility addressed in 

one of Delaware’s petitions is the 

Brunner Island facility, which currently 

has neither SCR nor SNCR installed. As 

noted earlier, the EPA has already 

proposed to determine that Delaware’s 

petitions should be denied based on the 

EPA’s conclusions at steps one and two 

of the four-step framework. Nonetheless, 

the EPA has evaluated Brunner Island in 

this step three analysis because we 

believe it provides another independent 

basis for the proposed denial. 

With respect to the question of 

whether there are feasible and highly 

cost-effective NOX emissions reductions 

available at Brunner Island, the facility 

primarily burned natural gas with a low 

NOX emissions 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, and as described in 

more detail in the following paragraphs, 

the EPA at this time finds that no 

additional feasible and highly costeffective NOX emissions reductions 

available at Brunner Island have been 

identified. The EPA, therefore, has no 

basis to determine, consistent with the 

standard of review outlined in Section 

IV.A, that Brunner Island emits or 

would emit in violation of the good 

neighbor provision with respect to the 

2008 or 2015 ozone NAAQS. 

Delaware’s CAA section 126(b) 

petition first proposes that the operation 

of natural gas is an available highly costeffective emissions reduction measure 

that could be implemented at Brunner 

Island. 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) 

and 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

emissions rate declined from 0.370 lbs/ 

mmBtu in 2016 to 0.090 lbs/mmBtu in 

2017. Thus, Brunner Island has already 

implemented the emissions reductions 

consistent with what Delaware asserted 

would qualify as a cost-effective strategy 

for reducing NOX emissions. 

Accordingly, the EPA has determined 

that Delaware’s CAA section 126(b) 


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55This estimated emissions difference was 

calculated as the difference between 2017 reported 

NOX emissions of 877 tons and a counterfactual 

2017 NOX emissions estimate of 3,591 tons created 

using 2017 operations (i.e., heat input of 19,406,872 

mmBtu) multiplied by the 2016 NOX emission rate 

of 0.37 lb/mmBtu reflecting coal-fired generation. 

These data are publicly available at https://

www.epa.gov/ampd. 

56Henry Hub is a significant distribution hub 

located on the natural gas pipeline system located 

in Louisiana. Due to the significant volume of 

trades at this location, it is seen as the primary 

benchmark for the North American natural gas 

market. These data are publicly available at https:// 

www.eia.gov/dnav/ng/hist/rngwhhdA.htm. 

57 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. Projected 

delivered natural gas prices for the electric power 

sector in the Middle Atlantic region, where Brunner 

Island is located, ranged between $3.56 in 2018 and 

$4.08/mmBtu in 2023. The projected delivered coal 

prices for the electric power sector in the Middle 

Atlantic region remain relatively constant, ranging 

from $2.51 to $2.56/mmBtu. These data are publicly 

available at 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.3-3AEO2018.1-2&map=ref2018- 

d121317a.4-3-AEO2018.1-2&sourcekey=0. 

58AEO short-term energy outlook available at 

https://www.eia.gov/outlooks/steo/report/

natgas.php. 

59The EPA also notes that a proposed settlement 

agreement between Sierra Club and Talen Energy 

may further ensure that Brunner Island will operate 

by burning gas in the ozone season in 2023 and 

future years. Under the settlement, Brunner Island 

agrees to operate only on natural gas during the 

ozone season (May 1-September 30) starting on 

January 1, 2023, (subjected to limited exceptions) 

and cease coal operations after December 31, 2028. 

See a joint statement regarding this agreement, 

available at http://talenenergy.investorroom.com/ 

2018-02-14-Joint-Statement-Talen-Energy-and-theSierra-Club-Reach-Agreement-on-the-FutureOperation-of-the-Brunner-Island-Power-Plant. As of 

the date of this final action, that settlement 

agreement has not yet been finalized. 

60From 8.4 billion mmBtu to 9.6 billion mmBtu. 

See EPA’s Clean Air Markets Division data 

available at https://ampd.epa.gov/ampd/. 

61 In this action, note however the EPA is not 

proposing to determine whether the upwind states 

identified in any of the CAA section 126(b) 

petitions have fully addressed their obligation to 

prohibit emissions activity that contributes 

significantly to nonattainment in or interference 

with maintenance by any other state with respect 

to the 2008 and 2015 ozone NAAQS. 

petition does not demonstrate that, at 

this current level of emissions, Brunner 

Island emits in violation of the good 

neighbor provision. 

Similarly, the EPA concludes that 

Delaware’s petition does not 

demonstrate that Brunner Island would 

emit in violation of the good neighbor 

provision. The EPA believes that 

Brunner Island will continue to 

primarily use natural gas as fuel during 

future ozone seasons for several 

economic 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 ozoneseason 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—either 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 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 

2016.55 This reduction in NOX

emissions that is attributable to 

primarily burning natural gas has an 

economic value in the CSAPR 

allowance trading market. 

Second, there are continuing fuelmarket based economic incentives 

suggesting that Brunner Island will 

continue to 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 Henry Hub natural gas 

spot prices ranged from $2.52/mmBtu to 

$4.37/mmBtu (i.e., between 2009 and 

2016).56 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 price range 

exhibited from 2009 to 2016 due both to 

supply and distribution pipeline buildout. For example, the Energy 

Information Administration’s (EIA) 2018 

Annual Energy Outlook (AEO) natural 

gas price projections for the Henry Hub 

spot price range from $3.06/mmBtu in 

2018 to $3.83/mmBtu in 2023.57

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.58 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 2023.59

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.60 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 

capacity increased six percent while 

average capacity factor increased from 

23 percent to 25 percent, which reflects 

an eight percent increase in utilization. 

Considering the projected continued 

broader downward trends in NOX

emissions resulting in improved air 

quality in Delaware, the EPA anticipates 

that Brunner Island will likely continue 

to primarily burn natural gas during the 

ozone season as air quality in Delaware 

continues to improve. Accordingly, the 

EPA has no basis to conclude that the 

facility would emit in violation of the 

good neighbor provision with respect to 

either the 2008 or 2015 ozone NAAQS. 

V. Conclusion 

Based on the information discussed in 

this notice, the EPA is proposing to 

deny all four of Delaware’s CAA section 

126(b) petitions, as well as Maryland’s 

CAA section 126(b) petition, on two 

bases.61 First, the EPA has described a 

number of technical deficiencies with 

these petitions and, therefore, proposes 

to deny them on the basis that Delaware 

and Maryland have not met their burden 

to demonstrate that the named sources 

emit or would emit in violation of the 

good neighbor provision with respect to 

the 2008 ozone NAAQS (in the case of 

both Delaware and Maryland) or the 

2015 ozone NAAQS (with respect to 


amozie on DSK3GDR082PROD with NOTICES1
26682 Federal Register / Vol. 83, No. 111 / Friday, June 8, 2018 / Notices 

62See, e.g., Texas v. EPA, 2011 U.S. App. LEXIS 

5654 (5th Cir. 2011) (finding SIP call to 13 states 

to be nationally applicable and thus transferring the 

case to the U.S. Court of Appeals for the D.C. 

Circuit in accordance with CAA section 307(b)(1)). 

Delaware’s petitions). Second, the EPA 

proposes to determine, based on its own 

analysis, that all of the petitions fail at 

one or more steps of the four-step 

framework. For Delaware under step 

one, the EPA has determined there are 

no air quality problems in Delaware in 

the relevant years for both the 2008 and 

2015 ozone NAAQS. The EPA has 

further evaluated the named sources 

under step three, finding: (1) That the 

EPA has already implemented the 

control strategy identified in the 

petitions as cost-effective for three 

facilities (Conemaugh, Harrison, and 

Homer City) in the CSAPR Update, and 

(2) that Brunner Island is already 

operating and is expected to continue 

operating with natural gas such that the 

facility has no additional cost-effective 

and feasible controls available. The EPA 

is also proposing to deny the Maryland 

petition because: (1) For those facilities 

with SCR, the EPA has already 

implemented the control strategy 

identified in the petitions as costeffective, and (2) for the facilities with 

SNCR, the EPA has already determined 

that operation of SNCR is not costeffective with respect to addressing 

transport obligations for the 2008 ozone 

NAAQS and therefore is not required by 

the good neighbor provision with 

respect to this NAAQS. The EPA 

requests comment on its proposed 

denial of Maryland’s and Delaware’s 

CAA section 126(b) petitions, including 

the bases for the decision described 

herein. 

VI. Determinations Under Section 

307(b)(1) 

Section 307(b)(1) of the CAA indicates 

which Federal Courts of Appeal have 

venue for petitions of review of final 

actions by EPA. This section provides, 

in part, that petitions for review must be 

filed in the Court of Appeals for the 

District of Columbia Circuit if (i) the 

agency action consists of ‘‘nationally 

applicable regulations promulgated, or 

final action taken, by the 

Administrator,’’ or (ii) such action is 

locally or regionally applicable, if ‘‘such 

action is based on a determination of 

nationwide scope or effect and if in 

taking such action the Administrator 

finds and publishes that such action is 

based on such a determination.’’ 

The EPA proposes to find that any 

final action regarding these pending 

section 126(b) petitions is ‘‘nationally 

applicable’’ or, in the alternative, is 

based on a determination of 

‘‘nationwide scope and effect’’ within 

the meaning of section 307(b)(1). 

Through this rulemaking action, the 

EPA interprets sections 110 and 126 of 

the CAA, statutory provisions which 

apply to all states and territories in the 

United States. In addition, the proposed 

action addresses emissions impacts and 

sources located in seven States, which 

are located in multiple EPA Regions and 

federal circuits. The proposed action is 

also based on a common core of factual 

findings and analyses concerning the 

transport of pollutants between the 

different states. Furthermore, the EPA 

intends this interpretation and approach 

to be consistently implemented 

nationwide with respect to section 

126(b) petitions for the 2008 and 2015 

ozone NAAQS. Courts have found 

similar actions to be nationally 

applicable.62 Additionally, in the report 

on the 1977 Amendments that revised 

section 307(b)(1) of the CAA, Congress 

noted that the Administrator’s 

determination that an action is of 

‘‘nationwide scope or effect’’ would be 

appropriate for any action that has a 

scope or effect beyond a single judicial 

circuit. H.R. Rep. No. 95–294 at 323, 

324, reprinted in 1977 U.S.C.C.A.N. 

1402–03. For these reasons, the 

Administrator proposes to determine 

that any final action related to this 

proposal is nationally applicable or, in 

the alternative, is based on a 

determination of nationwide scope and 

effect for purposes of section 307(b)(1). 

Thus, the EPA proposes that pursuant 

to section 307(b)(1) any petitions for 

review of any final actions regarding the 

rulemaking would be filed in the Court 

of Appeals for the District of Columbia 

Circuit within 60 days from the date any 

final action is published in the Federal 

Register. 

VII. Statutory Authority 

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

Dated: May 31, 2018. 

E. Scott Pruitt, 

Administrator. 

[FR Doc. 2018–12374 Filed 6–7–18; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[EPA–HQ–OAR–2018–0295; FRL–9979–19– 

OAR] 

RIN 2060–AT40, 2060–AT39, 2060–AT38, 

2060–AT37, 2060–AT36 

Response to Clean Air Act Section 

126(b) Petitions From Delaware and 

Maryland 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of public hearing. 

SUMMARY: The Environmental Protection 

Agency (EPA) is announcing that a 

public hearing will be held on the EPA’s 

proposed response to petitions from 

Delaware and Maryland pursuant to 

section 126 of the Clean Air Act (CAA 

or Act). The EPA is proposing to deny 

four CAA section 126(b) petitions 

submitted by the state of Delaware and 

one CAA section 126(b) petition 

submitted by the state of Maryland 

between July and November 2016. The 

hearing will be held on June 22, 2018, 

in Washington, DC. 

DATES: The public hearing will be held 

on June 22, 2018, in Washington, DC. 

Please refer to SUPPLEMENTARY

INFORMATION for additional information 

on the public hearing. 

ADDRESSES: 

Public Hearing. The June 22, 2018, 

public hearing will be held at the EPA, 

William Jefferson Clinton East Building, 

Room 1153, 1201 Constitution Avenue 

NW, Washington, DC 20004. 

Identification is required. If your 

driver’s license is issued by America 

Samoa, you must present an additional 

form of identification to enter (see 

SUPPLEMENTARY INFORMATION for 

additional information on this location). 

Docket: All documents in the docket 

are listed in the http://

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., Confidential 

Business Information or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http://

www.regulations.gov or in hard copy at 

EPA Docket Center Reading Room, 

William Jefferson Clinton West 

Building, 1301 Constitution Avenue 

NW, Washington, DC 20004. The Public 

Reading Room is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The phone 


amozie on DSK3GDR082PROD with NOTICES1