33730 Federal Register / Vol. 83, No. 137 / Tuesday, July 17, 2018 / Rules and Regulations 

1All other infrastructure SIP elements for 

Kentucky for the 2008 8-hour ozone NAAQS were 

addressed in separate rulemakings. See 78 FR 14681 

(March 7, 2013) and 79 FR 65143 (November 3, 

2014). 2CSAPR Update, 81 FR at 74507–08. 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2018–0142; FRL–9980– 

57—Region 4] 

Air Plan Approval; Kentucky; 2008 

Ozone NAAQS Interstate Transport SIP 

Requirements 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving a revision to 

Kentucky’s State Implementation Plan 

(SIP) pertaining to the ‘‘good neighbor’’ 

provision of the Clean Air Act (CAA or 

Act) for the 2008 8-hour ozone National 

Ambient Air Quality Standard 

(NAAQS). Kentucky submitted a draft 

version of this SIP revision for parallel 

processing by EPA on February 28, 

2018, and submitted a final version that 

contained no substantive changes on 

May 10, 2018. The good neighbor 

provision requires each state’s 

implementation plan to address the 

interstate transport of air pollution in 

amounts that contribute significantly to 

nonattainment, or interfere with 

maintenance, of a NAAQS in any other 

state. In this action, EPA is approving 

Kentucky’s submission demonstrating 

that no additional emission reductions 

are necessary to address the good 

neighbor provision for the 2008 ozone 

NAAQS beyond those required by the 

Cross-State Air Pollution Rule Update 

(CSAPR Update) federal implementation 

plan (FIP). Accordingly, EPA is 

approving Kentucky’s submission 

because it partially addresses the 

requirements of the good neighbor 

provision for the 2008 ozone NAAQS, 

and it resolves any obligation remaining 

under the good neighbor provision after 

promulgation of the CSAPR Update FIP. 

The approval of Kentucky’s SIP 

submission and the CSAPR Update FIP, 

together, fully address the requirements 

of the good neighbor provision for the 

2008 ozone NAAQS for Kentucky. EPA 

is approving this action because it is 

consistent with the CAA. 

DATES: This rule is effective August 16, 

2018. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R04–OAR– 

2018–0142. All documents in the docket 

are listed on the www.regulations.gov 

website. Although listed in the index, 

some information may not be publicly 

available, i.e., Confidential Business 

Information or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

www.regulations.gov or in hard copy at 

the Air Regulatory Management Section, 

Air Planning and Implementation 

Branch, Air, Pesticides and Toxics 

Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW, Atlanta, 

Georgia 30303–8960. EPA requests that 

if at all possible, you contact the person 

listed in the FOR FURTHER INFORMATION

CONTACT section to schedule your 

inspection. The Regional Office’s 

official hours of business are Monday 

through Friday 8:30 a.m. to 4:30 p.m., 

excluding Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Ashten Bailey, Air Regulatory 

Management Section, Air Planning and 

Implementation Branch, Air, Pesticides 

and Toxics Management Division, 

Region 4, U.S. Environmental Protection 

Agency, 61 Forsyth Street SW, Atlanta, 

Georgia 30303–8960. Ms. Bailey can be 

reached by telephone at (404) 562–9164 

or via electronic mail at bailey.ashten@

epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On March 27, 2008 (73 FR 16436), 

EPA promulgated an ozone NAAQS that 

revised the levels of the primary and 

secondary 8-hour ozone standards from 

0.08 parts per million (ppm) to 0.075 

ppm or 75 parts per billion (ppb). 

Pursuant to CAA section 110(a)(1), 

within three years after promulgation of 

a new or revised NAAQS (or shorter, if 

EPA prescribes), states must submit SIPs 

that meet the applicable requirements of 

section 110(a)(2). EPA has historically 

referred to these SIP submissions made 

for the purpose of satisfying the 

requirements of sections 110(a)(1) and 

110(a)(2) as ‘‘infrastructure SIP’’ 

submissions. One of the structural 

requirements of section 110(a)(2) is 

section 110(a)(2)(D)(i), also known as 

the ‘‘good neighbor’’ provision, which 

generally requires SIPs to contain 

adequate provisions to prohibit in-state 

emissions activities from having certain 

adverse air quality effects on downwind 

states due to interstate transport of air 

pollution. There are four sub-elements, 

or ‘‘prongs,’’ within section 

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

110(a)(2)(D)(i)(I), addressing two of 

these four prongs, requires SIPs to 

include provisions prohibiting any 

source or other type of emissions 

activity in one state from emitting any 

air pollutant in amounts that will 

contribute significantly to 

nonattainment, or interfere with 

maintenance, of the NAAQS in another 

state. The two provisions of this section 

are referred to as prong 1 (significant 

contribution to nonattainment) and 

prong 2 (interference with 

maintenance). This action addresses 

only prongs 1 and 2 of section 

110(a)(2)(D)(i).1

On July 17, 2012, Kentucky submitted 

a SIP submission to EPA, addressing a 

number of the CAA requirements for the 

2008 8-hour ozone NAAQS 

infrastructure SIPs. With respect to the 

interstate transport requirements of 

110(a)(2)(D)(i)(I), EPA disapproved the 

submission (78 FR 14681 (March 7, 

2013), effective April 8, 2013) because 

the SIP had relied on Kentucky’s 

participation in the Clean Air Interstate 

Rule (CAIR), which did not address the 

2008 ozone NAAQS and had been 

remanded by the D.C. Circuit. In 

October 2016, EPA promulgated the 

CSAPR Update to address the 

requirements of CAA section 

110(a)(2)(D)(i)(I) concerning interstate 

transport of air pollution for the 2008 

ozone NAAQS. See 81 FR 74504 

(October 26, 2016). In the CSAPR 

Update rulemaking, EPA determined 

that air pollution transported from 

Kentucky would unlawfully affect other 

states’ ability to attain or maintain the 

2008 8-hour ozone NAAQS. EPA’s 

analysis projected that in 2017, 

Kentucky would be linked to downwind 

nonattainment or maintenance problems 

at four monitors, or receptors. 

Accordingly, EPA established an ozone 

season nitrogen oxides (NOX) budget for 

Kentucky’s electricity generating units 

(EGUs) and promulgated a FIP requiring 

affected EGUs to participate in an 

allowance trading program to 

implement the budget.2 At the time it 

finalized the CSAPR Update, EPA 

determined that, after implementation 

of the rule, many downwind air quality 

problems would persist in 2017, 

including at two of the four receptors to 

which Kentucky was linked. EPA 

therefore found that the CSAPR Update 

FIPs for Kentucky and 20 other states 

may not fully address the good neighbor 

requirements as to the 2008 8-hour 

ozone NAAQS. EPA explained that 

further analysis of air quality in a 

potential future compliance year and 

potential control strategies would be 

needed to determine whether any 


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Federal Register / Vol. 83, No. 137 / Tuesday, July 17, 2018 / Rules and Regulations 33731 

3Memorandum, Stephen D. Page, Supplemental 

Information on the Interstate Transport State 

Implementation Plan Submissions for the 2008 

Ozone National Ambient Air Quality Standards 

under Clean Air Action Section 110(a)(2)(D)(i)(I). 

4Both the draft and final SIP revisions are 

provided in the docket for this action. 

5EPA notes that to the extent there are any 

conflicts between the rationale provided in the 

NPRM for the proposed approval and the rationale 

provided in this action, statements made in this 

document should be treated as the controlling basis 

for EPA’s final action approving Kentucky’s SIP 

submission. 

further emission reductions from these 

states would be necessary to fully 

address the good neighbor obligations. 

On October 27, 2017, EPA issued a 

memorandum (October 2017 Transport 

Memo) 3 that provided technical 

information and related analyses to 

assist states with developing SIPs to 

address any remaining section 

110(a)(2)(D)(i)(I) requirements for the 

2008 8-hour ozone NAAQS. EPA’s 

updated modeling data, released with 

the October 2017 Transport Memo, 

indicate that for the 2023 future base 

case emissions scenario there are no 

monitoring sites, outside of California, 

that are projected to have nonattainment 

or maintenance problems with respect 

to the 2008 ozone NAAQS in 2023. 

II. This Action 

On February 28, 2018, Kentucky 

submitted a draft SIP revision to EPA for 

parallel processing that reviewed air 

quality modeling and data files that EPA 

disseminated in the October 2017 

Transport Memo. The draft SIP revision 

indicated that the air quality problems 

at monitors to which Kentucky 

remained linked after implementation of 

the CSAPR Update would be resolved 

by 2023. Kentucky’s draft SIP 

submission agreed with the October 

2017 Transport Memo’s preliminary 

projections and provided information 

intended to demonstrate that reliance on 

the modeling to evaluate its remaining 

good neighbor obligation is appropriate. 

The draft submission also contained air 

quality modeling conducted by Alpine 

Geophysics, LLC (Alpine) that 

concluded that none of the 

nonattainment and maintenance 

receptors identified in the CSAPR 

Update are predicted to be in 

nonattainment or have issues with 

maintenance of the 2008 ozone NAAQS 

in 2023. Additionally, Kentucky cited 

information related to emissions 

trends—such as reductions in ozone 

precursor emissions and controls on 

Kentucky sources—as further evidence 

that, after implementation of all on-thebooks measures, including those 

promulgated in the CSAPR Update FIPs, 

emissions from the Commonwealth will 

no longer contribute significantly to 

nonattainment or interfere with 

maintenance of the 2008 8-hour ozone 

NAAQS in any other state. 

In a notice of proposed rulemaking 

(NPRM) published on April 18, 2018 (83 

FR 17123), EPA proposed to approve 

Kentucky’s February 28, 2018 draft SIP 

submission. In the NPRM, EPA 

explained that it was basing its proposal 

to approve Kentucky’s February 28, 

2018 draft SIP submission on a finding 

that 2023 is a reasonable analytic year 

for evaluating ozone transport problems 

with respect to the 2008 ozone NAAQS 

and that interstate ozone transport air 

quality modeling projections for 2023 

indicate that Kentucky is not expected 

to significantly contribute to 

nonattainment or interfere with 

maintenance of the 2008 ozone NAAQS 

in downwind states. As described in 

more detail in the NPRM, EPA based its 

evaluation on a four-step analytic 

framework by: 

(1) Identifying downwind air quality 

problems relative to the 2008 ozone 

NAAQS considering air quality 

modeling projections to a future 

compliance year; 

(2) Determining which upwind states 

are ‘‘linked’’ to these identified 

downwind air quality problems and 

thereby warrant further analysis to 

determine whether their emissions 

violate the good neighbor provision; 

(3) For states linked to downwind air 

quality problems, identifying upwind 

emissions on a statewide basis that 

significantly contribute to 

nonattainment or interfere with 

maintenance of a standard; and 

(4) For states that are found to have 

emissions that significantly contribute 

to nonattainment or interfere with 

maintenance of the NAAQS downwind, 

implementing the necessary emission 

reductions within the state. 

EPA explained that its selection of 

2023 was a reasonable analytic year for 

evaluating downwind air quality at step 

one of the framework, supported by an 

assessment of attainment dates for the 

2008 ozone NAAQS and feasibility of 

implementing potential control 

strategies at both EGUs and non-EGUs to 

reduce NOX in CSAPR Update states, 

including Kentucky. First, EPA 

considered the upcoming 2021 and 2027 

attainment dates for the 2008 ozone 

NAAQS, consistent with the holding of 

the U.S. Court of Appeals for the District 

of Columbia Circuit (D.C. Circuit) in 

North Carolina v. EPA, 531 F.3d 896, 

911–12 (2008). Next, EPA assessed the 

amount of time necessary to implement 

new NOX controls at EGUs and nonEGUs across the CSAPR Update region, 

finding that, fleetwide, sources would 

require four years to implement 

additional, substantial NOX emission 

reductions. EPA therefore proposed to 

find that 2023 is an appropriate future 

analytic year because it is the first ozone 

season for which significant new postcombustion controls to reduce NOX

could be feasibly installed across the 

CSAPR Update region, and thus 

represents the timeframe that is as 

expeditious as practicable for upwind 

states to implement additional emission 

reductions. EPA then described its 

modeling analysis at step one of the 

four-step framework for the 2023 

analytic year, which indicates that there 

are no expected nonattainment or 

maintenance receptors for the 2008 

ozone NAAQS in the eastern U.S. in this 

future year. Please refer to the April 18, 

2018 NPRM for additional information 

on the basis for the proposed approval. 

Based on these proposed findings and 

the information provided in Kentucky’s 

February 28, 2018 SIP submittal, EPA 

proposed to determine that Kentucky’s 

draft SIP submission demonstrates that 

emission activities from the 

Commonwealth will not contribute 

significantly to nonattainment or 

interfere with maintenance of the 2008 

8-hour ozone NAAQS in any other state 

after implementation of all on-the-books 

measures, including the CSAPR Update. 

Comments on the NPRM were due on or 

before May 18, 2018. EPA received 

adverse comments on the proposed 

rulemaking, which are discussed below. 

Because Kentucky submitted the draft 

SIP revision for parallel processing, 

EPA’s April 18, 2018 proposed 

rulemaking was contingent upon 

Kentucky providing a final SIP revision 

that was substantively the same as the 

draft SIP revision. See 83 FR 17123. 

Kentucky submitted the final version of 

its SIP revision on May 10, 2018.4 The 

May 10, 2018 SIP submission had no 

substantive changes from the February 

28, 2018 draft SIP submission. 

After considering the comments 

received on the NPRM, for the reasons 

described in the NPRM and in this 

action,5 EPA is now taking final action 

to approve Kentucky’s May 10, 2018, 

final SIP submission and find that 

Kentucky is not required to make any 

further reductions, beyond those 

required by the CSAPR Update, to 

address its statutory obligation under 

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

2008 ozone NAAQS. EPA’s final 

approval of Kentucky’s submission 

means that Kentucky’s obligations 

under 110(a)(2)(D)(i)(I) are fully 

addressed through the combination of 

the 2016 CSAPR Update FIP and the 

2018 SIP demonstration showing that no 


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further reductions are necessary. As a 

result, EPA is also amending the 

regulatory text at 40 CFR 52.940(b)(2) to 

reflect that the CSAPR Update 

represents a full remedy with respect to 

Kentucky’s transport obligation for the 

2008 ozone NAAQS. 

III. Response to Comments 

The Regional Administrator signed 

the proposed rule on April 9, 2018, and 

on April 12, 2018, EPA made a 

prepublication version of the proposal 

available on its website. The 30-day 

public comment period on the proposed 

rulemaking began on April 18, 2018, the 

day of publication of the proposal in the 

Federal Register, and closed on May 18, 

2018. EPA received 15 comments on the 

proposed action, 10 of which are 

relevant to the proposal. The relevant 

comments were submitted by the 

Connecticut Department of Energy and 

Environmental Protection, Delaware 

Department of Natural Resources & 

Environmental Control, Maryland 

Department of the Environment, 

Midwest Ozone Group, New Jersey 

Department of Environmental 

Protection, New York State Department 

of Environmental Conservation 

(NYDEC), New York State Office of the 

Attorney General, Sierra Club and 

Chesapeake Bay Foundation, and Utility 

Air Regulatory Group. The remaining 

comments were outside the scope of the 

proposed action. This section contains 

summaries of the relevant comments 

and EPA’s responses to those comments. 

Comment: One commenter states that 

existing measures, including volatile 

organic compounds (VOC) and NOX

requirements for EGUs, industrial 

sources, and mobile sources within 

Kentucky, have brought Kentucky into 

attainment of both the 2008 and 2015 

ozone NAAQS. The commenter states 

that the issue being addressed in the 

proposed SIP is whether these existing 

measures also satisfy Kentucky’s ‘‘good 

neighbor’’ requirements for the 2008 

ozone NAAQS. The commenter states 

that 2023 is the appropriate analytic 

year for evaluation of ozone transport 

issues related to the 2008 ozone 

NAAQS. The commenter points to the 

October 2017 Transport Memo and its 

modeling results as demonstrating that 

there is no need to conduct any further 

analysis of EPA’s four-step transport 

framework. The commenter states its 

support of both EPA and Alpine 

modeling showing no downwind air 

quality problems related to the 2008 

ozone NAAQS and cites a report 

prepared for the commenter by Alpine 

indicating that all sites identified in the 

final CSAPR Update will have design 

values below the 2008 ozone NAAQS by 

2023 and that therefore no states are 

required to estimate their contributions 

to these monitors. The commenter states 

in conclusion that recent modeling 

performed by EPA as well as by Alpine 

indicate that implementation of the 

CSAPR Update, in addition to other onthe-books controls, are all that are 

needed to satisfy requirements related to 

the 2008 ozone NAAQS, and indicates 

commenter’s support for Kentucky’s 

request that EPA approve its ‘‘good 

neighbor’’ SIP. 

An additional commenter expresses 

support for EPA to finalize approval of 

Kentucky’s section 110(a)(2)(D)(i)(I) SIP 

submission and further states its 

support for Kentucky’s reliance on 

EPA’s modeling analysis. The 

commenter states that the EPA analysis 

released in the October 2017 Transport 

Memo was consistent with the four-step 

framework, and that it was not 

necessary to complete all four steps 

because no receptor in the eastern 

United States is expected to have 

problems attaining or maintaining the 

2008 ozone NAAQS in 2023. The 

commenter states that 2023 is the 

modeling year used in EPA’s modeling 

because that is the earliest year by 

which it is feasible to install controls 

across the CSAPR Update region and 

states its support of EPA’s decision to 

evaluate the feasibility of installing 

controls on a regional basis rather than 

on a state-by-state or unit-by-unit basis. 

The commenter further states that EPA 

properly considered upcoming 

attainment dates and the need to 

consider future effects of local, state, 

and federal emission reduction 

requirements in order to avoid 

unlawfully mandating over-control. The 

commenter concludes that EPA’s 

modeling analysis is reasonable and that 

EPA’s approval is proper even without 

additional information from Kentucky. 

In support of its assertion that EPA 

should finalize its approval, the 

commenter notes that Kentucky also 

provides state-specific information to 

further demonstrate that reliance on 

EPA’s modeling is appropriate in the 

context of this SIP and modeling 

performed by Alpine that is consistent 

with EPA’s results. 

Response: EPA agrees with the 

commenters’ assertions as to the 

appropriateness of 2023 as an analytic 

year and other specifics of EPA’s 

analysis as documented in the October 

2017 Transport Memo. EPA 

acknowledges receipt of the Alpine 

report and recognizes that it 

demonstrates similar 2023 design values 

to those projected by EPA’s modeling. 

Comment: One commenter states that, 

although it appreciates the emissions 

reductions made thus far by Kentucky, 

EPA must disapprove Kentucky’s 

proposed SIP as it does not fulfill the 

CAA’s good neighbor obligations. 

Another commenter states that, while 

New York will continue to control air 

pollution, it does not have the authority 

to control sources in upwind states and 

that EPA must disapprove the Kentucky 

submission. Additional commenters 

state opposition to EPA’s proposed 

approval, and assert that EPA should 

disapprove Kentucky’s SIP submission. 

Response: EPA disagrees with the 

commenters’ contentions that EPA 

should disapprove Kentucky’s submittal 

because it does not fulfill the CAA’s 

good neighbor obligations. As explained 

in the proposed rulemaking and further 

in this action, based on EPA’s modeling 

and with implementation of the CSAPR 

Update and other measures, Kentucky is 

not expected to significantly contribute 

to nonattainment or interfere with 

maintenance of the 2008 ozone NAAQS 

in downwind states in 2023. Kentucky 

provided information showing that the 

use of the modeling is appropriate in 

this context, and also included 

additional modeling that showed results 

consistent with EPA’s modeling. Thus, 

Kentucky’s draft submission is 

approvable because it demonstrated that 

emission activity from the State will not 

contribute significantly to 

nonattainment or interfere with 

maintenance of the 2008 8-hour ozone 

NAAQS in any other state after 

implementation of all on-the-books 

measures, including the CSAPR Update. 

To the extent that these comments are 

general statements stating opposition to 

EPA’s action and are intended to 

incorporate other, specific comments 

made by commenters, EPA has 

addressed the specific concerns later in 

this preamble. 

Comment: One commenter states that 

EPA’s determination of significant 

contribution should be based upon 

current data, and to base the 

determination on 2023 modeling ignores 

New York’s 2021 attainment deadline 

and adds too much uncertainty and 

speculation to the determination of 

whether Kentucky significantly 

contributes to nonattainment or 

interferes with maintenance in New 

York and other states. 

Response: EPA does not agree that it 

is inappropriate to rely on modeled 

projections for a future year, rather than 

current data, to analyze ozone 

concentrations in downwind states. 

Consistent with historical practice, 

Kentucky and EPA have focused their 

analysis in this action on a future year 

in light of the forward-looking nature of 

the good neighbor obligation in section 


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110(a)(2)(D)(i)(I). Specifically, the 

statute requires that states prohibit 

emissions that ‘‘will’’ significantly 

contribute to nonattainment or interfere 

with maintenance of the NAAQS in any 

other state. EPA reasonably interprets 

this language as permitting states and 

EPA in implementing the good neighbor 

provision to evaluate downwind air 

quality problems, and the need for 

further upwind emission reductions, 

prospectively. In EPA’s prior regional 

transport rulemakings, the Agency 

generally evaluated whether upwind 

states ‘‘will’’ significantly contribute to 

nonattainment or interfere with 

maintenance based on projections of air 

quality in the future year in which any 

emission reductions would be expected 

to go into effect. See, e.g., NOX SIP Call, 

63 FR 57377 (using the anticipated 2007 

compliance year for its analysis); CAIR, 

70 FR 25241 (using the years 2009 and 

2010, the anticipated compliance years 

for the ozone and fine particulate matter 

(PM2.5) NAAQS, respectively); CSAPR, 

76 FR 48211 (using the 2012 compliance 

year); CSAPR Update, 81 FR 74537 

(using the 2017 compliance year). The 

D.C. Circuit affirmed EPA’s 

interpretation of ‘‘will,’’ finding EPA’s 

consideration of future projected air 

quality (in addition to current measured 

data) to be a reasonable interpretation of 

an ambiguous term. North Carolina, 531 

F.3d at 913–14. Thus, consistent with 

this precedent, it is reasonable for EPA 

to analyze air quality in an appropriate 

future compliance year to evaluate any 

remaining obligation for the 2008 ozone 

NAAQS. 

EPA also does not agree that the 2023 

modeling is too uncertain or speculative 

as compared to current data. As 

discussed in more detail later, courts’ 

rulings have deferred to EPA’s 

reasonable reliance on modeling to 

inform its policy choices, 

notwithstanding that no model is 

perfect and there may be some level of 

discrepancy between modeled 

predictions what eventually occurs. 

Comments regarding the relationship 

between the future analytic year and the 

attainment date are also addressed later 

in this preamble. 

Comment: One commenter states that 

the plain meaning of section 

110(a)(2)(D) requires Kentucky to 

prohibit contributing emissions prior to 

the 2008 ozone attainment dates set for 

downwind states, i.e., by 2018 for 

moderate nonattainment areas. The 

commenter contends that the D.C. 

Circuit adopted this plain reading, 

finding the statute unambiguously 

requires compliance with NAAQS 

attainment deadlines in North Carolina, 

531 F.3d at 911–12. The court based its 

conclusion on the requirement that 

implementing provisions be consistent 

with Title I of the CAA, finding the plan 

must be consistent with both the 

substantive and procedural 

requirements of NAAQS compliance. Id. 

at 911. The commenter states that the 

court also held that compliance must be 

achieved in time for attainment 

determinations for downwind states 

expected to be close to the NAAQS so 

as not to ‘‘interfere with maintenance.’’ 

Id. at 908–09. 

The commenter further states that the 

CAA establishes attainment dates for the 

2008 ozone NAAQS ‘‘as expeditiously 

as practicable’’ but no later than 3, 6, 9, 

15, or 20 years—depending on area 

classification—after the designation. 

The commenter contends that, in NRDC 

v. EPA, 777 F.3d 456 (D.C. Cir. 2014), 

the court rejected EPA’s attempt to 

extend the 2008 ozone NAAQS 

compliance deadlines by several 

months, holding that the CAA requires 

attainment dates be set at the statutorily 

fixed term of time from the date of 

designations. 

The commenter therefore asserts that 

section 110(a)(2)(D)(i)(I) does not allow 

Kentucky to wait until 2023 nor does it 

grant EPA discretion to extend 

compliance deadlines. The commenter 

contends that, by 2023, the harms the 

good neighbor provisions were intended 

to avoid will have already befallen 

downwind states. Accordingly, the 

commenter states that Kentucky must 

take immediate steps to offset past overpollution. In a footnote, the commenter 

notes that prior legal precedent 

indicates that attainment dates are 

‘‘central to the regulatory scheme,’’ 

Sierra Club v. EPA, 294 F.3d 155, 161 

(D.C. Cir. 2002), and ‘‘leave no room for 

claims of technological or economic 

feasibility,’’ NRDC, 777 F.3d at 468. 

Another commenter points to 2015– 

2017 design values at monitors in the 

NJ-NY-CT nonattainment area that are 

above the standard at 83 ppb (the 

Stratford monitor) and 82 ppb (the 

Westport monitor). The commenter 

states that design values indicate that 

the area can expect to be reclassified as 

‘‘serious’’ with an attainment deadline 

of July 2021, based on a 2020 design 

value. The commenter contends that the 

Kentucky SIP is deficient because it 

relies on a future year that does not 

adequately reflect the appropriate 

attainment year of the impacted 

nonattainment area. Because the 

moderate attainment deadline has 

passed, the commenter states that 

modeling for the next attainment date of 

July 2021 (based on 2020 design values) 

should be conducted. 

The commenter asserts that 

downwind states significantly impacted 

by ozone pollution will be unable to 

meet attainment deadlines if good 

neighbor SIPs are not done prior to the 

attainment deadline of the downwind 

nonattainment areas. The commenter 

asserts the CAA recognizes this since 

the good neighbor provision is required 

to be addressed ahead of the attainment 

demonstration requirements for 

nonattainment areas. The commenter 

notes that Kentucky’s significant 

contributions for the 2008 ozone 

NAAQS therefore should have been 

addressed by March 2011. The 

commenter states that 2023 is an 

inappropriate future year for modeling 

because it falls after both the July 2018 

moderate classification deadline and the 

July 2021 serious classification 

deadline. 

One commenter states that the tristate New York City metropolitan area 

struggles to attain the 2008 ozone 

NAAQS, with 2017 design values up to 

83 ppb, due in significant part to 

interstate transport of ozone precursors 

from upwind states like Kentucky. The 

commenter notes that NYDEC requested 

a reclassification of the area to ‘‘serious’’ 

nonattainment due to the inevitability of 

missing the moderate area attainment 

deadline. The commenter therefore 

asserts that the 2023 modeling year 

relied upon by EPA and Kentucky is 

well beyond—and fails to take into 

account—the attainment deadline for 

‘‘serious’’ nonattainment areas. 

The commenter further states that had 

EPA met its 2015 FIP deadline for 

Kentucky, it could have mandated 

controls that would be installed and 

operating in time to benefit New York’s 

‘‘serious’’ nonattainment deadline. 

One commenter contends that EPA’s 

proposed approval fails to account for 

New York’s upcoming attainment 

deadlines for the 2008 ozone NAAQS. 

The commenter asserts that the New 

York metropolitan area has struggled to 

attain the 2008 ozone NAAQS, with 

2017 design values of up to 83 ppb. The 

commenter asserts that EPA admitted 

the CSAPR Update was only a partial 

remedy for downwind states such as 

New York, and that additional 

reductions may be required from 

upwind states, including Kentucky. 

CSAPR Update modeling projected that 

New York would remain in 

nonattainment past its July 20, 2018 

statutory attainment deadline. On 

November 10, 2017, NYDEC requested a 

reclassification to ‘‘serious’’ 

nonattainment, due to the inevitability 

of missing the July 20, 2018 moderate 

area attainment deadline, which the 

state attributed in large part to 


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6EPA also disagrees with the commenters’ 

contention that the North Carolina decision 

explicitly requires emission reductions, 531 F.3d at 

911–912, necessary to address the ‘‘interfere with 

maintenance clause’’ of the good neighbor provision 

to be aligned with downwind attainment dates. The 

commenters are conflating the court’s holding that 

EPA should consider downwind attainment dates 

when setting compliance schedules for upwind 

state emission reductions with the court’s separate 

holding that EPA must give independent 

significance to the ‘‘interfere with maintenance’’ 

clause when identifying downwind air quality 

problems. id. at 910–911. The court did not 

explicitly indicate whether EPA was required to 

align emission reductions associated with 

maintenance receptors with downwind attainment 

dates, indicating only that EPA must ‘‘provide a 

sufficient level of protection to downwind states 

projected to be in nonattainment as of’’ the future 

analytic year. Id. at 912 (emphasis added). 

7While there are no areas (outside of California) 

that are currently designated as serious or severe for 

the 2008 ozone NAAQS, the CAA requires that EPA 

reclassify to serious any moderate nonattainment 

areas that fail to attain by their attainment date of 

July 20, 2018. Similarly, if any area fails to attain 

by the serious area attainment date, the CAA 

requires that EPA reclassify the area to severe. 

transported emissions from upwind 

states such as Kentucky. The 

reclassification carries an attainment 

deadline of July 20, 2021, based on 

2018–2020 monitoring data. 

The commenter asserts that 2023 

modeling analysis takes no account of 

New York’s current and likely new 

attainment deadlines, in direct conflict 

with settled law under the Act. To be 

fully compliant, the commenter believes 

a good neighbor SIP must eliminate 

significant contribution to downwind 

nonattainment or interference with 

maintenance by the deadlines for 

downwind areas to attain the NAAQS. 

EPA’s proposed approval only discusses 

this deadline in its conclusion that 

emission reductions will not be 

achieved in time to meet it. The 

commenter asserts that EPA cannot 

approve a SIP that delays eliminating 

emissions that presently contribute to 

downwind nonattainment past New 

York’s attainment deadlines. 

One commenter challenges the future 

year selection of 2023 and states that it 

perpetuates Connecticut citizens’ health 

and economic burdens. The commenter 

states that Connecticut faces a 

reclassification to serious 

nonattainment, has previously been 

reclassified to moderate, and has not 

met attainment due to ‘‘overwhelming’’ 

transport from upwind areas, including 

Kentucky. 

Response: EPA disagrees that it has 

failed to consider the appropriate 

attainment dates in relying on the 2023 

modeling results to approve Kentucky’s 

SIP submission. 

First, to the extent the commenters 

suggest that the current measured 

design values may preclude EPA’s 

reliance on modeled projections, EPA 

does not agree. As explained earlier in 

this action, EPA has reasonably 

interpreted the term ‘‘will’’ in the good 

neighbor provision as permitting states 

and EPA in implementing the good 

neighbor provision to evaluate 

downwind air quality problems, and the 

need for further upwind emission 

reductions, prospectively and 

coordinated with anticipated 

compliance timeframes. See North 

Carolina, 531 F.3d at 913–14. 

EPA further disagrees that the D.C. 

Circuit’s North Carolina decision 

constrains EPA to choosing the next 

relevant attainment date as its future 

analytic year. The North Carolina 

decision faulted EPA for not giving any 

consideration to upcoming attainment 

dates in downwind states when setting 

compliance deadlines for upwind 

emissions; there, EPA had evaluated 

only the feasibility of implementing 

upwind controls. Id. at 911–12. But the 

court did not hold that the CAA 

imposes strict deadlines for the 

implementation of good neighbor 

emission reductions. Nor did the court 

opine that EPA would never be justified 

in setting compliance dates that postdate downwind attainment dates or 

consider the feasibility of implementing 

upwind emission reductions. Indeed, in 

remanding the rule, the D.C. Circuit 

acknowledged that upwind compliance 

dates may, in some circumstances, 

follow attainment dates. Id. at 930 

(instructing EPA to ‘‘decide what date, 

whether 2015 or earlier, is as 

expeditious as practicable for states to 

eliminate their significant contributions 

to downwind nonattainment’’).6

While the commenters suggest that 

the court’s reference to the phrase 

‘‘consistent with the provisions of this 

subchapter’’—i.e., CAA Title I—imports 

downwind attainment dates from 

section 181 into the good neighbor 

provision, CAA section 181 itself does 

not impose inflexible deadlines for 

attainment. The general timeframes 

provided in the section 181(a)(1) table 

may be (and often are) modified 

pursuant to other provisions in section 

181, considering factors such as 

measured ozone concentrations and the 

feasibility of implementing additional 

emission reductions. For example, the 

six-year timeframe for attainment of the 

2008 ozone NAAQS in moderate areas 

could be extended by up to two years 

(to 2020), pursuant to section 181(a)(5). 

And pursuant to section 181(b)(2), when 

downwind areas are unable to 

implement sufficient reductions via 

feasible control technologies by one 

attainment date, those areas will be 

‘‘bumped up’’ in classification and 

given a new attainment date with 

additional time to attain. With ‘‘bumpups’’ like this, the date for an area to 

attain the 2008 ozone NAAQS could be 

extended to 2021, 2027, and 2032, and 

each of these deadlines could be subject 

to further extensions of up to two years 

pursuant to section 181(a)(5). See also 

Whitman v. Am. Trucking Ass’ns, Inc., 

531 U.S. 457, 493–94 (2001) (Breyer 

concurring) (considerations of costs and 

technological feasibility may affect 

deadlines selected by EPA). Thus, the 

commenters’ premise that all upwind 

emission reductions must occur before 

the earliest downwind attainment date, 

feasible or not, is inconsistent with the 

framework of section 181 as it applies 

to downwind states. 

Similarly, the D.C. Circuit’s decision 

in NRDC, 777 F.3d at 468, does not 

stand for the proposition that EPA 

should ignore the feasibility of 

implementing emission reductions 

when addressing the good neighbor 

provision, or that such emission 

reductions are strictly required to be in 

place by a date certain. There, EPA had 

set 2008 ozone standard attainment 

dates in December 2015 so that 

downwind states could use data from 

the 2015 ozone season to demonstrate 

attainment. Id. at 465. The NRDC court 

simply held that section 181(a)(1) did 

not allow EPA this type of flexibility. 

The court’s holding in NRDC did not 

speak to state planning or 

implementation requirements that apply 

for areas subject to those dates, or the 

various ways in which the date may be 

legally extended under the CAA. NRDC 

is therefore inapposite as to how the 

good neighbor provision should be 

harmonized with CAA statutory or 

regulatory dates for downwind states. 

Here, EPA has considered the 

downwind attainment dates for the 2008 

ozone NAAQS, consistent with the 

court’s holding in North Carolina. As 

the commenters note, areas classified as 

moderate nonattainment areas currently 

have attainment dates of July 20, 2018, 

but the 2017 ozone season was the last 

full season from which data could be 

used to determine attainment of the 

NAAQS by that date. Given that the 

2017 ozone season has now passed, it is 

not possible to achieve additional 

emission reductions by the moderate 

area attainment date. It is therefore 

necessary to consider what subsequent 

attainment dates should inform EPA’s 

analysis. The next attainment dates for 

the 2008 ozone NAAQS will be July 20, 

2021, for nonattainment areas classified 

as serious, and July 20, 2027, for 

nonattainment areas classified as 

severe.7 Because the various attainment 


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deadlines are in July, which is in the 

middle of the ozone monitoring season 

for all states, data from the calendar year 

immediately prior to the attainment date 

(e.g., data from 2020 for the 2021 

attainment date and from 2026 for the 

2027 attainment date) are the last data 

that can be used to demonstrate 

attainment with the NAAQS by the 

relevant attainment date. 

As discussed in the NPRM and later 

in this action, EPA has also considered 

the timeframes that would likely be 

required for implementing further 

emissions reductions as expeditiously 

as practicable and concluded that 

additional control strategies at EGUs 

and non-EGUs could not be 

implemented by the July 2021 serious 

area attainment date, and certainly not 

by the 2020 ozone season immediately 

preceding that attainment date. This 

consideration of feasibility is consistent 

with the considerations affecting the 

statutory timeframes imposed on 

downwind nonattainment areas under 

section 181. Therefore, because new 

emissions controls for sources in 

upwind states cannot be implemented 

feasibly for several years, and at that 

later point in time air quality will likely 

be cleaner due to continued phase-in of 

existing regulatory programs, changing 

market conditions, and fleet turnover, it 

is reasonable for EPA to evaluate air 

quality (at step one of the four-step 

framework) in a future year that is 

aligned with feasible control installation 

timing in order to ensure that the 

upwind states continue to be linked to 

downwind air quality problems when 

any potential emissions reductions 

would be implemented and to ensure 

that such reductions do not over-control 

relative to the identified ozone problem. 

Comment: One commenter notes that 

Delaware’s Sussex County is a 

standalone nonattainment area and New 

Castle County is part of the 

Philadelphia-Wilmington-Atlantic City, 

PA-NJ-MD-DE nonattainment area 

(Philadelphia NAA), with an attainment 

date of July 20, 2015. The CAA requires 

states to attain the ozone standards as 

expeditiously as practicable, but states 

significantly impacted by ozone 

pollution from upwind states will be 

unable to do so if good neighbor SIPs 

are not submitted with adequate 

remedies implemented prior to 

downwind attainment dates. Such SIPs 

are required to be addressed prior to the 

submission of attainment 

demonstrations by nonattainment areas, 

such that Kentucky should have 

addressed its significant contribution for 

the 2008 ozone NAAQS by March 2011. 

The commenter notes that states, 

including Kentucky, failed to submit 

SIPs and EPA failed to issue FIPs until 

the CSAPR Update was issued on 

October 26, 2016, well after the 

attainment dates for many areas, 

including Delaware. 

The commenter contends that EPA 

should have acted in a timely manner 

when states failed to adopt good 

neighbor provisions, and contends that 

Kentucky should have tied its analysis 

of significant contribution to the air 

quality at the time designations were 

made. The commenter asserts that EPA 

should have coupled its analysis and 

remedy with marginal attainment dates, 

as the first deadline for which 

nonattainment areas had to attain the 

standard. The commenter notes that 

EPA aligned its modeling analysis and 

implementation of the CSAPR Update 

with the moderate area attainment dates 

in 2018. While the commenter 

acknowledges that EPA could not have 

tied implementation of the CSAPR 

Update to the 2015 marginal area 

attainment date which had already 

passed, the commenter contends EPA 

should have addressed the need for 

good neighbor reductions relative to 

marginal nonattainment by aligning 

contribution modeling analysis for those 

states to some timeframe prior to the 

marginal attainment deadline. Instead, 

EPA’s process takes place after the 

attainment dates, at which point EPA 

concludes that Delaware and all other 

areas outside of California do not need 

reductions to attain and maintain the 

NAAQS. 

Response: As explained earlier in this 

action, EPA has reasonably interpreted 

the term ‘‘will’’ in the good neighbor 

provision as permitting states and EPA 

in implementing the good neighbor 

provision to evaluate downwind air 

quality problems, and the need for 

further upwind emission reductions, 

prospectively and coordinated with 

anticipated compliance timeframes. See 

North Carolina, 531 F.3d at 913–14. 

Accordingly, EPA does not agree that 

Kentucky should tie its analysis to 

either the date when designations were 

made or the marginal area attainment 

date, both of which have now passed. 

Were EPA to have evaluated good 

neighbor obligations based on a 

retrospective analysis of downwind air 

quality, the Agency could not have 

ensured that any emission reductions 

that may have been required would 

actually be necessary to address 

downwind air quality problems at the 

time they were implemented, which 

could result in impermissible overcontrol under the Supreme Court’s 

holding in EPA v. EME Homer City 

Generation, L.P., 134 S. Ct. 1584, 1608 

(2014) (EME Homer City). Whether 

Kentucky or EPA acted in a timely 

manner to develop a SIP or promulgate 

a FIP, respectively, does not lessen the 

obligation to comply the Supreme 

Court’s holding in the present action. 

Comment: One commenter alleges 

that EPA’s decision to untether its 

action from statutory nonattainment 

dates and instead focus on 2023 is 

arbitrary and capricious, as the ‘‘agency 

has relied on factors which Congress has 

not intended it to consider’’ and 

‘‘entirely failed to consider an important 

aspect of the problem.’’ Motor Vehicle 

Mfrs. Ass’n v. State Farm Mut. Auto. 

Ins. Co., 463 U.S. 29, 43 (1983). The 

commenter suggests that EPA takes a 

novel approach of selecting an analytic 

year five years in the future based on 

concerns that by the time any controls 

can be implemented, they may no 

longer be needed. The commenter cites 

both CSAPR and the CSAPR Update as 

examples of how EPA analyzed 

projected emissions in the upcoming 

year. The commenter states that EPA’s 

logic is almost tantamount to urging 

upwind states to wait because 

downwind states will take care of the 

problem themselves. 

The commenter states that technical 

feasibility has been specifically rejected 

as a basis for ignoring attainment 

deadlines in North Carolina, and overcontrol is at best a secondary factor 

which does not justify complete 

departure from the plain text and 

controlling precedent. The commenter 

states that EPA’s emphasis on overcontrol is contrary to EME Homer City, 

stating that when the Supreme Court 

upheld the consideration of costeffectiveness in CSAPR and upheld 

EPA’s immediate issuance of a FIP after 

disapproving a SIP, the Court clearly 

indicated that the key statutory mandate 

of the good neighbor provision is to 

expeditiously ‘‘maximize achievement 

of attainment downwind.’’ 134 S. Ct. at 

1590. The Court made concern about 

over-control secondary to that goal. Id. 

at 1609. 

The commenter further asserts that 

reliance on feasibility of implementing 

controls to justify delaying action or 

analysis until 2023 is foreclosed by 

North Carolina, which specifically 

rejected the compliance deadlines in 

CAIR that were based on feasibility 

restraints but were not consistent with 

compliance deadlines for downwind 

states. When EPA has considered 

feasibility in analyzing ozone related 

good neighbor obligations since North 

Carolina, it has not been in the context 

of selecting an analytic year, but in 

allocating emission budgets. The 

commenter states that EPA’s argument 

regarding feasibility also includes the 


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33736 Federal Register / Vol. 83, No. 137 / Tuesday, July 17, 2018 / Rules and Regulations 

8Annual Energy Outlook 2018. Electricity Supply, 

Disposition, Prices, and Emissions. Reference Case. 

Department of Energy, Energy Information 

Administration. 

need for additional time for planning 

and coordination between EPA and 

states, but asserts that the courts have 

rejected claims that additional time is 

necessary to improve the quality or 

soundness of regulations. Sierra Club v. 

Johnson, 444 F. Supp. 2d 46, 53 (D.D.C. 

2006). 

One commenter states that EPA 

should focus on achieving available 

emission reductions on or before the 

2020 ozone season (the next applicable 

attainment date), rather than looking 

ahead to 2023. The commenter states 

that by focusing on the timeframes to 

install new controls, EPA has not 

conducted an analysis of reductions 

available in the near term to see if there 

are additional NOX reduction strategies 

that are available prior to 2023. The 

commenter identified optimization of 

previously installed post-combustion 

controls as a potential NOX reduction 

strategy with reductions available 

immediately and at low cost. The 

commenter stated that EPA’s concern 

with over-control must be evaluated 

relative to the attainment deadlines for 

the standard. Therefore, relying on 

EPA’s 2023 modeling is inconsistent 

with the intent of the CAA to achieve 

standards as expeditiously as 

practicable. 

Another commenter states that EPA’s 

rationale for use of a 2023 modeling 

year rests on a speculative guess of the 

time required for two categories of costeffective controls to be installed, starting 

from the date of its approval. The 

commenter contends that EPA cannot 

rely on the cost-effectiveness of EGU 

controls as the exclusive consideration 

in justifying a further five-year delay 

when a full remedy for Kentucky has 

already been unlawfully delayed for 

years. Even if EPA has a general duty to 

avoid over-control of upwind emissions, 

it cannot point to this duty to justify a 

strategy that postpones necessary 

controls. Rather, EPA should require 

these controls now, and then reevaluate 

them in a few years at the point when 

the purported over-control may actually 

occur. 

Response: EPA disagrees with the 

commenters’ assertion that EPA has 

inappropriately weighted concerns 

about over-control of upwind state 

emissions. The Supreme Court and the 

D.C. Circuit have both held that EPA 

may not require emissions reductions 

(at step three of the framework) that are 

greater than necessary to achieve 

attainment and maintenance of the 

NAAQS in downwind areas. EME 

Homer City, 134 S. Ct. at 1608; EME 

Homer City Generation, L.P. v. EPA, 795 

F.3d 118, 127 (D.C. Cir. 2012) (EME 

Homer City II). While the Supreme 

Court indicated that ‘‘EPA must have 

leeway’’ to balance the possibilities of 

under-control and over-control and that 

‘‘some amount of over-control . . . would 

not be surprising,’’ the Court did not 

indicate that such over-control was 

required. 134 S. Ct. at 1609. Rather, the 

Court held, ‘‘If EPA requires an upwind 

State to reduce emissions by more than 

the amount necessary to achieve 

attainment in every downwind State to 

which it is linked, the Agency will have 

overstepped its authority, under the 

Good Neighbor Provision.’’ Id. at 1608. 

On remand in EME Homer City II, the 

D.C. Circuit gave that holding further 

meaning when it determined that the 

CSAPR phase 2 ozone season NOX

budgets for 10 states were invalid 

because EPA’s modeling showed that 

the downwind air quality problems to 

which these states were linked when 

EPA evaluated air quality projections in 

2012 would be entirely resolved by 

2014, when the phase 2 budgets were 

scheduled to be implemented. 795 F.3d 

at 129–30. Thus, the Court did not find 

that over-control was a secondary 

consideration, but rather that it was a 

constraint on EPA’s authority. 

To the extent that the commenters 

note that EPA chose an earlier analytic 

year in prior rulemakings, EPA notes 

that it has not done so in all 

rulemakings. In the NOX SIP Call, EPA 

evaluated air quality in 2007, nine years 

after the rule was promulgated. 63 FR 

57377 (October 27, 1998). In CAIR, 

which was promulgated in 2005, EPA 

evaluated air quality in 2009 and 2010, 

for the ozone and PM2.5 NAAQS, 

respectively. 70 FR 25241 (May 12, 

2005). Thus, EPA’s approach in this 

action is not inconsistent with these 

prior actions. Although EPA evaluated 

relatively more near-term air quality in 

CSAPR and CSAPR Update, EPA 

expected that certain cost-effective 

emission reductions could be 

implemented in the near-term in those 

actions. Here, EPA has already analyzed 

and implemented those cost-effective 

control strategies that could be 

implemented quickly (including the 

optimization of existing postcombustion controls) to address the 

2008 ozone NAAQS through the CSAPR 

Update FIPs. Accordingly, any further 

emission reductions that may be 

required to address the 2008 ozone 

NAAQS would necessarily be 

implemented through control strategies 

that cannot be implemented in the near 

term and require a longer period for 

implementation. In addition, NOX

emissions levels are expected to decline 

in the future through the combination of 

the implementation of existing local, 

state, and federal emissions reduction 

programs and changing market 

conditions for generation technologies 

and fuels.8 Therefore, were EPA to 

evaluate downwind ozone 

concentrations and upwind state 

linkages in a future year that precedes 

the date when actual compliance is 

anticipated (i.e., the timeframe within 

which additional control strategies can 

feasibly be implemented), EPA could 

not ensure that the emission reductions 

will be ‘‘necessary to achieve 

attainment’’ in any downwind area by 

the time they were implemented. Such 

an approach would only replicate the 

circumstances the D.C. Circuit found 

impermissible in CSAPR. 

The commenter’s citation to Sierra 

Club v. Johnson is inapposite. In that 

case, EPA sought more time to 

promulgate regulations under the CAA 

after failing to perform the mandatory 

duties within the statutorily prescribed 

timeframe. 444 F. Supp. 2d at 52. 

Therefore, the court’s reference to the 

Agency’s need for ‘‘additional time’’ is 

in reference to the time required to 

conduct the rulemaking process. Id. at 

53. The court was not interpreting the 

requirements of the good neighbor 

provision or any other provision 

regarding the time required for states or 

sources to implement controls under the 

CAA. 

Finally, the commenters 

misunderstand EPA’s evaluation to the 

extent they suggest that EPA relied on 

the cost-effectiveness of controls for this 

action. EPA evaluated the feasibility of 

implementing various control options, 

without regard to cost, that had not 

previously been included in EPA’s 

analysis of cost-effective controls in the 

CSAPR Update. EPA concluded that 

additional controls on either EGUs or 

non-EGUs—when considering multiple 

projects across multiple states and 

allowing for planning and permitting— 

would generally require four years or 

more to implement, which would lead 

to an implementation timeframe 

associated with the 2023 ozone season. 

Because the air quality modeling results 

for 2023 showed that air quality 

problems in the eastern U.S. would be 

resolved by 2023, EPA did not further 

evaluate the cost-effectiveness of the 

control options considered for the 

feasibility analysis. 

Comment: One commenter contends 

that EPA’s insistence on fleetwide 

compliance is based on a circular 

argument wherein such a scheme would 


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Federal Register / Vol. 83, No. 137 / Tuesday, July 17, 2018 / Rules and Regulations 33737 

9Memorandum from Stephen D. Page to Regional 

Air Division Directors, ‘‘Information on the 

Interstate Transport ‘Good Neighbor’ Provision for 

the 2008 Ozone National Ambient Air Quality 

Standards (NAAQS) under Clean Air Act (CAA) 

Section 110(a)(2)(D)(i)(I)’’ (January 22, 2015) 

(January 2015 Transport Memo), available at 

https://www.epa.gov/sites/production/files/2015- 

11/documents/goodneighborprovision2008

naaqs.pdf. 

cause labor and material shortages that 

would, in turn, require four years to 

implement, at which point they will be 

unnecessary. The commenter points out 

that this means there will be no labor 

shortage. The commenter notes that this 

is contrary to EPA’s prior approaches in 

CSAPR where the agency segregated 

controls based on feasibility, including 

multiple phases, and conducted 

emissions analyses for both phases. 

One commenter states that EPA 

cannot rely on its analysis of alleged 

labor and materials shortages relating to 

installation of new controls at a ‘‘fleet’’ 

level. While EPA may prefer a regional 

approach, Congress did not establish a 

regional implementation plan 

requirement or mechanism, and EPA is 

not considering whether to approve a 

regional transport rule, nor a group of 

SIPs or FIPs. EPA is proposing to 

approve a single SIP from a single state 

and has not undertaken a study of the 

labor or materials market in Kentucky. 

Therefore, EPA’s justification for 

allowing the delay of EGU controls for 

up to 48 months based on its 

speculative estimate of the time needed 

to install these controls on all sources 

within some unidentified region is 

arbitrary and capricious. 

One commenter states EPA’s 

approach to evaluating potential NOX

controls on a regional, rather than statespecific, basis ‘‘undermines the intent of 

the CAA’’ and causes Connecticut to be 

required to spend more to attempt to 

comply with the CAA than states that 

emit and contribute more to 

Connecticut’s ozone problem.’’ The 

commenter states as an example that it 

recently promulgated a reasonably 

available control technology (RACT) 

rule with a minimum control cost of 

$13,000 per ton. The commenter states 

that EPA’s under controlling of 

emissions has led to delays in 

attainment and added cost for 

Connecticut despite ozone exceedances 

being overwhelmingly due to 

transported emissions. 

One commenter states that guidance 

provided in an informational 

memorandum issued by EPA in January 

2015 9 specifically references upwind 

state responsibilities in determining the 

states’ good neighbor SIP transport 

obligations. EPA further states in its 

proposal that it believes the most 

appropriate approach to evaluating 

potential upwind obligations for 

Kentucky (where several other states are 

also linked to the Harford County 

receptor) is to evaluate potential NOX

control strategies on a regional, rather 

than state-specific basis. The commenter 

asserts that this is inconsistent with the 

scope of EPA’s SIP approval authority 

under CAA section 110, which involves 

intra-state, rather than regional, plans to 

attain the NAAQS. The commenter also 

contends that EPA’s position is contrary 

to its previous positions in denying 

Maryland’s request for a super-regional 

nonattainment area under CAA section 

107, and in denying Maryland’s section 

176A petition requesting expansion of 

the Ozone Transport Region (OTR). To 

the contrary, EPA stated in those actions 

that CAA sections 110 and 126 were 

more appropriate mechanisms for 

controlling interstate pollution 

transport. 

Response: EPA disagrees with the 

commenters that it is inappropriate to 

evaluate the feasibility of implementing 

NOX controls on a regional or fleetwide 

basis. EPA’s analysis of the feasibility of 

NOX control strategies reflects the time 

needed to plan for, install, test, and 

place into operation new EGU and nonEGU NOX reduction strategies 

regionally—i.e., across multiple states. 

This regional analytic approach is 

consistent with the regional nature of 

interstate ozone pollution transport. The 

Agency adopted this approach based on 

previous interstate ozone transport 

analyses showing that where eastern 

downwind ozone problems are 

identified, multiple upwind states 

typically are linked to these problems. 

See 81 FR at 74538 (October 26, 2016). 

Specifically of relevance to this action, 

EPA’s assessment in the CSAPR Update 

found that 21 states would continue to 

contribute greater than or equal to 1 

percent of the 2008 ozone NAAQS to 

identified downwind nonattainment or 

maintenance receptors in multiple 

downwind states in 2017, even after 

implementation of the CSAPR Update 

FIPs. Thus, to reasonably address these 

ozone transport problems, EPA must 

identify and apportion emission 

reduction responsibility across multiple 

upwind states. In other words, EPA’s 

analysis should necessarily be regional, 

rather than focused on individual 

linkages. Where such an analysis is 

needed for multiple states, the inquiry 

into the availability and feasibility of 

control options is necessarily 

considerably more complicated than for 

a single state or sector. 

EPA further disagrees that this 

approach is inconsistent with EPA’s 

prior rulemakings, like CSAPR, where 

the Agency implemented controls in 

multiple phases. In CSAPR, EPA 

evaluated downwind air quality and 

upwind state linkages based on 2012 air 

quality and contribution modeling. The 

commenter is correct that EPA then 

implemented two phases of emission 

budgets, with a first phase of reductions 

implemented beginning in 2012 and a 

second phase of reductions 

implemented beginning in 2014. 

However, in subsequent litigation, a 

number of the phase 2 ozone season 

NOX emission budgets were remanded 

because EPA’s modeling showed that 

there would no longer be downwind air 

quality problems in many areas in 2014. 

See EME Homer City II, 795 F.3d at 129– 

30. Thus, EPA cannot require additional 

emission reductions in a future year if 

EPA’s data show that there will no 

longer be downwind air quality 

problems in that year. Here, EPA 

implemented a first phase of postCSAPR emission reductions in 2017 via 

the CSAPR Update. In this action, 

Kentucky and EPA have evaluated 

whether a second phase of post-CSAPR 

emission reductions is necessary and 

authorized by the good neighbor 

provision and determined that it is not 

because downwind air quality problems 

identified in 2017 with respect to the 

2008 ozone NAAQS will be resolved by 

2023. 

EPA does not agree that this approach 

is inconsistent with the scope of EPA’s 

authority under section 110. The fact 

that EPA is, in this action, acting on a 

single SIP does not alter the regional 

nature of ozone pollution transport. As 

the Supreme Court noted, the good 

neighbor provision presents a ‘‘thorny 

causation problem’’ with respect to 

ozone pollution transport in light of the 

‘‘collective and interwoven 

contributions of multiple upwind 

States,’’ EME Homer City, 134 S. Ct. at 

1604. The Court affirmed EPA’s 

consideration of the problem on a 

regional rather than localized scale. Id. 

at 1606–07 (affirming EPA’s use of cost 

to apportion upwind state emission 

reduction responsibility). The Court did 

not indicate that this endorsement of a 

regional assessment was appropriate 

only when EPA is taking a regional 

action. Rather, it is reasonable for EPA 

to interpret the implementation of the 

good neighbor provision for a particular 

NAAQS consistently regardless of the 

scope of the action. Consistent with this 

opinion, it is therefore also reasonable 

for EPA to view an individual state’s 

implementation plan through a regional 

lens. 

EPA also does not agree that the 

Agency’s approach to evaluating 

interstate ozone transport under section 


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10See, e.g., Responses to Significant Comments 

on the State and Tribal Designation 

Recommendations for the 2008 Ozone National 

Ambient Air Quality Standards (NAAQS), EPA– 

HQ–OAR–2008–0476–0675, Section 3.1.2 (April 

2012); New York-Northern New Jersey, Long-Island, 

NY-NJ-CT Nonattainment Area, Final Area 

Designations for the 2015 Ozone National Ambient 

Air Quality Standards Technical Support 

Document, at 28–29. 

11Final Report: Engineering and Economic 

Factors Affecting the Installation of Control 

Technologies for Multipollutant Strategies, EPA– 

600/R–02/073 (October 2002), available at https:// 

nepis.epa.gov/Adobe/PDF/P1001G0O.pdf. 

110 is inconsistent with its recent action 

on a section 176A petition to expand the 

OTR or EPA’s designations under 

section 107. EPA denied the section 

176A petition because it concluded that 

any remaining interstate transport 

problems could be better addressed via 

the good neighbor provision, which EPA 

and the states can use to make decisions 

regarding which precursor pollutants to 

address, which sources to regulate, and 

what amount of emission reductions to 

require, flexibilities that are not 

available with respect to control 

requirements applicable to sources in 

the OTR. See 82 FR 51244–46 

(November 3, 2017). EPA did not deny 

the petition because it concluded that 

ozone transport was not regional; on the 

contrary, EPA explicitly acknowledged 

the regional nature of ozone transport in 

its action. See 82 FR 6511 (January 19, 

2017). 

With respect to the request for a 

super-regional nonattainment area 

under section 107, EPA has consistently 

explained that such an approach is not 

consistent with the statutory language.10

CAA section 107(d)(1) provides that 

areas designated nonattainment should 

include any ‘‘nearby’’ area contributing 

to a violation of the NAAQS. EPA has 

repeatedly explained that the proposal 

for broad super-regional nonattainment 

areas go beyond this statutory definition 

by including areas that are not 

necessarily ‘‘nearby’’ but contribute to 

nonattainment through long-range 

transport, an issue that other sections of 

the CAA, like the good neighbor 

provision, are designed to address. 

Thus, rather than contradict EPA’s 

analysis of ozone transport regionwide, 

EPA’s prior actions regarding requests 

for a super-regional nonattainment area 

support EPA’s view that such an 

approach is appropriately applied under 

the good neighbor provision. 

Finally, EPA does not agree that its 

conclusion that no additional emission 

reductions would be required of upwind 

states undermines its fleetwide analysis 

of labor and material shortages. EPA’s 

analysis was based on the assumption 

that if additional controls would be 

required of upwind states, they would 

be required on a region-wide basis. This 

was a reasonable assumption in light of 

the complex, regional nature of ozone 

pollution transport. Had EPA identified 

remaining downwind air quality 

problems in the future analytic year, it 

would have been reasonable to assume 

that multiple upwind states would 

contribute to any remaining air quality 

problem consistent with EPA’s previous 

ozone transport analyses and thus 

multiple upwind states could be 

required to concurrently implement 

emission reductions. As explained 

earlier, while EPA has phased-in 

application of controls in some 

circumstances, those phases were 

implemented based on consistent, 

region-wide compliance deadlines. The 

commenters do not explain how EPA 

could set different compliance dates for 

different states in the CSAPR Update 

region to require additional emission 

reductions while also insuring that 

states’ obligations were addressed in a 

consistent, non-arbitrary manner that 

did not lead to over- or under-control. 

Comment: One commenter states that 

EPA’s argument that extensive planning 

is required to install controls is 

uncompelling because EPA has had 

ample time to plan. The CSAPR Update 

repeatedly emphasizes that states, 

including Kentucky, were expected to 

have remaining obligations after the 

implementation of the CSAPR Update. 

Moreover, EPA has been on notice that 

it would be required to take action on 

Kentucky by June 2018 as required by 

court order. 

Response: The commenter 

misunderstands EPA’s reference to the 

planning required to implement 

additional controls. The individual 

sources, not EPA, must engage in 

appropriate planning anytime they 

install new control devices. As 

discussed in more detail later, installing 

new selective catalytic reduction (SCR) 

or selective non-catalytic reduction 

(SNCR) controls for EGUs or non-EGUs 

generally involves the following steps: 

Conducting an engineering review of the 

facility; advertising and awarding a 

procurement contract; obtaining a 

construction permit; installing the 

control technology; testing the control 

technology; and obtaining or modifying 

an operating permit.11 Scheduled 

curtailment, or planned outage, for 

pollution control installation would be 

necessary to complete either SCR or 

SNCR projects. Given that peak demand 

for EGUs and rule compliance would 

both fall in the ozone season, such 

sources would likely try to schedule 

installation projects for the ‘‘shoulder’’ 

seasons (i.e., the spring and/or fall 

seasons), when electricity demand is 

lower than in the summer, reserves are 

higher, and ozone season compliance 

requirements are not in effect. In 

addition to the coordination of 

scheduled curtailment, an appropriate 

compliance timeframe would need to 

accommodate the additional 

coordination of labor and material 

supply necessary for any fleet-wide 

mitigation efforts. More details 

regarding these considerations are 

outlined later in this preamble. 

Many of these materials, installation, 

and labor concerns are also relevant for 

non-EGU control technologies. Thus, 

the implementation of new EGU and 

non-EGU NOX reduction strategies, 

especially when implemented across a 

broad region of states, requires extensive 

time and planning by the affected 

sources. 

Moreover, while EPA indicated that 

the CSAPR Update may not fully 

address states’ good neighbor 

obligations, the Agency did not 

definitively conclude that more 

emission reductions would necessarily 

be required. Nor did the Agency 

indicate what sources would likely be 

controlled, in which states, or via what 

control strategies if additional emission 

reductions were in fact required. Thus, 

EPA does not agree with the 

commenter’s suggestion that it was 

reasonable for any particular sources to 

begin planning for the implementation 

of new controls before EPA or the states 

completed further analysis and 

promulgated requirements actually 

requiring additional emission 

reductions. 

Comment: One commenter states that 

EPA’s finding that implementation of 

control strategies is not feasible until 

during or after the 2022 ozone season is 

false and contradicted by the evidence 

EPA presents. The commenter contends 

that EPA’s conclusion that 48 months 

may be necessary to implement 

emission reductions is contrary to EPA’s 

own experience of pollution control and 

belied by EPA’s own finding that 

Kentucky will likely outperform its 

CSAPR Update obligations. Both CSAPR 

and CSAPR Update were implemented 

on much shorter timescales, with 

immediate reductions available in both 

cases in under one year, and postcombustion controls being required 

within three years under CSAPR. 

Response: EPA has evaluated the 

feasibility of implementing controls on 

a region-wide basis, considering markets 

for labor and materials necessary for 

implementing controls across multiple 

sources in multiple states. Thus, 

examples where individual sources 

might have installed controls more 


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12EPA notes that the only new post-combustion 

controls assumed in EPA’s projection of 2023 EGU 

emissions in Kentucky were at Shawnee units 1 and 

4. Both of these units were required to implement 

SCR as of December 31, 2017 pursuant to a 

compliance agreement with EPA finalized in 2011. 

See 76 FR 22095 (April 20, 2011) and https://

www.epa.gov/enforcement/tennessee-valleyauthority-clean-air-act-settlement. 

quickly do not speak to what is 

reasonable to require across a state or a 

region, and therefore do not contradict 

EPA’s analysis. 

Moreover, EPA’s projections of EGU 

emission levels in Kentucky in 2023 

also do not contradict EPA’s conclusion 

that 48 months should be provided for 

the region-wide implementation of new 

NOX post-combustion controls. 

Kentucky’s CSAPR Update budget is not 

an emissions floor. It represents 

emission reductions reflecting control 

strategies determined to be cost-effective 

and feasible to implement by the first 

compliance year in 2017 (e.g., SCR 

optimization). However, market 

conditions that did not influence 

quantification of the budgets can also 

drive further emission reductions in 

future years, including variables such as 

low natural gas prices and new, lowercost competitor generation in 

downwind states, and can lead to utility 

decisions to retire aging assets. In 

addition, sources may install new 

controls after the 2017 ozone season that 

would not have been considered when 

EPA calculated the budgets.12 These 

factors can and do lead to state-emission 

levels often being significantly lower 

than its emission budget in future 

compliance years. EPA’s projected 

emissions level in 2023 captures these 

types of recently announced and known 

infrastructure changes and fleet 

turnover and it is therefore reasonable 

that the 2023 projected EGU emissions 

would be below Kentucky’s CSAPR 

Update budget established for a first 

compliance year of 2017. 

While CSAPR and CSAPR Update 

were implemented more quickly than 

the four years considered in this action, 

neither CSAPR nor CSAPR Update 

anticipated that sources would 

implement new post-combustion NOX

controls. See 76 FR 48302 (August 8, 

2011); 81 FR 74541 (October 26, 2016). 

Rather, the ozone season emission 

budgets for both rules only considered 

the near-term emission reductions that 

could be achieved from implementation 

of control strategies other than new 

post-combustion controls, including the 

optimization of existing postcombustion controls and 

implementation of new combustion 

controls. See 76 FR 48256 (August 8, 

2011); 81 FR 74541 (October 26, 2016). 

With respect to the 2008 ozone NAAQS, 

EPA already implemented the near-term 

emission reductions that were costeffective in the CSAPR Update. 

Accordingly, EPA disagrees with the 

commenter’s suggestion that there may 

be substantial immediate NOX

reductions available that could be 

implemented on a more immediate 

timeframe at this time. 

EPA notes that it did evaluate postcombustion controls in CSAPR with 

respect to sulfur dioxide (SO2) emission 

reductions necessary to address PM2.5

and established emission budgets 

reflecting the possible implementation 

of scrubbers three years following rule 

promulgation. However, to the extent 

labor and supply markets were a 

consideration for installation timing 

requirements for scrubbers in CSAPR in 

2011, those variables may have changed 

over the last seven years. Moreover, EPA 

established budgets for NOX in CSAPR 

based on a cost threshold of $500 per 

ton, which was not anticipated to drive 

significant, labor- and resourceintensive SCR installation within that 

timeframe. See 76 FR 48302 (August 8, 

2011). 

Comment: One commenter asserts 

that EPA has not explained why it still 

lacks information on the potential for 

cost-effective emission reductions from 

non-EGUs, two years after the CSAPR 

Update was promulgated. EPA’s 

analysis is lacking any analysis of actual 

cost-effectiveness numbers for non-EGU 

controls, relying instead on an 

‘‘implication’’ from two-year old public 

comments that non-EGU controls would 

be relatively less cost-effective than 

EGU controls. EPA ignores its own 

framework, which calls for determining 

the availability and cost-effectiveness of 

non-EGU controls, despite identifying 

the need to do so in the CSAPR Update. 

In a footnote, the commenter notes that 

EPA represented to the court in a 

mandatory duty suit that it was taking 

steps to improve its data to evaluate 

NOX reduction potential from nonEGUs, which it expected to complete by 

November 2017. EPA has not accounted 

for any of the stakeholder reviewed 

information on non-EGU emissions 

reductions and costs that it should have 

amassed in the last year and a half. 

The commenter further contends that 

EPA has changed its regulatory position 

without reasonable explanation. In the 

CSAPR Update, EPA indicated that 

evaluating full interstate transport 

obligations is subject to an evaluation of 

the contribution to interstate transport 

from non-EGUs, but EPA has 

unexpectedly changed course and stated 

that no such evaluation is necessary. 

This is an unexplained, arbitrary and 

capricious change in policy. 

One commenter states that with 

respect to non-EGU sources, EPA ‘‘has 

documented multiple cost-effective 

controls that can be implemented 

within one year’’ in the ‘‘Assessment of 

Non-EGU NOX Emissions Controls, 

Costs of Controls and Time for 

Compliance Final TSD’’ dated August 

2016 available in the docket for the final 

CSAPR Update Rule. The commenter 

notes that EPA has dismissed these 

potential benefits as ‘‘uncertain’’ and 

states that EPA ‘‘cannot continue to 

invoke the prospect of an uncertain 

future to limit its responsibility to 

satisfy its statutory mandate.’’ 

Response: EPA first notes that it is not 

relying on its lack of information with 

respect to the cost-effectiveness of nonEGUs to support this final action. EPA 

evaluated the feasibility of 

implementing various control options, 

without regard to cost, that had not 

previously been included in EPA’s 

analysis of cost-effective controls in the 

CSAPR Update. EPA concluded that 

additional controls—on either EGUs or 

non-EGUs—would generally require 

four years to implement, which would 

lead to an implementation timeframe 

associated with the 2023 ozone season. 

Because the air quality modeling results 

for 2023 showed that air quality 

problems in the eastern U.S. would be 

resolved by 2023, EPA did not further 

evaluate the cost-effectiveness of the 

control options considered for the 

feasibility analysis. This approach is 

consistent with EPA’s four-step 

framework, and does not rely on the 

relative cost-effectiveness of controls for 

non-EGUs. 

Because EPA did not need to evaluate 

either the cost-effectiveness or NOX

reduction potential of either EGU or 

non-EGU sources, the commenter’s 

concern with whether EPA has 

completed steps to improve its data on 

these issues is irrelevant. Nonetheless, 

EPA notes that the particular efforts 

outlined in the court filing referred to by 

the commenter were in support of EPA’s 

request in a mandatory duty suit that 

the court permit the Agency several 

years to develop a rulemaking to 

address the good neighbor obligations 

with respect to the 2008 ozone NAAQS 

for Kentucky and 20 other states. In that 

filing, EPA outlined steps that the 

Agency believed would be necessary to 

promulgate a rulemaking if EPA’s 

analysis demonstrated that additional 

emission reductions would be required 

from sources in upwind states, 

including what EPA viewed as 

necessary analysis regarding non-EGUs. 

EPA acknowledged in that same 


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13 Institute of Clean Air Companies, Typical 

Installation Timelines for NOX Emissions Control 

Technologies on Industrial Sources, December 

2006, available at https://c.ymcdn.com/sites/ 

icac.site-ym.com/resource/resmgr/ICAC_NOX_

Control_Installatio.pdf. 

14US EPA, Cement Kilns Technical Support 

Document for the NOX FIP, January 2001, available 

at https://www.regulations.gov/document?D=EPAHQ-OAR-2015-0500-0094. 

15 INGAA Foundation, Availability and 

Limitations of NOX Emission Control Resources for 

Natural Gas-Fired Reciprocating Engine Prime 

Movers Used in the Interstate Natural Gas 

Transmission Industry, Innovative Environmental 

Solutions Inc., July 2014, available at http://

www.ingaa.org/Foundation/Foundation-Reports/ 

NOX.aspx. 

16 In the Final Non-EGU TSD, we present 

different installation time estimates for SCRs and 

non-EGUs than described in the NPRM and in this 

action for EGUs. These installation times are not 

inconsistent because: (i) The EGU time estimate of 

39 months mentioned in the NPRM is based on 

multi-boiler installation and factors in a pre-vendor 

bid engineering study consideration, and (ii) the 

non-EGU SCR installation time estimates are based 

on single-unit installation and do not factor in prevendor bid evaluation. 

declaration that one possible result of 

the litigation could be a determination 

that downwind air quality problems 

would be resolved, in which case a costeffectiveness analysis would be 

unnecessary. See Decl. of Janet G. 

McCabe para. 98, Sierra Club v. Pruitt, 

No. 3:15–cv–04328–JD (N.D. Cal. Dec. 

15, 2016). As EPA could not know the 

results of any future air quality 

modeling before it was performed, 

EPA’s proposed timeline assumed that 

such an analysis could be required. Id. 

para. 170. Ultimately, the court 

disagreed with EPA’s proposed timeline 

and provided only one year—until June 

30, 2018—for promulgation of a 

rulemaking addressing Kentucky’s good 

neighbor obligation, which was 

insufficient time to complete all of the 

steps outlined in EPA’s declaration, 

thereby requiring EPA to prioritize 

certain steps and eliminate others, 

including the additional efforts 

intended to improve data regarding the 

cost-effectiveness of controls. 

Nonetheless, because the first step of 

EPA’s analysis demonstrated that there 

would be no remaining air quality 

problems in 2023 in the eastern U.S., it 

was unnecessary for EPA to finalize the 

efforts to improve its data regarding the 

cost-effectiveness of controls before 

finalizing this action. Thus, the 

representations that EPA made to the 

court regarding the steps necessary to 

take this action no longer apply under 

the present circumstances. 

Thus, EPA’s analysis is not a change 

in policy. In the CSAPR Update, EPA 

only stated it could not conclude, at that 

time, that additional reductions from 

NOX sources (including non-EGUs) 

would not be necessary to fully resolve 

these obligations. While EPA did 

indicate that it anticipated the need to 

evaluate non-EGUs to fully evaluate the 

full scope of upwind states’ good 

neighbor obligations, the Agency has 

done so here. In selecting the 

appropriate future analytic year in 

which to evaluate air quality, 

contributions, and NOX reduction 

potential, EPA considered the 

implementation timeframes for controls 

at EGUs as well as non-EGUs. As noted 

in the NPRM and explained further in 

this action, EPA’s analysis showed that 

there would be no remaining air quality 

problems in 2023 in the eastern U.S., 

and thus EPA has concluded that no 

such additional reductions beyond 

those on-the-books or on-the-way are 

necessary, whether from non-EGUs or 

otherwise, to bring downwind areas into 

attainment of the 2008 ozone NAAQS. 

Finally, the commenter is correct that 

EPA included preliminary estimates of 

installation times for some non-EGU 

NOX control technologies in a technical 

support document for the CSAPR 

Update entitled Assessment of Non-EGU 

NOX Emission Controls, Cost of 

Controls, and Time for Compliance 

Final Technical Support Document 

(Final Non-EGU TSD). These 

preliminary estimates were based on 

research from a variety of information 

sources, including: 

• Typical Installation Timelines for 

NOX Emissions Control Technologies on 

Industrial Sources, Institute of Clean Air 

Companies, December 2006 (all sources 

except cement kilns and reciprocating 

internal combustion engines (RICE)); 13

• Cement Kilns Technical Support 

Document for the NOX FIP, US EPA, 

January 2001; 14 and 

• Availability and Limitations of NOX

Emission Control Resources for Natural 

Gas-Fired Reciprocating Engine Prime 

Movers Used in the Interstate Natural 

Gas Transmission Industry, Innovative 

Environmental Solutions Inc., July 2014 

(prepared for the INGAA Foundation).15

EPA’s analysis in the Final Non-EGU 

TSD focused on potential control 

technologies within the range of costs 

considered in the final CSAPR Update 

for EGUs, i.e., those controls available at 

a marginal cost of $3,400 per ton (2011 

dollars) of NOX reduced or less. EPA’s 

analysis did not evaluate 

implementation timeframes or potential 

emissions reductions available from 

controls at higher cost thresholds. See 

Final Non-EGU TSD at 18. This focus 

excluded some emissions source groups 

with emissions reduction potential at a 

marginal cost greater than $3,400 per 

ton, including: Industrial/commercial/ 

institutional boilers using SCR and lowNOX burners (LNB); and catalytic 

cracking units, process heaters, and 

coke ovens using LNB and flue gas 

recirculation. However, while the 

emissions reduction potential from 

these source groups is uncertain, the 

timeframe for these control technologies 

would be subject to similar 

considerations and limitations 

discussed in the following paragraphs. 

Among the control technologies that 

were evaluated in the Final Non-EGU 

TSD, EPA identified six categories of 

common control technologies available 

for different non-EGU emissions source 

categories. Id. at 19. For four of the 

technology categories (SNCR, SCR, LNB, 

and mid-kiln firing), EPA preliminarily 

estimated that such controls could be 

installed in approximately one year or 

less in some unit-specific cases. 

Installation time estimates presented in 

the Final Non-EGU TSD begin with 

control technology bid evaluation (bids 

from vendors) and end with the startup 

of the control technology.16 See Final 

Non-EGU TSD at 20. For the other two 

technology categories (biosolid injection 

technology (BSI) and OXY-firing) as 

well as one emissions source category 

(RICE), EPA had no installation time 

estimates or uncertain installation time 

estimates. For example, EPA found that 

the use of BSI is not widespread, and 

therefore EPA does not have reliable 

information regarding the time required 

to install the technology on cement 

kilns. The installation timing for OXYfiring is similarly uncertain because the 

control technology is installed only at 

the time of a furnace rebuild, and such 

rebuilds occur at infrequent intervals of 

a decade or more. 

Moreover, for those categories for 

which preliminary estimates were 

available, as noted in the Final NonEGU TSD, the single unit installation 

time estimates provided do not account 

for additional important considerations 

in assessing the full amount of time 

needed for installation of NOX control 

measures at non-EGUs; those 

considerations include time, labor, and 

materials needed for programmatic 

adoption of measures and time required 

for installing controls on multiple 

sources in a few to several non-EGU 

sectors across the region. The 

preliminary estimates of installation 

time shown in the Final Non-EGU TSD 

are for installation at a single source and 

do not account for the time required for 

installing controls to achieve sectorwide compliance. When considering 

installation of control measures on 

sources regionally and across non-EGU 

sectors, the time for full sector-wide 

compliance is uncertain, but it is likely 

longer than the installation times shown 


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17The CSAPR Update was signed on September 

7, 2016—approximately eight months before the 

beginning of the 2017 ozone season on May 1. 

18https://ampd.epa.gov/ampd/ (Data current as of 

March 1, 2018). 

19 Id. 

for control measures as mentioned 

above for individual sources in the Final 

Non-EGU TSD. Regional, sector-wide 

compliance could be slowed down by 

limited vendor capacity, limited 

available skilled labor for manufacturers 

such as boilermakers (who produce steel 

fabrications, including those for 

pollution control equipment), 

availability of raw materials and 

equipment (e.g., cranes) for control 

technology construction, and 

bottlenecks in delivery and installation 

of control technologies. Some of the 

difficulties with control technology 

installation as part of regional, sectorwide compliance at non-EGUs, such as 

availability of skilled labor and 

materials, could also have an impact on 

monitor installation at such sources. 

EPA currently has insufficient 

information on vendor capacity and 

limited experience with suppliers of 

control technologies and major 

engineering firms, which results in 

uncertainty in the installation time 

estimates for non-EGU sectors. 

In summary, there is significant 

uncertainty regarding the 

implementation timeframes for various 

NOX control technologies for non-EGUs. 

While EPA has developed preliminary 

estimates for some potential control 

technologies, these estimates do not 

account for additional considerations 

such as the impacts of sector- and 

region-wide compliance. For purposes 

of this analysis, EPA believes that it is 

reasonable to assume that it is likely 

that an expeditious timeframe for 

installing sector- or region-wide controls 

on non-EGU sources may collectively 

require four years or more. 

Comment: One commenter adds that 

the CSAPR Update considered SCR to 

be optimized if the unit achieves a rate 

of 0.10 lbs/mmBtu, but EPA did not 

examine the particular rates that can be 

achieved by Kentucky’s EGUs. The 

commenter states that EPA should 

require Kentucky’s EGUs to achieve an 

optimized emissions rate at each EGU 

based on the past best demonstrated 

ozone season average rates at the unit. 

The commenter states that such 

optimized rates would be reflective of a 

unit’s actual reported data and would be 

considered well controlled while still 

allowing for fluctuation in operating 

conditions, as it would encompass a 

whole ozone season’s worth of reported 

emission data. The commenter states 

that its own analysis indicates that, even 

after CSAPR Update implementation, 

Kentucky’s coal-fired EGUs could have 

reduced NOX emissions by an 

additional 4,100 tons during the 2017 

ozone season and could have reduced 

daily NOX emissions by up to an 

additional 35 tons per day by 

optimizing existing controls at levels the 

EGUs had previously achieved. The 

commenter contends that optimization 

of existing controls is cost-effective and 

has already been shown to be achievable 

from past performance. The commenter 

further asserts that not requiring 

Kentucky’s EGUs to optimize controls 

by this ozone season, at levels 

consistent with past best-demonstrated 

ozone season average rates at each EGU, 

goes against the intent of the CAA to 

reduce transported air pollution as 

expeditiously as practicable. The 

commenter provides suggested language 

that could be used to require specific 

coal-fired EGUs in Kentucky to optimize 

use of existing control technologies. 

Another commenter states that EPA’s 

argument regarding installation of 

control devices on uncontrolled EGUs 

being unworkable (based on potential 

for delays due to shortages in qualified 

labor and material) ignores the potential 

for immediate reductions that can be 

had by optimizing existing EGU 

controls. 

Response: To the extent the 

commenters take issue with EPA’s 

determination in the CSAPR Update 

that 0.10 lb/mmBtu was reasonable rate 

to reflect optimized existing SCR 

controls regionwide, EPA did not 

reopen that issue for comment in this 

rulemaking. EPA has already evaluated 

and implemented cost-effective NOX

emission reductions associated with the 

optimization of existing SCRs. In 

establishing the CSAPR Update EGU 

ozone season NOX emissions budgets, 

the Agency quantified the emissions 

reductions achievable from all NOX

control strategies that were feasible to 

implement in less than one year and 

cost-effective at a marginal cost of 

$1,400 per ton of NOX removed.17 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 lowerNOX emissions rates within the same 

state. See 81 FR 74541 (October 26, 

2016). Thus, for the purposes of this 

action, EPA considers the turning on 

and optimizing of existing SCR controls 

to be a NOX control strategy that has 

already been evaluated and 

implemented in the final CSAPR 

Update. Any concerns regarding 

whether EPA appropriately considered 

these controls in the CSAPR Update are 

not within the scope of this action. 

Moreover, the Agency believes that 

the resulting CSAPR Update emissions 

budgets are being appropriately 

implemented under the CSAPR NOX

Ozone Season Group 2 allowance 

trading program. Preliminary data for 

the 2017 ozone season, which is the first 

CSAPR Update compliance period, 

indicate that power plant ozone season 

NOX emissions across the 22-state 

CSAPR Update region were reduced by 

77,420 tons (or 21 percent) from 2016 to 

2017.18 As a result, total 2017 ozone 

season NOX emissions from covered 

EGUs across the 22 CSAPR Update 

states were approximately 294,478 

tons,19 well below the sum of states’ 

emissions budgets established in the 

CSAPR Update of 316,464 tons. At the 

state-level, preliminary 2017 ozone 

season data indicate power plant 

emissions within Kentucky were 

reduced 5,424 tons (also 21 percent) 

from 2016 to 2017. As a result, 

emissions were 19,978 tons, well below 

Kentucky’s CSAPR Update budget of 

21,115 tons. More specifically, 

emissions from non-optimized SCRcontrolled units (i.e., units with an 

emission rate greater than 0.10 lb/ 

mmBtu) in the CSAPR Update region 

were 82,321 tons in 2016. EPA’s 2023 

emission estimate for these same units 

post-optimization was 40,590. Actual 

emissions in 2017 from these units was 

41,706 tons, demonstrating that the 

CSAPR Update has successfully 

incentivized optimization of controls in 

Kentucky and across the CSAPR Update 

region. 

To the extent that EPA’s NPRM could 

be interpreted as having invited 

comment on this issue, EPA further 

notes that, in the CSAPR Update the 

Agency reviewed fleet-wide, SCRcontrolled coal units from 2009 to 2015 

and calculated an average ozone season 

NOX emission rate across the fleet of 

coal-fired EGUs with SCR for each of 

these seven years, and used the third 

lowest average ozone season NOX rate. 

As described in that rule, EPA 

determined that it was not prudent to 

use either the lowest or second-lowest 

ozone season NOX rates to represent the 

optimization of controls because such a 

rate may reflect new SCR systems that 

have all new components (e.g., new 

layers of catalyst). See 81 FR 74543 

(October 26, 2016). EPA determined that 

data from these new systems are not 

representative of ongoing achievable 

NOX rates considering broken-in 


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33742 Federal Register / Vol. 83, No. 137 / Tuesday, July 17, 2018 / Rules and Regulations 

20EPA notes that this conclusion that the 

feasibility of implementing SNCR should not 

inform the potential compliance timeframe and 

analytic year would not have precluded EPA from 

considering whether the operation of SNCR would 

be cost-effective relative to the installation of postcombustion controls. Had EPA, at step one of the 

four-step framework, identified continued 

downwind air quality problems in 2023, EPA could 

have considered in subsequent steps whether to 

require emission reductions consistent with 

operation of existing SNCR in addition to 

considering whether to require emission reductions 

consistent with implementation of new postcombustion controls. However, because EPA has 

already concluded that operation of existing SNCR 

is not cost-effective in the near-term, it would not 

be reasonable for EPA to select an earlier analytic 

year that would only be consistent with the 

timeframe for implementing that non-cost-effective 

near-term compliance strategy. 

components and routine maintenance 

schedules. Moreover, there are market 

conditions, maintenance, and outages 

(scheduled and unscheduled) that can 

impact the utilization rates. These 

factors can fluctuate yearly and provide 

another set of reasons to not universally 

assume that the lowest rate for a unit 

can repeat itself on a yearly basis going 

forward. EPA determined instead that 

the third lowest fleet-wide average coalfired EGU NOX rate for EGUs with SCR, 

or 0.10 lbs/mmBtu, would be 

representative of ongoing achievable 

emission rates. The commenter has not 

provided any information to contradict 

this conclusion. 

EPA further notes that this rate was 

implemented as an upper limit, 

meaning that EPA did reflect units that 

had recently operated an a more 

efficient rate in the budget calculations. 

EPA considered the latest available data 

at the time of that rulemaking (i.e., 2015) 

that captured each unit’s operation and 

performance under the latest fleet and 

market conditions. EPA used 0.10 lb/ 

mmBtu as a ceiling in its budget 

calculation to reflect optimization of 

existing controls that were not achieving 

that level in 2015. However, the Agency 

used a rate of less than 0.10 lb/mmBtu 

if the unit was operating at that level in 

2015 and a rate of 0.075 lb/mmBtu for 

new SCRs. Thus, EPA’s budget 

calculation and consequent emission 

reduction requirements did reflect the 

fact that some units can and do operate 

below 0.10 lb/mmBtu. 

Comment: One commenter states that 

EPA’s speculative examination of the 

timeline required to install and run new 

EGU controls based on a costeffectiveness threshold of $1,400 is 

unreasonable where there are existing 

EGU controls that EPA admits could be 

run, only at a higher cost. EPA’s focus 

on its estimated timeline for design and 

installation of new, cost-effective EGU 

controls such as SCRs and SNCRs puts 

cost-effectiveness above all else, and 

that EPA must take into account other 

statutory concerns and considerations 

(such as attainment deadlines for 

downwind states). The commenter 

contends that, while cost-effectiveness 

thresholds have been upheld as a 

reasonable consideration in prioritizing 

control of sources, these thresholds 

cannot conversely be used to justify 

unreasonable, protracted delay in 

requiring upwind emission reductions. 

If there are no EGU controls at a given 

cost threshold that can be installed in 

time to permit downwind states to meet 

their attainment deadlines, then EPA 

has set the cost-effectiveness threshold 

too low or has defined the type of 

controls too narrowly. 

The commenter concludes that EPA’s 

refusal to reconsider its costeffectiveness threshold of $1,400 per ton 

of NOX is arbitrary where EPA has 

concluded that idled SNCR controls are 

available for immediate emission 

reductions at a cost of $3,400 per ton. 

Moreover, EPA dismissed this control 

strategy without any analysis of whether 

SNCRs can be run at less than $3,400 

per ton, which is arbitrary and 

capricious when downwind states such 

as New York are forced to reduce NOX

by implementing RACT controls at costs 

of more than $5,000 per ton. 

One commenter states that the CSAPR 

Update failed to look at any short-term 

fixes, such as the operation of idled 

SNCR, that could now be benefiting 

downwind areas. The commenter notes 

that the CSAPR Update also ruled out 

restarting idled SNCR based on the 

conclusion that $3,400 per ton was not 

cost effective, despite the fact that New 

York and other downwind states 

commonly apply RACT at a cost 

threshold of $5,000 per ton and greater. 

Another commenter states that the 

control costs of $1,400 per ton 

considered in the Kentucky SIP are too 

low and that EPA should require 

Kentucky to analyze all options 

available. The commenter states that 

Kentucky should not limit its control 

costs to those in the CSAPR Update 

since ‘‘EPA considered this rule a 

partial remedy.’’ The commenter 

provides as an example that ‘‘EPA 

identified an additional measure that 

could be undertaken immediately’’ in 

turning on existing idled SNCRs. The 

commenter states that EPA should also 

consider evaluating cost effectiveness of 

controls on an ozone season day rather 

than an annual basis, in order to address 

the need to lower emissions on high 

ozone days. 

Response: EPA first notes that the 

commenters misunderstand EPA’s 

evaluation in this action to the extent 

they suggest that Kentucky or EPA 

relied on the cost-effectiveness of 

controls in order to select an 

appropriate future analytic year. As 

explained earlier, EPA evaluated the 

feasibility of implementing, without 

regard to cost, various control options 

that had not previously been included 

in EPA’s analysis of cost-effective 

controls in the CSAPR Update. EPA 

concluded that additional controls on 

either EGUs or non-EGUs would 

generally require four years to 

implement, which would lead to an 

implementation timeframe associated 

with the 2023 ozone season. Had EPA 

identified downwind air quality 

problems to which upwind states 

continued to be linked in 2023, EPA 

would have proceeded to the next steps 

in its four-step analytic framework and 

evaluated the cost-effectiveness of all 

available controls, considering the 

achievable emission reductions and 

anticipated improvements in downwind 

air quality at all cost thresholds. 

However, EPA did not further evaluate 

the cost-effectiveness of the control 

options considered for the feasibility 

analysis because EPA lacks authority to 

require additional emission reductions 

in 2023 in light of the modeling results 

showing that air quality problems in the 

eastern U.S. would be resolved by that 

time. See EME Homer City II, 795 F.3d 

at 129–30 (finding emissions budgets for 

10 states were invalid because EPA’s 

modeling showed that the downwind 

air quality problems to which these 

states were linked when EPA evaluated 

projected air quality in 2012 would be 

entirely resolved by 2014). 

Similarly, to the extent the 

commenter suggests cost-effectiveness 

should be evaluated on particular days, 

rather than over the ozone season, this 

comment is not material to this action 

because EPA’s analysis has concluded at 

step one of the four-step framework. 

EPA did not reevaluate the feasibility 

of near-term control strategies in order 

to inform the selection of a future 

analytic year for this action because 

both the feasibility and costeffectiveness of those control strategies 

were already fully evaluated in the 

CSAPR Update. Thus, EPA 

acknowledges that the operation of 

idled SNCR controls could physically be 

implemented more quickly than four 

years, but EPA already evaluated 

whether this control was cost-effective 

to implement relative to other near-term 

control strategies in the CSAPR Update 

and concluded that it was not.20 In the 

CSAPR Update, EPA identified a 

marginal cost of $3,400 per ton as the 

level of uniform control stringency that 

represents turning on and fully 


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Federal Register / Vol. 83, No. 137 / Tuesday, July 17, 2018 / Rules and Regulations 33743 

21See EGU NOX Mitigation Strategies Final Rule 

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

available at www.regulations.gov and https://

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

documents/egu_nox_mitigation_strategies_final_

rule_tsd.pdf) (NOX Mitigation Strategies TSD). 

operating idled SNCR controls.21

Ultimately, the CSAPR Update finalized 

emissions budgets using $1,400 per ton 

control stringency, finding 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, 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 

relative to the increase in control costs. 

Specifically, EPA’s analysis showed that 

the additional reductions from the 

operation of idling SNCRs in Kentucky 

would only result in a 0.5 percent 

decrease in the Commonwealth’s 

emission budget (from 21,115 to 21,007 

tons). See 81 FR 74548 (October 26, 

2016). In other words, based on the 

CSAPR Update analysis, establishing 

emissions budgets at $3,400 per ton, and 

therefore developing budgets based on 

operation of idled SNCR controls, was 

determined not to be cost-effective for 

addressing downwind air quality 

problems under the good neighbor 

provision obligations for the 2008 ozone 

NAAQS. See 81 FR 74550 (October 26, 

2016). EPA believes that the strategy of 

turning on and fully operating idled 

SNCR controls was appropriately 

evaluated in the CSAPR Update with 

respect to addressing interstate ozone 

pollution transport for the 2008 ozone 

NAAQS. Accordingly, EPA is not 

further assessing this control strategy for 

purposes of identifying an appropriate 

future analytic year. EPA did not reopen 

that issue for comment in this 

rulemaking, and the comments are 

therefore not within the scope of this 

action. To the extent that the commenter 

believes that EPA’s analysis of SNCR 

controls in the CSAPR Update was 

flawed, the time to contest that analysis 

was during that rulemaking. 

To the extent the commenters suggest 

that EPA must select a higher cost 

threshold in order to ‘‘permit downwind 

states to meet their attainment 

deadlines,’’ the commenters 

misconstrue the requirements of the 

good neighbor provision and the 

applicable legal precedent. The good 

neighbor provision does not require 

upwind states to bring that downwind 

areas into attainment with the NAAQS. 

Rather, states are required to reduce 

emissions that ‘‘contribute 

significantly’’ to nonattainment in 

downwind areas. Once a state has 

eliminated its significant contribution to 

downwind nonattainment, it has met 

the requirements of the good neighbor 

provision, regardless of whether the 

downwind area has actually attained. 

See, e.g., 76 FR 48258–59 (August 8, 

2011) (determining in CSAPR that SO2

emission reductions available at $2,300 

per ton represented good neighbor 

obligation even though some downwind 

air quality problems would persist). 

This is distinct from the obligations 

imposed on downwind states containing 

designated nonattainment areas, which 

are directly obligated to demonstrate 

attainment of the NAAQS. See, e.g., 

CAA section 182(c)(2)(A) (requiring the 

state submit a demonstration that the 

plan will provided for attainment of the 

ozone NAAQS by the applicable 

attainment date). Because the statutory 

obligations imposed on upwind and 

downwind states with respect to 

attainment differs, it is also reasonable 

that the costs of controls implemented 

in upwind states may also differ from 

those implemented in downwind states. 

The Supreme Court has already affirmed 

EPA’s approach to quantifying and 

apportioning upwind states’ significant 

contribution on the basis of cost. See 

EME Homer City, 134 S. Ct. at 1607. 

While the Court stated that EPA was 

prohibited from requiring more 

emission reductions than necessary to 

bring downwind areas into attainment 

of the NAAQS, id. at 1608, the Court did 

not indicate that upwind states were 

specifically responsible for ensuring the 

downwind states achieve attainment in 

all instances. Thus, EPA does not agree 

that it must require additional emission 

reductions from upwind states, even if 

they are not cost-effective, simply 

because a downwind area has not yet 

attained the NAAQS. 

Comment: One commenter states that 

EPA’s contention that implementation 

of controls is not feasible until during or 

after the 2022 ozone season is 

unfounded for the following reasons: 

• SCR installations are typically less 

time-consuming than 39 months, noting 

that one of the resources EPA cites 

indicates 21 months is reasonable. 

• SNCR takes less time, 10–13 

months, to implement. 

• EPA tacitly admits some projects 

could be completed prior to 2022 when 

it claims that SCR and SNCR should be 

‘‘linked’’ at the fleet-level. 

• The original CSAPR allowed less 

than three years for compliance with 

SO2 limits that were expected to require 

installation of flue gas desulfurization 

controls, which generally are expected 

to take longer than SCR to install. 

• EPA’s integrated planning model 

assumes SO2 scrubbers can be installed 

in three years and SCR units in two 

years. 

• Non-EGU controls are widely 

available on timeframes shorter than 48 

months according to EPA’s Final NonEGU TSD. Although EPA insinuates this 

document questions the availability of 

non-EGU controls within 48 months, it 

lists many categories of non-EGU NOX

controls available in about 60 weeks 

that were also cost-effective. 

• EPA did not exhaust readily 

available EGU control options. 

Kentucky could require 100 percent 

operation of already-installed control 

equipment or insist on optimized 

performance. Kentucky could 

discontinue use of ‘‘banked allowances’’ 

in the CSAPR Update. And CSAPR did 

not require any re-dispatch or shifting 

power generation from higher-emitting 

to lower-emitting plants, which is also 

feasible in the short term. 

• EPA’s arguments regarding the 

availability of steel and cranes are 

tenuous. EPA cites only two documents 

to support its assertion about crane 

shortages, only one of which even 

mentions a shortage. That article only 

indicates that developers need to book 

the cranes and operators several months 

in advance, which is not much of an 

obstacle. 

Another commenter states that— 

based on its experience—EPA’s 

estimated installation time frames for 

SCRs are too conservative (short), and 

provides a range of 28 to 60 months for 

installation of SCRs at one site. 

Response: EPA first notes that 

responses to comments regarding the 

following issues are addressed earlier in 

this document: (1) Timeframes assumed 

for installation of post-combustion 

controls in CSAPR; (2) timeframes for 

installation of controls on non-EGUs; 

and (3) the optimization of existing 

post-combustion controls. EPA will 

address the remaining comments in the 

following paragraphs. 

EPA disagrees that the timeframe for 

implementation of SNCR and SCR at an 

individual unit necessarily indicates 

that the feasibility analysis is flawed. As 

an initial matter, there are differences 

between these control technologies with 

respect to the potential viability of 

achieving cost-effective regional NOX

reductions from EGUs. SCR controls 

generally achieve greater EGU NOX

reduction efficiency (up to 90 percent) 

than SNCR controls (up to 25 percent). 

Resulting in part from this disparity in 

NOX reduction efficiency, when 


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22NOX Mitigation Strategies TSD. 

23National Electric Energy Data System (NEEDS) 

v6. EPA, available at https://www.epa.gov/ 

airmarkets/national-electric-energy-data-systemneeds-v6. 

24Final Report: Engineering and Economic 

Factors Affecting the Installation of Control 

Technologies for Multipollutant Strategies, EPA– 

600/R–02/073 (October 2002), available at https:// 

nepis.epa.gov/Adobe/PDF/P1001G0O.pdf. 

25EPA considers these additional labor and 

supply requirements in the context of the already 

committed labor and supply requirements 

associated with projects already underway. 

26 Id. 

27Occupational Outlook Handbook, Bureau of 

Labor Statistics, available at https://www.bls.gov/ 

ooh/construction-and-extraction/boilermakers.htm. 

28Union Craft Labor Supply Survey, The 

Association of Union Constructors, Exhibit 4–2 at 

page 29, available at https://www.tauc.org/files/ 

2017_TAUC_UNION_CRAFT_LABOR_SUPPLY_

REVISEDBC_FINAL.pdf. 

29Skilled Wage Growth Less Robust, Worker 

Shortage Still an Issue, Industry Week, October 23, 

2017, available at http://www.industryweek.com/ 

talent/skilled-wage-growth-less-robust-workershortage-still-issue. 

30Union Craft Labor Supply Survey, The 

Association of Union Constructors, Exhibit 4–2 at 

page 29, available at https://www.tauc.org/files/ 

2017_TAUC_UNION_CRAFT_LABOR_SUPPLY_

REVISEDBC_FINAL.pdf. 

31Worldsteel Short Range Outlook, October 16, 

2017, available at https://www.worldsteel.org/ 

media-centre/press-releases/2017/worldsteel-ShortRange-Outlook-2017-2018.html. 

32See, e.g., Seattle Has Most Cranes in the 

Country for 2nd Year in a Row—and Lead is 

Growing, Seattle Times, July 11, 2017, available at 

https://www.seattletimes.com/business/real-estate/ 

seattle-has-most-cranes-in-the-country-for-2ndyear-in-a-row-and-lead-is-growing/. 

33See RLB Crane Index, January 2018, in the 

docket for this action. 

considering both control costs and NOX

reduction potential in developing cost 

per ton analysis for the CSAPR Update, 

EPA found new SCR controls to be more 

cost-effective than SNCR at removing 

NOX. Specifically, EPA found that new 

SCR controls could generally reduce 

EGU emissions for $5,000 per ton of 

NOX removed whereas new SNCR 

controls could generally reduce EGU 

emissions at a higher cost of $6,400 per 

ton of NOX removed.22 In other words, 

the greater NOX reduction efficiency for 

SCR controls translates into greater costeffectiveness relative to SNCR controls. 

The general cost-effectiveness advantage 

is consistent with observed installation 

patterns where SCR controls (62 percent 

of coal-fired capacity) are more 

prevalent across the east relative to 

SNCR (12 percent of coal-fired 

capacity).23 In light of the increased 

NOX removal efficiency and the relative 

cost-effectiveness of SCR as compared to 

SNCR, EPA does not believe that is 

reasonable to focus its analysis on the 

implementation of the less-efficient 

control strategy (SNCR) at the expense 

of the greater emission reduction 

potential of SCR controls. Accordingly, 

EPA believes it is reasonable to select a 

potential compliance timeframe and 

therefore a future analytic year that 

would permit the region-wide 

installation of both new SCR and new 

SNCR. 

Moreover, the estimated 39 months 

and 10 to 13 months for implementation 

of SCR and SNCR, respectively, at an 

individual unit do not account for 

factors that would influence this 

timeframe across the fleet. Installing 

new SCR or SNCR controls for EGUs 

generally involves the same steps: 

Conducting an engineering review of the 

facility; advertising and awarding a 

procurement contract; obtaining a 

construction permit; installing the 

control technology; testing the control 

technology; and obtaining or modifying 

an operating permit.24

Scheduled curtailment, or planned 

outage, for pollution control installation 

would be necessary to complete either 

SCR or SNCR projects. Given that peak 

demand and rule compliance would 

both fall in the ozone season, sources 

would likely try to schedule installation 

projects for the ‘‘shoulder’’ seasons (i.e., 

the spring and/or fall seasons), when 

electricity demand is lower than in the 

summer, reserves are higher, and ozoneseason compliance requirements are not 

in effect. If multiple units were under 

the same timeline to complete the 

retrofit projects as soon as feasible from 

an engineering perspective, this could 

lead to bottlenecks of scheduled outages 

as each unit attempts to start and finish 

its installation in roughly the same 

compressed time period. Thus, any 

compliance timeframe that would 

assume installation of new SCR or 

SNCR controls should encompass 

multiple shoulder seasons to 

accommodate scheduling of curtailment 

for control installation purposes and 

better accommodate the regional nature 

of the program. 

In addition to the coordination of 

scheduled curtailment, an appropriate 

compliance timeframe should 

accommodate the additional 

coordination of labor and material 

supply necessary for any fleet-wide 

control installation efforts.25 The total 

construction labor for an SCR system 

associated with a 500-megawatt (MW) 

EGU is in the range of 310,000 to 

365,000 man-hours, with boilermakers 

accounting for approximately half of 

this time.26 SNCR installations, while 

generally having shorter individual 

project timeframes of 10 to 13 months 

from bid solicitation to startup, share 

similar labor and material resources and 

the timing of SNCR installation 

planning is therefore linked to the 

timing of SCR installation planning. In 

recent industry surveys, one of the 

largest shortages of union craft workers 

was for boilermakers. This shortage of 

skilled boilermakers is expected to rise 

due to an anticipated nine percent 

increase in boilermaker labor demand 

growth by 2026, coupled with expected 

retirements and comparatively low 

numbers of apprentices joining the 

workforce.27 The shortage of and 

demand for skilled labor, including 

other craft workers critical to pollution 

control installation, is pronounced in 

the manufacturing industry. The 

Association of Union Constructors 

conducted a survey of identified labor 

shortages and found that boilermakers 

were the second-most frequently 

reported skilled labor market with a 

labor shortage.28 Moreover, recovery 

efforts from the natural disasters of 

Hurricanes Harvey and Irma and 

wildfires in 2017 are expected to further 

tighten the labor supply market in 

manufacturing in the near term.29 EPA 

determined that these tight labor market 

conditions within the relevant 

manufacturing sectors, combined with 

fleet-level mitigation initiatives, would 

likely lead to some sequencing and 

staging of labor pool usage, rather than 

simultaneous construction across all 

efforts. This sector-wide trend supports 

SCR and SNCR installation timeframes 

for a fleet-wide program that exceed the 

demonstrated single-unit installation 

timeframe. 

Moreover, NOX post-combustion 

control projects also require materials 

and equipment such as steel and cranes. 

Sheet metal workers, necessary for steel 

production, are also reported as having 

well above an average supply-side 

shortage of labor.30 This, coupled with 

growth in steel demand estimated at 

three percent in 2018, and simultaneous 

global economic growth, suggests that 

there may be a constricted supply of 

steel needed for installation of new 

post-combustion controls.31 Similarly, 

cranes are critical for installation of 

SCRs, components of which must be 

lifted hundreds of feet in the air during 

construction. Cranes are also facing 

higher demand during this period of 

economic growth, with companies 

reporting a shortage in both equipment 

and manpower.32 33 The tightening 

markets in relevant skilled labor, 

materials, and equipment, combined 

with the large number of installations 

that could be required fleet-wide under 

a regional air pollution transport 

program, necessitate longer installation 


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34 Kalinoski, Gail, North American Construction 

Trends: RLB Reports, available at https://

www.cpexecutive.com/post/north-americaconstruction-trends-rlb-reports/. 

35 2014 EIA Form 860, Schedule 6, Environmental 

Control Equipment. 

36 2013 EIA Form 860, Schedule 6, Environmental 

Control Equipment. 

37Big Bend’s Multi-Unit SCR Retrofit, Power 

Magazine, March 1, 2010, available at http://

www.powermag.com/big-bends-multi-unit-scrretrofit/. 

38Because EPA did not evaluate additional 

generation shifting possibilities in this action, it 

does not at this time need to revisit the question 

whether it is within the EPA’s authority or 

otherwise proper to consider generation shifting in 

implementing the good neighbor provision. The 

EPA is aware that this has been an issue of 

contention in the past. See, e.g., 81 FR at 74545 

(October 26, 2016) (responding to comments); 

CSAPR Update Rule—Response to Comment, at 

534–50 (EPA–HQ–OAR–2015–0500–0572) 

(summarizing and responding to comments). The 

EPA may revisit this question in addressing good 

neighbor requirements for other NAAQS but is not 

revisiting this issue with regard to the 2008 ozone 

NAAQS. 

time-tables relative to what has been 

historically demonstrated at the unitlevel. 

EPA disagrees with the commenter’s 

assertion that these observations 

regarding crane and steel markets are 

tenuous and thus should not influence 

EPA’s analysis. While this is not the 

sole reason for EPA’s conclusion that 48 

months would be necessary for regionwide control installation, EPA believes 

the market for labor and materials is a 

relevant factor to consider in light of 

reports from companies that supply the 

tower cranes that there is a shortage of 

both equipment and manpower. The 

crane index, along with quarterly 

construction costs reports, are metrics 

regularly used to evaluate construction 

activity by construction consultancies 

and can provide information useful to 

demonstrate the level of equipment 

demand.34 Moreover, the commenter 

provides no evidence to contradict the 

EPA’s finding that these equipment 

markets are facing periods of higher 

demand. 

The time lag observed between the 

planning phase and in-service date of 

SCR and SNCR operations in certain 

cases also illustrates that site-specific 

conditions sometimes lead to 

installation times of four years or longer. 

For instance, SCR projects for units at 

Ottumwa Generating Station (Iowa), 

Columbia Energy Center (Wisconsin), 

and Oakley Generating Station 

(California) were all in the planning 

phase in 2014. However, these projects 

have estimated in-service dates ranging 

between 2018 and 2021.35 Similarly, 

individual SNCR projects can exceed 

their estimated 10–13-month time 

frame. For example, projects such as 

SNCR installation at Jeffrey Energy 

Center (Kansas) were in the planning 

phase in 2013, but not in service until 

2015.36 Completed projects, when large 

in scale, also illustrate how timelines 

can extend beyond the bare minimum 

necessary for a single unit when the 

project is part of a larger air quality 

initiative involving more than one unit 

at a plant. For instance, the Big Bend 

Power Station in Florida completed a 

multi-faceted project that involved 

adding SCRs to all four units as well as 

converting furnaces, over-fire air 

changes, and making windbox 

modifications. The time from the initial 

planning stages to completion was a 

decade.37

While individual unit-level SCR and 

SNCR projects can average 39 and 10 

months, respectively, from bid to 

startup, a comprehensive and regional 

emissions reduction effort also requires 

more time to accommodate the labor, 

materials, and outage coordination for 

these two types of control strategies. 

Because these post-combustion control 

strategies share similar resource inputs 

and are part of regional emissions 

reduction programs rather than unitspecific technology mandates, the 

timeframes for one type are inherently 

linked to the other type. This means that 

SNCR projects cannot be put on an early 

schedule in light of their reduced 

construction timing without impacting 

the availability of resources for the 

manufacture and installation of SCRs 

and thus the potential start dates of 

those projects. 

In short, given the market and 

regulatory circumstances in which EPA 

evaluated this effort, we determined that 

four years would be an expeditious 

timeframe to coordinate the planning 

and completion of any mitigation efforts 

that might be necessary in this instance. 

In regard to the commenter who noted 

a range of 28 to 60 months for SCR 

installation, EPA notes that a period of 

48 months falls reasonably within that 

range, and is consistent with the regionwide evaluation of control feasibility 

that EPA has conducted in this action. 

EPA notes that the commenters’ 

assertions about assumptions in IPM 

regarding control installation 

timeframes are unfounded. Postcombustion control installation times 

are an exogenous assumption in EPA’s 

power sector modeling—i.e., EPA 

determines the number of years for 

installation and provides that figure as 

an input to the model; the figure is not 

the product of a function that the model 

performs internally. EPA makes this 

installation determination 

independently for each model run. For 

instance, if EPA is using IPM to model 

a run year that is three years from a 

present date, it may choose to allow 

scrubber installation to occur in that 

first model run year if the volume of 

installations is expected to be small 

(consistent with the notion that some 

units may be able to install controls 

more quickly). However, if the volume 

of scrubber installations is expected to 

be larger, reflecting more region-wide 

resource coordination requirements and 

resource requirements, EPA may not 

allow the retrofit option in the model 

until after three years. Thus, the 

assumption can vary according to the 

policy context being considered. 

Finally, EPA notes that the 

commenter is incorrect in asserting that 

the CSAPR Update failed to account for 

generation shifting. The CSAPR Update 

budgets accounted for generation 

shifting that was considered to be 

available at the $1,400 cost threshold 

and feasible to implement by the 2017 

compliance timeframe. See 81 FR 

74544–45 (October 26, 2016). The 

commenter does not otherwise explain 

whether or how any potential for 

additional generation shifting should 

influence EPA’s analysis in this 

action.38

Comment: Several commenters 

advocate for the adoption of short-term 

NOX emission rate limits for EGUs. The 

ozone NAAQS is based on an 8-hour 

standard and the allowance trading 

under the CSAPR Update is done over 

a multi-month ozone season. The 

commenters believe that the lack of 

federally enforceable short-term NOX

emission rates in Kentucky will 

facilitate the continued operation of 

EGUs with inadequate NOX emission 

controls, to include units that have NOX

controls that are not always operated 

during the ozone season. While the 

CSAPR Update has encouraged 

improved utilization of SCR and SNCR 

controls during the 2017 ozone season, 

the commenter contends that there are 

additional cost-effective NOX reductions 

that can be achieved by requiring 

optimization of these existing controls, 

every day of the ozone season, at coalfired EGUs. The commenter therefore 

states that Kentucky should establish 

emission limits for its EGUs with 

appropriate magnitudes and averaging 

periods. 

Another commenter also states that 

EPA should require Kentucky to adopt 

targeted strategies for reducing 

emissions on ‘‘high emitting days.’’ 

One commenter contends that 

compliance with a cap-and-trade 

program like the CSAPR Update is an 


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33746 Federal Register / Vol. 83, No. 137 / Tuesday, July 17, 2018 / Rules and Regulations 

39See Discussion of Short-term Emission Limits, 

available in the docket for this action. 40 Id. 41Maximum rated hourly heat input rate is the 

higher of the manufacturer’s maximum rated hourly 

heat input rate or the highest observed hourly heat 

input rate. 42 Gray, Sterling; Jarvis, Jim; Donner Chad, and 

Estep John, SCR Performance, Power Engineering, 

March 9, 2017, available at https://www.powereng.com/articles/print/volume-121/issue-3/ 

features/scr-performance.html. 

inadequate mechanism to ensure 

permanent NOX reductions on high 

ozone days that determine attainment or 

nonattainment of the NAAQS. The 

commenter states that its analysis shows 

that many coal-fired EGUs in Kentucky 

were not optimizing their controls in 

2017 and failed to operate at rates 

assumed in EPA’s 2023 modeling 

analysis. The commenter states that a 

cap and trade program allows emissions 

to fluctuate above the state-wide 

budgets if the owners or operators (1) 

have adequate banked allowances, or (2) 

can purchase allowances to cover excess 

emissions. Ozone is an air pollutant to 

which prevention of short-term 

exposure to excessive levels over an 

eight-hour period is critical to protect 

public health, and compliance with the 

NAAQS can be negatively impacted by 

inconsistent day-to-day operation of 

pollution controls. Allowing a plant to 

cycle back the efficiency or altogether 

turn off control equipment is an 

inappropriate control measure for ozone 

because this can result in excessive rates 

on high ozone days, when it is most 

important to ensure low emission rates. 

Response: EPA first notes that it is 

unnecessary to evaluate what strategy 

would be appropriate for the 

implementation of additional emission 

reductions because EPA has determined 

that they are unnecessary and 

unauthorized in light of the modeling 

data showing that downwind air quality 

problems will be resolved by 2023, 

when additional control strategies could 

be feasibly implemented. 

To the extent the commenter is raising 

concerns with the use of an allowance 

trading program to implement the 

emission reductions required by the 

CSAPR Update to address the 2008 

ozone NAAQS, EPA considers it 

untimely for the commenter to raise 

such a challenge in this action. Those 

emission reductions were finalized in a 

separate rulemaking, and the 

appropriate venues to raise concerns 

over the adequacy for reduction 

implementation of the CSAPR 

allowance trading program, as compared 

to other measures such as short-term 

emission limits, were that rulemaking 

process and subsequent petitions for 

judicial review of that final rule. Thus, 

this issue is outside the scope of the 

present rulemaking. Similarly, as 

discussed earlier in this action, to the 

extent the commenter also disagrees 

with EPA’s determinations regarding the 

optimization of SCR controls or the costeffectiveness of SCNR controls in the 

CSAPR Update, those comments are 

also outside the scope of this action. 

Nonetheless, EPA has examined the 

hourly NOX emissions data reported to 

EPA and observed very few instances of 

units selectively turning down or 

turning off their emissions control 

equipment during hours with high 

generation.39 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, 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 (when 

ozone concentrations often peak). In 

fact, EPA noticed that SCR performance 

rates—on average—were better on high 

demand days. 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. 

Moreover, SCR performance is not 

purely a matter of operational decisions 

of the control. EPA’s review of hourly 

2017 data suggests that SCR 

performance often decreases as hourly 

load levels drop below a particular level 

(e.g., 30 percent of maximum rated 

hourly heat input rate).40 41 A drop in 

SCR performance at a lower load level 

is consistent with engineering-based 

performance challenges associated with 

minimum operating temperatures 

(among other factors) for the SCR 

system.42 In other words, SCR systems 

with typical catalyst formulations are 

not effective at removing NOX during 

low-load operations when the unit 

might not achieve sufficient 

temperatures to promote the necessary 

chemical reactions. Decreases in SCR 

removal efficiency at low load levels 

appear to be consistent with known 

engineering limitations. The 2017 data 

do not provide any indication of broad 

regional patterns of scaling back SCR 

operations during particular hours of an 

ozone season for reasons other than 

engineering limitations. Thus, EPA does 

not have any basis, at this time, to 

believe that short-term emission rates 

are necessary to address regional SCR 

operation patterns on high demand days 

in the context of this action. 

Moreover, even if it were appropriate 

to assess the merits of particular 

remedies as part of this action, EPA 

does not agree that an allowance trading 

program would be an inadequate means 

of implementing any additional 

statewide emission reductions that may 

have been necessary under a scenario 

where more reductions were required to 

fully address the good neighbor 

provision. Implementation mechanisms 

based on 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 

such as the NOX Budget Trading 

Program and the CSAPR NOX ozone 

season allowance trading program. As a 

result, areas are now attaining the 1997 

ozone NAAQS. Further, 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. 

Comment: One commenter states that 

EPA should require Kentucky to ensure 

all ‘‘minimum control strategies’’ 

identified in a recent Ozone Transport 

Commission (OTC) statement regarding 

‘‘good neighbor’’ SIPs are adopted, along 

with other points noted in the 

document. 

Another commenter states that other 

measures should be undertaken to 

reduce Kentucky’s impact on other 

states, including NOX RACT on EGUs 

and other large NOX sources at the same 

stringent levels used within the OTR, 

along with controls on mobile sources 

(inspection and maintenance, and antiidling). 

One commenter recommends that any 

full remedy of a state’s good neighbor 

obligations must require, at minimum, 

RACT on all major NOX and VOC 

sources, best available control 

technology (BACT) on all existing EGUs 

and large industrial boilers, BACT on all 

sources with high ozone-day emissions, 

and regional measures such as those 

recommended by the OTR. 

Response: EPA lacks authority to 

require control measures or emission 

reductions unless the Agency first 

identifies a downwind air quality 

problem to which an upwind state is 

contributing. See EME Homer City, 134 

S. Ct. at 1608 (‘‘If EPA requires an 

upwind State to reduce emissions by 

more than the amount necessary to 

achieve attainment in every downwind 

State to which it is linked, the Agency 

will have overstepped its authority, 

under the Good Neighbor Provision.’’); 


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EME Homer City II, 795 F.3d at 129–30 

(finding emissions budgets for 10 states 

were invalid because EPA’s modeling 

showed that the downwind air quality 

problems to which these states were 

linked when EPA evaluated projected 

air quality in 2012 would be entirely 

resolved by 2014). With respect to the 

recommended control strategies, the 

commenters do not explain why they 

believe the control strategies applicable 

to the OTR, RACT, BACT, or other 

measures are necessary to achieve 

attainment or maintenance of the 

NAAQS in downwind states. While EPA 

determined that Kentucky would be 

linked to downwind air quality 

problems in 2017, EPA has also 

determined that those air quality 

problems would be resolved by 2023. 

Thus, EPA has no authority to require 

additional emission reductions—via the 

control strategies suggested by the 

commenters or otherwise—from 

Kentucky or other upwind states in 

2023. 

Comment: One commenter states that 

EPA’s 2023 modeling is based on 

numerous flawed assumptions. EPA 

adjusted projected NOX emissions for 

dozens of EGUs based on assumptions 

of new or optimized controls. However, 

the Kentucky SIP contains no 

enforceable mechanisms, schedules, or 

timetables for compliance to ensure the 

relied-upon assumptions are valid and 

will actually occur or remain in place in 

2023. The commenter contends that 

EPA’s demonstration or verification of 

enforceable commitments to support 

Kentucky’s assumptions, as well as 

EPA’s assumptions for all other states, 

are required by the CAA, citing section 

110(a)(2)(A) and (C). 

One commenter also contends that 

Kentucky’s SIP fails to satisfy section 

110(a)(2)(A) because, even if reliance on 

2023 were valid, it lacks any proposed 

enforceable limitations or compliance 

timelines. 

One commenter states that Kentucky 

has not shown that the EPA-modeled 

shutdowns of E.W. Brown Generating 

Station and Elmer Smith plant will 

occur in a federally enforceable manner, 

and that therefore, EPA should not 

approve Kentucky’s SIP since the 

modeling includes such reductions. 

One commenter states that although 

EPA and Alpine modeling indicate all 

areas outside California will achieve 

attainment with the 2008 ozone NAAQS 

by 2023, some Connecticut monitors 

will ‘‘only barely’’ comply. Commenter 

states that Kentucky’s reliance on the 

2023 modeling should be accompanied 

by enforceable regulations that ensure 

the lower, modeled 2023 emissions are 

achieved, including the decrease in EGU 

emissions. 

One commenter includes a table 

summarizing adjusted projected NOX

emissions for Kentucky EGUs used in 

EPA’s 2023 modeling based on 

assumptions of new or optimized 

controls. The commenter states that 

there are no enforceable commitments 

in Kentucky’s SIP to support these 

assumptions, which the commenter 

asserts are required by EPA’s own 

methodology, citing a March 2018 EPA 

memorandum. Without enforceable 

measures, the commenter asserts the 

modeling is not a proper basis for a good 

neighbor SIP. 

One commenter contends that EPA’s 

modeling relies on reductions that are 

not federally enforceable, and Kentucky 

failed to demonstrate that the emission 

reductions EPA relied on across the 

modeling domain are federally 

enforceable. The commenter contends 

that the upwind state good neighbor 

obligations cannot be deemed satisfied 

if large portions of their emissions 

inventory remain poorly controlled. 

One commenter states that an 

approvable good neighbor SIP must 

include permanent and federally 

enforceable emissions reductions. The 

commenter contends that section 110 

requires that a SIP (1) include 

enforceable emission limitations and 

other control measures, means, or 

techniques, (2) include a program to 

provide for the enforcement of the 

measures, and (3) provide adequate 

provisions prohibiting 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 the NAAQS. EPA’s four-step 

analysis also requires the adoption of 

‘‘permanent and enforceable measures.’’ 

The commenter states that 

compliance with the rates reflected in 

the 2023 modeling are not permanent or 

federally enforceable under the CSAPR 

Update or any other federal rule, 

including the assumption that most 

units will emit at 2016 levels and that 

25 units will take additional emission 

reduction actions, including unit 

retirement, increased use of postcombustion controls, or addition of new 

combustion controls. The commenter 

contends these actions are therefore 

speculative and cannot be properly 

considered when determining if a state 

met its good neighbor obligations. 

Downwind states cannot rely on 

speculative reduction, and without 

federally enforceable limits, there is no 

guarantee that Maryland will maintain 

the 2008 ozone NAAQS. The 

commenter notes that Maryland’s 

section 126(b) petition proposed 

specific language and NOX emission 

rates for EGUs with SCR and SNCR in 

Kentucky that EPA should consider 

making federally enforceable as a nearterm NOX reduction strategy. EPA 

should also modify operating permits 

for other units to require 

implementation of specific emission 

rates, fuel switches, and control 

installations for EGUs that are not 

equipped with controls, which were 

relied on in the modeling. 

Response: EPA does not agree that 

Kentucky is required to adopt 

permanent and enforceable control 

measures to ensure that the projected 

emission levels used in the 2023 

modeling will be maintained. Within 

EPA’s four-step interstate transport 

framework, EPA only requires sources 

in upwind states to implement 

enforceable emission limitations if: (1) 

Downwind air quality problems are 

identified in at step one, (2) an upwind 

state is linked to a downwind air quality 

problem at step two, and (3) sources in 

the linked upwind state are identified at 

step three as having emissions that 

significantly contribute to 

nonattainment and interfere with 

maintenance of the NAAQS considering 

cost- and air-quality-based factors. If all 

three of these steps are not satisfied, 

then the state is not required to include 

provisions in its SIP prohibiting any 

level of reductions because the EPA has 

determined that the state will not 

significantly contribute to 

nonattainment or interfere with 

maintenance of the NAAQS downwind. 

For the reasons described in the 

following paragraphs, EPA believes this 

approach is a reasonable interpretation 

of the good neighbor provision. 

The good neighbor provision instructs 

EPA and states to apply its requirements 

‘‘consistent with the provisions of’’ title 

I of the CAA. EPA is therefore 

interpreting the requirements of the 

good neighbor provision, and the 

elements of its four-step interstate 

transport framework, to apply in a 

manner consistent with the designation 

and planning requirements in title I that 

apply in downwind states. See North 

Carolina, 531 F.3d at 912 (holding that 

the good neighbor provision’s reference 

to title I requires consideration of both 

procedural and substantive provisions 

in title I). EPA notes that this 

consistency instruction follows the 

requirement that plans ‘‘contain 

adequate provisions prohibiting’’ certain 

emissions in the good neighbor 

provision. The following paragraphs 

will therefore explain how EPA’s 

interpretation of the circumstances 


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33748 Federal Register / Vol. 83, No. 137 / Tuesday, July 17, 2018 / Rules and Regulations 

43Nonattainment areas classified as marginal are 

required to submit emissions inventories and 

implement a nonattainment new source review 

permitting program, but are not generally required 

to implement controls at existing sources. See CAA 

section 182(a), 42 U.S.C. 7511a(a). 

44CAA section 184 contains the exception to this 

general rule: States that are part of the OTR are 

required to provide SIPs that include specific 

enforceable control measures, similar to those for 

nonattainment areas, that apply to the whole state, 

even for areas designated attainment for the ozone 

NAAQS. See generally 42 U.S.C. 7511c. 

45See Memorandum from Robert J. Meyers, 

Principal Deputy Assistant Administrator, US EPA 

to Regional Administrators, Area Designations for 

the 2008 Ozone National Ambient Air Quality 

Standards, at Attachment 2, December 4, 2008, 

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

ozonedesignations/web/pdf/area_designations_for_

the_2008_revised_ozone_naaqs.pdf. 

under which the good neighbor 

provision requires that plans ‘‘prohibit’’ 

emissions through enforceable measures 

is consistent with the circumstances 

under which downwind states are 

required to implement emissions 

control measures in nonattainment 

areas. 

For purposes of this analysis, EPA 

notes specific aspects of the title I 

designations process and attainment 

planning requirements for the ozone 

NAAQS that provide particularly 

relevant context for evaluating the 

consistency of EPA’s approach to the 

good neighbor provision in upwind 

states. EPA notes that this discussion is 

not intended to suggest that the specific 

requirements of designations and 

attainment planning apply to upwind 

states pursuant to the good neighbor 

provision, but rather to explain why 

EPA’s approach to interpreting the good 

neighbor approach is reasonable in light 

of relevant, comparable provisions 

found elsewhere in title I. In particular, 

these provisions demonstrate that EPA’s 

approach is consistent with other 

relevant provisions of title I with respect 

to what data is considered in EPA’s 

analysis and when states are required to 

implement enforceable measures. 

First, areas are initially designated 

attainment or nonattainment for the 

ozone NAAQS based on actual 

measured ozone concentrations. CAA 

section 107(d) (noting that an area shall 

be designated attainment where it 

‘‘meets’’ the NAAQS and nonattainment 

where it ‘‘does not meet’’ the NAAQS). 

Therefore, a designation of 

nonattainment does not in the first 

instance depend on what specific 

factors have influenced the measured 

ozone concentrations or whether such 

levels are due to enforceable emissions 

limits. If an area measures a violation of 

the relevant ozone NAAQS, then the 

area is designated nonattainment. In 

cases where the nonattainment area is 

classified moderate or higher, the 

responsible state is required to develop 

an attainment plan, which generally 

includes the application of various 

enforceable control measures to sources 

of emissions located in the 

nonattainment area, consistent with the 

requirements in Part D of title I of the 

Act.43 See generally CAA section 182, 42 

U.S.C. 7511a. If, however, an area 

measures compliance with the ozone 

NAAQS, the area is designated 

attainment, and sources in that area 

generally are not subject to any new 

enforceable control measures under Part 

D.44

Similarly, in determining the 

boundaries of an ozone nonattainment 

area, the CAA requires EPA to consider 

whether ‘‘nearby’’ areas ‘‘contribute’’ to 

ambient air quality in the area that does 

not meet the NAAQS. See 42 U.S.C. 

7407(d). For each monitor or group of 

monitors indicating a violation of the 

ozone NAAQS, EPA assesses 

information related to five factors, 

including current emissions and 

emissions-related data from the areas 

near the monitor(s), for the purpose of 

establishing the appropriate geographic 

boundaries for the designated ozone 

nonattainment areas. A nearby area may 

be included within the boundary of the 

ozone nonattainment area only after 

assessing area-specific information, 

including an assessment of whether 

current emissions from that area 

contribute to the air quality problem 

identified at the violating monitor.45 If 

such a determination is made, sources 

in the nearby area are also subject to the 

applicable Part D control requirements. 

However, if EPA determines that the 

nearby area does not contribute to the 

measured nonattainment problem, then 

the nearby area is not part of the 

designated nonattainment area and 

sources in that area are not subject to 

such nonattainment control 

requirements. 

EPA’s historical approach to 

addressing the good neighbor provision 

via the four-step interstate transport 

framework, and the approach EPA 

continues to apply here, is consistent 

with these title I requirements. That is, 

in steps 1 and 2 of the framework, EPA 

evaluates whether there is a downwind 

air quality problem (either 

nonattainment or maintenance), and 

whether an upwind state impacts the 

downwind area such that it contributes 

to and is therefore ‘‘linked’’ to the area. 

EPA’s determination at step one of the 

good neighbor analysis that it has not 

identified any downwind air quality 

problems to which an upwind state 

could contribute is analogous to EPA’s 

determination in the designation 

analysis that an area should be 

designated attainment. Similarly, EPA’s 

determination at step two of the good 

neighbor analysis that, while it has at 

step one identified downwind air 

quality problems, an upwind state does 

not sufficiently impact the downwind 

area such that the state is linked is 

analogous to EPA’s determination in the 

designation analysis that a nearby area 

does not contribute to a NAAQS 

violation in another area. Thus, under 

the good neighbor provision, EPA 

determines at step one or two, as 

appropriate, that the upwind state will 

not significantly contribute to 

nonattainment or interfere with 

maintenance of the NAAQS in the 

downwind area. See, e.g., 81 FR 74506 

(October 26, 2016) (determining that 

emissions from 14 states whose 

contributions to downwind receptors 

are below the air quality threshold will 

not significantly contribute to 

nonattainment or interfere with 

maintenance of the 2008 ozone 

NAAQS); 76 FR 48236 (August 8, 2011) 

(finding that states whose contributions 

to downwind receptors are below the air 

quality threshold will not significantly 

contribute to nonattainment or interfere 

with maintenance of the relevant 

NAAQS). Under such circumstances, 

sources in the upwind state are not 

obligated to implement any control 

measures under the good neighbor 

provision, which is consistent with the 

fact that sources located in attainment 

areas generally are not required to 

implement the control measures found 

in Part D of the Act. Cf. EME Homer City 

II, 795 F.3d at 130 (determining that 

CSAPR ozone season NOX budgets for 

10 states were invalid based on 

determination that modeling showed no 

future air quality problems); 81 FR 

74523–24 (October 26, 2016) (removing 

three states from CSAPR ozone season 

NOX program based on determination 

that states are not linked to any 

remaining air quality problems for the 

1997 ozone NAAQS). 

EPA acknowledges that one 

distinction between the good neighbor 

and designation analyses: The good 

neighbor analysis relies on future year 

projections of emissions to calculate 

ozone concentrations and upwind state 

contributions, compared to the 

designation analysis’s use of current 

measured data. As described in more 

detail earlier, this approach is a 

reasonable interpretation of the term 

‘‘will’’ in the good neighbor provision, 

see North Carolina, 531 F.3d at 913–14, 

and interpreting language specific to 

that provision does not create an 


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46EPA also notes that the consideration of 

projected actual emissions in the future analytic 

year—as opposed to allowable levels—is also 

consistent with the statute’s instruction that states 

(or EPA in the states’ stead) prohibit emissions that 

‘‘will’’ impermissibly impact downwind air quality. 

This term is reasonably interpreted to mean that 

EPA should evaluate anticipated emissions (what 

sources will emit) rather than potential emissions 

(what sources could emit). 

impermissible inconsistency with other 

provisions of title I. Moreover, EPA’s 

use of future-year modeling in the good 

neighbor analysis to identify downwind 

air quality problems and linked states is 

consistent with its use of current 

measured data in the designations 

process. EPA’s future year air quality 

projections are influenced by a variety 

of factors, including current emissions 

data, anticipated future control 

measures, economic market influences, 

and meteorology. Many of these same 

factors, e.g., current control measures, 

economic market influences, and 

meteorology, can affect the NOX

emissions levels and consequent 

measured ozone concentrations that 

inform the designations process. Like 

the factors that affect measured ozone 

concentrations used in the designations 

process, not all of the factors 

influencing EPA’s modeling projections 

are or can be enforceable limitations on 

emissions or ozone concentrations. 

However, EPA believes that 

consideration of these factors 

contributes to a reasonable estimate of 

anticipated future ozone concentrations. 

See EME Homer City II, 795 F.3d at 135 

(declining to invalidate EPA’s modeling 

projections ‘‘solely because there might 

be discrepancies between those 

predictions and the real world’’); 

Chemical Manufacturers Association v. 

EPA, 28 F.3d 1259, 1264 (D.C. Cir. 1994) 

(‘‘a model is meant to simplify reality in 

order to make it tractable’’). Thus, EPA 

believes that consideration of these 

factors in its future-year modeling 

projections used at steps 1 and 2 of the 

good neighbor analysis is reasonable 

and consistent with the use of measured 

data in the designations analysis.46

EPA notes that there is a further 

distinction between the section 107(d) 

designations provision and the good 

neighbor provision in that the latter 

provision uses different terms to 

describe the threshold for determining 

whether emissions in an upwind state 

should be regulated (‘‘contribute 

significantly’’) as compared to the 

standard for evaluating the impact of 

nearby areas in the designations process 

(‘‘contribute’’). 

Thus, at step three of the good 

neighbor analysis EPA evaluates 

additional factors, including cost and 

air-quality considerations, to determine 

whether emissions from a linked 

upwind state would violate the good 

neighbor provision (i.e., costeffectiveness). Only if EPA at step three 

determines that the upwind state’s 

emissions would violate the good 

neighbor provision will it proceed to 

step four, at which point emissions in 

the upwind state must be controlled so 

as to address the identified violation, 

analogous to the trigger for the 

application of Part D requirements to 

sources located in designated 

nonattainment areas. EPA interprets the 

good neighbor provision to not require 

the Agency or the upwind state to 

proceed to step four and implement any 

enforceable measures to ‘‘prohibit’’ 

emissions unless it identifies a violation 

of the provision at step three. See, e.g., 

76 FR 48262 (August 8, 2011) (finding 

at step three that the District of 

Columbia will not violate the good 

neighbor provision, and therefore will 

not at step four be subject to any control 

requirements in CSAPR, because no 

cost-effective emissions reductions were 

identified). 

For these reasons, EPA also does not 

agree that either section 110(a)(2)(A) or 

section 110(a)(2)(C) requires the state to 

include measures to make the projected 

emission limitations enforceable in 

order to address the good neighbor 

provision. Section 110(a)(2)(A) states 

that a SIP should ‘‘include enforceable 

emission limitations and other control 

measures, means, or techniques . . . as 

may be necessary or appropriate to meet 

the applicable requirements’’ of the 

CAA (emphasis added). As just 

described, a finding at step one that 

there is no air quality problem supports 

a conclusion that a state simply will not 

contribute significantly or interfere with 

maintenance of the NAAQS in another 

state, and thus that the state need not 

prohibit any particular level of 

emissions under the good neighbor 

provision. Thus, under section 

110(a)(2)(A), no emission limitations 

would be necessary or appropriate to 

meet the good neighbor provision. 

Section 110(a)(2)(C) similarly indicates 

that SIPs should provide for the 

enforcement of measures cited to 

support the requirements of section 

110(a)(2)(A), but it does not 

independently require the imposition of 

additional control measures. 

Comment: One commenter states that 

Kentucky proposes to rely on 

projections of future emissions based on 

a current regulatory framework that EPA 

is actively attempting to dismantle. 

Actions that the commenter contends 

EPA has not accounted for in the 

modeling include EPA’s proposed 

repeal of glider rules, which if finalized 

would permit vehicles that emit 

significant amounts of NOX. In its 

original rule, EPA estimated that 

unregulated glider vehicles would 

increase emissions from heavy-duty 

highway vehicles by approximately 

300,000 tons annually in 2025. 

Conversely, the CSAPR Update only 

reduces annual NOX emissions by 

75,000 tons, meaning the proposed 

regulatory action would swamp 

multiple times over the emission 

reductions from the CSAPR Update and 

undercut the assumptions in EPA’s 

estimates. 

The commenter also cites efforts to 

weaken the Corporate Average Fuel 

Economy standards, which were 

anticipated to reduce annual light-duty 

highway vehicle emissions of NOX by 

904 tons in 2020 and 6,509 tons in 2030, 

and emissions of VOCs, another ozone 

precursor, by 11,712 and 123,070 tons 

in 2020 and 2030, respectively. EPA is 

also considering rescinding 2016 

Control Techniques Guidelines (CTG) 

for oil and natural gas industry, 

estimated to reduce emissions by 80,000 

tons annually. 

The commenter contends that these 

actions, if finalized, would ensure that 

the exceedingly narrow compliance 

margins assumed by its modeling in 

2023 are not achieved. To the extent 

Kentucky stakes good neighbor 

compliance entirely on an unenforced 

and actively undercut prediction, the 

commenter claims its reliance is 

arbitrary and capricious. 

Another commenter states that EPA’s 

2023 modeling fails to account for 

potential federal rule repeals and 

delays, such as those for: ‘‘glider’’ 

vehicles and engines (proposed 

November 2017); oil and gas CTG 

guidelines (March 2018); and the NSPS 

for the oil and gas sector. The 

commenter also states that relaxation or 

elimination of control requirements will 

result in increased ozone concentrations 

and that the 2023 design values are 

therefore an underestimate of actual 

levels that will occur. The commenter 

states that given EPA predicts a 

maximum design value of 75.9 ppb in 

2023 at the Westport, Connecticut 

monitor, coupled with the fact that 

‘‘Kentucky significantly contributes to 

this monitor,’’ the ‘‘unenforceable 

commitments’’ in Kentucky’s SIP, and 

federal rule repeals and relaxations that 

EPA ignores, nonattainment can be 

expected to result at this monitor. 

One commenter asserts that the 2023 

modeling fails to account for the 

proposed weakening, repeal, and/or 

delay of numerous federal rules that 

directly impact ozone levels, including 

for glider vehicles, CTGs for oil and gas, 


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47See NOX Mitigation Strategy TSD available at 

https://www.epa.gov/sites/production/files/2017- 

05/documents/egu_nox_mitigation_strategies_final_

rule_tsd.pdf. 

48Sargent & Lundy, IPM Model—Updates to Cost 

and Performance for APC Technologies, SCR Cost 

Development Methodology, Final, Project 12847– 

002 (March 2013), available at https://

www.epa.gov/sites/production/files/2015-08/ 

documents/attachment_5-3_scr_cost_

methodology.pdf. 

and reconsideration of new source 

performance standards (NSPS) for the 

oil and gas sector, which will increase 

ozone concentrations near and 

downwind of affected sources. The 

commenter contends that the Westport, 

Connecticut monitor (part of the New 

York metropolitan area (NYMA)) is 

projected to have design value of 75.9 

ppb in 2023, only 0.1 ppb below the 

standard (and above the 2015 ozone 

NAAQS), and Kentucky significantly 

contributes to this monitor. The 

inevitable increase of ozone levels from 

EPA’s deregulatory activities will drive 

the Westport monitor above the 2008 

ozone NAAQS. 

Response: EPA disagrees that its 2023 

projections are unreliable because of 

potential changes to other regulations. 

EPA first notes any potential regulatory 

changes to the ‘‘glider’’ regulations and 

the oil and gas CTG have not been 

finalized, nor have any relevant changes 

to the NSPS for the oil and gas sector 

been finalized. EPA’s normal practice is 

to only include changes in emissions 

from final regulatory actions in its 

modeling because, until such rules are 

finalized, any potential changes in NOX

or VOC emissions are speculative. In 

addition, even if emissions were to 

change as a result of any such final 

rules, commenters have not indicated 

how and whether these additional 

emissions would affect downwind 

ozone concentrations. If circumstances 

change such that EPA’s projections may 

be affected, commenters are free to 

submit an administrative petition to the 

Agency. 

Comment: One commenter contends 

that EPA’s modeling over-predicts 

actions taken in compliance with 

CSAPR. The commenter notes that the 

2023 modeling TSD reveals assumptions 

that facilities that retrofit between 2016 

and 2023 to install SCR will achieve an 

emission rate of 0.075 lb NOX/mmBtu. 

The commenter asserts this is 

unrealistic given the CSAPR Update 

itself relies on the idea that SCRequipped units will only achieve 0.10 

lb/mmBtu NOX emission rates. EPA 

itself considered the 0.075 lb/mmBtu 

rate to be unachievable fleetwide in the 

CSAPR Update. 

Response: The commenter conflates 

EPA’s assumptions in the CSAPR 

Update regarding emission rates 

achievable by units with existing SCR 

controls (i.e., 0.10 lb/mmBtu) that are 

idled or not being optimized with its 

assumptions regarding new SCR retrofits 

(i.e., 0.075 lb/mmBtu). As explained in 

the CSAPR Update, EPA selected a 

different rate for existing SCRs that were 

viewed as likely to ‘‘optimize’’ than it 

did for new SCR installations. This 

difference reflects both differences in 

historical data values for the two 

populations sets, and also the increased 

technology performance expected from 

more recent technology vintages.47

EPA’s assumption of 0.075 lb/mmBtu 

for SCR retrofits is supported by 

historical data on emission rates for new 

SCR controlled units, is consistent with 

its prior engineering and technology 

assumptions, and is a conservative 

estimate of new SCR performance. 

New SCR controlled units often 

perform equal to or better than older 

SCRs reflecting advancements in both 

technology and installation practices. 

New SCRs have regularly operated at or 

below EPA’s assumed emission rate of 

0.075 lb/mmbtu. For 12 coal units 

where SCR was installed and operating 

between 2014 and 2016, the average 

ozone season NOX emission rate for 

2017 was 0.059 lb/mmBtu. When this 

time horizon is extended to the 25 SCRs 

that came online between 2012 and 

2016, the 23 that operated in 2017 ozone 

season operated at a rate of 0.060 lb/ 

mmBtu. Either measure demonstrates 

that 0.075 lb/mmBtu is not only 

possible for newly controlled units, but 

regularly achieved and surpassed. This 

historical data strongly contradicts the 

commenters assertion that EPA’s 

assumption that new units would 

operate at an emission rate of 0.075 lb/ 

mmBtu is unrealistically low, but rather 

supports EPA performance capability 

assumption as both reasonable and 

conservative. 

Additionally, the 0.075 lb/mmBtu 

emission rate assumption for new SCRs 

is consistent with EPA’s historical levels 

of assumed performance in its power 

sector modeling and consistent with the 

engineering assessment by Sargent and 

Lundy underpinning those performance 

assumptions.48

Comment: One commenter asserts 

that the modeling predicts that existing 

units will either install new controls or 

operate controls at higher efficiencies 

following the CSAPR Update, despite 

limited incentives to do so. The 

commenter cites as an example the 

Paradise unit 3 in Kentucky that EPA 

assumed will optimize its SCR (0.10 lb/ 

mmBtu) and reduce its NOX output to 

about 1,000 tons per ozone season, but 

in 2017, the unit emitted over twice that 

amount (about 2,400 tons or 0.22 lb/ 

mmBtu). Moreover, the Additional 

Updates to Emissions Inventories for the 

Version 6.3, 2011 Emissions Modeling 

Platform for the Year 2023 TSD 

generally assumes that facilities that 

emitted at a rate higher than 0.10 lb/ 

mmBtu in 2016 will come down to 0.10 

lb/mmBtu in 2023, which ignores the 

reality of emission trading under 

CSAPR. The commenter contends that 

this effectively assumes that the market 

for emissions credits will price those 

credits so highly that no emitter will 

choose to buy credits rather than reduce 

emissions, which is belied by purpose 

and experience of the CSAPR trading 

scheme. 

Response: EPA’s assumption of 0.010 

lb/mmBtu for optimized SCR 

performance at units with existing SCRs 

is both reasonable and consistent with 

recent historical data. 

As explained in the CSAPR Update, 

EPA evaluated SCR emission rates at 

existing units from 2009–2015 and 

found that the third lowest fleet-wide 

yearly ozone season average was an 

appropriate metric to use for SCR 

performance. See 81 FR 74543 (October 

26, 2016). These emission rates were 

used to calculate states’ emissions 

budgets in the CSAPR Update. In order 

to project emission levels representing 

CSAPR Update implementation in 2023, 

it is reasonable to use the same 

assumptions regarding the average, 

fleet-wide emissions rate for affected 

units, even if individual unit operation 

may vary. Thus, consistent with that 

assumption, EPA used a 0.10 lb/mmBtu 

to represent operation of existing SCRs 

its 2023 projections as well. While unitlevel performance will vary relative to 

this fleet-wide assumption (with some 

SCR controlled units operating below 

and some above), using a fleet-wide 

average for each unit-level estimate 

captures aggregate emission impacts to 

the air shed and minimizes the net 

residuals between unit-level estimates 

and the eventual observed unit-level 

performance. 

Data from 2017, the first year of ozone 

season data that would be influenced by 

the CSAPR Update compliance 

requirements, is consistent with this 

assumption on a fleet-wide level. EPA 

began its engineering analysis to project 

2023 EGU emissions with 2016 

monitored and reported data. For the 

units with existing SCRs that were 

operating above 0.10 lb/mmBtu in 2016 

(totaling 82,321 tons of emissions in that 

year), EPA assumed that SCRs would be 

optimized under a CSAPR Update 

scenario to 0.10 lb/mmBtu on average 

for 2023. This results in 2023 emissions 

estimates for these units being adjusted 


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49 2014 Program Progress, Clean Air Interstate 

Rule, Acid Rain Program, and Former NOX Budget 

Trading Program. EPA, available at https://

www.epa.gov/sites/production/files/2017-09/ 

documents/2014_full_report.pdf. 

50https://www.epa.gov/airmarkets/october-2017- 

memo-and-supplemental-information-interstatetransport-sips-2008-ozone-naaqs. 

51Modeling Guidance for Demonstrating 

Attainment of Air Quality Goals for Ozone, PM2.5, 

and Regional Haze, U.S. Environmental Protection 

Agency, Research Triangle Park, NC, available at 

http://www.epa.gov/ttn/scram/guidance/guide/ 

Draft_O3-PM-RH_Modeling_Guidance-2014.pdf. 

52Air Quality Modeling TSD, available at https:// 

www.epa.gov/airmarkets/air-quality-modelingtechnical-support-document-final-cross-state-airpollution-rule. 

down to 40,590 tons for these units. In 

2017, the very first year of CSAPR 

Update, collective emissions from these 

units were 41,706 tons. This 2017 value 

is already very close to the 2023 

estimated value, and supports the 

assumed behavior of optimized SCR 

performance to 0.10 lb/mmBtu on 

average. Some of these units operated 

above 0.10 lb/mmBtu in 2017 (as the 

commenter points out), but many 

operated below 0.10 lb/mmBtu, as well. 

Relying on the fleet-wide average 

estimate was very consistent with the 

fleet-wide observed behavior in 2017. 

EPA disagrees with the notion that 

EGU emissions will increase, rather 

than decrease, in future years of the 

CSAPR Update implementation, or that 

the market for allowances would have to 

price allowances much higher in order 

for emission reductions to continue. 

This is not borne out by historical 

precedent or any economic models. 

There are a variety of policy and market 

forces at work beyond CSAPR allowance 

prices that are anticipated to continue to 

drive generation to shift from higher 

emitting to lower emitting sources. As 

evidenced in prior EPA allowance 

trading programs, emissions from 

covered sources generally trend 

downwards (regardless of allowance 

price) as time extends further from the 

initial compliance year.49 Both the Acid 

Rain Program and CSAPR SO2

allowance banks grew in 2017 from 

their 2016 levels, indicating that sources 

are collectively adding to the bank (by 

emitting below state budgets) rather 

than drawing down the bank because of 

the availability of low cost allowances. 

This illustrates that there are multiple 

drivers affecting emissions, and it is 

reasonable for EPA to consider those, in 

addition to CSAPR update incentives, in 

its projection of 2023 ozone season NOX

levels for EGUs. 

Comment: One commenter states that 

EPA’s 2023 modeling contains aspects 

that ‘‘deviate from past guidance and 

have not undergone peer review,’’ 

including a new approach to coastal 

grid cells. The commenter states that the 

affected community needs to be 

afforded the opportunity for review and 

public comment on such approaches. 

Response: EPA released 2023 

projected ozone design value data for 

individual monitoring sites in October 

2017.50 These data include ozone design 

value projections for each site based on 

the methodology recommended in 

EPA’s photochemical modeling 

guidance.51 In addition, EPA provided a 

companion set of 2023 design values 

based on an alternative approach for 

coastal monitoring sites. The commenter 

had an opportunity to review and 

analyze the alternative coastal grid cell 

approach during the public comment 

period for this action, as well as when 

the data were released in October 2017. 

The commenter did not provide any 

substantive feedback on the alternative 

approach including reasons why the 

approach would not be appropriate. 

EPA also notes that both methods result 

in the same outcome that all monitoring 

sites outside of California are not 

expected to have problems attaining or 

maintaining the 2008 NAAQS by 2023. 

Comment: One commenter contends 

that reliance on modeling that predicts 

future compliance by 0.1 ppb when 

inherent uncertainties are much larger is 

arbitrary and capricious. The 

commenter states that the October 2017 

Transport Memo speculatively suggests 

ozone NAAQS attainment without 

performance of any sensitivity analyses 

and through incorporation of a series of 

dubious assumptions, projecting 

attainment by only 0.1 ppb. Prediction 

of near-nationwide compliance by 2023 

is the product of thousands of inputs, 

assumptions, and simplifications related 

to emissions inventories, future power 

consumption, meteorological 

conditions, and chemical reactions. The 

commenter notes natural gas prices as 

an example of the huge degree of 

uncertainty in this prediction. The 

modeling is based on predictions of 

2023 emissions, which is based on 

predictions of power plant fuel 

utilization based on a guess of future 

fuel prices in 2023. If gas prices are 

higher than predicted, the modeling will 

predict greater dependence on coal-fired 

generation, predicting higher NOX

emissions, and ultimately under-predict 

ozone formation. 

Response: EPA’s modeling results that 

show the site the commenter refers to, 

site 090019003 in Fairfield County, 

Connecticut, is projected to be in 

compliance of the 2008 NAAQS by 

three ppb (i.e., 2023 projected average 

design value is 73.0 ppb). When 

considering the effects of meteorological 

variability this site is still projected to 

be below the level of the NAAQS (i.e., 

projected maximum design value is 75.9 

ppb). Additionally, continuing ozone 

reductions are expected in future years 

at all sites due to an estimated 19 

percent reduction in ozone season NOX

emissions expected to occur between 

2017 and 2023 in the aggregate for the 

states covered by the CSAPR Update. 

The commenter provides no data to 

substantiate their claim that EPA’s 

projected design values are not 

technically sound and appropriate for 

use in this rulemaking. 

EPA recognizes that there are inherent 

uncertainties in modeling the future, but 

EPA believes that the model platform 

and inputs selected are well-supported 

and reasonable. The commenter did not 

provide information to suggest that 

there is an overall bias in the modelingbased projections. As it has for every air 

quality modeling exercise, EPA 

performed a model evaluation, as 

described in the Air Quality Modeling 

Technical Support Document for the 

final CSAPR Update, which compared 

ozone predictions for 2011 from the 

modeling platform to actual measured 

data from that year, in order to test how 

well the model characterized reality. 

The model evaluation indicates that the 

model’s predictions corresponded 

closely to actual measured 

concentrations in terms of the 

magnitude, temporal fluctuations, and 

spatial differences for 8-hour daily 

maximum ozone.52 The commenter is 

correct that EPA’s modeling predictions 

are the result of thousands of inputs, 

assumptions, and simplifications; this is 

by definition the exercise of modeling. 

Moreover, because of the complexity of 

air quality modeling, courts are 

deferential to EPA’s with respect to 

those inputs, assumptions, and 

simplifications. The D.C. Circuit has 

declined to ‘‘invalidate EPA’s 

predictions solely because there might 

be discrepancies between those 

predictions and the real world.’’ EME 

Homer City II, 795 F.3d at 135–36. The 

fact that a ‘‘model does not fit every 

application perfectly is not criticism; a 

model is meant to simplify reality in 

order to make it tractable.’’ Chemical 

Manufacturers Association v EPA, 28 

F.3d 1259, 1264, 307 U.S. App. DC 392 

(D.C. Cir. 1994). The court has held that 

‘‘it is only when the model bears no 

rational relationship to the 

characteristics of the data to which it is 

applied that we will hold that the use 

of the model was arbitrary and 

capricious.’’ Appalachian Power Co. v. 

EPA, 135 F.3d 791, 802 (D.C. Cir. 1998). 


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53Available at ftp://newftp.epa.gov/Air/emismod/ 

2011/v3platform/reports/2011en_and_2023en/ 

2023en_cb6v2_v6_11g_state_sector_totals.xlsx. 

54Additional Updates to Emissions Inventories 

for the Version 6.3, 2011 Emissions Modeling 

Platform for the Year 2023 Technical Support 

Document, EPA, October 2017, available at https:// 

www.epa.gov/sites/production/files/2017-11/ 

documents/2011v6.3_2023en_update_emismod_

tsd_oct2017.pdf. 

55http://tonto.eia.gov/dnav/ng/hist/ 

rngwhhda.htm. 56 In the 2018 reference case AEO released 

February 6, 2018, created by the U.S. 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. 57AEO short-term energy outlook, available at 

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

natgas.php. 

58See Engineering Analysis—Unit File, available 

at ftp://ftp.epa.gov/EmisInventory/2011v6/ 

v3platform/reports/2011en_and_2023en/. 

As demonstrated by EPA’s model 

performance evaluation, the modeling 

platform used in this rulemaking and 

EPA’s choices as to inputs and 

assumptions provide reasonable 

projections of expected future year 

ozone concentrations and contributions, 

and is thus an appropriate basis on 

which to base the findings made in this 

action. 

EPA further disagrees with the 

commenter’s assertion that EGU 

projections are too uncertain because 

natural gas fuel prices may be different 

than those underlying EPA’s 

projections, resulting in greater coalfired generation and consequently 

higher emissions. First, EPA notes that 

power plant emissions are a small 

portion (approximately 15 percent) of 

the 2023 eastern states total NOX

emission inventory used to inform the 

air quality modeling.53 Relative to 

mobile sources and other emission 

categories, EGU emissions projections 

are a smaller segment of the inventory 

and just a portion of the impact on the 

Connecticut modeled attainment status. 

Moreover, EPA believes its EGU 

projections are reasonable and 

conservative. In developing the 2023 

EGU emissions projections, EPA relied 

on 2016 monitored and reported data 

and only made emissions adjustments to 

account for (1) control optimization 

expected in response to the CSAPR 

Update implementation beginning in 

2017, and (2) any known (e.g., planned 

and under construction) power plant 

infrastructure changes, including new 

builds, retirements, coal-to-gas 

switching, and SCR retrofit project 

underway and reported by the owner or 

operators to the Department of Energy’s 

(DOE) Energy Information 

Administration (EIA) in EIA Form 

860.54 No adjustments were made for 

projected, but unannounced, fleet 

changes estimated to occur by 2023 in 

response to market conditions and an 

aging fleet. Because these projected fleet 

wide changes would have resulted in 

lower 2023 EGU emission estimates, the 

EGU emission projections EPA actually 

used in the modeling were conservative. 

EPA also does not agree with the 

commenter that gas prices are likely to 

be higher in future years. Average 

annual natural gas prices ranged from 

$2.52/mmBtu to $4.37/mmBtu between 

2009 and 2016.55 EPA and other 

independent analysts expect future 

natural gas prices to remain low and 

within this 2009 to 2016 range due both 

to supply and distribution pipeline 

build-out. For example, the EIA’s 2018 

Annual Energy Outlook (AEO) natural 

gas price projections for Henry Hub spot 

price range from $3.06/mmBtu in 2018 

to $3.83/mmBtu in 2023.56 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.57

These independent analyses of fuel 

price data and projections lead to EPA’s 

expectation that fuel-market economics 

will continue to support natural gas 

consumption during future ozone 

seasons through at least 2023 in a 

manner similar to recent historical 

levels. These lower natural gas price 

outlooks suggest, if anything, lower 

emissions projections, not higher. 

Consistent with this outlook, industry 

has announced significant new waves of 

coal retirements since 2016—which is 

also consistent with a less emissionsintensive outlook than that captured by 

EPA’s use of 2016 EGU data as its 

starting point for emissions inventory 

purposes in this action. EPA agrees that 

there is some uncertainty in fuel prices 

that consequently casts uncertainty on 

future emissions projections. However, 

for the reasons discussed herein, EPA 

believes its assumptions are both 

reasonable and conservative. Moreover, 

EPA notes that many of the assumptions 

factored into its 2023 projections are 

firm (e.g., retirements) and therefore not 

sensitive to future fuel price changes. 

The reasonableness, conservativeness, 

and feasibility of EPA assumptions are 

illustrated by the first year of CSAPR 

compliance emission levels in 2017. 

Emissions in 2017 dropped (in just one 

year) by 21 percent from 2016 levels and 

were 7 percent below the CSAPR budget 

for the 22 affected states. EPA 2023 

projections for the same set of states 

were 10 percent below the CSAPR 

budget, meaning in just one-year states 

have already achieved the majority of 

the EGU reduction anticipated by EPA 

and are well above pace to be at or 

below that level by 2023. For Kentucky 

specifically, ozone season NOX EGU 

emissions dropped from 25,402 tons in 

2016 to 19,978 tons in 2017 for EGUs 

greater than 25 MW. This reflects a 21 

percent reduction in just one year of the 

total 33 percent reduction assumed for 

the state by 2023.58

Comment: One commenter provided 

2017, 2020, and 2023 projected design 

values based on air quality modeling by 

the Ozone Transport Commissions 

(OTC) using the Community Multi-scale 

Air Quality Model (CMAQ) and design 

values for 2023 using the 

Comprehensive Air Quality Model with 

Extensions (CAMx) in conjunction with 

emissions inventory projections from 

the Mid-Atlantic Regional Air 

Management Association (MARAMA). 

The commenter also included the 2023 

projected design values based on EPA’s 

CAMx modeling. The commenter 

includes a sample of the results and 

points to predicted 2023 design values 

based on CMAQ that are above the 

NAAQS at the Westport, Connecticut 

and Susan Wagner, New York monitors. 

The commenter states that the CMAQ 

results are ‘‘considerably different’’ from 

EPA’s CAMx modeling. 

Another commenter states that EPA’s 

modeling as well as modeling 

conducted by Alpine produce overly 

optimistic projection of future year 

ozone levels. The commenter includes a 

table that the commenter characterizes 

as indicating 2017 measured design 

values considerably higher than those 

projected at all Connecticut monitoring 

sites as well as indicating Kentucky 

contributions of greater than 1 percent 

at two Connecticut monitors after 

contributions are scaled relative to 2017 

measured air quality levels. The 

commenter states that Kentucky’s 

proposed SIP fails to address the 

underprediction of the modeling. 

Response: EPA does not agree that the 

modeling provided by commenters 

should affect EPA’s reliance on its own 

2023 modeling. The first commenter 

provided projected design values at 41 

monitoring sites along the Northeast 

Corridor for each model run. Of these 41 

sites, all but two had base year design 

values that exceeded the 2008 NAAQS. 

The modeling results show that the EPA 

and OTC CAMx-based 2023 design 

value projections are consistent on an 

individual site basis for all 41 sites. 

Both sets of CAMx modeling indicate 

that the 41 sites will be below the 2008 

NAAQS by 2023. 

In addition, the CMAQ 2023 design 

values are consistent with both sets of 

CAMx-based 2023 projections at nearly 


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all sites. That is, CMAQ modeling 

indicates that all but two of the 41 sites 

will be below the 2008 NAAQS by 2023. 

The two sites projected to exceed the 

2008 NAAQS in 2023 with CMAQ, but 

not the OTC and EPA CAMx modeling, 

are the Westport site in Connecticut and 

the Susan Wagner High School site in 

New York. 

The CMAQ projections for these two 

sites are not only inconsistent with the 

CAMx modeling, but they are also 

inconsistent with the CMAQ modeling 

for other nearby sites in Connecticut, 

New York, and New Jersey. For 

example, based on the CMAQ modeling, 

ozone at the Susan Wagner site is 

projected to decline by only five percent 

between 2011 and 2023, whereas at a 

site in nearby Bayonne, New Jersey, 

ozone is projected to decline by 13 

percent over this same period. 

Similarly, ozone at the Westport site is 

projected to decline by only three 

percent between 2011 and 2023 with 

CMAQ, but at other sites along the 

Connecticut coastline (i.e., sites in 

Greenwich, Stratford, and Madison) 

ozone is projected to decline by 10 to 19 

percent. In addition, the CMAQ results 

for these two sites are inconsistent with 

ozone reductions predicted by CMAQ at 

other sites in the New York City area 

which range from 11 to 18 percent. 

While it is possible ozone levels in 2023 

at the Westport and/or Susan Wagner 

sites may be higher than at other sites 

in the New York City area, the 

commenter fails to provide any 

explanation regarding the large 

difference in the CMAQ-based model 

response to emissions reductions at 

these two sites compared to nearby sites 

and to other sites in the New York area. 

Based on the complicated 

photochemistry in the New York City 

area, it is possible that ozone monitoring 

sites closest to the New York City NOX

emissions plume may be less responsive 

to NOX controls compared to sites 

further downwind. Due to non-linear 

chemistry, sites very close to the city 

may experience increases in ozone or 

less reduction than other nearby sites on 

some days in response to local 

emissions reductions in NOX. Thus, we 

might expect that monitoring sites in 

Connecticut that are closer to New York 

City would show less reduction in 

ozone than sites in Connecticut that are 

further downwind. However, as noted 

above, in the OTC CMAQ modeling, the 

closest downwind Connecticut site 

(Greenwich) has a 10-percent modeled 

ozone reduction, while the Westport 

site, which is further downwind, has 

only a 3-percent modeled ozone 

reduction. The commenter did not 

provide any information to explain why 

the OTC CMAQ modeling results for the 

Westport, Connecticut and Susan 

Wagner, New York monitoring sites are 

dissimilar to other near-by sites or why 

the CMAQ modeling provides a more 

representative ozone projection for these 

two sites compared to the EPA and OTC 

CAMx-based modeling results. 

The second commenter contends that 

modeling by EPA and Alpine for 2023 

is overly optimistic because EPA’s 

modeled ozone design values for 2017 

are higher than the preliminary 2017 

design values for certain monitoring 

sites in Connecticut. The results of the 

air quality modeling performed by the 

OTC show that the results of the CAMx 

modeling by EPA and Alpine are 

consistent with the OTC’s 2023 CAMx 

modeling results. Specifically, the EPA, 

Alpine, and OTC CAMx modeling all 

project that all sites identified by the 

commenter as having preliminary 2017 

measured design values exceeding the 

2008 NAAQS will be in compliance 

with that NAAQS by 2023. These CAMx 

results are also consistent with the OTC 

CMAQ modeling, except for one site in 

Westport, Connecticut, that CMAQ 

predicts will still violate the 2008 

NAAQS in 2023. However, the CMAQ 

modeling for this site is inconsistent 

with other available modeling from 

EPA, the OTC, and Alpine, as described 

in the paragraph above. 

In addition, the commenter compared 

the preliminary 2017 measured design 

values to EPA’s projected 2017 average 

design values, but did not demonstrate 

that the modeling was generally biased. 

In particular, the commenter ignored 

EPA’s projected maximum design 

values. The projected maximum design 

values are intended to represent future 

ozone concentrations when 

meteorological conditions are more 

favorable to ozone formation than the 

average. Comparing both the 2017 

modeled average design values and 

maximum projected design values to the 

preliminary 2017 measured design 

values indicates that the projected 

maximum design values are, in most 

cases, closer in magnitude to the 2017 

preliminary measured design values 

than the 2017 model-projected average 

design values listed in the comments. 

Further, while the modeling-based 

projections may have understated 

observed design values at certain 

monitoring sites in Connecticut, this 

was not the case for other 2017 receptor 

sites in the Northeast Corridor. For 

example, at other receptor sites in the 

New York area in Suffolk and Richmond 

counties, New York, the measured 2017 

design values were within 0.2 ppb of the 

model-predicted average design values. 

At the site in Philadelphia County, 

Pennsylvania the modeled 2017 

maximum design value was 1.1 ppb 

lower than the corresponding measured 

value and at the site in Harford County, 

Maryland, the modeled value was 

higher, not lower, than the measured 

2017 design value. It is not 

unreasonable that there may be some 

differences between the modeling-based 

projections for a future year in part 

because the meteorology of the future 

year cannot be known in advance. 

While EPA recognizes that there are 

uncertainties in the modeling, the 

results for the 2017 receptor sites in the 

Northeast do not, on balance, show a 

consistent bias. 

Even though the preliminary 2017 

measured design values at the eight sites 

identified by the commenter are still 

measuring violations of the 2008 

NAAQS, it is entirely reasonable to 

project that these sites will be in 

attainment by 2023 as a result of the 

roughly 19 percent reduction in 

aggregate ozone season NOX emissions 

that is expected to occur between 2017 

and 2023 for the states covered by the 

CSAPR Update. As mentioned earlier, 

because of the high NOX emissions in 

the New York City area and the nonlinear chemistry associated with ozone 

formation, the benefits of NOX

emissions reductions may not have been 

fully realized to date at downwind sites 

in Connecticut. More notable reductions 

in ozone at these sites are expected as 

NOX emissions decline further, in 

response to existing control programs 

and other factors influencing emissions. 

A large short-term reduction in ozone is 

not unprecedented at historically high 

ozone sites in other parts of the 

Northeast Corridor. Specifically, the 

measured design values at the 

Edgewood monitoring site in Harford 

County, Maryland, which is downwind 

of the Baltimore/Washington, DC urban 

area, declined by nearly 20 percent 

between 2012 and 2014 and have been 

below the level of the 2008 NAAQS 

since 2014, as shown by the data in the 

table below. Thus, EPA disagrees that 

the monitored data cited by the 

commenter indicates that the modeling 

projections are unreliable. 


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59See Figure 4–5 in the 2016 New Jersey Air 

Quality Report, New Jersey Department of 

Environmental Protection, Bureau of Air 

Monitoring, December 7, 2017, available at http:// 

www.njaqinow.net/. 

DESIGN VALUES (PPB) AT EDGEWOOD SITE IN HARFORD COUNTY, MD, 2007 THROUGH 2017 

Year 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 Preliminary 

2017 

Design Value ....................... 94 91 87 89 92 93 85 75 71 73 75 

Comment: One commenter asserts 

that the 2023 modeling provided by 

EPA does not provide a ‘‘full remedy’’ 

because it shows that Kentucky still 

significantly contributes to ozone levels 

(which the commenter contends is 

defined by a contribution greater than 1 

percent of the NAAQS, or 0.75 ppb) 

across Delaware between 1.10 and 2.53 

ppb in 2023. Although the modeling 

shows attainment in Delaware in 2023, 

the commenter contends that Kentucky 

should not presume Delaware or any 

other state will be attaining the 2008 

ozone NAAQS in 2023. The commenter 

notes that monitors in Delaware are 

currently meeting the 2008 ozone 

NAAQS, but that other monitors in the 

Philadelphia nonattainment area are 

exceeding the NAAQS (noting the 

Bristol, Pennsylvania monitor with a 

2014–2016 design value of 77 ppb), 

despite the fact that EPA officially 

declared the nonattainment area had 

attained. 

Another commenter states that the 

CSAPR Update ‘‘clearly established’’ 

Kentucky’s significant contribution to 

the Richmond County monitor, and 

disagrees with EPA’s proposed 

amendment to reflect that the CSAPR 

Update provides a full remedy to 

Kentucky’s transport obligation because 

in EPA’s 2023 modeling ‘‘Kentucky is 

still shown to be significantly 

contributing to monitors’’ in the New 

York City metropolitan area, the area 

currently exceeds the NAAQS ‘‘by a 

significant margin,’’ and the area will 

likely continue to exceed the NAAQS in 

2023 ‘‘once the issues with EPA’s 

projection modeling are addressed. 

Response: EPA disagrees with the 

commenters’ assertion that an impact in 

a downwind area above the 1 percent 

threshold necessarily indicates that an 

upwind state significantly contributes to 

nonattainment or interferes with 

maintenance of the NAAQS in a 

downwind state. The good neighbor 

provision first requires the 

identification of a downwind 

nonattainment or maintenance problem 

before emission reductions may be 

required, regardless of the upwind state 

impact on downwind ozone 

concentrations. See EME Homer City II, 

795 F.3d at 129–30 (finding emission 

budgets invalid where air quality 

modeling showed downwind 

nonattainment and maintenance 

problems would be resolved). As the 

commenter notes, EPA’s modeling 

shows that no areas in the East will have 

downwind air quality problems with 

respect to the 2008 ozone NAAQS in 

2023, and thus EPA’s analysis is 

complete at step one of the four-step 

framework. As discussed earlier, 

although monitors may currently 

measure exceedances of the NAAQS, 

EPA interprets the term ‘‘will’’ in the 

good neighbor provision to permit 

consideration of projected air quality in 

an appropriate future year. See North 

Carolina, 531 F.3d at 913–14. 

Moreover, even if a downwind air 

quality problem had been identified, the 

fact that an upwind state would 

contribute at or above the 1 percent 

threshold to downwind nonattainment 

and maintenance receptors in step two 

of EPA’s framework does not by itself 

indicate that the state would be 

considered to ‘‘contribute significantly’’ 

or ‘‘interfere with maintenance’’ of the 

NAAQS. The finding that a state’s 

downwind impact would meet or 

exceed this threshold only indicates 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 

maintenance. This further analysis in 

step three of EPA’s four-step framework 

considers cost, technical feasibility and 

air quality factors to determine whether 

any emissions deemed to contribute to 

the downwind air quality problem must 

be controlled pursuant to the good 

neighbor provision. 

Thus, the commenter is incorrect to 

assert that EPA’s 2023 modeling shows 

that Kentucky significantly contributes 

to ozone levels in Delaware. 

Comment: One commenter points to 

the 2023 modeling performed by Alpine 

indicating greater than a 1 percent 

contribution by Kentucky to New Jersey. 

The commenter points specifically to 

the Ocean County and Colliers Mill 

monitoring sites in New Jersey as 

receiving 1.48 ppb of ozone from 

Kentucky. 

Response: There is only one ozone 

monitoring site in Ocean County New 

Jersey and that site is located in Colliers 

Mills.59 This site is currently monitoring 

attainment of the 2008 ozone NAAQS 

based on a 2014–2016 design value of 

73 ppb, and preliminary data indicates 

that the 2015–2017 design value 

remains at 73 ppb. This site is also 

projected to be in attainment of the 2008 

ozone NAAQS in 2023. That is, this site 

is not expected to have a problem 

attaining or maintaining the 2008 

NAAQS in 2023 that would warrant 

consideration of further upwind 

reductions in Kentucky. 

Comment: One commenter states that 

EPA’s 2023 contribution assessment 

methodology, which uses average 

exceedance day ozone contribution, 

does not capture what happens on a 

daily basis for ozone formation and is 

inconsistent with how the states are 

required to use ‘‘peak’’ ozone days when 

they demonstrate attainment of the 

ozone standard. Ozone episodes are 

dependent on variation in daily weather 

patterns and energy generation dispatch. 

The commenter notes that Maryland 

has recently conducted modeling that 

shows that certain meteorological 

regimes will show very large 

contribution while other meteorological 

regimes show lower contribution. The 

commenter states that the days when 

Kentucky’s contribution in the model is 

very high are generally the same type of 

days that Maryland expects will drive 

the attainment process, where peak days 

are used to calculate design values using 

measured, not modeled data. The 

commenter states that this can be 

resolved by requiring the largest 

emitters of ozone precursors, coal-fired 

EGUs with SCR and SNCR, to optimize 

those controls every day of the ozone 

season. 

Response: EPA does not believe the 

methodology used to evaluate upwind 

state contributions to downwind air 

quality problems is relevant to this 

action, because, as noted in the NPRM 

and earlier this action, EPA’s modeling 

shows that there are projected to be no 

remaining air quality problems 

identified in the East in 2023. 

Accordingly, EPA’s analysis concludes 

at step one of the four-step framework, 

and as discussed earlier in this action, 

the level of Kentucky’s contribution to 

any downwind monitoring cites in 

2023, which would not be addressed 

until step two of the four-step 


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60Modeling Guidance for Demonstrating 

Attainment of Air Quality Goals for Ozone, PM2.5, 

and Regional Haze, U.S. Environmental Protection 

Agency, Research Triangle Park, NC, available at 

http://www.epa.gov/ttn/scram/guidance/guide/ 

Draft_O3-PM-RH_Modeling_Guidance-2014.pdf. 

framework, is therefore irrelevant. 

Moreover, to the extent the commenter 

refers to Kentucky’s contribution to 

downwind air quality problems in 

EPA’s 2017 modeling conducted for the 

CSAPR Update, EPA has already 

acknowledged that Kentucky was linked 

to the ozone monitoring site in Harford 

County, Maryland. Thus, whether or not 

Kentucky’s contribution would have 

been higher in 2017 based on examining 

impacts on ‘‘peak’’ ozone days is also 

irrelevant because EPA already 

quantified and implemented emission 

reductions for Kentucky in the CSAPR 

Update based on this linkage. 

Nonetheless, EPA disagrees that its 

method for calculating contribution 

from upwind states to downwind 

receptors is inconsistent with how the 

states are required to demonstrate 

attainment of the ozone NAAQS. EPA’s 

modeling guidance recommends that 

states calculate future year ozone 

projections based on 5-year weighted 

average design values and on the 

average base year and future year 

concentrations across the highest base 

year concentration days.60 Similarly, 

EPA’s method for calculating the 

average contribution metric in the 

CSAPR Update was based on the 

average contribution across the days 

with the highest future year 

concentrations. 

Comment: One commenter states that 

the CSAPR Update, by its own terms, 

does not fully satisfy section 

110(a)(2)(D) for the 2008 ozone NAAQS. 

Rather than rely on the CSAPR Update, 

Kentucky’s SIP revision must evaluate 

the Commonwealth’s expected 

contribution to downwind 

nonattainment and include provisions 

to prevent those contributions in a 

timely fashion. The commenter cites 

North Carolina’s conclusion that ‘‘a 

complete remedy to section 

110(a)(2)(D)(i)(I) . . . must do more than 

achieve something measurable; it must 

actually require elimination of 

emissions from sources that contribute 

significantly and interfere with 

maintenance in downwind 

nonattainment areas.’’ 531 F.3d at 908. 

The commenter notes that, in the final 

CSAPR Update, EPA explained that 

downwind air quality problems would 

remain after implementation, and that 

the rule was limited by EPA’s focus on 

‘‘immediately available reductions’’ that 

could be implemented by the 2017 

ozone season. The commenter further 

states that EPA’s October 2017 

Transport Memo conceded that the 

CSAPR update only partially addressed 

the requirements of the good neighbor 

provision, noting in a footnote that the 

memo indicates continued 

nonattainment in Philadelphia, which is 

linked to Kentucky in the CSAPR 

Update. 

The commenter contends that 

Kentucky has undertaken no 

independent analysis of whether any 

emission reductions that have occurred 

as a result of its implementation of the 

CSAPR Update have actually eliminated 

the Commonwealth’s significant 

contribution to nonattainment or 

maintenance monitors in linked 

downwind states. Given Kentucky’s 

largest downwind contribution was 10.8 

ppb to ozone concentrations at a 

maintenance monitor in Ohio in 2017, 

the commenter asserts that it is highly 

improbable that the modest reductions 

in NOX emissions from Kentucky plants 

that have occurred since the 

implementation of the CSAPR Update 

have eliminated this significant linkage. 

The commenter notes in a footnote that 

Kentucky reduced NOX emissions 

during the ozone season by about a third 

in implementing the CSAPR Update, 

and accordingly retained a similar 

majority of its downwind impacts, well 

above the 0.75 ppb threshold of 

‘‘significant contributions.’’ 

Response: While EPA indicated that 

the CSAPR Update FIPs ‘‘may not be 

sufficient to fully address these states’ 

[including Kentucky’s] good neighbor 

obligations’’ for the 2008 ozone NAAQS 

(emphasis added), EPA did not 

definitely determine that additional 

reductions were required. 81 FR 74521. 

Rather, EPA acknowledged that 

additional analysis would be required to 

determine the full extent of the good 

neighbor obligation. Kentucky’s SIP 

submission and EPA’s review in this 

action conduct this additional 

assessment by analyzing downwind 

ozone concentrations relative to the 

2008 ozone NAAQS in a future analytic 

year, considering downwind attainment 

dates and anticipated compliance 

timeframes for potential, additional 

emission reductions. The results of this 

analysis show that the downwind air 

quality problems to which Kentucky 

was linked in 2017 are resolved by 

2023, and thus concludes that the 

emission reductions required by the 

CSAPR Update provide a complete 

remedy under the good neighbor 

provision for the 2008 ozone NAAQS. 

EPA therefore disagrees that EPA’s 

approval of Kentucky’s SIP is 

inconsistent with the court’s holding in 

North Carolina, because EPA has in fact 

required meaningful emission 

reductions from sources in Kentucky via 

the CSAPR Update FIP. 

Moreover, as explained earlier in this 

action, an impact in a downwind area 

above the 1 percent threshold does not 

necessarily indicate that an upwind 

state significantly contributes to 

nonattainment or interferes with 

maintenance of the NAAQS in a 

downwind state. The good neighbor 

provision first requires the 

identification of a downwind 

nonattainment or maintenance problem 

before emission reductions may be 

required, regardless of the upwind state 

impact on downwind ozone 

concentrations. See EME Homer City II, 

795 F.3d at 129–30 (finding emission 

budgets invalid where air quality 

modeling showed downwind 

nonattainment and maintenance 

problems would be resolved). Thus, 

although emissions from Kentucky may 

continue to impact air quality in other 

states in 2023, this impact is not 

impermissible under the good neighbor 

provision given EPA has projected that 

there will be no air quality problems 

that could trigger upwind control 

obligations. 

Comment: One commenter contends 

that EPA takes two contradictory 

positions regarding its application of the 

four-step framework designed to assist 

states in determining good neighbor SIP 

obligations under the CAA, citing the 

January 2015 Transport Memo. The 

commenter notes that, based on 2017 

modeling conducted for the CSAPR 

Update, EPA acknowledged that 

Kentucky is linked to Maryland’s 

Harford County monitor, which will 

continue to have maintenance problems 

in the near future. However, instead of 

completing the analysis at steps 3 and 

4 using 2017 as a baseline, EPA returned 

to step one, performed new modeling 

for 2023, and used that modeling to 

determine that there will be no 

remaining air quality problems outside 

of California. 

The commenter further contends that 

reliance on 2023 modeling is 

inappropriate because the attainment 

deadline for Harford County is July 

2018, and Maryland must continue to 

maintain thereafter. The commenter 

states that EPA should have completed 

all steps of the four-step framework 

using a consistent base year since EPA’s 

own modeling identified Kentucky as 

currently linked to the Harford County 

receptor. EPA should have identified 

the emissions reductions necessary to 

prevent Kentucky from significantly 

contributing to nonattainment or 

interfering with maintenance in 

Maryland, and required Kentucky to 


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adopt permanent and enforceable 

measures needed to achieve identified 

emission reductions as expeditiously as 

practicable. The commenter asserts that 

Kentucky’s obligation to reduce its 

current contribution to Maryland’s 2017 

maintenance monitor cannot properly 

be offset based on projections about 

future air quality which may or may not 

occur in 2023. 

Response: The commenter 

misunderstands EPA’s analysis in this 

rule and the operation of the four-step 

framework. EPA agrees that Kentucky 

was linked to the Harford County 

receptor in step two of EPA’s four-step 

framework based on the 2017 modeling 

conducted for the CSAPR Update. Based 

on that determination, EPA already 

evaluated and quantified, at step three, 

feasible and cost-effective emission 

reductions that were required to address 

Kentucky’s good neighbor obligation 

with respect to that receptor in the 

CSAPR Update, and implemented those 

emission reductions at step four through 

the requirement that EGUs in Kentucky 

participate in the CSAPR NOX Ozone 

Season Group 2 allowance trading 

program. Thus, EPA has completed 

steps 3 and 4 with respect to the 2017 

modeling analysis. 

However, as explained in the CSAPR 

Update, EPA could not conclude that 

the rule fully addressed CAA section 

110(a)(2)(D)(i)(I) obligations for 21 of the 

22 CSAPR Update states, including 

Kentucky. Specifically, EPA determined 

that downwind air quality problems 

would remain after implementation of 

the CSAPR Update, including at the 

Harford County monitor, and EPA could 

not conclude at that time whether 

additional EGU and non-EGU 

reductions implemented on a longer 

timeframe than 2017 would be feasible, 

necessary, and cost-effective to address 

states’ good neighbor obligations for this 

NAAQS. 

Given that any additional emission 

reductions, if necessary, would be 

implemented at some point after 2017, 

it is reasonable for Kentucky and EPA 

to evaluate air quality (at step one of the 

framework) in a future year that is 

aligned with feasible control installation 

timing in order to ensure that the 

upwind states continue to be linked to 

downwind air quality problems when 

any potential emissions reductions 

would be implemented and to ensure 

that such reductions do not over-control 

relative to the identified downwind 

ozone problem. See EME Homer City, 

134 S. Ct. at 1608. Here, EPA has 

determined that the air quality problems 

identified at the Harford receptor with 

respect to the 2008 ozone NAAQS will 

be resolved by 2023. Accordingly, EPA 

does not have the authority to require 

additional emission reductions from 

sources in Kentucky in that year. See 

EME Homer City II, 795 F.3d at 130 

(determining that CSAPR ozone season 

budgets for 10 states are invalid based 

on determination that modeling showed 

no future air quality problems). 

Comment: One commenter asserts 

that the good neighbor provision does 

not permit a state to delay its 

elimination of significant downwind 

contribution indefinitely. EPA made 

nonattainment designations for areas 

where Kentucky is making a significant 

contribution and therefore EPA’s 

proposal to delay enforcing Kentucky’s 

good neighbor obligations for another 

five years violates the good neighbor 

provision. Kentucky’s SIP fails to 

address Kentucky’s present and ongoing 

significant contribution to 

nonattainment or interference with 

maintenance of the NAAQS in 

downwind areas including the New 

York-Northern New Jersey-Long Island, 

NY-NJ-CT nonattainment area in the 

NYMA. 

The commenter states that the CSAPR 

Update established Kentucky’s 

significant contribution to the 

Richmond County monitor in 2017, 

which is part of the NYMA that 

measured nonattainment for the 2008 

ozone NAAQS during 2017. The 

commenter contends that EPA’s 

proposed approval provides no 

modeling or monitoring data showing 

that Kentucky’s significant contribution 

to NYMA nonattainment has presently 

ceased or that it will cease at any time 

prior to 2023. Therefore, the commenter 

opposes the modification of EPA 

regulations to reflect that the CSAPR 

Update fully addresses Kentucky’s 

transport obligation. 

The commenter states that Kentucky’s 

significant contribution to 

nonattainment and/or maintenance 

problems for New York under the 2008 

ozone NAAQS are present nearly 10 

years after EPA promulgated the 

NAAQS, seven years after the SIP was 

due, and five years after EPA’s FIP was 

due. Yet Kentucky’s SIP looks out 

another five years before concluding it 

is feasible for Kentucky to comply with 

its good neighbor obligations. EPA’s 

2023 modeling is 15 years after 

promulgation of the NAAQS and delays 

compliance without statutory authority, 

effectively permitting Kentucky’s 

continuing violation of the good 

neighbor provision. 

Response: EPA disagrees that it has 

allowed Kentucky to delay addressing 

its good neighbor obligation 

indefinitely. Rather, EPA promulgated a 

FIP for the Kentucky in the CSAPR 

Update that has required EGUs in the 

Commonwealth to limit their collective 

emissions beginning 2017. As discussed 

earlier, EPA could not conclude 

whether or not the FIP was sufficient to 

address the state’s good neighbor 

obligation for Kentucky without further 

analysis, and EPA therefore further 

disagrees with the commenter’s 

assertion that Kentucky has continued 

to violate its obligation after 

implementation of the CSAPR Update. 

As discussed earlier, the fact that 

emissions from the Commonwealth may 

continue to impact air quality in other 

states does not conclude the question of 

whether that impact constitutes a 

significant contribution or interference 

with maintenance of the NAAQS under 

the good neighbor provision. 

In order to determine whether 

Kentucky had any remaining emission 

reduction obligations with respect to the 

2008 ozone NAAQS, additional analysis 

was necessary. EPA explained in the 

NPRM and earlier in this action why it 

was appropriate to evaluate air quality 

in a future analytic year to determine 

whether the Commonwealth would 

have any further emission reduction 

after implantation of the CSAPR Update 

and how the choice of a 2023 analytic 

year was consistent with legal 

precedent. Thus, EPA does not agree 

that its approval of Kentucky’s SIP 

improperly delays compliance with the 

good neighbor provision for the 2008 

ozone NAAQS. 

Comment: One commenter states that 

EPA must issue a FIP for the 

Commonwealth of Kentucky consistent 

with the obligations of CAA section 

110(a)(2)(D) as well as the court’s order 

in Sierra Club v. Pruitt, No. 3:15–cv– 

04328–JD (N.D. Cal. May 23, 2017), 

directing EPA ‘‘to promulgate the 

Kentucky FIP by June 30, 2018.’’ 

Another commenter contends that 

EPA’s proposed approval of the 

Kentucky SIP does not obviate its duty 

to issue a fully compliant FIP for 

Kentucky by the June 30, 2018 deadline 

in accordance with the court’s order. 

A further commenter states that states 

were required to submit SIPs addressing 

the good neighbor provision for the 

2008 ozone NAAQS by March 2011, and 

that EPA disapproved Kentucky’s SIP 

on March 4, 2013. This finding triggered 

EPA’s mandatory duty under CAA 

section 110(c)(1) to promulgate a FIP for 

Kentucky within two years: By March 7, 

2015. When EPA failed to act, Sierra 

Club and New York sued EPA in the 

United States District Court for the 

Northern District of California to require 

EPA to adopt a FIP addressing 

Kentucky’s good neighbor obligations. 

The commenter notes that the Supreme 


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Court found that section 110(c)(1) 

‘‘impose[s] an absolute duty on EPA to 

issue [a] FIP within two years of 

Kentucky’s failure to adopt an adequate 

state implementation plan,’’ EME Homer 

City, 134 S. Ct. at 1600, and that EPA 

did not contest its liability to issue a FIP 

for Kentucky based on the SIP 

disapproval. The District Court ordered 

EPA ‘‘to promulgate the Kentucky FIP 

by June 30, 2018.’’ 

The commenter contends that the 

Kentucky SIP cannot be approved 

because it requires insufficient action to 

reduce Kentucky’s significant 

contribution to nonattainment in the 

NY-NJ-CT multistate nonattainment area 

by the CAA’s mandatory attainment 

deadlines of July 2018 (moderate areas) 

and July 2021 (serious areas). The 

commenter asserts that EPA’s failure to 

propose a FIP by June 30, 2018, is 

another instance of EPA’s failure to 

carry out its mandatory duty under 

section 110(c) with respect to 

Kentucky’s transport obligations, and a 

clear violation of the District Court’s 

order. 

Response: EPA disagrees that this 

action fails to satisfy the requirements of 

the court’s order in Sierra Club v. Pruitt. 

While the commenters are correct that 

section 110(c)(1)(B) requires the 

Administrator to promulgate a FIP 

within two years after the Administrator 

disapproves a SIP in whole or in part, 

the provision further qualifies this 

obligation. The Administrator is to 

promulgate a FIP ‘‘unless the State 

corrects the deficiency, and the 

Administrator approves the plan or plan 

revision, before the Administrator 

promulgates such [FIP].’’ Thus, once 

EPA has approved a SIP that EPA 

determines addresses the deficiency that 

was the subject of the prior SIP 

disapproval, the Administrator no 

longer has the authority (much less the 

obligation) to promulgate a FIP. 

As to the requirements of the good 

neighbor provision for the 2008 ozone 

NAAQS, EPA has promulgated a FIP for 

Kentucky in the CSAPR Update. While 

EPA indicated that the CSAPR Update 

FIPs ‘‘may not be sufficient to fully 

address these states’ [including 

Kentucky’s] good neighbor obligations’’ 

for the 2008 ozone NAAQS (emphasis 

added), EPA did not definitely 

determine that additional reductions 

were required. See 81 FR 74521 

(October 26, 2016). Rather, EPA 

acknowledged that additional analysis 

would be required to determine the full 

extent of the good neighbor obligation. 

Thus, the only remaining deficiency 

after promulgation of the CSAPR Update 

FIP was to determine what, if any 

remaining emission reduction obligation 

would apply to the states, including 

Kentucky. EPA has determined, in this 

SIP action, that no further emission 

reductions are required for the 2008 

ozone NAAQS, and thus, that the 

CSAPR Update FIP fully addresses 

Kentucky’s good neighbor obligation. 

Accordingly, EPA lacks authority to 

issue any further FIP since the CSAPR 

Update has fully addressed the 

deficiency identified in the initial SIP 

disapproval that triggered EPA’s FIP 

obligation. 

Moreover, to the extent the 

commenters contend that the court’s 

citation to the Supreme Court’s decision 

in EME Homer City, 134 S. Ct. at 1600, 

precludes EPA’s use of a SIP approval 

to address the remaining deficiency, the 

commenters misrepresent the holding of 

the Court. Importantly, the Court was 

emphasizing the ‘‘absolute’’ nature of 

EPA’s mandate in order to counter 

arguments from the respondents and the 

lower court that EPA’s FIP authority 

was contingent on an obligation to take 

some action other than to find that the 

state has failed to submit an approvable 

SIP. While the Court did state that EPA 

has an absolute mandate to promulgate 

a FIP upon a SIP disapproval, the court 

also acknowledged, repeatedly, that the 

state could first ‘‘correct the deficiency’’ 

through submission of a SIP. Id. at 

1600–01 (emphasizing twice that EPA’s 

obligation to issue a FIP can be affected 

if the state ‘‘correct[s] the deficiency’’ on 

its own). That is precisely what has 

occurred here with respect to the 

portion of the good neighbor deficiency 

not already addressed by the CSAPR 

Update. Thus, EPA’s action is consistent 

with section 110(c) and therefore 

consistent with the Northern District of 

California’s order that EPA address its 

obligation under section 110(c) as it 

pertains to Kentucky’s good neighbor 

obligation for the 2008 ozone NAAQS. 

Comment: Several commenters 

contend that EPA is inappropriately 

parallel processing the Kentucky SIP in 

light of the ‘‘significant number and 

scope’’ of public comments raised 

during the state public comment 

process. The commenters state that 

Kentucky should have been required to 

address comments prior to EPA’s 

proposed approval. One commenter 

contends that EPA’s proposed approval 

of the Kentucky SIP on the condition 

that the final SIP contain no substantial 

changes removes any incentive for 

Kentucky to address the public 

comments by making necessary 

changes. The commenter further asserts 

that Kentucky’s SIP is controversial and 

contested, and thus, parallel processing 

is inappropriate. To support this 

assertion, the commenter notes that EPA 

denied a petition brought under section 

176A, which is currently subject to 

review in the D.C. Circuit, that involves 

claims of transported ozone pollution 

from Kentucky and other upwind states. 

The commenter further states that EPA’s 

only apparent reason for parallel 

processing is the court-ordered deadline 

to promulgate a FIP by June 30, 2018, 

and that EPA’s own inaction is no 

excuse for taking rushed, unreasonable, 

arbitrary and capricious action to 

approve a deficient SIP. 

Response: EPA disagrees with the 

commenters’ assertions that parallel 

processing is inappropriate in these 

circumstances. Parallel processing is a 

well-established procedure for acting on 

SIP submissions that is allowed under 

long-standing EPA regulations. 

Appendix V to 40 CFR part 51 

(Appendix V) provides the criteria for 

determining the completeness of SIP 

submittals and the procedures for 

parallel processing. These procedures, 

set forth in paragraph 2.3 of Appendix 

V, allow a state to request parallel 

processing as the state is accepting 

comments and finalizing its SIP 

revision. Under parallel processing, the 

state submits a copy of a draft SIP 

submittal to EPA before conducting its 

public hearing. EPA reviews the draft 

submittal and, if EPA believes it is 

approvable, publishes an NPRM during 

the same timeframe that the state is 

holding its public hearing. The state and 

EPA then provide for concurrent public 

comment periods on both the state 

action and the federal action, 

respectively. 

Although parallel processing 

expedites action on SIP submissions, it 

does not limit EPA’s substantive review. 

EPA evaluates the draft submittal 

against the same approvability criteria 

as any other SIP submission, and the 

final submission must meet all of the 

necessary SIP completeness criteria, 

including the requirement that the 

submission contain a ‘‘[c]ompilation of 

public comments and the State’s 

response thereto.’’ See Appendix V, 

paragraphs 2.1(h) and 2.3.2. Therefore, a 

state must respond to comments 

received during the state public 

comment period. Parallel processing 

does not remove the incentive for a state 

to revise its SIP submission in response 

to comments that raise valid 

approvability concerns because 

ultimately EPA cannot approve a 

submission that fails to meet all 

approvability criteria. 

EPA is not taking a rushed, 

unreasonable, or arbitrary and 

capricious action by using parallel 

processing to act on Kentucky’s SIP 

submission. Kentucky submitted a 


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parallel processing request, as allowed 

under paragraph 2.3.1 of Appendix V, 

and EPA is following the criteria set 

forth in Appendix V to approve the 

Commonwealth’s final submittal. These 

criteria do not exclude certain types of 

SIP submissions from parallel 

processing because all SIP submissions 

reviewed through this process must 

ultimately meet all completeness and 

approvability criteria regardless of the 

number of comments received or the 

degree of controversy. Furthermore, 

EPA provided the public with a full 

opportunity to comment on the draft 

submittal and has fully evaluated all of 

the submitted comments. If these 

comments had identified specific issues 

that would not allow EPA to approve 

the draft SIP submission, EPA could not 

have taken this final action. 

Comment: One commenter suggests 

that a declaration filed in another 

pending lawsuit demonstrates that EPA 

has prejudged its approval of 

Kentucky’s proposed SIP submission, by 

noting that the declaration states EPA 

has proposed an ‘‘unconditional 

approval.’’ This appears to be contrary 

to what was stated in EPA’s proposed 

approval, wherein EPA stated that the 

approval is contingent on Kentucky 

addressing any comments in the statelevel process. The declaration further 

states that ‘‘EPA intends to finalize an 

appropriate action for Kentucky’’ by the 

court-ordered deadline. The commenter 

contends that, because of the public 

notice and hearing requirements under 

CAA section 307(d), and because EPA 

has not yet proposed a FIP, the only 

action EPA has left itself is to approve 

Kentucky’s deficient SIP regardless of 

any public comments it receives. 

Response: The commenter 

misinterprets the reference to proposed 

‘‘unconditional approval’’ of Kentucky’s 

SIP made in the declaration of Reid 

Harvey filed in New York v. Pruitt, No. 

18–cv–406 (S.D.N.Y.). Section 110(k)(4) 

permits the Administrator to issue a 

‘‘conditional’’ approval of a SIP based 

on a commitment of a state to adopt 

specific measures within one year of the 

final action. If the state fails to meet this 

commitment, the conditional approval 

is treated as a disapproval. Mr. Harvey’s 

declaration used the term 

‘‘unconditional approval’’ to indicate 

that the proposed approval was not 

made pursuant to section 110(k)(4). The 

use of this term is unrelated to the 

contingencies associated with the 

parallel processing requirements, which 

are laid out in Appendix V to 40 CFR 

part 51 rather than in section 110. 

Moreover, EPA does not agree that the 

Agency has been forced to approve a 

deficient SIP based on the court-ordered 

deadline and the procedural 

requirements for the promulgation of a 

FIP. For the reasons explained in the 

NRPM and in this action, EPA finds that 

Kentucky’s SIP submission, together 

with the CSAPR Update, fully satisfies 

the requirements of the good neighbor 

provision with respect to the 2008 

ozone NAAQS. However, had EPA 

determined that it could not finalize 

approval of Kentucky’s SIP and would 

instead need to promulgate a FIP, EPA 

would have filed an appropriate motion 

with the district court requesting an 

extension of the court-ordered deadline. 

Comment: One commenter contends 

that approving the Kentucky SIP and 

putting the October 2017 Transport 

Memo into effect will effectively 

foreclose any further good neighbor 

activities under the 2008 ozone NAAQS 

and EPA will have reversed its position 

in the CSAPR Update that more NOX

controls were necessary. EPA deferred 

action under section 176A of the CAA 

by indicating it would enforce good 

neighbor obligations through other 

mechanisms like the transport rule 

framework. The commenter asserts that 

EPA effectively shifts the burden onto 

downwind states to cope with upwind 

pollution sources while denying 

downwind state any means to enforce 

good neighbor obligations. 

The commenter continues that EPA’s 

failure is forcing downwind states to 

attempt to address Kentucky’s and other 

upwind states’ contributions to ozone 

concentrations via other, resourceintensive CAA mechanisms. The 

commenter cites a recent petition 

submitted by Maryland under CAA 

section 126 identifying three coal-fired 

units in Kentucky to which EPA has to 

date failed to respond. The commenter 

also cites a petition submitted pursuant 

to CAA section 176A to expand the 

OTR, which EPA denied. The 

commenter claims it is arbitrary and 

capricious for EPA to point to separate 

CAA provisions as an excuse for 

inaction on the ozone transport 

problem, and to reverse itself without 

confronting its prior position. 

Another commenter states that New 

York’s recent submittal of a section 126 

petition to EPA buttresses Connecticut’s 

claims and that notes that such petition 

names stationary sources in Kentucky as 

‘‘interfer[ing] with attainment’’ of the 

New York-New Jersey-Connecticut 

nonattainment area. The commenter 

states that EPA has referred to section 

126 petitions as one of the tools 

available to states seeking attainment 

with the ozone NAAQS, yet they would 

not be required if upwind states and 

EPA satisfied their obligations in a 

timely matter. 

Response: EPA disagrees that it has 

changed its position in the CSAPR 

Update regarding the need for 

additional emission reductions. In that 

rulemaking, EPA only stated it could 

not conclude, without further analysis, 

whether additional reductions from 

NOX sources would be necessary to 

fully resolve these obligations. This 

conclusion is not inconsistent with 

EPA’s action on the section 176A 

petition seeking to expand the OTR. 

EPA denied the section 176A petition 

because it concluded that any remaining 

interstate transport problems could be 

better addressed via the good neighbor 

provision, which EPA and the states can 

use to make decisions regarding which 

precursor pollutants to address, which 

sources to regulate, and what amount of 

emission reductions to require, 

flexibilities that are not available with 

respect to control requirements 

applicable to sources in the OTR. See 82 

FR 51244–46 (November 3, 2017). EPA 

has subsequently completed further 

analysis that shows that there will be no 

remaining air quality problems in 2023 

in the eastern U.S., and thus EPA has 

concluded that no additional reductions 

from upwind states, beyond those 

required by the CSAPR Update and 

other on-the-books or on the way 

measures, are necessary to bring 

downwind areas into attainment of the 

2008 ozone NAAQS. While downwind 

states may continue to have current 

planning obligations associated with 

designated nonattainment areas, EPA 

lacks the authority to require additional 

emissions reductions from upwind 

states under the good neighbor 

provision in a future year where EPA’s 

analysis shows that current 

nonattainment problems will be 

resolved. 

While EPA is concluding in this 

action that Kentucky has no remaining 

good neighbor obligation with respect to 

the 2008 ozone NAAQS after 

implementation of the CSAPR Update, 

EPA disagrees that this action 

necessarily forecloses all further good 

neighbor activities with respect to that 

NAAQS. This action does not address 

remaining good neighbor obligations for 

any other states, and EPA will address 

any such obligations in a separate 

rulemaking. Moreover, the commenters 

acknowledge and EPA agrees that 

section 126 provides a process for states 

to bring claims to the Agency if the 

petitioning state can present 

information demonstrating that sources 

in upwind states will have impacts on 

downwind air quality in violation of the 

good neighbor provision. However, the 

right to submit such petitions does not 


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presuppose that any pending or future 

petitions will necessarily make the 

requisite demonstration. To the extent 

that the commenters invokes separate, 

pending section 126 petitions, EPA will 

address those claims in separate actions. 

IV. Final Action 

For the reasons discussed above, EPA 

is taking final action to approve 

Kentucky’s May 10, 2018, SIP 

submission and find that Kentucky is 

not required to make any further 

reductions, beyond those required by 

the CSAPR Update, to address its 

statutory obligation under CAA section 

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

NAAQS. EPA’s final approval of 

Kentucky’s submission means that 

Kentucky’s obligations under 

110(a)(2)(D)(i)(I) are fully addressed 

through the combination of the CSAPR 

Update FIP and the SIP demonstration 

showing that no further reductions are 

necessary. EPA is also amending the 

regulatory text at 40 CFR 52.940(b)(2) to 

reflect that the CSAPR Update 

represents a full remedy with respect to 

Kentucky’s transport obligation for the 

2008 ozone NAAQS. 

V. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable Federal regulations. 

See 42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. This action merely approves 

state law as meeting Federal 

requirements and does not impose 

additional requirements beyond those 

imposed by state law. For that reason, 

this action: 

• Is not a significant regulatory action 

subject to review by the Office of 

Management and Budget under 

Executive Orders 12866 (58 FR 51735, 

October 4, 1993) and 13563 (76 FR 3821, 

January 21, 2011); 

• Is not an Executive Order 13771 (82 

FR 9339, February 2, 2017) regulatory 

action because SIP approvals are 

exempted under Executive Order 12866; 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

The SIP is not approved to apply on 

any Indian reservation land or in any 

other area where EPA or an Indian tribe 

has demonstrated that a tribe has 

jurisdiction. In those areas of Indian 

country, the rule does not have tribal 

implications as specified by Executive 

Order 13175 (65 FR 67249, November 9, 

2000), nor will it impose substantial 

direct costs on tribal governments or 

preempt tribal law. 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the Act, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by September 17, 2018. Under 

section 307(b)(2) of the Act, the 

requirements of this final action may 

not be challenged later in civil or 

criminal proceedings for enforcement. 

List of Subjects in 40 CFR Part 52 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Reporting and 

recordkeeping requirements. 

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

Dated: June 28, 2018. 

Onis ‘‘Trey’’ Glenn, III, 

Regional Administrator, Region 4. 

40 CFR part 52 is amended as follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart S—Kentucky 

■ 2. Section 52.920(e) is amended by 

adding an entry for ‘‘110(a)(2)(D)(i)(I) 

Infrastructure Requirement for the 2008 

8-Hour Ozone National Ambient Air 

Quality Standards’’ at the end of the 

table to read as follows: 

§ 52.920 Identification of plan. 

(e) * * * 

EPA-APPROVED KENTUCKY NON-REGULATORY PROVISIONS

Name of non-regulatory SIP 

provision 

Applicable geographic or 

nonattainment area 

State submittal 

date/effective 

date 

EPA approval date Explanations 

*******

110(a)(2)(D)(i)(I) Infrastructure 

Requirement for the 2008 8- 

Hour Ozone National Ambient Air Quality Standards.

Commonwealth of Kentucky .. 05/10/2018 07/17/2018, [Insert Federal 

Register citation].


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■ 3. Section 52.940 is amended by 

revising paragraph (b)(2) to read as 

follows: 

§ 52.940 Interstate pollutant transport 

provisions; What are the FIP requirements 

for decreases in emissions of nitrogen 

oxides? 

* * * * * 

(b) * * * 

(2) The owner and operator of each 

source and each unit located in the State 

of Kentucky and for which requirements 

are set forth under the CSAPR NOX

Ozone Season Group 2 Trading Program 

in subpart EEEEE of part 97 of this 

chapter must comply with such 

requirements with regard to emissions 

occurring in 2017 and each subsequent 

year. The obligation to comply with 

such requirements will be eliminated by 

the promulgation of an approval by the 

Administrator of a revision to 

Kentucky’s State Implementation Plan 

(SIP) as correcting the SIP’s deficiency 

that is the basis for the CSAPR Federal 

Implementation Plan (FIP) under 

§ 52.38(b), except to the extent the 

Administrator’s approval is partial or 

conditional. 

* * * * * 

[FR Doc. 2018–15143 Filed 7–16–18; 8:45 am] 

BILLING CODE 6560–50–P 


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