9516 Federal Register / Vol. 87, No. 35 / Tuesday, February 22, 2022 / Proposed Rules 

71 In deciding whether to invoke the exception by 

making and publishing a finding that an action is 

based on a determination of nationwide scope or 

effect, the Administrator takes into account a 

number of policy considerations, including his 

judgment balancing the benefit of obtaining the D.C. 

Circuit’s authoritative centralized review versus 

allowing development of the issue in other contexts 

and the best use of agency resources. 

72A finding of nationwide scope or effect is also 

appropriate for actions that cover states in multiple 

judicial circuits. In the report on the 1977 

Amendments that revised section 307(b)(1) of the 

CAA, Congress noted that the Administrator’s 

determination that the ‘‘nationwide scope or effect’’ 

exception applies would be appropriate for any 

action that has a scope or effect beyond a single 

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

324, reprinted in 1977 U.S.C.C.A.N. 1402–03. 

73EPA may take a consolidated, single final 

action on all of the proposed SIP disapproval 

actions with respect to obligations under CAA 

section 110(a)(2)(D)(i)(I) for the 2015 8-hour ozone 

NAAQS. Should EPA take a single final action on 

all such disapprovals, this action would be 

nationally applicable, and EPA would also 

anticipate, in the alternative, making and 

publishing a finding that such final action is based 

on a determination of nationwide scope or effect. 

E. Executive Order 13132: Federalism 

This proposed action does not have 

federalism implications. It will not have 

substantial direct effects on the states, 

on the relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This proposed action does not have 

tribal implications as specified in 

Executive Order 13175. This proposed 

action does not apply on any Indian 

reservation land, any other area where 

EPA or an Indian tribe has demonstrated 

that a tribe has jurisdiction, or nonreservation areas of Indian country. 

Thus, Executive Order 13175 does not 

apply to this action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets Executive Order 13045 

as applying only to those regulatory 

actions that concern environmental 

health or safety risks that EPA has 

reason to believe may 

disproportionately affect children, per 

the definition of ‘‘covered regulatory 

action’’ in section 2–202 of the 

Executive Order. This proposed action 

is not subject to Executive Order 13045 

because it merely proposes to 

disapprove a SIP submission from 

Kentucky as not meeting the CAA. 

H. Executive Order 13211, Actions That 

Significantly Affect Energy Supply, 

Distribution or Use 

This proposed action is not subject to 

Executive Order 13211, because it is not 

a significant regulatory action under 

Executive Order 12866. 

I. National Technology Transfer and 

Advancement Act 

This proposed rulemaking does not 

involve technical standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

EPA believes the human health or 

environmental risk addressed by this 

action will not have potential 

disproportionately high and adverse 

human health or environmental effects 

on minority, low-income or indigenous 

populations. This action merely 

proposes to disapprove a SIP 

submission as not meeting the CAA. 

K. CAA Section 307(b)(1) 

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

judicial review of final actions by EPA. 

This section provides, in part, that 

petitions for review must be filed in the 

D.C. Circuit: (i) When the agency action 

consists of ‘‘nationally applicable 

regulations promulgated, or final actions 

taken, by the Administrator,’’ or (ii) 

when such action is locally or regionally 

applicable, if ‘‘such action is based on 

a determination of nationwide scope or 

effect and if in taking such action the 

Administrator finds and publishes that 

such action is based on such a 

determination.’’ For locally or regionally 

applicable final actions, the CAA 

reserves to EPA complete discretion 

whether to invoke the exception in 

(ii).71

If EPA takes final action on this 

proposed rulemaking, the Administrator 

intends to exercise the complete 

discretion afforded to him under the 

CAA to make and publish a finding that 

the final action (to the extent a court 

finds the action to be locally or 

regionally applicable) is based on a 

determination of ‘‘nationwide scope or 

effect’’ within the meaning of CAA 

section 307(b)(1). Through this 

rulemaking action (in conjunction with 

a series of related actions on other SIP 

submissions for the same CAA 

obligations), EPA interprets and applies 

section 110(a)(2)(d)(i)(I) of the CAA for 

the 2015 8-hour ozone NAAQS based on 

a common core of nationwide policy 

judgments and technical analysis 

concerning the interstate transport of 

pollutants throughout the continental 

U.S. In particular, EPA is applying here 

(and in other proposed actions related to 

the same obligations) the same, 

nationally consistent 4-step framework 

for assessing good neighbor obligations 

for the 2015 8-hour ozone NAAQS. EPA 

relies on a single set of updated, 2016- 

base year photochemical grid modeling 

results of the year 2023 as the primary 

basis for its assessment of air quality 

conditions and contributions at Steps 1 

and 2 of that framework. Further, EPA 

proposes to determine and apply a set 

of nationally consistent policy 

judgments to apply the 4-step 

framework. EPA has selected a 

nationally uniform analytic year (2023) 

for this analysis and is applying a 

nationally uniform approach to 

nonattainment and maintenance 

receptors and a nationally uniform 

approach to contribution threshold 

analysis.72 For these reasons, the 

Administrator intends, if this proposed 

action is finalized, to exercise the 

complete discretion afforded to him 

under the CAA to make and publish a 

finding that this action is based on one 

or more determinations of nationwide 

scope or effect for purposes of CAA 

section 307(b)(1).73

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Ozone. 

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

Dated: February 3, 2022. 

Daniel Blackman, 

Regional Administrator, Region 4. 

[FR Doc. 2022–02947 Filed 2–18–22; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

EPA–R03–OAR–2021–0873; EPA–HQ–OAR– 

2021–0663; FRL–9494–01–R3] 

Air Plan Disapproval; West Virginia; 

Interstate Transport of Air Pollution for 

the 2015 8-Hour Ozone National 

Ambient Air Quality Standard 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: Pursuant to the Federal Clean 

Air Act (CAA or the Act), the 

Environmental Protection Agency (EPA) 

is proposing to disapprove a State 

Implementation Plan (SIP) submittal 

from West Virginia intended to address 

interstate transport for the 2015 8-hour 

ozone national ambient air quality 

standards (2015 8-hour ozone NAAQS). 

The ‘‘good neighbor’’ or ‘‘interstate 


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1National Ambient Air Quality Standards for 

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

Although the level of the standard is specified in 

the units of ppm, ozone concentrations are also 

described in parts per billion (ppb). For example, 

0.070 ppm is equivalent to 70 ppb. 

2SIP revisions that are intended to meet the 

applicable requirements of section 110(a)(1) and (2) 

of the CAA are often referred to as infrastructure 

SIPs and the applicable elements under section 

110(a)(2) are referred to as infrastructure 

requirements. 

transport’’ provisions require that each 

state’s SIP contain adequate provisions 

to prohibit emissions from within the 

state from significantly contributing to 

nonattainment or interfering with 

maintenance of the NAAQS in other 

states. This requirement is part of the 

broader set of ‘‘infrastructure’’ 

requirements, which are designed to 

ensure that the structural components of 

each state’s air quality management 

program are adequate to meet the state’s 

responsibilities under the CAA. This 

disapproval, if finalized, will establish a 

2-year deadline for the EPA to 

promulgate a Federal Implementation 

Plan (FIP) to address the relevant 

interstate transport requirements, unless 

the EPA approves a subsequent SIP 

submittal that meets these requirements. 

Disapproval does not start a mandatory 

sanctions clock. 

DATES: Written comments must be 

received on or before April 25, 2022. 

ADDRESSES: You may send comments, 

identified as Docket No. EPA–R03– 

OAR–2021–0873, by any of the 

following methods: Federal 

eRulemaking Portal at https://

www.regulations.gov following the 

online instructions for submitting 

comments or via email to gordon.mike@

epa.gov. For additional methods for 

submitting comments, contact the 

person in the FOR FURTHER INFORMATION

CONTACT section. Include Docket ID No. 

EPA–R03–OAR–2021–0873 in the 

subject line of the message. 

Instructions: All submissions received 

must include the Docket ID No. for this 

rulemaking. Comments received may be 

posted without change to https://

www.regulations.gov/, including any 

personal information provided. For 

detailed instructions on sending 

comments and additional information 

on the rulemaking process, see the 

‘‘Public Participation’’ heading of the 

SUPPLEMENTARY INFORMATION section of 

this document. Out of an abundance of 

caution for members of the public and 

our staff, the EPA Docket Center and 

Reading Room are open to the public by 

appointment only to reduce the risk of 

transmitting COVID–19. Our Docket 

Center staff also continues to provide 

remote customer service via email, 

phone, and webform. For further 

information on EPA Docket Center 

services and the current status, please 

visit us online at https://www.epa.gov/ 

dockets. 

FOR FURTHER INFORMATION CONTACT: 

Michael Gordon, Planning & 

Implementation Branch (3AD30), Air & 

Radiation Division, U.S. Environmental 

Protection Agency, Region III, 1650 

Arch Street, Philadelphia, Pennsylvania 

19103. The telephone number is (215) 

814–2039. Mr. Gordon can also be 

reached via electronic mail at 

gordon.mike@epa.gov. 

SUPPLEMENTARY INFORMATION: Public 

Participation: Submit your comments, 

identified by Docket ID No. EPA–R03– 

OAR–2021–0873, at https://

www.regulations.gov (our preferred 

method), or the other methods 

identified in the ADDRESSES section. 

Once submitted, comments cannot be 

edited or removed from the docket. The 

EPA may publish any comment received 

to its public docket. Do not submit to 

EPA’s docket at https://

www.regulations.gov any information 

you consider to be Confidential 

Business Information (CBI) or other 

information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. The EPA will generally not 

consider comments or comment 

contents located outside of the primary 

submission (i.e., on the web, cloud, or 

other file sharing system). 

There are two dockets supporting this 

action, EPA–R03–OAR–2021–0873 and 

EPA–HQ–OAR–2021–0663. Docket No. 

EPA–R03–OAR–2021–0873 contains 

information specific to West Virginia, 

including the notice of proposed 

rulemaking. Docket No. EPA–HQ–OAR– 

2021–0663 contains additional 

modeling files, emissions inventory 

files, technical support documents, and 

other relevant supporting 

documentation regarding interstate 

transport of emissions for the 2015 8- 

hour ozone NAAQS which are being 

used to support this action. All 

comments regarding information in 

either of these dockets are to be made 

in Docket No. EPA–R03–OAR–2021– 

0873. For additional submission 

methods, please contact Michael 

Gordon, 215–814–2039, gordon.mike@

epa.gov. For the full EPA public 

comment policy, information about CBI 

or multimedia submissions, and general 

guidance on making effective 

comments, please visit https://

www.epa.gov/dockets/commenting-epadockets. Due to public health concerns 

related to COVID–19, the EPA Docket 

Center and Reading Room are open to 

the public by appointment only. Our 

Docket Center staff also continues to 

provide remote customer service via 

email, phone, and webform. For further 

information and updates on EPA Docket 

Center services, please visit us online at 

https://www.epa.gov/dockets. 

The EPA continues to carefully and 

continuously monitor information from 

the Centers for Disease Control and 

Prevention (CDC), local area health 

departments, and our Federal partners 

so that we can respond rapidly as 

conditions change regarding COVID–19. 

The index to the docket for this action, 

Docket No. EPA–R03–OAR–2021–0873, 

is available electronically at 

www.regulations.gov. While all 

documents in the docket are listed in 

the index, some information may not be 

publicly available via the online docket, 

such as modeling data files, due to 

docket file size restrictions or content 

(e.g., CBI). Please contact the EPA 

Docket Center Services for further 

information on how to obtain these files. 

Throughout this document, ‘‘we,’’ 

‘‘us,’’ and ‘‘our’’ means the EPA. 

I. Background 

A. Description of Statutory Background 

On October 1, 2015, the EPA 

promulgated a revision to the ozone 

NAAQS (2015 8-hour ozone NAAQS), 

lowering the level of both the primary 

and secondary standards to 0.070 parts 

per million (ppm).1 Section 110(a)(1) of 

the CAA requires states to submit, 

within 3 years after promulgation of a 

new or revised standard, SIP 

submissions meeting the applicable 

requirements of section 110(a)(2).2 One 

of these applicable requirements is 

found in CAA section 110(a)(2)(D)(i)(I), 

otherwise known as the ‘‘interstate 

transport’’ or ‘‘good neighbor’’ 

provision, which generally requires SIPs 

to contain adequate provisions to 

prohibit in-state emissions activities 

from having certain adverse air quality 

effects on other states due to interstate 

transport of pollution. There are two socalled ‘‘prongs’’ within CAA section 

110(a)(2)(D)(i)(I). A SIP for a new or 

revised NAAQS must contain adequate 

provisions prohibiting any source or 

other type of emissions activity within 

the state from emitting air pollutants in 

amounts that will significantly 

contribute to nonattainment of the 

NAAQS in another state (prong 1) or 

interfere with maintenance of the 

NAAQS in another state (prong 2). The 

EPA and states must give independent 


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3See North Carolina v. EPA, 531 F.3d 896, 909– 

11 (D.C. Cir. 2008). 

4See Federal Implementation Plans: Interstate 

Transport of Fine Particulate Matter and Ozone and 

Correction of SIP Approvals, 76 FR 48208 (August 

8, 2011). 

5Cross-State Air Pollution Rule Update for the 

2008 Ozone NAAQS, 81 FR 74504 (October 26, 

2016). 

6 In 2019, the D.C. Circuit Court of Appeals 

remanded the CSAPR Update to the extent it failed 

to require upwind states to eliminate their 

significant contribution by the next applicable 

attainment date by which downwind states must 

come into compliance with the NAAQS, as 

established under CAA section 181(a). Wisconsin v. 

EPA, 938 F.3d 303, 313 (D.C. Cir. 2019). The 

Revised CSAPR Update for the 2008 Ozone 

NAAQS, 86 FR 23054 (April 30, 2021), responded 

to the remand of the CSAPR Update in Wisconsin 

and the vacatur of a separate rule, the ‘‘CSAPR 

Close-Out,’’ 83 FR 65878 (December 21, 2018), in 

New York v. EPA, 781 F. App’x. 4 (D.C. Cir. 2019). 

7 In addition to the CSAPR rulemakings, other 

regional rulemakings addressing ozone transport 

include the ‘‘NOX SIP Call,’’ 63 FR 57356 (October 

27, 1998), and the ‘‘Clean Air Interstate Rule’’ 

(CAIR), 70 FR 25162 (May 12, 2005). 

8See Notice of Availability of the Environmental 

Protection Agency’s Preliminary Interstate Ozone 

Transport Modeling Data for the 2015 8-hour Ozone 

National Ambient Air Quality Standard (NAAQS), 

82 FR 1733 (January 6, 2017). 

9See 82 FR 1733, 1735 (January 6, 2017). 

10See Information on the Interstate Transport 

State Implementation Plan Submissions for the 

2008 Ozone National Ambient Air Quality 

Standards under Clean Air Act Section 

110(a)(2)(D)(i)(I), October 27, 2017, available in the 

docket for this action or at https://www.epa.gov/ 

interstate-air-pollution-transport/interstate-airpollution-transport-memos-and-notices. 

11See Information on the Interstate Transport 

State Implementation Plan Submissions for the 

2015 Ozone National Ambient Air Quality 

Standards under Clean Air Act Section 

110(a)(2)(D)(i)(I), March 27, 2018 (‘‘March 2018 

memorandum’’), available in the docket for this 

action or at https://www.epa.gov/interstate-airpollution-transport/interstate-air-pollutiontransport-memos-and-notices. 

12The March 2018 memorandum, however, 

provided, ‘‘While the information in this 

memorandum and the associated air quality 

analysis data could be used to inform the 

development of these SIPs, the information is not 

a final determination regarding states’ obligations 

under the good neighbor provision. Any such 

determination would be made through notice-andcomment rulemaking.’’ 

13See Analysis of Contribution Thresholds for 

Use in Clean Air Act Section 110(a)(2)(D)(i)(I) 

Interstate Transport State Implementation Plan 

Submissions for the 2015 Ozone National Ambient 

Air Quality Standards, August 31, 2018) (‘‘August 

2018 memorandum’’), and Considerations for 

Identifying Maintenance Receptors for Use in Clean 

Air Act Section 110(a)(2)(D)(i)(I) Interstate 

Transport State Implementation Plan Submissions 

for the 2015 Ozone National Ambient Air Quality 

Standards, October 19, 2018, available in the docket 

for this action or at https://www.epa.gov/ 

airmarkets/memo-and-supplemental-informationregarding-interstate-transport-sips-2015-ozonenaaqs. 

significance to prong 1 and prong 2 

when evaluating downwind air quality 

problems under CAA section 

110(a)(2)(D)(i)(I).3

B. Description of the EPA’s Four-Step 

Interstate Transport Regulatory Process 

The EPA is using the 4-step interstate 

transport framework (or 4-step 

framework) to evaluate the states’ SIP 

submittals addressing the interstate 

transport provision for the 2015 8-hour 

ozone NAAQS. The EPA has addressed 

the interstate transport requirements of 

CAA section 110(a)(2)(D)(i)(I) with 

respect to prior ozone NAAQS in 

several regional regulatory actions, 

including the Cross-State Air Pollution 

Rule (CSAPR), which addressed 

interstate transport with respect to the 

1997 ozone NAAQS as well as the 1997 

and 2006 fine particulate matter 

standards,4 and the Cross-State Air 

Pollution Rule Update (CSAPR 

Update) 5 and the Revised CSAPR 

Update, both of which addressed the 

2008 ozone NAAQS.6

Through the development and 

implementation of the CSAPR 

rulemakings and prior regional 

rulemakings pursuant to the interstate 

transport provision,7 the EPA, working 

in partnership with states, developed 

the following 4-step interstate transport 

framework to evaluate a State’s 

obligations to eliminate interstate 

transport emissions under the interstate 

transport provision for the ozone 

NAAQS: (1) Identify monitoring sites 

that are projected to have problems 

attaining and/or maintaining the 

NAAQS (i.e., nonattainment and/or 

maintenance receptors); (2) identify 

states that impact those air quality 

problems in other (i.e., downwind) 

states sufficiently such that the states 

are considered ‘‘linked’’ and therefore 

warrant further review and analysis; (3) 

identify the emissions reductions 

necessary (if any), applying a 

multifactor analysis, to eliminate each 

linked upwind state’s significant 

contribution to nonattainment or 

interference with maintenance of the 

NAAQS at the locations identified in 

Step 1; and (4) adopt permanent and 

enforceable measures needed to achieve 

those emissions reductions. 

C. Background on the EPA’s Ozone 

Transport Modeling Information 

In general, the EPA has performed 

nationwide air quality modeling to 

project ozone design values which are 

used in combination with measured 

data to identify nonattainment and 

maintenance receptors. To quantify the 

contribution of emissions from specific 

upwind states on 2023 ozone design 

values for the identified downwind 

nonattainment and maintenance 

receptors, the EPA performed 

nationwide, state-level ozone source 

apportionment modeling for 2023. The 

source apportionment modeling 

provided contributions to ozone at 

receptors from precursor emissions of 

anthropogenic nitrogen oxides (NOX) 

and volatile organic compounds (VOCs) 

in individual upwind states. 

The EPA has released several 

documents containing projected ozone 

design values, contributions, and 

information relevant to evaluating 

interstate transport with respect to the 

2015 8-hour ozone NAAQS. First, on 

January 6, 2017, the EPA published a 

notice of data availability (NODA) in 

which we requested comment on 

preliminary interstate ozone transport 

data including projected ozone design 

values (DVs) and interstate 

contributions for 2023 using a 2011 base 

year platform.8 In the NODA, the EPA 

used the year 2023 as the analytic year 

for this preliminary modeling because 

that year aligns with the expected 

attainment year for Moderate ozone 

nonattainment areas for the 2015 8-hour 

ozone NAAQS.9 On October 27, 2017, 

we released a memorandum (October 

2017 memorandum) containing updated 

modeling data for 2023, which 

incorporated changes made in response 

to comments on the NODA, and noted 

that the modeling may be useful for 

states developing SIPs to address 

interstate transport obligations for the 

2008 ozone NAAQS.10 On March 27, 

2018, we issued a memorandum (March 

2018 memorandum) noting that the 

same 2023 modeling data released in the 

October 2017 memorandum could also 

be useful for identifying potential 

downwind air quality problems with 

respect to the 2015 8-hour ozone 

NAAQS at Step 1 of the 4-step interstate 

transport framework.11 The March 2018 

memorandum also included the then 

newly available contribution modeling 

data for 2023 to assist states in 

evaluating their impact on potential 

downwind air quality problems for the 

2015 8-hour ozone NAAQS under Step 

2 of the 4-step interstate transport 

framework.12 The EPA subsequently 

issued two more memoranda in August 

and October 2018, providing additional 

information to states developing 

interstate transport SIP submissions for 

the 2015 8-hour ozone NAAQS 

concerning, respectively, potential 

contribution thresholds that may be 

appropriate to apply in Step 2 of the 4- 

step interstate transport framework, and 

considerations for identifying 

downwind areas that may have 

problems maintaining the standard at 

Step 1 of the 4-step interstate transport 

framework.13

Since the release of the modeling data 

shared in the March 2018 


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14The results of this modeling, as well as the 

underlying modeling files, are included in docket 

EPA–HQ–OAR–2021–0663. 

15See 85 FR 68964, 68981 

16See the Air Quality Modeling Technical 

Support Document for the Final Revised Cross-State 

Air Pollution Rule Update, included in the 

Headquarters docket ID No. EPA–HQ–OAR–2021– 

0663. 

17Additional details and documentation related 

to the MOVES3 model can be found at https://

www.epa.gov/moves/latest-version-motor-vehicleemission-simulator-moves. 

18See Technical Support Document (TSD) 

Preparation of Emissions Inventories for the 2016v2 

North American Emissions Modeling Platform, 

included in the Headquarters docket ID No. EPA– 

HQ–OAR–2021–0663. 

19Ramboll Environment and Health, January 

2021, www.camx.com. 

20March 2018 memorandum, Attachment A. 

21 Id. at A–1. 

22 Id. 

memorandum, the EPA performed 

updated modeling using a 2016-based 

emissions modeling platform (i.e., 

2016v1). This emissions platform was 

developed under the EPA/MultiJurisdictional Organization (MJO)/state 

collaborative project.14 This 

collaborative project was a multi-year 

joint effort by the EPA, MJOs, and states 

to develop a new, more recent emissions 

platform for use by the EPA and states 

in regulatory modeling as an 

improvement over the dated 2011-based 

platform that the EPA had used to 

project ozone design values and 

contribution data provided in the 2017 

and 2018 memoranda. The EPA used 

the 2016v1 emissions to project ozone 

design values and contributions for 

2023. On October 30, 2020, in the 

Notice of Proposed Rulemaking for the 

Revised CSAPR Update, the EPA 

released and accepted public comment 

on 2023 modeling that used the 2016v1 

emissions platform.15 Although the 

Revised CSPAR Update addressed 

transport for the 2008 ozone NAAQS, 

the projected design values and 

contributions from the 2016v1 platform 

are also useful for identifying 

downwind ozone problems and linkages 

with respect to the 2015 ozone 

NAAQS.16

Following the final Revised CSAPR 

Update, the EPA made further updates 

to the 2016 emissions platform to 

include mobile emissions from the 

EPA’s Motor Vehicle Emission 

Simulator MOVES3 model 17 and 

updated emissions projections for 

electric generating units (EGUs) that 

reflect the emissions reductions from 

the Revised CSAPR Update, recent 

information on plant closures, and other 

sector trends. The construct of the 

updated emissions platform, 2016v2 

(2016v2 emissions platform), is 

described in the emissions modeling 

technical support document (TSD) for 

this proposed rulemaking.18 The EPA 

performed air quality modeling of the 

2016v2 emissions using the most recent 

public release version of the 

Comprehensive Air-quality Model with 

extensions (CAMx) photochemical 

modeling, version 7.10.19 The EPA now 

proposes to primarily rely on modeling 

based on the updated and newly 

available 2016v2 emissions platform in 

evaluating these submissions with 

respect to Steps 1 and 2 of the 4-step 

interstate transport framework and 

generally referenced within this action 

as 2016v2 modeling for 2023. By using 

the updated modeling results, the EPA 

is using the most current and 

technically appropriate information for 

this proposed rulemaking. Section III of 

this document and the Air Quality 

Modeling TSD for 2015 8-hour Ozone 

NAAQS Transport SIP Proposed 

Actions, included in Docket ID No. 

EPA–HQ–OAR–2021–0663 for this 

proposal, contain additional detail on 

the EPA’s 2016v2 modeling. In this 

document, the EPA is accepting public 

comment on this updated 2023 

modeling, which uses a 2016v2 

emissions platform. Comments on the 

EPA’s air quality modeling should be 

submitted in the Regional docket for 

this action, Docket ID No. EPA–R03– 

OAR–2021–0873. No comments on any 

topic are being accepted in docket ID 

No. EPA–HQ–OAR–2021–0663. 

States may have chosen to rely on the 

results of EPA modeling and/or 

alternative modeling performed by 

states or MJOs to evaluate downwind air 

quality problems and contributions as 

part of their submissions. EPA’s 

evaluation of how West Virginia used 

air quality modeling information in 

their submission is in Section III of this 

document. 

D. The EPA’s Approach to Evaluating 

Interstate Transport SIPs for the 2015 8- 

Hour Ozone NAAQS 

The EPA proposes to apply a 

consistent set of policy judgments 

across all states for purposes of 

evaluating interstate transport 

obligations and the approvability of 

interstate transport SIP submittals for 

the 2015 8-hour ozone NAAQS. These 

policy judgments reflect consistency 

with relevant case law and past agency 

practice as reflected in the CSAPR and 

related rulemakings. Nationwide 

consistency in approach is particularly 

important in the context of interstate 

ozone transport, which is a regionalscale pollution problem involving many 

smaller contributors. Effective policy 

solutions to the problem of interstate 

ozone transport going back to the NOX

SIP Call have necessitated the 

application of a uniform framework of 

policy judgments in order to ensure an 

‘‘efficient and equitable’’ approach. See 

EME Homer City Generation, LP v. EPA, 

572 U.S. 489, 519 (2014). 

In the March, August, and October 

2018 memoranda, the EPA recognized 

that states may be able to establish 

alternative approaches to addressing 

their interstate transport obligations for 

the 2015 8-hour ozone NAAQS that vary 

from a nationally uniform framework. 

The EPA emphasized in these 

memoranda, however, that such 

alternative approaches must be 

technically justified and appropriate in 

light of the facts and circumstances of 

each particular state’s submittal. In 

general, the EPA continues to believe 

that deviation from a nationally 

consistent approach to ozone transport 

must be substantially justified and have 

a well-documented technical basis that 

is consistent with relevant case law. 

Where states submitted SIPs that rely on 

any such potential ‘‘flexibilities’’ as may 

have been identified or suggested in the 

past, the EPA will evaluate whether the 

state adequately justified the technical 

and legal basis for doing so. The EPA’s 

proposed framework with respect to 

analytic year, definition of 

nonattainment and maintenance 

receptors, selection of contribution 

threshold, and multifactor control 

strategy assessment is described in this 

section. The EPA notes that certain 

concepts included in an attachment to 

the March 2018 memorandum require 

unique consideration, and these ideas 

do not constitute agency guidance with 

respect to transport obligations for the 

2015 ozone NAAQS. Attachment A to 

the March 2018 memorandum identified 

a ‘‘Preliminary List of Potential 

Flexibilities’’ that could potentially 

inform SIP development.20 However, 

EPA made clear in that Attachment that 

the list of ideas were not suggestions 

endorsed by the Agency but rather 

‘‘comments provided in various forums’’ 

on which EPA sought ‘‘feedback from 

interested stakeholders.’’ 21 Further, 

Attachment A stated, ‘‘EPA is not at this 

time making any determination that the 

ideas discussed below are consistent 

with the requirements of the CAA, nor 

is the EPA specifically recommending 

that states use these approaches.’’ 22

Attachment A to the March 2018 

memorandum, therefore, does not 

constitute agency guidance, but was 

intended to generate further discussion 

around potential approaches to 

addressing ozone transport among 

interested stakeholders. To the extent 


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23For attainment dates for the 2015 8-hour ozone 

NAAQS, refer to CAA section 181(a), 40 CFR 

51.1303, and Additional Air Quality Designations 

for the 2015 Ozone National Ambient Air Quality 

Standards, 83 FR 25776 (June 4, 2018, effective 

August 3, 2018). 

24We note that the court in Maryland did not 

have occasion to evaluate circumstances in which 

the EPA may determine that an upwind linkage to 

a downwind air quality problem exists at steps 1 

and 2 of the interstate transport framework by a 

particular attainment date, but for reasons of 

impossibility or profound uncertainty the Agency is 

unable to mandate upwind pollution controls by 

that date. See Wisconsin, 938 F.3d at 320. The D.C. 

Circuit noted in Wisconsin that upon a sufficient 

showing, these circumstances may warrant 

flexibility in effectuating the purpose of the 

interstate transport provision. 

25See CAA section 181(a); 40 CFR 51.1303; 

Additional Air Quality Designations for the 2015 

Ozone National Ambient Air Quality Standards, 83 

FR 25776 (June 4, 2018, effective August 3, 2018). 

26See North Carolina v. EPA, 531 F.3d 896, 910– 

11 (D.C. Cir. 2008) (holding that the EPA must give 

‘‘independent significance’’ to each prong of CAA 

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

27See 81 FR 74504 (October 26, 2016). This same 

concept, relying on both current monitoring data 

and modeling to define nonattainment receptor, 

was also applied in CAIR. See 70 FR 25241 (January 

14, 2005); see also North Carolina, 531 F.3d at 913– 

14 (affirming as reasonable EPA’s approach to 

defining nonattainment in CAIR). 

states sought to develop or rely on these 

ideas in support of their SIP submittals, 

the EPA will thoroughly review the 

technical and legal justifications for 

doing so. 

The remainder of this section 

describes the EPA’s proposed 

framework with respect to analytic year, 

definition of nonattainment and 

maintenance receptors, selection of 

contribution threshold, and multifactor 

control strategy assessment. 

1. Selection of Analytic Year 

In general, the states and the EPA 

must implement the interstate transport 

provision in a manner ‘‘consistent with 

the provisions of [title I of the CAA.]’’ 

CAA section 110(a)(2)(D)(i). This 

requires, among other things, that these 

obligations are addressed consistently 

with the timeframes for downwind areas 

to meet their CAA obligations. With 

respect to ozone NAAQS, under CAA 

section 181(a), this means obligations 

must be addressed ‘‘as expeditiously as 

practicable’’ and no later than the 

schedule of attainment dates provided 

in CAA section 181(a)(1).23 Several D.C. 

Circuit court decisions address the issue 

of the relevant analytic year for the 

purposes of evaluating ozone transport 

air-quality problems. On September 13, 

2019, the D.C. Circuit issued a decision 

in Wisconsin v. EPA, remanding the 

CSAPR Update to the extent that it 

failed to require upwind states to 

eliminate their significant contribution 

by the next applicable attainment date 

by which downwind states must come 

into compliance with the NAAQS, as 

established under CAA section 181(a). 

938 F.3d 303 at 313. 

On May 19, 2020, the D.C. Circuit 

issued a decision in Maryland v. EPA 

that cited the Wisconsin decision in 

holding that the EPA must assess the 

impact of interstate transport on air 

quality at the next downwind 

attainment date, including Marginal 

area attainment dates, in evaluating the 

basis for the EPA’s denial of a petition 

under CAA section 126(b). Maryland v. 

EPA, 958 F.3d 1185, 1203–04 (D.C. Cir. 

2020). The court noted that ‘‘section 

126(b) incorporates the Good Neighbor 

Provision,’’ and, therefore, ‘‘EPA must 

find a violation [of section 126] if an 

upwind source will significantly 

contribute to downwind nonattainment 

at the next downwind attainment 

deadline. Therefore, the agency must 

evaluate downwind air quality at that 

deadline, not at some later date.’’ Id. at 

1204 (emphasis added). The EPA 

interprets the court’s holding in 

Maryland as requiring the Agency, 

under the good neighbor provision, to 

assess downwind air quality as 

expeditiously as practicable and no later 

than the next applicable attainment 

date,24 which is now the Moderate area 

attainment date under CAA section 181 

for ozone nonattainment. The Moderate 

area attainment date for the 2015 8-hour 

ozone NAAQS is August 3, 2024.25 The 

EPA believes that 2023 is now the 

appropriate year for analysis of 

interstate transport obligations for the 

2015 8-hour ozone NAAQS because the 

2023 ozone season is the last relevant 

ozone season during which achieved 

emissions reductions in linked upwind 

states could assist downwind states 

with meeting the August 3, 2024 

Moderate area attainment date for the 

2015 8-hour ozone NAAQS. 

The EPA recognizes that the 

attainment date for nonattainment areas 

classified as Marginal for the 2015 8- 

hour ozone NAAQS was August 3, 2021. 

Under the Maryland holding, any 

necessary emissions reductions to 

satisfy interstate transport obligations 

should have been implemented by no 

later than this date. At the time of the 

statutory deadline to submit interstate 

transport SIPs (October 1, 2018), many 

states relied upon the EPA modeling of 

the year 2023, and no state provided an 

alternative analysis using a 2021 

analytic year (or the prior 2020 ozone 

season). However, the EPA must act on 

SIP submittals using the information 

available at the time it takes such action. 

In this circumstance, the EPA does not 

believe it would be appropriate to 

evaluate states’ obligations under CAA 

section 110(a)(2)(D)(i)(I) as of an 

attainment date that is wholly in the 

past, because the Agency interprets the 

interstate transport provision as forward 

looking. See 86 FR at 23074(April 30, 

2021); see also Wisconsin, 938 F.3d at 

322. Consequently, in this proposal the 

EPA will use the analytical year of 2023 

to evaluate each state’s CAA section 

110(a)(2)(D)(i)(I) SIP submission with 

respect to the 2015 8-hour ozone 

NAAQS. 

2. Step 1 of the 4-Step Interstate 

Transport Framework 

In Step 1, the EPA identifies 

monitoring sites that are projected to 

have problems attaining and/or 

maintaining the NAAQS in the 2023 

analytic year. Where the EPA’s analysis 

shows that a site does not fall under the 

definition of a nonattainment or 

maintenance receptor, that site is 

excluded from further analysis under 

the EPA’s 4-step interstate transport 

framework. For sites that are identified 

as a nonattainment or maintenance 

receptor in 2023, we proceed to the next 

step of our 4-step interstate transport 

framework by identifying the upwind 

state’s contribution to those receptors. 

The EPA’s approach to identifying 

ozone nonattainment and maintenance 

receptors in this action is consistent 

with the approach used in previous 

transport rulemakings. The EPA’s 

approach gives independent 

consideration to both the ‘‘contribute 

significantly to nonattainment’’ and the 

‘‘interfere with maintenance’’ prongs of 

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

consistent with the D.C. Circuit’s 

direction in North Carolina v. EPA.26

For the purpose of this proposal, the 

EPA identifies nonattainment receptors 

as those monitoring sites that are 

projected to have average design values 

that exceed the NAAQS and that are 

also measuring nonattainment based on 

the most recent monitored design 

values. This approach is consistent with 

prior transport rulemakings, such as the 

CSAPR Update, where the EPA defined 

nonattainment receptors as those areas 

that both currently measure 

nonattainment and that the EPA projects 

will be in nonattainment in the future 

analytic year (i.e., 2023).27

In addition, in this proposal, the EPA 

identifies a receptor to be a 

‘‘maintenance’’ receptor for purposes of 

defining interference with maintenance, 

consistent with the method used in the 

CSAPR and upheld by the D.C. Circuit 

in EME Homer City Generation, L.P. v. 

EPA, 795 F.3d 118, 136 (D.C. Cir. 


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28See 76 FR 48208 (August 8, 2011). CSAPR 

Update and Revised CSAPR Update also used this 

approach. See 81 FR 74504 (October 26, 2016) and 

86 FR 23054 (April 30, 2021). 

2015).28 Specifically, the EPA identified 

maintenance receptors as those 

receptors that would have difficulty 

maintaining the relevant NAAQS in a 

scenario that takes into account 

historical variability in air quality at 

that receptor. The variability in air 

quality was determined by evaluating 

the ‘‘maximum’’ future design value at 

each receptor based on a projection of 

the maximum measured design value 

over the relevant period. The EPA 

interprets the projected maximum 

future design value to be a potential 

future air quality outcome consistent 

with the meteorology that yielded 

maximum measured concentrations in 

the ambient data set analyzed for that 

receptor (i.e., ozone conducive 

meteorology). The EPA also recognizes 

that previously experienced 

meteorological conditions (e.g., 

dominant wind direction, temperatures, 

air mass patterns) promoting ozone 

formation that led to maximum 

concentrations in the measured data 

may reoccur in the future. The 

maximum design value gives a 

reasonable projection of future air 

quality at the receptor under a scenario 

in which such conditions do, in fact, 

reoccur. The projected maximum design 

value is used to identify upwind 

emissions that, under those 

circumstances, could interfere with the 

downwind area’s ability to maintain the 

NAAQS. 

Recognizing that nonattainment 

receptors are also, by definition, 

maintenance receptors, the EPA often 

uses the term ‘‘maintenance-only’’ to 

refer to those receptors that are not 

nonattainment receptors. Consistent 

with the concepts for maintenance 

receptors, as described above, the EPA 

identifies ‘‘maintenance-only’’ receptors 

as those monitoring sites that have 

projected average design values above 

the level of the applicable NAAQS, but 

that are not currently measuring 

nonattainment based on the most recent 

official design values. In addition, those 

monitoring sites with projected average 

design values below the NAAQS, but 

with projected maximum design values 

above the NAAQS are also identified as 

‘‘maintenance only’’ receptors, even if 

they are currently measuring 

nonattainment based on the most recent 

official design values. 

3. Step 2 of the 4-Step Interstate 

Transport Framework 

In Step 2, the EPA quantifies the 

contribution of each upwind state to 

each receptor in the 2023 analytic year. 

The contribution metric used in Step 2 

is defined as the average impact from 

each state to each receptor on the days 

with the highest ozone concentrations at 

the receptor based on the 2023 

modeling. If a state’s contribution value 

does not equal or exceed the threshold 

of 1 percent of the NAAQS (i.e., 0.70 

parts per billion (ppb) for the 2015 8- 

hour ozone NAAQS), the upwind state 

is not ‘‘linked’’ to a downwind air 

quality problem, and the EPA, therefore, 

concludes that the state does not 

significantly contribute to 

nonattainment or interfere with 

maintenance of the NAAQS in the 

downwind states. However, if a state’s 

contribution equals or exceeds the 1 

percent threshold, the state’s emissions 

are further evaluated in Step 3, 

considering both air quality and cost as 

part of a multi-factor analysis, to 

determine what, if any, emissions might 

be deemed ‘‘significant’’ and, thus, must 

be eliminated under CAA section 

110(a)(2)(D)(i)(I). The EPA is proposing 

to rely in the first instance on the 1 

percent threshold (i.e., 0.70 ppb) for the 

purpose of evaluating a state’s 

contribution to nonattainment or 

maintenance of the 2015 8-hour ozone 

NAAQS at downwind receptors. This is 

consistent with the Step 2 approach that 

EPA applied in CSAPR for the 1997 

ozone NAAQS, which has subsequently 

been applied in the CSAPR Update 

when evaluating interstate transport 

obligations for the 2008 ozone NAAQS. 

The EPA continues to find 1 percent to 

be an appropriate threshold. For ozone, 

as the EPA found in the Clean Air 

Interstate Rule (CAIR), CSAPR, and 

CSAPR Update, a portion of the 

nonattainment problems from 

anthropogenic sources in the U.S. result 

from the combined impact of relatively 

small contributions from many upwind 

states, along with contributions from instate sources and, in some cases, 

substantially larger contributions from a 

subset of particular upwind states. The 

EPA’s analysis shows that much of the 

ozone transport problem being analyzed 

in this proposed rulemaking is still the 

result of the collective impacts of 

contributions from many upwind states. 

Therefore, application of a consistent 

contribution threshold is necessary to 

identify those upwind states that should 

have responsibility for addressing their 

contribution to the downwind 

nonattainment and maintenance 

problems to which they collectively 

contribute. Continuing to use 1 percent 

of the NAAQS as the screening metric 

to evaluate collective contribution from 

many upwind states also allows the EPA 

(and states) to apply a consistent 

framework to evaluate interstate 

emissions transport under the interstate 

transport provision from one NAAQS to 

the next. See 81 FR at 74518 (October 

26, 2016). See also 86 FR at 23085 (April 

30, 2021) (reviewing and explaining 

rationale from CSAPR, 76 FR at 48237– 

38 (August 8, 2011), for selection of 1 

percent threshold). 

The EPA’s August 2018 memorandum 

recognized that in certain 

circumstances, a state may be able to 

establish that an alternative contribution 

threshold of 1 ppb is justifiable. Where 

a state relies on this alternative 

threshold, and where that state 

determined that it was not linked at 

Step 2 using the alternative threshold, 

the EPA will evaluate whether the state 

provided a technically sound 

assessment of the appropriateness of 

using this alternative threshold based on 

the facts and circumstances underlying 

its application in the particular SIP 

submission. 

4. Step 3 of the 4-Step Interstate 

Transport Framework 

Consistent with the EPA’s 

longstanding approach to eliminating 

significant contribution or interference 

with maintenance, at Step 3, states 

linked at Steps 1 and 2 are generally 

expected to prepare a multifactor 

assessment of potential emissions 

controls. The EPA’s analysis at Step 3 in 

prior Federal actions addressing 

interstate transport requirements has 

primarily focused on an evaluation of 

cost-effectiveness of potential emissions 

controls (on a marginal cost-per-ton 

basis), the total emissions reductions 

that may be achieved by requiring such 

controls (if applied across all linked 

upwind states), and an evaluation of the 

air quality impacts such emissions 

reductions would have on the 

downwind receptors to which a state is 

linked; other factors may potentially be 

relevant if adequately supported. In 

general, where the EPA’s or alternative 

air quality and contribution modeling 

establishes that a state is linked at Steps 

1 and 2, it will be insufficient at Step 

3 for a state merely to point to its 

existing rules requiring control 

measures as a basis for approval. In 

general, the emissions-reducing effects 

of all existing emissions control 

requirements are already reflected in the 

air quality results of the modeling for 

Steps 1 and 2. If the state is shown to 

still be linked to one or more downwind 

receptor(s), states must provide a wellVerDate Sep<11>2014 17:03 Feb 18, 2022 Jkt 256001 PO 00000 Frm 00067 Fmt 4702 Sfmt 4702 E:\FR\FM\22FEP1.SGM 22FEP1

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29As examples of general approaches for how 

such an analysis could be conducted for their 

sources, states could look to the CSAPR Update, 81 

FR 74504, 74539–51; CSAPR, 76 FR 48208, 48246– 

63 (August 8, 2011); CAIR, 70 FR 25162, 25195–229 

(May 12, 2005).; or the NOX SIP Call, 63 FR 57356, 

57399–405 (October 27, 1998). See also Revised 

CSAPR Update, 86 FR 23054, 23086–23116 (April 

30, 2021). Consistently across these rulemakings, 

the EPA has developed emissions inventories, 

analyzed different levels of control stringency at 

different cost thresholds, and assessed downwind 

air quality improvements. 30See the 2019 SIP submittal included in docket 

EPA–R03–OAR–2021–0873. 

31 Docket No. EPA–R03–OAR–2019–0349. 

32The D.C. Circuit court’s decision in Wisconsin 

v. EPA, 938 F.3d 303 (September 13, 2019) 

remanding the CSAPR Update rule to EPA for 

further consideration prevented final approval of 

West Virginia’s SIP submission. 

33See Appendix E of the WVDEP submittal. 

‘‘Good Neighbor’’ Modeling Technical Support 

Document for 8-Hour Ozone State Implementation 

Plans.’’ Alpine Geophysics, June 2018. 

documented evaluation determining 

whether their emissions constitute 

significant contribution or interference 

with maintenance by evaluating 

additional available control 

opportunities by preparing a multifactor 

assessment. While the EPA has not 

prescribed a particular method for this 

assessment, the EPA expects states at a 

minimum to present a sufficient 

technical evaluation. This would 

typically include information on 

emissions sources, applicable control 

technologies, emissions reductions and 

costs, cost effectiveness, and downwind 

air quality impacts of the estimated 

reductions, before concluding that no 

additional emissions controls should be 

required.29

5. Step 4 of the 4-Step Interstate 

Transport Framework 

At Step 4, states (or the EPA) develop 

permanent and federally enforceable 

control strategies to achieve the 

emissions reductions determined to be 

necessary at Step 3 to eliminate 

significant contribution to 

nonattainment or interference with 

maintenance of the NAAQS. For a state 

linked at Steps 1 and 2 to rely on an 

emissions control measure at Step 3 to 

address its interstate transport 

obligations, that measure must be 

included in the state’s SIP so that it is 

permanent and federally enforceable. 

See CAA section 110(a)(2)(D) (‘‘Each 

such [SIP] shall . . . contain adequate 

provisions . . .’’). See also CAA section 

110(a)(2)(A); Committee for a Better 

Arvin v. U.S. E.P.A., 786 F.3d 1169, 

1175–76 (9th Cir. 2015) (holding that 

measures relied on by state to meet CAA 

requirements must be included in the 

SIP). 

II. West Virginia’s SIP Submission 

Addressing Interstate Transport of Air 

Pollution for the 2015 8-Hour Ozone 

NAAQS 

On September 14, 2018, the West 

Virginia Department of Environmental 

Protection (WVDEP), on behalf of the 

State of West Virginia, made a SIP 

submission to address most of the 2015 

8-hour ozone NAAQS i-SIP 

requirements under CAA section 

110(a)(2), except for the CAA section 

110(a)(2)(D)(i)(I) (the ‘‘Good Neighbor’’ 

or ‘‘interstate transport’’) requirements, 

which West Virginia proposed to 

address in a separate SIP submittal. The 

EPA published a final approval of this 

SIP submission on March 17, 2020. 85 

FR 15071. On February 4, 2019, WVDEP 

submitted a separate, supplemental SIP 

revision addressing only the CAA 

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

transport requirements for the 2015 8- 

hour ozone NAAQS (the 2019 SIP).30

West Virginia’s 2019 SIP submittal 

evaluated different modeling options, 

provided an analysis of ozone 

monitoring data and emission trends, 

and argued that the State has already 

implemented adequate measures to 

address pollutant transport that may 

significantly contribute to downwind 

states’ ozone maintenance and 

nonattainment problems, before 

concluding that West Virginia has 

satisfied its section 110(a)(2)(D)(i)(I) 

Good Neighbor obligations for the 2015 

8-hour ozone NAAQS. 

WVDEP requested that the EPA 

‘‘conditionally’’ approve the 2019 SIP 

submittal, because at the time of 

submission, WVDEP had a proposed 

rulemaking pending before the West 

Virginia Legislature for approval during 

the 2019 legislative session. The 

proposed rulemaking, entitled 

‘‘45CSR43—Cross-State Air Pollution 

Rule to Control Annual Nitrogen Oxide 

Emissions, Annual Sulfur Dioxide 

Emissions and Ozone Season Nitrogen 

Oxide Emissions,’’ would incorporate 

by reference into the West Virginia 

regulations the following emissions 

trading programs set forth in the CSAPR 

and CSAPR Update regulations: 40 CFR 

part 97, subpart AAAAA (CSAPR NOX

Annual Trading Program), subpart 

CCCCC (CSAPR SO2 Group 1 Trading 

Program), and subpart EEEEE (CSAPR 

NOX Ozone Season Group 2 Trading 

Program). Following the submission of 

this 2019 SIP revision, the West Virginia 

Legislature approved the state 

regulation incorporating by reference 

these subparts, and WVDEP submitted a 

SIP revision requesting that the EPA 

approve this regulation into the West 

Virginia SIP on June 5, 2019. The EPA 

proposed approval of this SIP revision 

on August 16, 2019. 84 FR 41944.31

WVDEP claimed that following the EPA 

final approval of the SIP revision 

incorporating these programs, the West 

Virginia SIP would contain all the 

measures necessary to ensure that it met 

the good neighbor obligations of the 

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

2015 8-hour ozone NAAQS. The EPA 

has not taken final action on that SIP 

revision.32

WVDEP’s submittal to address 

interstate transport for the 2015 8-hour 

ozone NAAQS roughly followed the 4- 

step interstate transport framework, as 

briefly described here. At Step 1, 

WVDEP discussed and compared the 

EPA’s transport modeling provided in 

the March 2018 memorandum against 

transport modeling provided by Alpine 

and LADCO and decided that the 

Alpine modeling was the ‘‘most 

appropriate, robust modeling available 

to identify the nonattainment and 

maintenance receptors to which West 

Virginia significantly contributes.’’ 

Alpine released air quality modeling in 

June 2018, which used a 12-km grid 

(supplemented with two 4-km nested 

grids) based on the EPA’s 2023en 

modeling platform and preliminary 

source contribution assessment. In 

addition to air quality modeling, the 

Alpine TSD 33 included a discussion of 

‘‘Selected SIP Revision Approaches’’ 

based on information on the 

‘‘flexibilities’’ listed in an appendix to 

the EPA’s March 2018 Memorandum. 

Alpine’s air quality modeling 

incorporated meteorological data from 

the WRF model along with emissions 

data developed using SMOKE, 

MOVES2014, and BEIS version 3.61. 

Alpine used CAMx, and the OSAT/ 

APCA tool to project ozone 

concentrations at downwind receptors. 

The modeling used 2023 as the 

projection year based on the EPA’s 

guidance in the 2017 Memorandum 

stating that 2023 was the appropriate 

year to use. As shown in Table 1 of this 

document, Alpine modeling projected 

that in the Mid-Atlantic region, one 

receptor would have nonattainment 

issues and nine receptors would have 

maintenance problems in 2023 with 

respect to the 2015 ozone NAAQS. 


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34This website provides current emissions trends 

data for all Tier 1 Categories from 1990 through 

2017. See also https://www.epa.gov/air-emissionsinventories/what-sources-make-tier-1-categoriesused-emissions-trends. 

TABLE 1—RECEPTORS IDENTIFIED BY WEST VIRGINIA USING ALPINE’S JUNE 2018 MODELING

Receptor ID Location Nonattainment/ 

maintenance 

2023 Average 

design value 

(ppb) 

2023 

Maximum 

design value 

(ppb) 

2014–2016 

Actual design 

value 

(ppb) 

240251001 ........ Harford, MD .................................. Nonattainment .................................. 71.1 73.5 73 

551170006 ........ Sheboygan, WI ............................. Nonattainment .................................. 71.7 74.0 79 

90010017 .......... Fairfield, CT .................................. Maintenance ..................................... 69.2 71.5 80 

90013007 .......... Farifield, CT .................................. Maintenance ..................................... 69.7 73.6 81 

90019003 .......... Farifield, CT .................................. Maintenance ..................................... 69.9 72.7 83 

90099002 .......... New Haven, CT ............................ Maintenance ..................................... 70.3 73.0 76 

90110124 .......... New London, CT ........................... Maintenance ..................................... 68.2 71.3 72 

260050003 ........ Allegan, MI .................................... Maintenance ..................................... 70.3 73.1 75 

340150002 ........ Gloucester, NJ .............................. Maintenance ..................................... 68.8 71.0 74 

360850067 ........ Richmond, NY ............................... Maintenance ..................................... 69.6 71.0 76 

361030002 ........ Suffolk, NY .................................... Maintenance ..................................... 70.7 72.1 72 

421010024 ........ Philadelphia, PA ............................ Maintenance ..................................... 68.0 71.0 77 

At Step 2 of the analysis, WVDEP 

noted that the Alpine modeling 

projected that West Virginia would be 

‘‘linked’’ to the only downwind 2023 

nonattainment receptor and three 

maintenance receptors in the MidAtlantic 4-km region. The contribution 

results of the Alpine modeling are 

shown in Table 2 of this document. 

WVDEP noted that the Alpine modeling 

projected that West Virginia’s largest 

identified contribution to downwind 

8-hour ozone nonattainment and 

maintenance receptors was 2.52 ppb 

and 1.63 ppb, respectively. 

TABLE 2—WEST VIRGINIA’S CONTRIBUTION TO RECEPTORS BASED ON ALPINE’S JUNE 2018 MODELING

Receptor ID Location Nonattainment/maintenance 

2023 Average 

design value 

(ppb) 

2023 

Maximum 

design value 

(ppb) 

West Virginia 

contribution 

(ppb) 

240251001 .......... Harford County, MD ....................... Nonattainment ................................ 71.1 73.5 2.52 

340150002 .......... Gloucester County, NJ ................... Maintenance ................................... 68.8 71.0 1.63 

360850067 .......... Richmond County, NY ................... Maintenance ................................... 69.6 71.0 0.71 

421010024 .......... Philadelphia County, PA ................ Maintenance ................................... 68.0 71.0 1.21 

WVDEP identified specific receptors 

for further analysis, based upon the 

Alpine modeling that indicated that 

emissions from the State would be 

‘‘linked’’ to the downwind ozone 

nonattainment receptor at Harford, 

Maryland, and to three maintenance 

receptors at Gloucester, New Jersey; 

Richmond, New York; and Philadelphia, 

Pennsylvania. Therefore, WVDEP stated 

that further review and analysis relevant 

to those areas was warranted. With 

respect to these specific monitors, 

WVDEP also presented further analysis 

of the air pollution problems at these 

four locations in Section 4 of the SIP 

submittal, entitled ‘‘Flexibilities.’’ 

At Step 3, WVDEP noted that it is 

necessary to identify the emissions 

reductions necessary (if any), 

considering cost and air quality factors, 

to prevent the identified upwind state 

from contributing significantly to 

downwind air quality problems. To do 

this, WVDEP reviewed NOX emissions 

data from EPA’s 2008, 2011, 2014 and 

2017 NEI Air Pollution Emissions 

Trends Data website, to evaluate 

emissions’ trends data for all Tier 1 

Categories from 1990 through 2017.34

This review determined that six 

categories of Tier 1 sources accounted 

for approximately 95% of the State’s 

NOX emissions in 2017, and thus 

WVDEP focused its evaluation of 

potential controls and the costeffectiveness of those controls on these 

six categories of sources in West 

Virginia. 

For two of these categories—highway 

vehicles and off-highway vehicles— 

WVDEP determined that these emission 

sources are regulated by the Federal 

government, and therefore declined to 

conduct any further analysis of 

emissions reduction opportunities. For 

the other four categories—fuel 

combustion electric utilities, fuel 

combustion industrial, fuel combustion 

other, and petroleum and related 

industries—WVDEP grouped these into 

two categories for analysis: EGUs and 

non-EGUs. For the EGU category, 

WVDEP identified the shutdown of six 

EGUs since 2011 and the amount of 

emissions that these sources emitted 

prior to shutdown. For those EGUs still 

operating, WVDEP relied upon the 

EPA’s analysis in the proposed CSAPR 

Update for its finding that ‘‘because all 

identified highly cost-effective emission 

reductions have already been 

implemented with respect to EGUs, WV 

finds that no additional highly costeffective reductions are available for 

EGUs for the 2015 ozone NAAQS.’’ 

For the non-EGU categories, WVDEP 

relied upon a technical support 

document (TSD) developed by the EPA 

analyzing available controls and the 

costs for non-EGU sources for the 

CSAPR Update. This TSD identified 

nine non-EGU sources in West Virginia 

emitting more than 100 tons per year of 

NOX, and 21 West Virginia sources 

emitting between 25 and 100 tons per 

year of NOX. WVDEP then listed those 

sources in these two groupings which 

have shut down, or will shut down in 

the near future, and the reduction in 

NOX emissions from the 2011 base year 

attributable to these past and future 

shutdowns and various other 

information before determining that 

‘‘[t]he shutdown of the identified 10 

sources; the required shutdown of the 


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35Permitting requirements for minor sources are 

codified at 45CSR13—Permits for Construction, 

Modification, Relocation and Operation of 

Stationary Sources of Air Pollutants, Notification 

Requirements, Administrative Updates, Temporary 

Permits, General Permits, Permission to Commence 

Construction, and Procedures for Evaluation. 

36Permitting requirements for major sources are 

codified at 45CSR14—Permits for the Construction 

and Major Modification of Major Stationary Sources 

of Air Pollution for the Prevention of Significant 

Deterioration, and 45CSR19—Permits for 

Construction and Major Modification of Major 

Stationary Sources Which Cause or Contribute to 

Nonattainment Areas and 45CSR30—Requirements 

for Operating Permits. 

37Permits for the Construction and Major 

Modification of Major Stationary Sources of Air 

Pollution for the Prevention of Significant 

Deterioration. 

38Permits for Construction and Major 

Modification of Major Stationary Sources Which 

Cause or Contribute to Nonattainment Areas. 

39See 45CSR 14–9.1 and 40 CFR 51.166(k). 

40The ‘‘flexibilities’’ identified in the Alpine 

modeling TSD, but not used by West Virginia, 

include removing Canadian and Mexican 

contributions from modeling results, using an 

alternate significant contribution threshold in Step 

2 of EPA’s four-step transport interstate framework, 

using relative significant impact amongst those 

states similarly contributing to a downwind 

receptor under Step 3 of EPA’s four-step transport 

interstate framework, and using alternative 

timeframes to address the ‘‘interference with 

maintenance’’ prong of the good neighbor 

provision. 

additional five sources; and the current 

level of control on the remaining 20 

sources, in conjunction with the 

implementation of the Control Measures 

programs listed in Section 6, represent 

the implementation of reasonable 

control measures in West Virginia.’’ 

For the petroleum category, WVDEP 

separately opined that its approved 

permitting programs would prevent new 

or modified sources from causing or 

contributing to a violation of the 

NAAQS and included a discussion of 

these programs in section 6.1 of the SIP 

submittal. 

At Step 4 of its analysis, WVDEP 

identified the control measures it has 

already implemented or is subject to 

that ‘‘reasonably’’ reduce emissions 

from relevant sources located in the 

State. Among the measures identified by 

WVDEP in its SIP submittal are 

permitting programs, stationary source 

control measures, and mobile source 

control measures. WVDEP also 

determined that the adoption of a 

regional trading program to replace the 

CSAPR Update FIP under 45CSR43 was 

sufficient to address the State’s 

significant contribution to the 

downwind receptors. Upon approval of 

West Virginia’s 45CSR43 into the SIP, 

WVDEP states that its SIP will contain 

the necessary measures to reduce the 

State’s impact on the identified 

downwind receptors for purposes of the 

2015 ozone NAAQS. 

Under the permitting programs, 

WVDEP referenced the State’s NSR 

permit program, which includes 

revision of applications, determination 

of permit applicability and issuance of 

permits for both minor 35 and major 36

sources. Under the minor source NSR 

program, the construction or 

modification of a source with the 

potential to emit six or more pounds per 

hour (lbs/hr), or greater than 144 

pounds per calendar day, of a regulated 

pollutant, including ozone precursors, 

requires that the source obtain a permit 

under the state rule 45CSR13. WVDEP 

stated that ‘‘45CSR13 is the mechanism 

under which NSPS are applied to a 

given minor source,’’ and reductions 

from sources subject to NSPS are 

assumed to be equivalent to reasonably 

available control technology/reasonably 

available control measures (RACT/ 

RACM). 

For major stationary sources, WVDEP 

referenced two additional permitting 

programs: One that satisfies the 

prevention of significant deterioration 

(PSD) requirements under Part C of Title 

1 of the CAA, and another that satisfies 

the nonattainment area NSR (NNSR) 

requirements under Part D of the CAA. 

These are codified at 45CSR14 37 and 

45CSR19,38 respectively. WVDEP 

asserts that the PSD regulations at 

45CSR14 regulate future growth and 

thus provide for continued maintenance 

of the 2015 8-hour ozone NAAQS. 

WVDEP also notes that, pursuant to 

CAA section 165(a)(3), WVDEP is 

authorized to implement the existing 

PSD permit program to ensure that 

construction and modification of a 

major source will not cause or 

contribute to violations of the 

NAAQS.39 The State explained that the 

NNSR regulations at 45CSR19 cover 

new major sources and major 

modifications, not subject to PSD, in 

nonattainment areas. The State 

explained that this regulation contains a 

significance level for ozone of 40 tons 

per year of VOC or NOX. WVDEP 

specified in its SIP submittal that there 

are no areas designated as 

nonattainment for the 2008 or 2015 

ozone NAAQS in West Virginia. 

For stationary sources, WVDEP’s 

submittal also included a list of other 

federally established control measures 

including: (i) New source performance 

standards (40 CFR part 60); (ii) the Acid 

Rain Program; (iii) the NOX SIP call; (iv) 

the CAIR; (v) CSAPR; (vi) the CSAPR 

Update; (vii) solid waste combustion 

rules (40 CFR part 60); and (viii) the 

maximum achievable control 

technology (MACT) program (i.e., the 

NESHAPS at 40 CFR part 63). 

In addition, WVDEP included a list of 

control measures for mobile sources that 

EPA has established. These control 

measures include: (i) The 2007 heavyduty highway rule in 40 CFR part 86, 

subpart P; (ii) Tier 2 vehicle and 

gasoline sulfur program at 40 CFR part 

80, subpart H, 40 CFR part 85 and 40 

CFR part 86; (iii) Tier 3 motor vehicle 

emission and fuel standards codified 

under 40 CFR parts 79, 80, 85, 86, 600, 

1036, 1037, 1039, 1042, 1048, 1054, 

1065, and 1066; (iv) Tier 4 vehicle 

standards; and (v) the nonroad diesel 

emissions program at 40 CFR part 89. 

In conclusion, following a review of 

the emission reductions created by 

shutdowns, and various existing 

emission control requirements, WVDEP 

states that ‘‘upon incorporation of 

45CSR43 into the SIP, no additional 

highly cost-effective reductions are 

available for the 2015 8-hour ozone 

NAAQS.’’ 

III. EPA Evaluation 

The EPA is proposing to find that 

WVDEP’s February 4, 2019 SIP 

submission does not meet the State’s 

obligations with respect to prohibiting 

emissions that contribute significantly 

to nonattainment or interfere with 

maintenance of the 2015 8-hour ozone 

NAAQS in any other state. The 

proposed disapproval is based on both 

newer, updated modeling performed by 

the EPA that was not available when 

WVDEP submitted its SIP submission to 

address the requirements of section 

110(a)(2)(D)(i)(I) for the 2015 ozone 

NAAQS, and the EPA’s evaluation of 

WVDEP’s SIP submission using the 4- 

step interstate transport framework. 

A. West Virginia 

1. Evaluation of Information Provided 

by West Virginia Regarding Steps 1 and 

2 

As explained in Section II of this 

document, at Step 1 of the 4-Step 

interstate transport framework, WVDEP 

used the Alpine modeling released in 

June 2018 to identify any areas where 

that modeling would project 

nonattainment or maintenance problems 

in 2023. Although Alpine’s June 2018 

modeling TSD describes several 

potential concepts identified by outside 

parties and listed in an appendix to the 

EPA’s March 2018 Memorandum, it 

does not appear that WVDEP relied on 

those so-called ‘‘flexibilities.’’ 40 The 

nonattainment and maintenance 

receptors identified in Alpine’s 

modeling under Step 1 are listed in 

Table 1 in Section II of this document. 

Based on the results of the Alpine 

modeling alone, WVDEP acknowledged 


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41See the February 4, 2019 SIP submittal 

included in docket EPA–R03–OAR–2021–0873. 42 Design values and contributions at individual 

monitoring sites nationwide are provide in the file: 

2016v2_DVs_state_contributions.xlsx which is 

included in docket ID No. EPA–HQ–OAR–2021– 

0663. 

43These modeling results are consistent with the 

results of a prior round of 2023 modeling using the 

2016v1 emissions platform which became available 

to the public in the fall of 2020 in the Revised 

CSAPR Update, as noted in Section I of this 

document. That modeling showed that West 

Virginia had a maximum contribution greater than 

0.70 ppb to at least one nonattainment or 

maintenance-only receptor in 2023. These modeling 

results are included in the file ‘‘Ozone Design 

Values And Contributions Revised CSAPR 

Update.xlsx’’ in docket EPA–HQ–OAR–2021–0663. 

in its SIP submission that it should 

proceed to Step 2 of the analysis. 

At Step 2 of its analysis, WVDEP 

again relied on Alpine’s June 2018 

modeling results and highlighted any 

receptors to which emissions from the 

State contributed more than 1 percent of 

the NAAQS (i.e., >0.70 ppb). Table 2 in 

Section II of this document identifies 

receptors from Alpine’s June 2018 

modeling that are projected to receive 

contribution levels from emissions in 

West Virginia above the 1 percent 

threshold. According to Alpine’s June 

2018 modeling projections, emissions 

from West Virginia would significantly 

contribute to the Harford, MD 

nonattainment receptor, with a 2.52 

ppm contribution, and to the 

Gloucester, NJ, Richmond, NY, and 

Philadelphia, PA maintenance receptors 

with contributions of 1.63, 0.71, and 

1.21 ppb, respectively. 

WVDEP concluded in its own analysis 

that it was linked using the 1 percent of 

the NAAQS threshold and 

acknowledged that ‘‘it is [then] 

necessary to identify the emissions 

reductions (if any), considering cost and 

air quality factors, to prevent West 

Virginia from contributing to downwind 

air quality problems,’’ 41 which is Step 

3 of the 4-step interstate transport 

framework. 

Although WVDEP relied on 

alternative modeling instead of the 

EPA’s modeling included in the March 

2018 memorandum, WVDEP 

acknowledged in its SIP submission that 

it is linked to downwind receptors and 

is projected to contribute above the 1 

percent threshold to certain 

nonattainment and/or maintenance 

receptors in 2023. Because the 

alternative modeling relied on by the 

state also demonstrates that a linkage 

exists between the state and downwind 

receptors at Step 2, the EPA need not 

conduct a comparative assessment of 

the alternative modeling. The State’s 

analysis corroborates the conclusion in 

the EPA’s most recent modeling. 

2. Results of the EPA’s Step 1 and Step 

2 Modeling and Findings for West 

Virginia 

As described in Section I of this 

document, the EPA performed air 

quality modeling using the 2016v2 

emissions platform to project design 

values and contributions for 2023. 

These data were examined to determine 

if West Virginia contributes at or above 

the threshold of 1 percent of the 2015 

8-hour ozone NAAQS (i.e., 0.70 ppb) to 

any downwind nonattainment or 

maintenance receptor. As shown in 

Table 1 of this document, the data 42

indicate that in 2023, emissions from 

West Virginia contribute greater than 1 

percent of the NAAQS to nonattainment 

or maintenance-only receptors in 

Fairfield County-Westport, Fairfield 

County-Stratford, and New Haven 

County in Connecticut, as well as Bucks 

County, Pennsylvania.43

TABLE 3—WEST VIRGINIA’S LINKAGE RESULTS BASED ON EPA 2016v2-BASED MODELING

Receptor ID Location Nonattainment/maintenance 

2023 Average 

design value 

(ppb) 

2023 

Maximum 

design value 

(ppb) 

West Virginia 

contribution 

(ppb) 

90099002 ............ New Haven, CT ............................. Nonattainment ................................ 71.8 73.9 1.45 

420170012 .......... Bucks, PA ...................................... Maintenance ................................... 70.7 72.2 1.44 

90019003 ............ Fairfield-Westport, CT .................... Nonattainment ................................ 76.1 76.4 1.34 

90013007 ............ Fairfield-Stratford, CT .................... Nonattainment ................................ 74.2 75.1 1.30 

We recognize that the results of EPA 

(2011 and 2016 base year) and Alpine 

(2011 base year) modeling indicated 

different receptors and linkages at Steps 

1 and 2 of the framework. These 

differing results regarding receptors and 

linkages can be affected by the varying 

meteorology from year to year, but this 

does not indicate that the modeling or 

the EPA or the state’s methodology for 

identifying receptors or linkages is 

inherently unreliable. Rather, these 

three separate modeling runs all 

indicated: (i) That there would be 

receptors in areas that would struggle 

with nonattainment or maintenance in 

the future, and (ii) that West Virginia 

was linked to some set of these 

receptors, even if the receptors and 

linkages differed from one another in 

their specifics (e.g., a different set of 

receptors were identified to have 

nonattainment or maintenance 

problems, or West Virginia was linked 

to different receptors in one modeling 

run versus another). The EPA thinks 

this common result indicates that West 

Virginia’s emissions have been 

substantial enough to generate linkages 

at Steps 1 and 2 to some set of 

downwind receptors, under varying 

assumptions and meteorological 

conditions, even if the precise set of 

linkages changed between modeling 

runs. Under these circumstances, we 

think it is appropriate to proceed to a 

Step 3 analysis to determine what 

portion of West Virginia’s emissions 

should be deemed ‘‘significant.’’ In 

doing so, the EPA does not necessarily 

agree with the methods and 

assumptions contained in the Alpine 

modeling relied on by WVDEP in this 

action, nor that we consider our own 

earlier modeling to be of equal 

reliability relative to more recent 

modeling. However, where alternative 

or older modeling generated linkages, 

even if those linkages differ from 

linkages in the EPA’s most recent set of 

modeling, that information provides 

further evidence, not less, in support of 

a conclusion that the state is required to 

proceed to Step 3 to further evaluate its 

emissions. 

Therefore, based on the EPA’s 

evaluation of the information submitted 

by West Virginia, and based on the 

EPA’s most recent modeling results for 

2023, the EPA proposes to find that 

West Virginia is linked at Steps 1 and 

2 and has an obligation to assess 

potential emissions reductions from 

sources or other emissions activity at 

Step 3 of the 4-step framework. 


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44See West Virginia 2019 SIP submittal, p. 14. 45 Id. at 17. 

46See Area Designations for the 2015 Ozone 

National Ambient Air Quality Standards 

memorandum from Janet G. McCabe to the EPA 

Regional Administrators, February 25, 2016. 47 Id. 

3. West Virginia’s Analysis of 

‘‘Flexibilities’’ 

Before proceeding to Step 3 of the 

analysis, WVDEP examined several socalled ‘‘flexibilities’’ identified in 

Attachment A to the EPA’s March 2018 

Memorandum in section 4 of its SIP 

submission,44 ostensibly to show that 

West Virginia should not be seen as 

contributing significantly to certain 

2023 nonattainment or maintenance 

receptors identified by the Alpine 

modeling. Although the Alpine 

modeling is now out of date, and the 

EPA is primarily relying upon the 

updated 2023 modeling using the 

2016v2 emissions platform to inform its 

decision, the EPA has evaluated the 

‘‘flexibilities’’ discussed by West 

Virginia to see if any of these ideas 

continue to have relevance to this 

proposed disapproval action. 

a. HYSPLIT Back Trajectories 

WVDEP evaluated the potential 

interstate impacts of emissions from 

West Virginia on other states, using 

HYPLIT modeling. To do so, WVDEP 

considered impacts at the one 

nonattainment receptor (Harford, MD) 

and three maintenance receptors 

(Philadelphia, PA; Gloucester, NJ; 

Richmond, NY) to which West Virginia 

was linked by the Alpine 4-km 

modeling. WVDEP identified the 

exceedance days for each of those 

receptors during the 2015–2017 time 

period. For the identified exceedance 

days, West Virginia then used the 

National Oceanic and Atmospheric 

Administration’s (NOAA) Air Resources 

Laboratory’s Hybrid Single-Particle 

Lagrangian Integrated Trajectory 

(HYSPLIT) model to develop a back 

trajectory analysis for each day to show 

the origin of air masses and establish 

emission source-receptor relationships. 

These back trajectory analyses are 

shown in Appendix H of the West 

Virginia 2019 SIP submittal. Using this 

approach, WVDEP concluded that the 

291 back trajectory analyses 

‘‘demonstrate that on the majority of the 

days on which ozone exceedances 

occurred at the subject receptors, the 

origin of the air masses impacting the 

receptors did not originate within, or 

pass through, West Virginia’s borders in 

the 48 hours preceding the 

exceedance.’’ 45

The EPA notes that WVDEP’s own 

back trajectory analysis did not indicate 

that there were no cases when air 

masses associated with exceedance days 

at linked receptors passed over West 

Virginia. Rather, the state claimed that 

air masses did not move across West 

Virginia on a ‘‘majority’’ of the days the 

State examined ‘‘in the 48 hours 

preceding’’ the exceedance. WVDEP 

further argued that only some of the air 

masses moving across the state moved 

across ‘‘an industrial area where air 

emissions are more predominate.’’ Thus, 

WVDEP’s evaluation of HYSPLIT back 

trajectories still show linkages between 

some downwind exceedances and air 

masses originating or passing through 

West Virginia. 

In addition, the data in Appendix H 

of the WVDEP submittal indicate that 

one or more of the daily back 

trajectories from the Harford, Maryland 

receptor moved across West Virginia on 

50 percent of the exceedance days 

between 2015 and 2017 at this receptor. 

Furthermore, the line thickness 

displayed on trajectory plots does not 

represent the geographic extent of the 

transported air mass, but rather they 

represent the centerline of an air 

parcel’s motion, calculated to 

understand the trajectory line itself. 

Uncertainties are clearly present in 

these results and these uncertainties 

change with trajectory time and distance 

traveled. In this regard, one should 

avoid concluding a region is not along 

a trajectory’s path if the center line of 

that trajectory missed the region by a 

relatively small distance.46 In contrast, 

the EPA’s analysis of transported 

emissions as discussed in Section I.C of 

this document, above, uses updated, 

photochemical grid modeling designed 

to assess ozone transported to 

downwind monitors across the entire 

region and over extended timeframes 

that fully account for fate and transport 

of ozone-precursors over longer 

distances. Thus, the EPA finds that 

WVDEP’s back trajectory analysis does 

not show that West Virginia should not 

be linked to downwind nonattainment 

or maintenance receptors in 2023. 

b. Downwind Air Quality Context 

As the ‘‘context’’ surrounding certain 

downwind receptors, WVDEP presented 

information regarding other local 

sources of emissions also contributing to 

the nonattainment or maintenance 

problems at those locations. In Section 

4.2 of the SIP submittal, WVDEP 

analyzed various types of information.47

From this analysis, WVDEP concluded 

that all of the projected receptors in the 

Alpine modeling are located in 2015 8- 

hour ozone NAAQS nonattainment 

areas within the Interstate 95 highway 

corridor, that high population areas 

‘‘closely correspond’’ to the 

nonattainment areas, and that high 

Vehicle Miles Traveled (VMT) also 

‘‘closely correlate’’ with the 

nonattainment areas. WVDEP included 

a more detailed analysis of these factors 

in Appendix I of the West Virginia 2019 

SIP Submittal. 

While the EPA would generally agree 

that the high VMT along the Interstate 

95 corridor, along with high population 

densities in the various existing and 

predicted 2023 nonattainment areas, 

have a large impact on the ozone 

nonattainment status of these areas, this 

does not prove that West Virginia’s 

emissions do not also contribute to 

nonattainment and maintenance 

problems at those locations. The fact 

that local sources of emissions also 

contribute to high ozone levels is 

neither surprising nor outcome 

determinative. The EPA has developed 

the 4-step process to help evaluate 

whether or not a given state is linked to 

downwind nonattainment and 

maintenance problems, and that 

analysis starts at the question of 

whether the state’s emissions have a 

projected impact above the 1 percent of 

the NAAQS threshold in 2023. That 

value at Step 2 is set relatively low in 

light of the ‘‘collective contribution’’ 

problem associated with regional ozone 

transport. The Alpine modeling that 

WVDEP relied upon shows such 

impacts above the Step 2 threshold from 

West Virginia at a number of receptors. 

The more recent modeling that the EPA 

has conducted indicates impacts above 

that threshold at other monitors. Thus, 

the EPA does not agree that WVDEP’s 

analysis of the relative impacts of local 

sources compared to the projected 

impacts of emissions from the state 

establishes that West Virginia does not 

significantly contribute to these 

nonattainment and maintenance areas. 

Nor would the EPA agree that similar 

arguments about the ‘‘context’’ of local 

emissions would apply at the more 

recently identified receptors. 

c. International Emissions 

The last consideration noted by 

WVDEP is Section 179B of the CAA, 

entitled ‘‘International border areas.’’ 

The State focused not on section 

179B(a), applicable to states that are 

required to submit nonattainment plan 

SIP submissions to address applicable 

requirements in nonattainment areas, 

but rather section 179B(b), which 

applies in the case of a state with a 

designated ozone nonattainment area 

that fails to meet the applicable 

attainment date and thus may trigger a 

reclassification to the next highest 


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48Section 7511(a)(2) relates to the attainment date 

for severe ozone nonattainment areas, and (a)(5) 

describes the conditions necessary for a one-year 

extension of ozone attainment dates. Section 7511d 

pertains to enforcement for severe and extreme 

ozone nonattainment areas for failure to attain. 

Neither provision is germane to this action. 

49 Id. at p. 20. 

50See Guidance on the Preparation of Clean Air 

Act Section 179B Demonstrations for 

Nonattainment Areas Affected by International 

Transport of Emissions (December 2020), pages 10– 

12, available at https://www.epa.gov/sites/default/ 

files/2020-01/documents/draft_179b_guidancefinal_draft_for_posting.pdf. 

classification of ozone nonattainment. 

Section 179B(b) states: 

‘‘Notwithstanding any other provision 

of law, any State that establishes to the 

satisfaction of the Administrator that, 

with respect to an ozone nonattainment 

area in such State, such State would 

have attained the national ambient air 

quality standard for ozone by the 

applicable attainment date, but for 

emissions emanating from outside of the 

United States, shall not be subject to the 

provisions of section 7511(a)(2) or (5) of 

this title or section 7511d of this 

title.’’ 48

West Virginia cites a statement in the 

TSD for the Alpine modeling which 

notes that if anthropogenic emissions 

from Canada and Mexico, tracked as a 

single tag, are taken into account, then 

both the EPA and Alpine’s modeling 

demonstrate attainment at the Harford 

Maryland receptor with the 2015 ozone 

NAAQS.49 In other words, simply 

subtracting the projected impact of 

international emissions from Canada 

and Mexico at that receptor would 

result in ‘‘attainment’’ at that location. 

WVDEP asserts that this fact would 

allow the State to ‘‘stop at Step 1 of the 

four-factor process.’’ EPA notes that 

WVDEP only raised this issue with 

respect to the nonattainment receptor it 

identified in Harford, Maryland, rather 

than the maintenance receptors, 

presumably in recognition of the fact 

that section 179B(b) pertains to 

nonattainment areas, rather than 

maintenance areas. 

The EPA disagrees with the theory 

that section 179B applies in this way. 

First, the EPA notes that section 

179B(b), relied upon and quoted by 

WVDEP, has no bearing on the issue of 

interstate transport as posited in the 

State’s SIP submission. That specific 

statutory provision, by its explicit terms, 

only applies in the event a state with a 

designated ozone nonattainment area 

fails to attain the NAAQS by the 

applicable attainment date. If, in those 

circumstances, the state at issue would 

have attained the NAAQS but for the 

impacts of international transport, then 

that state may seek to avoid 

reclassification to the next level of 

ozone nonattainment that would 

otherwise occur upon the EPA making 

the requisite finding of failure to attain. 

WVDEP misapplies section 179B(b) 

when it suggests that it alters the State’s 

obligations with respect to section 

110(a)(D)(i)(I), using the example of the 

impacts at the Harford Maryland 

receptor identified in the Alpine 

modeling. However, even if Maryland 

could in the future seek to invoke 

section 179B(b), the only effect would 

be to excuse Maryland from certain 

additional nonattainment plan 

requirements of CAA sections 7511(a)(2) 

and (5) and 7511D. Further, if Maryland 

were to do so, the mere existence of 

international transport impacts would 

not be outcome determinative—even in 

that context where CAA section 179B(b) 

actually applies.50 Section 179B does 

not supplant the separate obligation of 

upwind states such as West Virginia to 

address their interstate transport 

impacts on other downwind states. It is 

a separate provision of the CAA 

intended to address the impacts of 

international emissions on 

nonattainment areas. 

Second, and more importantly, West 

Virginia’s reasoning related to 

international emissions is inapplicable 

to the requirements of CAA section 

110(a)(2)(D)(i)(I). The good neighbor 

provision requires states and the EPA to 

address interstate transport of air 

pollution that contributes to downwind 

states’ ability to attain and maintain 

NAAQS. Whether emissions from other 

states or other countries also contribute 

to the same downwind air quality issue 

is irrelevant in assessing whether a 

downwind state has an air quality 

problem, or whether an upwind state is 

significantly contributing to that 

problem. States are not obligated under 

CAA section 110(a)(2)(D)(i)(I) to reduce 

emissions sufficient on their own to 

resolve downwind receptors’ 

nonattainment or maintenance 

problems. Rather, states are obligated to 

eliminate their own ‘‘significant 

contribution’’ or ‘‘interference’’ with the 

ability of other states to attain or 

maintain the NAAQS. 

Indeed, the D.C. Circuit in Wisconsin 

specifically rejected petitioner 

arguments suggesting that upwind states 

should be excused from good neighbor 

obligations on the basis that some other 

source of emissions (whether 

international or another upwind state) 

could be considered the ‘‘but-for’’ cause 

of downwind air quality problem. 938 

F.3d 303 at 323–324. The court viewed 

petitioners’ arguments as essentially an 

argument ‘‘that an upwind State 

‘contributes significantly’ to downwind 

nonattainment only when its emissions 

are the sole cause of downwind 

nonattainment.’’ 938 F.3d 303 at 324. 

The court explained that ‘‘an upwind 

State can ‘contribute’ to downwind 

nonattainment even if its emissions are 

not the but-for cause.’’ Id. at 324–325. 

See also Catawba County v. EPA, 571 

F.3d 20, 39 (D.C. Cir. 2009) (rejecting 

the argument ‘‘that ‘significantly 

contribute’ unambiguously means 

‘strictly cause’ ’’ because there is ‘‘no 

reason why the statute precludes EPA 

from determining that [an] addition of 

[pollutant] into the atmosphere is 

significant even though a nearby 

county’s nonattainment problem would 

still persist in its absence’’); Miss. 

Comm’n o Envtl. Quality v. EPA, 790 

F.3d 138, 163 n.12 (D.C. Cir. 2015) 

(observing that the argument that ‘‘there 

likely would have been no violation at 

all . . . if it were not or the emissions 

resulting from [another source]’’ is 

‘‘merely a rephrasing of the but-for 

causation rule that we rejected in 

Catawba County.’’). Therefore, a state is 

not excused from eliminating its 

significant contribution on the basis that 

international emissions also contribute 

some amount of pollution to the same 

receptors to which the State is linked. 

Therefore, the EPA proposes to find 

that Section 179B(b) of the CAA does 

not serve to alleviate West Virginia of 

any potential obligations under Section 

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

EPA will proceed to evaluate the 

information and analysis WVDEP 

provided at Step 3 of the 4-step 

interstate transport framework. 

4. Evaluation of Information Provided 

Regarding Step 3 

At Step 3 of the 4-step interstate 

transport framework, the state should 

further evaluate its sources of emissions 

that may impact the relevant downwind 

receptors, in light of multiple factors, 

including air quality and cost 

considerations, to determine what, if 

any, emissions significantly contribute 

to nonattainment or interfere with 

maintenance and, thus, must be 

eliminated under CAA section 

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

To evaluate effectively which 

emissions in the state should be deemed 

‘‘significant’’ and therefore prohibited, 

states generally should prepare an 

accounting of sources and other 

emissions activity for relevant 

pollutants and assess potential, 

additional emissions reduction 

opportunities and resulting downwind 

air quality improvements. The EPA has 

consistently applied this general 

approach (i.e., Step 3 of the 4-step 


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51At the time West Virginia submitted its SIP in 

2019, NEI data for 2020 was not available, so West 

Virginia limited its analysis to data available at that 

time. 

52California Air Resources Board, States That 

Have Adopted California’s Vehicle Standards Under 

Section 177 of the Federal Clean Air Act (Current 

as of December 6, 2021), https://ww2.arb.ca.gov/ 

resources/documents/states-have-adoptedcalifornias-vehicle-standards-under-section-177- 

federal. 53 Id. at 25. 

interstate transport framework) when 

identifying emissions contributions that 

the Agency has determined to be 

‘‘significant’’ (or interfere with 

maintenance) in each of its prior 

Federal, regional ozone transport 

rulemakings, and this interpretation of 

the statute has been upheld by the 

Supreme Court. See EME Homer City, 

572 U.S. 489, 519 (2014). While the EPA 

has not directed states that they must 

conduct a Step 3 analysis in precisely 

the manner the EPA has done in its 

prior regional transport rulemakings, 

state implementation plans addressing 

the obligations in CAA section 

110(a)(2)(D)(i)(I) must prohibit ‘‘any 

source or other type of emissions 

activity within the State’’ from emitting 

air pollutants which will contribute 

significantly to downwind air quality 

problems. Thus, states must complete 

something similar to the EPA’s analysis 

(or an alternative approach to defining 

‘‘significance’’ that comports with the 

statute’s objectives) to determine 

whether and to what degree emissions 

from a state should be ‘‘prohibited’’ to 

eliminate emissions that will 

‘‘contribute significantly to 

nonattainment in, or interfere with 

maintenance of,’’ the NAAQS in any 

other state. 

In Step 3, West Virginia evaluated 

statewide NOX emissions data from the 

triennial National Emissions Inventory 

(NEI) for 2008, 2011, 2014 and 2017, as 

updated on August 2, 2018, on the 

EPA’s NEI Air Pollution Emissions 

Trends Data website. This website 

provides current emissions trends data 

for all Tier 1 Categories of NOX

emissions from 1990 through 2020.51

WVDEP’s analysis found that of the Tier 

1 Categories, six of those categories 

represented 95% of the total 2017 NOX

emissions from sources in the State. 

These categories are: (i) Fuel 

Combustion—Electric Utilities (29.5%); 

(ii) Fuel Combustion—Industrial (9.1%); 

(iii) Fuel Combustion—Other (4.8%); 

(iv) Petroleum and Related Industries 

(22.8%); (v) Highway Vehicles (21.5%); 

(vi) and Off-Highway (7.6%). West 

Virginia therefore focused its Step 3 

control and cost analysis on these six 

categories of sources. 

a. Highway Vehicles and Off-Highway 

West Virginia’s analysis of NEI data 

indicated that these two Tier 1 source 

categories combined produced 29.1% of 

the NOX emissions in the State in 2017. 

For these categories of mobile sources, 

WVDEP noted that such sources are 

regulated at the Federal level and not 

the state level, so WVDEP concluded 

that no further analysis of the Highway 

Vehicles and Off-Highway categories for 

additional potential reductions is 

required. In Section 6.1 of the SIP 

submission, WVDEP noted and 

described a number of EPA programs 

designed to reduce NOX emissions from 

mobile sources, including the 2007 

Heavy-Duty Highway Rule (40 CFR part 

86, subpart P); the Tier 2 Vehicle and 

Sulfur Program (40 CFR part 80, subpart 

H; 40 CFR part 85, 40 CFR part 86), Tier 

3 Motor Vehicle Emission and Fuel 

Standards (40 CFR parts 79, 80, 85, 86, 

600, 1036, 1037, 1042, 1048, 1054, 1065, 

and 1066); Tier 4 Vehicle Standards; 

and the Nonroad Diesel Emissions 

Program (40 CFR part 89). 

Given the magnitude of NOX emission 

reductions in West Virginia reflected in 

the NEI, the EPA agrees that it is 

appropriate for WVDEP to evaluate 

these source categories for potential 

additional controls to reduce interstate 

transport for the purposes of the 2015 

8-hour ozone NAAQS. The EPA does 

not agree, however, with the State’s 

attempt to categorize certain sectors of 

emissions as per se beyond its 

regulatory control. Clearly the State 

possesses regulatory authority over 

many categories of sources and other 

types of ‘‘emissions activity within the 

state,’’ see CAA section 110(a)(2)(D)(i). 

While the EPA generally regulates 

mobile sources at the Federal level 

under title II of the CAA, the state also 

has the authority to undertake any 

number of measures to reduce emissions 

from mobile sources through means and 

techniques that are not preempted by 

title II. See, e.g., CAA sections 182(b)(3), 

182(b)(4), 182(c)(3), 182(c)(4), 182(c)(5), 

182(d)(1), 182(e)(3), and 182(e)(4) 

(identifying programs to control mobile 

source emissions that states are required 

to implement depending on the degree 

of ozone nonattainment). Pursuant to 

CAA section 116, states retain authority 

to regulate sources in SIPs, and to do so 

more stringently than the EPA, unless 

preempted. For example, many states, 

including states with receptors to which 

West Virginia is linked, have adopted 

California motor vehicle standards as 

permitted under CAA section 177.52

WVDEP’s listing of existing Federal 

control measures for mobile sources 

does not in and of itself serve as an 

adequate substitute for a Step 3 analysis 

of additional potential emission 

reductions. First, these standards, to the 

extent they are ‘‘on-the-books,’’ are 

already reflected in the base case air 

quality modeling conducted at Steps 1 

and 2. Further, the listing of existing or 

on-the-way control measures, whether 

approved into the State’s SIP or not, 

does not substitute for a complete Step 

3 analysis under the EPA’s 4-step 

framework to define ‘‘significant 

contribution.’’ 

b. Petroleum and Related Industries 

For the Petroleum and Related 

Industries Tier 1 category, WVDEP’s 

analysis indicated that sources of this 

type produced 22.8% of the 2017 NOX

emissions in the State. West Virginia 

further acknowledged that this category 

has been a growing source of emissions 

in more recent years, but argued that 

West Virginia’s New Source Review 

(NSR) permitting programs will 

adequately ensure that emissions from 

any new or modified sources in this 

category do not cause or contribute to 

nonattainment of the NAAQS.53 West 

Virginia has a PSD program that 

requires new or modified major 

stationary sources located in designated 

attainment areas to obtain a permit and 

impose emission controls that meet the 

best available control technology 

(BACT) level of control. Similarly, West 

Virginia has a Nonattainment NSR 

program that requires new or modified 

major stationary sources located in 

designated nonattainment areas to 

obtain a permit and impose emission 

controls that meet the lowest achievable 

emission rate (LAER) level of control. 

WVDEP asserts that the BACT and 

LAER requirements are by definition 

more stringent than the RACT/RACM 

level of control required in 

nonattainment plans that states must 

impose in designated nonattainment 

areas. As a component of these 

permitting programs, the State noted 

that there is also a requirement to 

consider whether the emissions from 

the source ‘‘will interfere with 

attainment or maintenance of an 

applicable ambient air quality 

standard.’’ The State therefore did not 

perform an analysis of potential 

additional control measures or costs for 

this category of sources. 

The EPA agrees with WVDEP’s 

identification of the sources in the 

Petroleum and Related Industries 

category from the NEI as sufficiently 

significant to warrant evaluation for 

NOX emission controls. As the State 

reflected in its SIP submission, the 


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54The EPA notes that WVDEP has not explained 

why new source permitting was a sufficient control 

measure for interstate ozone transport from the 

‘‘Petroleum and Related Industries’’ category, but 

not other source categories, when the new source 

permitting requirements apply to all new sources. 

55The narrative text of West Virginia’s SIP 

submission at page 27 says that EGUs contribute 

30.2%, while Table 6 of the SIP submission 

identifies the EGU contribution as 29.5%. This 

difference in attributed contribution does not 

change the outcome of EPA’s analysis. 

56The documentation is in Appendix M of West 

Virginia’s 2019 SIP submittal. 

cumulative NOX emissions from this 

category comprise 22.8% of West 

Virginia’s emissions, and thus a 

proportion of emissions second only to 

the category that includes EGUs. 

Further, WVDEP acknowledged that 

unlike other source categories, the NOX

emissions from this category have been 

increasing in recent years. In Table 6 of 

the SIP submission, the State reflected 

the large increase in such emissions 

from 2008 through 2017. 

Notwithstanding these increases in 

emissions, WVDEP relies primarily on 

the existing permitting programs (minor 

source, PSD, and NNSR) as the basis for 

concluding that no further controls 

would be necessary for these sources to 

address interstate transport problems for 

purposes of the 2015 8-hour ozone 

NAAQS. First, WVDEP seems to have 

done no more than describe the general 

framework for new source permitting 

that is mandated of all states under the 

CAA and has not identified how its state 

programs in particular go beyond those 

basic requirements in any manner 

relevant to ozone transport. 

Nonetheless, the State is correct that 

these permitting programs do impose 

control requirements (e.g., BACT or 

LAER) and do require an analysis of 

potential impacts on attainment and 

maintenance of the NAAQS. But there 

are likewise important distinctions 

between the permitting program 

requirements and interstate transport 

requirements, including but not limited 

to: (i) The permitting programs generally 

apply only to new sources or major 

modification of existing sources; (ii) the 

evaluation of impacts on attainment and 

maintenance in other states in the 

context of a permit for a single source 

may not be as robust and have the same 

geographic scope as that undertaken by 

states and the EPA for purposes of 

section 110(a)(2)(D)(i)(I); and (iii) the 

timing of the permitting process 

evaluation may have no bearing on the 

NAAQS at issue (i.e., a permit issued in 

2005 would not have considered 

impacts vis a vis the 2015 8-hour ozone 

NAAQS). Further, existing sources may 

have been permitted under a new source 

permitting program years or even 

decades ago, before more effective or 

cheaper emissions control technologies 

became available. 

Thus, even if the permitting programs 

address new sources of emissions for 

the intended purposes of those 

programs, it does not necessarily follow 

that they automatically meet all other 

CAA requirements as well. The EPA 

disagrees, therefore, with the conclusion 

that the existence of these permitting 

programs resolves the issue of whether 

there are additional control measures 

that the State should impose specifically 

for purposes of eliminating significant 

contribution to nonattainment or 

interference with maintenance at 

downwind receptors for the 2015 8-hour 

ozone NAAQS.54

In general, the listing of existing or 

on-the-way control measures, whether 

approved into the State’s SIP or not, 

does not substitute for a complete Step 

3 analysis under EPA’s 4-step 

framework to define ‘‘significant 

contribution.’’ WVDEP did not provide 

an assessment of the overall effects of 

these measures, when the emissions 

reductions would be achieved, and what 

the overall resulting air quality effects 

would be at identified out of state 

receptors. WVDEP did not evaluate 

additional, potential emissions control 

opportunities, or their costs or impacts, 

or attempt to analyze whether, if 

applied more broadly across linked 

states, the emissions reductions would 

constitute the elimination of significant 

contribution. Although the EPA 

acknowledges states are not necessarily 

bound to follow its own analytical 

framework at Step 3, we note that 

WVDEP did not do a meaningful 

analysis of what other potential controls 

may be necessary to achieve NOX

emission reductions from these sources 

for the 2015 ozone NAAQS. This would 

have been similar to the approach to 

defining significant contribution that 

EPA has applied in prior rulemakings 

such as CSAPR and or the CSAPR 

Update, even if such an analysis is not 

technically mandatory. 

c. Fuel Combustion—Electric Utilities 

West Virginia’s analysis of NEI data 

indicated that EGUs produced 30.2% of 

the NOX emissions in the State in 

2017.55 The State noted that NOX

emissions from EGUs have already 

declined as a result of other CAA 

requirements, such as the Acid Rain 

Program, the NOX Budget Trading 

Program, the CAIR, and the CSAPR 

programs. As a result of these programs 

and actions, WVDEP estimated a 

reduction in ozone season emissions of 

75 percent, or almost 2 million tons, 

since 1997. The EPA acknowledges that 

these existing programs have already 

reduced NOX emissions substantially 

from EGUs, but the question at issue at 

this time is whether more NOX

emissions reductions are necessary from 

such sources for purposes of CAA 

section 110(a)(2)(D)(i)(I) for the 2015 

8-hour ozone NAAQS. Notwithstanding 

the past reductions of NOX from EGUs, 

WVDEP correctly concluded that further 

analysis of potential controls is 

necessary. 

As one part of this analysis, West 

Virginia relied on the shutdown of 

specific EGUs that would further reduce 

NOX emissions from the state. West 

Virginia identified the retirements of six 

coal-fired power plants (consisting of 17 

units total) that have occurred in recent 

years. Three power plants shut down in 

September 2012. Three additional 

power plants shut down in June 2015. 

WVDEP provided documentation for 

these units showing that the units were 

permanently retired, and the Title V 

permits were surrendered. The State 

further indicated that should operations 

resume at any of the shut-down units in 

the future, the source 56 would have to 

complete the permitting process as a 

new facility. 

The EPA agrees that these shutdowns 

will eliminate NOX emissions from 

these sources, and thus this may help to 

reduce the impacts of such emissions 

from West Virginia at the identified 

nonattainment and maintenance 

receptors. Evaluation of further control 

of these specific EGU sources is not 

required. However, EPA’s most recent 

2016v2 emissions platform-based 

modeling has already taken these 

shutdowns into account, and projects 

impacts at nonattainment or 

maintenance receptors in Connecticut, 

New York, and Maryland 

notwithstanding these reductions in 

emissions. Further, the mere fact that a 

particular EGU has shutdown does not 

mean that all associated emissions 

should be subtracted from the total 

inventory of a state’s emissions. 

Typically, a shutdown is accompanied 

by a shift in generation to new sources 

or existing sources with available 

capacity, which in turn produces some 

incremental increase in emissions at 

those sources. WVDEP did not analyze 

the net emissions effects of the 

shutdowns it listed. By contrast, in its 

most recent modeling, the EPA has 

thoroughly and comprehensively 

evaluated emissions from EGUs in West 

Virginia and other states. The EPA’s 

latest projections of the baseline EGU 

emissions uses the version 6—Summer 

2021 Reference Case of the Integrated 

Planning Model (IPM). IPM is a multiVerDate Sep<11>2014 17:03 Feb 18, 2022 Jkt 256001 PO 00000 Frm 00075 Fmt 4702 Sfmt 4702 E:\FR\FM\22FEP1.SGM 22FEP1

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57 Detailed information and documentation of 

EPA’s Base Case, including all the underlying 

assumptions, data sources, and architecture 

parameters can be found on EPA’s website at: 

https://www.epa.gov/airmarkets/epas-power-sectormodeling-platform-v6-using-ipm-summer-2021- 

reference-case. 

58 Detailed information and documentation of 

EPA’s Base Case, including all the underlying 

assumptions, data sources, architecture parameters, 

and IPM comments form can be found on EPA’s 

website at: https://www.epa.gov/airmarkets/epaspower-sector-modeling-platform-v6-using-ipmsummer-2021-reference-case. 

59The ‘‘Capacity Dropped’’ and the ‘‘Retired 

Through 2023’’ worksheets in NEEDS lists all units 

that are removed from the NEEDS v6 inventory— 

NEEDS v6 Summer 2021 Reference Case. This data 

can be found on EPA’s website at: https://

www.epa.gov/airmarkets/national-electric-energydata-system-needs-v6. 

60The ‘‘Capacity Dropped’’ and the ‘‘Retired 

Through 2023’’ worksheets in NEEDS lists all units 

that are removed from the NEEDS v6 inventory— 

NEEDS v6 Summer 2021 Reference Case. This data 

can be found on EPA’s website at: https://

www.epa.gov/airmarkets/national-electric-energydata-system-needs-v6. 

regional, dynamic, and deterministic 

linear programming model of the U.S. 

electric power sector.57 The model 

provides forecasts of least cost capacity 

expansion, electricity dispatch, and 

emission control strategies, while 

meeting energy demand, environmental, 

transmission, dispatch, and reliability 

constraints. 

The IPM version 6—Summer 2021 

Reference Case incorporated recent 

updates through the Summer of 2021 to 

account for updated Federal and State 

environmental regulations for EGUs. 

This projected base case accounts for 

the effects of the finalized Mercury and 

Air Toxics Standards rule, CSAPR, the 

CSAPR Update, the Revised CSAPR 

Update, New Source Review 

settlements, the final effluent limitation 

guidelines (ELG) Rule, the coal 

combustion residual (CCR) Rule, and 

other on-the-books Federal and State 

rules (including renewable energy tax 

credit extensions from the Consolidated 

Appropriations Act of 2021) through 

early 2021 impacting SO2, NOX, directly 

emitted particulate matter, CO2, and 

power plant operations. It also includes 

final actions EPA has taken to 

implement the Regional Haze Rule and 

best available retrofit technology 

(BART) requirements. Further, the IPM 

Platform v6 uses demand projections 

from the Energy Information Agency’s 

(EIA) Annual Energy Outlook (AEO) 

2020.58

The IPM version 6—Summer 2021 

Reference Case uses the National 

Electric Energy Data System (NEEDS) v6 

database as its source for data on all 

existing and planned-committed units. 

Units are removed from the NEEDS 

inventory only if a high degree of 

certainty could be assigned to future 

implementation of the announced future 

closure or retirement.59 The available 

retirement-related information was 

reviewed for each unit, and the 

following rules are applied to remove: 

(i) Units that are listed as retired in the 

December 2020 EIA Form 860M; 

(ii) Units that have a planned retirement 

year prior to June 30, 2023 in the December 

2020 EIA Form 860M; 

(iii) Units that have been cleared by a 

regional transmission operator (RTO) or 

independent system operator (ISO) to retire 

before 2023, or whose RTO/ISO clearance to 

retire is contingent on actions that can be 

completed before 2023; 

(iv) Units that have committed specifically 

to retire before 2023 under Federal or state 

enforcement actions or regulatory 

requirements; and 

(v) Finally, units for which a retirement 

announcement can be corroborated by other 

available information. Units required to retire 

pursuant to enforcement actions or state rules 

on July 1, 2023 or later are retained in NEEDS 

v6. 

Retirement of EGU units that follow 

this process are excluded from the 

NEEDS inventory. This includes EGU 

units as highlighted in the West Virginia 

SIP submission (Appendix G and 

Appendix M).60 Thus, the modeling 

already accounts for the NOX emission 

reductions in West Virginia that 

resulted from the source shutdowns 

identified by WVDEP. Further, closures 

taking place on or after July 1, 2023 are 

captured as constraints on those units in 

the IPM modeling, and the units are 

retired in future year projections per the 

terms of the related requirements. 

As a second part of its Step 3 

evaluation of potential controls for 

EGUs, West Virginia also relied on the 

EPA’s own analysis of potential NOX

emission reductions in connection with 

the CSAPR Update for the 2008 ozone 

NAAQS. WVDEP noted that the EPA 

itself considered the adequacy of NOX

controls for EGUs as part of the CSAPR 

Update rulemaking. The State pointed 

to the EPA’s analytical process in the 

CSAPR Update rulemaking concerning 

factors such as cost, available emissions 

reductions, and downwind air impacts, 

and the resulting emission budgets that 

EPA derived using the ‘‘knee in the 

curve’’ evaluation of cost effectiveness 

as described in the proposed 

‘‘Determination Regarding Good 

Neighbor Obligations for the 2008 

Ozone National Ambient Air Quality 

Standard.’’ In particular, WVDEP 

emphasized the EPA statement in the 

proposal that it ‘‘considers the turning 

on and optimizing of existing SCR 

controls and the installation of 

combustion controls to be NOX control 

strategies that have already been 

appropriately evaluated and 

implemented in the final CSAPR 

Update.’’ The State also pointed to the 

EPA’s proposed CSAPR Close-Out Rule, 

in which the EPA similarly stated, ‘‘the 

EPA considers the turning on and 

optimizing of existing SCR controls and 

the installation of combustion controls 

to be NOX control strategies that have 

already been appropriately evaluated 

and implemented in the final CSAPR 

Update.’’ 

In support of this argument, WVDEP 

also included a Table containing the 

ozone season NOX emission rates in 

2017 and 2018 for EGU sources located 

in West Virginia. Table 7 presents 

information about the size, fuel type, 

control type, and emission rates in 

pounds (lbs) per million British thermal 

unit (MMBtu) (lbs/MMBtu). This table 

provides key information about the 

existing control measures and emission 

rates for these individual sources, at the 

time of the SIP submission. However, 

WVDEP does not provide analysis of 

any potential additional or strengthened 

control measures at these sources, that 

may or may not be needed for purposes 

of the 2015 8-hour ozone NAAQS. 

Finally, for EGUs, WVDEP asserted 

that because the EPA’s CSAPR Update 

concluded that all identified highly 

cost-effective emission reductions have 

already been implemented with respect 

to EGUs for the 2008 ozone NAAQS, no 

additional highly cost-effective 

reductions are available for EGUs for the 

2015 8-hour ozone NAAQS. WVDEP 

argues that because its EGUs are subject 

to the CSAPR Update (which reflected 

a stringency at the nominal marginal 

cost threshold of $1400/ton (2011$) for 

the 2008 ozone NAAQS), it has already 

implemented all cost-effective 

emissions reductions for its EGU fleet. 

The EPA disagrees. First, the so-called 

CSAPR Close-Out has been vacated for 

unlawfully permitting significant 

contribution to continue beyond the 

next attainment date. New York v. EPA, 

781 Fed. App’x 4 (D.C. Cir. 2019). See 

also Wisconsin, 938 F.3d at 318–20. 

Second, in the CSAPR Update, EPA had 

promulgated only a partial remedy as to 

EGUs even with respect to the less 

stringent 2008 ozone NAAQS, a 

conclusion affirmed by the D.C. Circuit 

in New York v. EPA, 964 F.3d 1214, 

1225 (D.C. Cir. 2020). EPA has recently 

completed action on remand from the 

Wisconsin decision and has 

promulgated a full remedy as to West 

Virginia’s obligations for the 2008 ozone 

NAAQS in the Revised CSAPR Update. 

EPA found that additional, cost-effective 

emissions reductions from West 

Virginia’s EGUs were indeed necessary 

to resolve its obligations under the 2008 


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61See Appendix N of West Virginia’s SIP 

submittal. 

63See ‘‘wv_og_nonegu_unit_comparison_16_17_

18_19_20.xlsx’’ in Docket ID No. EPA–R03–OAR– 

2021–0873. 

64See ‘‘Cross State Air Pollution Rule to Control 

Annual Nitrogen Oxide Emissions, Annual Sulfur 

Dioxide Emissions, and Ozone Season Nitrogen 

Oxide Emission,’’ at https://dep.wv.gov/daq/public

noticeandcomment/Documents/45CSR43Prop_

wAttachments.pdf. 

ozone NAAQS, see 86 FR 23054, 23100, 

23123–24 (April 30, 2021). Therefore, 

WVDEP’s conclusions that no further 

cost-effective emission reductions are 

available from its EGUs cannot be 

sustained. 

More fundamentally, relying on the 

CSAPR Update’s (or any other CAA 

program’s) determination of costeffectiveness without further Step 3 

analysis is insufficient. Costeffectiveness must be assessed in the 

context of the specific CAA program; 

assessing cost-effectiveness in the 

context of ozone transport should reflect 

a more comprehensive evaluation of the 

nature of the interstate transport 

problem, the total emissions reductions 

available at several cost thresholds, and 

the air quality impacts of the reductions 

at downwind receptors. While the EPA 

has not established a benchmark costeffectiveness value for the 2015 8-hour 

ozone NAAQS interstate transport 

obligations, because the 2015 8-hour 

ozone NAAQS is a more stringent and 

more protective air quality standard, it 

is reasonable to expect control measures 

or strategies to address interstate 

transport under this NAAQS to reflect 

higher marginal control costs. As such, 

the marginal cost threshold of $1,400/ 

ton for the CSAPR Update (which 

addresses the 2008 ozone NAAQS and 

is in 2011$) is not an appropriate cost 

threshold and cannot be approved as a 

benchmark to use for interstate transport 

SIP submissions for the 2015 8-hour 

ozone NAAQS. 

In addition, the updated 2016v2 

emissions platform captures all existing 

CSAPR trading programs in the 

baseline, and that modeling confirms 

that these control programs were not 

sufficient to eliminate West Virginia’s 

linkage at Steps 1 and 2 under the 2015 

8-hour ozone NAAQS. Although the 

state provided an inventory of existing 

controls on its EGU fleet, based on 

updated modeling results, the State was 

therefore obligated at Step 3 to assess 

additional control measures using a 

multifactor analysis. 

d. Fuel Combustion—Industrial and 

Fuel Combustion—Other 

WVDEP’s analysis indicated that NOX

emissions from non-EGU sources in two 

other NEI source categories, Fuel 

Combustion—Industrial and Fuel 

Combustion—Other, together comprised 

13.9% of the NOX emissions in West 

Virginia in 2017. For non-EGU sources 

of NOX emissions, WVDEP similarly 

reviewed EPA documentation for the 

CSAPR Update, specifically a costeffectiveness evaluation provided by 

SRA International (SRA), which was 

contracted by the EPA to perform this 

analysis. The analysis split the sources 

subject to the cost-effectiveness analysis 

into two groups: Sources with NOX

emissions greater than 100 tons per year 

(tpy) in 2017, and sources with NOX

emissions between 25 and 100 tpy in 

2017. The analysis then reviewed these 

sources using a $10,000 per ton cost 

effectiveness threshold. In West 

Virginia, the analysis identified nine 

emissions units in the ‘‘greater than 100 

tpy’’ group and 21 emission units in the 

‘‘25 to 100 tpy’’ group for further 

evaluation based on potential for 

controls. 

Of the nine ‘‘greater than 100 tpy’’ 

units, WVDEP noted that four had 

permanently shutdown, two were 

subject to a Consent Order to shutdown 

by December 31, 2021, and one was 

subject to a Consent Order which 

established a 0.20 lbs/MMBtu during 

the ozone season. For the remaining two 

sources, WVDEP claims that the EPA 

determined in the CSAPR Close-Out 

Rule that one source was well 

controlled and the other did not have 

any technically and economically 

available controls. However, EPA made 

no such determinations with respect to 

any non-EGUs in the CSAPR Close-Out. 

Of the 21 ‘‘25 to 100 tpy’’ units, WVDEP 

noted that six units have permanently 

shutdown and three are subject to a 

Consent Order to shutdown by 

December 31, 2021.61 West Virginia’s 

SIP submission concludes that ‘‘[t]he 

shutdown of the identified 10 sources; 

the required shutdown of the additional 

five sources; and the current level of 

control on the remaining 20 sources, in 

conjunction with the implementation of 

the Control Measures programs listed in 

Section 6, represent the implementation 

of reasonable control measures in West 

Virginia.’’ 62

Given that the emissions from these 

source categories comprise 13.9% of the 

total NOX emissions from West Virginia 

in the 2017 NEI, the EPA agrees that it 

is appropriate for WVDEP to evaluate 

them. The EPA does not, however, agree 

with this analysis for certain non-EGU 

sources. First, many of the source 

shutdowns identified by West Virginia 

have generally been captured in the data 

the EPA used to perform the 2016v2 

emissions platform-based modeling. 

Even with the shutdowns, the results of 

that updated modeling continue to show 

that West Virginia’s sources contribute 

to nonattainment and maintenance 

receptors. Moreover, because the 2015 

8-hour ozone NAAQS is more stringent 

than the 2008 ozone NAAQS, the EPA’s 

findings of an acceptable cost threshold 

for controls (which did not include nonEGUs) in the CSAPR Update, which 

only addresses transport for the 2008 

ozone NAAQS, are not sufficient to 

evaluate whether West Virginia has 

adopted all reasonable control measures 

for these non-EGU sources for purposes 

of the 2015 8-hour ozone NAAQS. 

Additional reductions above and 

beyond those amounts may be needed 

for a more stringent 2015 8-hour ozone 

NAAQS, so WVDEP’s analysis showing 

the NOX reductions attributable to 

sources shutdown since 2011 did not 

address the quantity of additional 

reductions that may be needed from 

these types of sources for purposes of 

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

requirements for the 2015 8-hour ozone 

NAAQS. Although the State provided 

an inventory of non-EGU sources based 

on previous CoST outputs, the State did 

not assess additional control measures 

using a multifactor analysis for sources 

that were not shut down, not under the 

obligations of a consent order, or were 

not considered well controlled based on 

the EPA’s assessment. The inventory of 

non-EGU stationary sources included in 

EPA’s most recent emissions inventory 

indicates that there are a number of 

such sources that continue to emit NOX

in excess of 100 tpy.63 WVDEP 

conducted no analysis of additional 

emissions control opportunities at these 

sources. 

Finally, relying on a FIP at Step 3 is 

per se not approvable if the state has not 

adopted that program into its SIP and 

instead continues to rely on the FIP. 

States may not rely on non-SIP 

measures to meet SIP requirements. See 

CAA section 110(a)(2)(D) (‘‘Each such 

[SIP] shall . . . contain adequate 

provisions. . . .’’). See also CAA 

section 110(a)(2)(A); Committee for a 

Better Arvin v. U.S. E.P.A., 786 F.3d 

1169, 1175–76 (9th Cir. 2015) (holding 

that measures relied on by state to meet 

CAA requirements must be included in 

the SIP). In this matter, West Virginia 

has adopted a state regulation, 

45CSR43,64 incorporating by reference 

40 CFR part 97, subparts AAAAA, 

CCCCC, and EEEEE, which are the 

CSAPR NOX Annual, SO2 Group 1, and 

Ozone Season NOX trading programs. 

The State designed the SIP submission 

to incorporate into the West Virginia SIP 

the requirements of the CSAPR Update 


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65See 84 FR 41944 (August 16, 2019). 

Group 2 trading program, in order to 

meet the State’s obligations under the 

good neighbor provision for the 2008 

ozone NAAQS. WVDEP submitted this 

as a SIP revision to the EPA on June 5, 

2019, and the EPA proposed approval of 

the revision.65 However, following 

EPA’s proposed approval of this SIP 

submission, a court decision and EPA’s 

subsequent rulemaking in the Revised 

CSAPR Update have rendered it 

inadequate. As explained in Section I of 

this document, the D.C. Circuit issued a 

decision in Wisconsin v. EPA, 

remanding the CSAPR Update because 

the EPA had failed to require upwind 

states to eliminate their significant 

contribution by the next applicable 

attainment date by which downwind 

states must come into compliance with 

the NAAQS, as established under CAA 

section 181(a). 938 F.3d at 313. The EPA 

has since issued the Revised CSAPR 

Update, which released updated 

budgets and requirements for states, 

including West Virginia, in order to 

fully resolve interstate transport 

obligations for the 2008 ozone NAAQS. 

As such, the ozone season NOX budgets 

in the West Virginia SIP submission for 

which the EPA proposed approval no 

longer satisfy the State’s interstate 

transport obligations under the 2008 

ozone NAAQS. The EPA is not in this 

action addressing the pending June 5, 

2019 SIP submission and will address it 

in a separate action. The EPA 

encourages West Virginia to withdraw 

the June 5, 2019 SIP submission. 

5. Evaluation of Information Provided 

Regarding Step 4 

Step 4 of the 4-step interstate 

transport framework calls for 

development of permanent and 

federally enforceable control strategies 

to achieve the emissions reductions 

determined to be necessary at Step 3 to 

eliminate significant contribution to 

nonattainment or interference with 

maintenance of the NAAQS. As 

mentioned previously, WVDEP’s SIP 

submission did not contain an 

evaluation of additional emission 

control opportunities or establish that 

no additional controls are required 

beyond their existing controls and 

regulatory mechanisms to eliminate 

significant contribution to 

nonattainment or interference with 

maintenance of the 2015 8-hour ozone 

NAAQS. WVDEP additionally identified 

the incorporation by reference into its 

SIP certain emission budgets and 

trading programs created by CSAPR and 

the CSAPR Update and the EPA’s 

pending final action on this proposed 

SIP revision to meet its requirements for 

the good neighbor provisions under the 

2015 8-hour ozone NAAQS. However, 

as explained in our evaluation of Step 

3 of WVDEP’s 2019 SIP submittal, we do 

not agree that the requirements of the 

CSAPR Update satisfy West Virginia’s 

good neighbor obligations under the 

2015 8-hour ozone NAAQS (or the 2008 

ozone NAAQS). Additionally, the 

budgets and trading programs created by 

CSAPR and the CSAPR Update is not a 

new measure with new requirements, as 

the FIP implementing these programs 

has been in effect for several years and 

the emissions reductions associated 

have been taken into account in the 

EPA’s modeling of 2023 nonattainment 

and maintenance receptors using the 

2016v2 emissions platform. As a result, 

EPA proposes to disapprove West 

Virginia’s submittal on the separate, 

additional basis that the State has not 

developed the appropriate permanent 

and enforceable emissions reductions 

necessary to meet the obligations of 

CAA section 110(a)(2)(d)(i)(I). 

6. Conclusion 

Based on the EPA’s evaluation of 

West Virginia’s SIP submission, the EPA 

is proposing to find that West Virginia’s 

February 4, 2019 SIP submission 

addressing CAA section 

110(a)(2)(D)(i)(I) does not meet the 

State’s interstate transport obligations, 

because it fails to contain the necessary 

provisions to eliminate emissions that 

will contribute significantly to 

nonattainment or interfere with 

maintenance of the 2015 8-hour ozone 

NAAQS in any other state. 

IV. Proposed Action 

We are proposing to disapprove West 

Virginia’s February 4, 2019 SIP 

submission pertaining to interstate 

transport of air pollution which will 

significantly contribute to 

nonattainment or interfere with 

maintenance of the 2015 8-hour ozone 

NAAQS in other states. Under CAA 

section 110(c)(1), disapproval would 

establish a 2-year deadline for the EPA 

to promulgate a FIP for West Virginia to 

address the CAA section 

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

requirements pertaining to significant 

contribution to nonattainment and 

interference with maintenance of the 

2015 8-hour ozone NAAQS in other 

states, unless the EPA approves a new 

West Virginia SIP submission that meets 

these requirements. Disapproval does 

not start a mandatory sanctions clock for 

West Virginia. 

V. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action is not a significant 

regulatory action as defined by E.O. 

12866 and was therefore not submitted 

to the Office of Management and Budget 

for review. 

B. Paperwork Reduction Act (PRA) 

This proposed action does not impose 

an information collection burden under 

the PRA because it does not contain any 

information collection activities. 

C. Regulatory Flexibility Act (RFA) 

I certify that this action will not have 

a significant economic impact on a 

substantial number of small entities 

under the RFA. This action merely 

proposes to disapprove a SIP 

submission as not meeting the CAA. 

D. Unfunded Mandates Reform Act 

(UMRA) 

This action does not contain any 

unfunded mandate as described in 

UMRA, 2 U.S.C. 1531–1538, and does 

not significantly or uniquely affect small 

governments. The action imposes no 

enforceable duty on any state, local or 

tribal governments or the private sector. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications as specified in Executive 

Order 13175. This action does not apply 

on any Indian reservation land, any 

other area where the EPA or an Indian 

tribe has demonstrated that a tribe has 

jurisdiction, or non-reservation areas of 

Indian country. Thus, Executive Order 

13175 does not apply to this action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

The EPA interprets Executive Order 

13045 as applying only to those 

regulatory actions that concern 

environmental health or safety risks that 

the EPA has reason to believe may 

disproportionately affect children, per 


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Federal Register / Vol. 87, No. 35 / Tuesday, February 22, 2022 / Proposed Rules 9533 

66 In deciding whether to invoke the exception by 

making and publishing a finding that an action is 

based on a determination of nationwide scope or 

effect, the Administrator takes into account a 

number of policy considerations, including his 

judgment balancing the benefit of obtaining the D.C. 

Circuit’s authoritative centralized review versus 

allowing development of the issue in other contexts 

and the best use of agency resources. 

67A finding of nationwide scope or effect is also 

appropriate for actions that cover states in multiple 

judicial circuits. In the report on the 1977 

Amendments that revised section 307(b)(1) of the 

CAA, Congress noted that the Administrator’s 

determination that the ‘‘nationwide scope or effect’’ 

exception applies would be appropriate for any 

action that has a scope or effect beyond a single 

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

324, reprinted in 1977 U.S.C.C.A.N. 1402–03. 

68The EPA may take a consolidated, single final 

action on all of the proposed SIP disapproval 

actions with respect to obligations under CAA 

section 110(a)(2)(D)(i)(I) for the 2015 ozone 

NAAQS. Should EPA take a single final action on 

all such disapprovals, this action would be 

nationally applicable, and the EPA would also 

anticipate, in the alternative, making and 

publishing a finding that such final action is based 

on a determination of nationwide scope or effect. 

the definition of ‘‘covered regulatory 

action’’ in section 2–202 of the 

Executive Order. This action is not 

subject to Executive Order 13045 

because it merely proposes to 

disapprove a SIP submission as not 

meeting the CAA. 

H. Executive Order 13211, Actions That 

Significantly Affect Energy Supply, 

Distribution or Use 

This action is not subject to Executive 

Order 13211, because it is not a 

significant regulatory action under 

Executive Order 12866. 

I. National Technology Transfer and 

Advancement Act 

This rulemaking does not involve 

technical standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

The EPA believes the human health or 

environmental risk addressed by this 

action will not have potential 

disproportionately high and adverse 

human health or environmental effects 

on minority, low-income or indigenous 

populations. This action merely 

proposes to disapprove a SIP 

submission as not meeting the CAA. 

K. CAA Section 307(b)(1) 

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

judicial review of final actions by the 

EPA. This section provides, in part, that 

petitions for review must be filed in the 

D.C. Circuit: (i) When the agency action 

consists of ‘‘nationally applicable 

regulations promulgated, or final actions 

taken, by the Administrator,’’ or (ii) 

when such action is locally or regionally 

applicable, if ‘‘such action is based on 

a determination of nationwide scope or 

effect and if in taking such action the 

Administrator finds and publishes that 

such action is based on such a 

determination.’’ For locally or regionally 

applicable final actions, the CAA 

reserves to the EPA complete discretion 

whether to invoke the exception in 

(ii).66

If the EPA takes final action on this 

proposed rulemaking, the Administrator 

intends to exercise the complete 

discretion afforded to him under the 

CAA to make and publish a finding that 

the final action (to the extent a court 

finds the action to be locally or 

regionally applicable) is based on a 

determination of ‘‘nationwide scope or 

effect’’ within the meaning of CAA 

section 307(b)(1). Through this 

rulemaking action (in conjunction with 

a series of related actions on other SIP 

submissions for the same CAA 

obligations), the EPA interprets and 

applies section 110(a)(2)(d)(i)(I) of the 

CAA for the 2015 ozone NAAQS based 

on a common core of nationwide policy 

judgments and technical analysis 

concerning the interstate transport of 

pollutants throughout the continental 

U.S. In particular, the EPA is applying 

here (and in other proposed actions 

related to the same obligations) the 

same, nationally consistent 4-step 

framework for assessing good neighbor 

obligations for the 2015 8-hour ozone 

NAAQS. The EPA relies on a single set 

of updated, 2016-base year 

photochemical grid modeling results of 

the year 2023 as the primary basis for 

its assessment of air quality conditions 

and contributions at Steps 1 and 2 of 

that framework. Further, the EPA 

proposes to determine and apply a set 

of nationally consistent policy 

judgments to apply the 4-step 

framework. The EPA has selected a 

nationally uniform analytic year (2023) 

for this analysis and is applying a 

nationally uniform approach to 

nonattainment and maintenance 

receptors and a nationally uniform 

approach to contribution threshold 

analysis.67

For these reasons, the Administrator 

intends, if this proposed action is 

finalized, to exercise the complete 

discretion afforded to him under the 

CAA to make and publish a finding that 

this action is based on one or more 

determinations of nationwide scope or 

effect for purposes of CAA section 

307(b)(1).68

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Ozone. 

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

Dated: February 7, 2022 

Diana Esher, 

Acting Regional Administrator, Region III. 

[FR Doc. 2022–02952 Filed 2–18–22; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

EPA–R07–OAR–2021–0851; EPA–HQ–OAR– 

2021–0663; FRL–9425–01–R7] 

Air Plan Disapproval; Missouri 

Interstate Transport of Air Pollution for 

the 2015 8-Hour Ozone National 

Ambient Air Quality Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: Pursuant to the Federal Clean 

Air Act (CAA or the Act), the 

Environmental Protection Agency (EPA) 

is proposing to disapprove a State 

Implementation Plan (SIP) submittal 

from Missouri regarding interstate 

transport for the 2015 8-hour ozone 

national ambient air quality standards 

(NAAQS). The ‘‘good neighbor’’ or 

‘‘interstate transport’’ provision requires 

that each state’s SIP contain adequate 

provisions to prohibit emissions from 

within the state from significantly 

contributing to nonattainment or 

interfering with maintenance of the 

NAAQS in other states. This 

requirement is part of the broader set of 

‘‘infrastructure’’ requirements, which 

are designed to ensure that the 

structural components of each state’s air 

quality management program are 

adequate to meet the state’s 

responsibilities under the CAA. This 

disapproval, if finalized, will establish a 

2-year deadline for the EPA to 

promulgate a Federal Implementation 

Plan (FIP) to address the relevant 

interstate transport requirements, unless 

the EPA approves a subsequent SIP 

submittal that meets these requirements. 

Disapproval does not start a mandatory 

sanctions clock. 

DATES: Written comments must be 

received on or before April 25, 2022. 

ADDRESSES: You may send comments, 

identified as Docket No. EPA–R07– 

OAR–2021–0851, by any of the 

following methods: Federal 

eRulemaking Portal at https:// 


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