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 Environmental Protection Agency 40 CFR Part 52
[EPA-R04-OAR-2019-0156; FRL-8697-01-R4]
 AGENCY: Environmental Protection Agency (EPA).
 ACTION: Supplemental notice of proposed rulemaking.
 SUMMARY: Through this supplemental notice of proposed rulemaking (“supplemental proposal” or “SNPRM”), the Environmental Protection Agency (EPA) is supplementing its proposed approval of state implementation plan (SIP) submissions from Florida, Georgia, North Carolina, and South Carolina (four Southeastern States), addressing the Clean Air Act (CAA or Act) interstate transport requirements for the 2015 8-hour ozone National Ambient Air Quality Standard (NAAQS or standard). Specifically, EPA is proposing to rely on updated analysis using a 2021 analytic year to support the proposed finding that each state's implementation plan contains adequate provisions to prohibit emissions that will significantly contribute to nonattainment or interfere with maintenance of the 2015 ozone NAAQS in any other state.
 DATES: Written comments must be received on or before August 18, 2021.
 ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-OAR-2019-0156, at 
                        *www.regulations.gov.*
                         Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from 
                        *Regulations.gov*. EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (
                        *i.e.,*
                         on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on 
                        ( print page 37943)
                        making effective comments, please visit 
                        *www2.epa.gov/​dockets/​commenting-epa-dockets.*
 FOR FURTHER INFORMATION CONTACT: Evan Adams of the Air Regulatory Management Section, Air Planning and Implementation Branch, Air and Radiation Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303-8960. Mr. Adams can be reached by telephone at (404) 562-9009, or via electronic mail at 
                        *adams.evan@epa.gov.*


SUPPLEMENTARY INFORMATION: I. Background for This Supplemental Proposal On December 30, 2019, EPA proposed to approve SIP submissions from six Southeast States (
                    *i.e.,*
                     Alabama, Florida, Georgia, North Carolina, South Carolina, and Tennessee) [1]
                    
                     as meeting the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I), or the Good Neighbor provision, for the 2015 8-hour ozone NAAQS. 
                    *See*84 FR 71854. Refer to the December 30, 2019, notice of proposed rulemaking (NPRM) for an explanation of the CAA requirements, the four-step framework that EPA applies under the Good Neighbor provision for ozone NAAQS, a detailed summary of the state submissions, and EPA's proposed rationale for approval. 
                    *See*84 FR 71854. The public comment period for the December 30, 2019, NPRM closed on January 29, 2020.[2] Subsequent to the December 30, 2019, proposal, two events occurred which have caused EPA to adjust its analysis of the aforementioned SIP submissions, and consequently, to issue this supplemental proposal. First, on May 19, 2020, the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) issued its ruling in 
                    *Maryland*
                     v. 
                    *EPA,*
                     958 F.3d 1185 (D.C. Cir. 2020) (
                    *Maryland*). That case involved EPA's denial of administrative petitions filed by the states of Maryland and Delaware under CAA section 126(b), seeking to have EPA impose emissions limits on sources in upwind states alleged to be emitting in violation of the Good Neighbor Provision. The court held that EPA must address Good Neighbor obligations consistent with the 2021 attainment date for downwind areas classified as being in Marginal nonattainment under the 2015 8-hour ozone NAAQS, “not at some later date.” 958 F.3d at 1203-04 (citing 
                    *Wisconsin*
                     v. 
                    *EPA,*
                     938 F.3d 303, 314 (D.C. Cir. 2019) (
                    *Wisconsin*)). The court disagreed with EPA that use of a 2023 analytic year, consistent with the 2024 attainment date for areas classified as being in Moderate nonattainment, was a proper reading of the court's earlier decision in 
                    *Wisconsin. Id.*
                     at 1204. In light of the 
                    *Maryland*
                     decision, EPA is evaluating these states' Good Neighbor obligations using a 2021 analytic year, corresponding to the 2021 Marginal area attainment date under the 2015 8-hour ozone NAAQS. Second, on October 30, 2020, EPA released and accepted public comment on updated 2023 modeling that used the 2016 emissions platform developed under the EPA/Multi-Jurisdictional Organization (MJO)/state collaborative project as the primary source for the base year and future year emissions data.[3]
                    
                     On April 30, 2021, EPA published the final Revised Cross-State Air Pollution Rule (CSAPR) Update using the same modeling that was made publicly available in the proposed rulemaking for the Revised CSAPR Update.[4]
                    
                     Although that modeling focused on the year 2023, EPA conducted an “interpolation” analysis of these modeling results to generate air quality and contribution values for the 2021 analytic year, consistent with the 
                    *Maryland*
                     holding, as the relevant analytic year for the 2015 8-hour ozone NAAQS. This new modeling and analysis now provides the primary basis for EPA's proposed approval of the Good Neighbor SIP submissions for Florida, Georgia, North Carolina, and South Carolina. By relying on the updated modeling results, EPA is using the most current and technically appropriate information as the primary basis for this proposed rulemaking. As explained in greater detail in this supplemental proposal, this new analysis indicates that in 2021, these four states are not projected to impact any downwind states at or above a contribution threshold of one percent of the 20158-hour ozone NAAQS, which is equivalent to 0.70 parts per billion (ppb). Thus, EPA is proposing to approve these four states' submissions. Additionally, EPA previously proposed to approve infrastructure SIP elements submitted to fulfill the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) by the states of Alabama and Tennessee for the 2015 8-hour ozone NAAQS in the December 30, 2019, NPRM referenced above. This supplemental proposal does not address these submissions, and EPA is deferring action on the referenced SIP submissions from Alabama and Tennessee at this time. II. EPA's Analysis On May 19, 2020, the D.C. Circuit issued the 
                    *Maryland*
                     decision that cited the 
                    *Wisconsin*
                     decision in holding that 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 EPA's denial of a petition under CAA section 126(b). 
                    *See*
                     958 F.3d 1185, 1203-04. The court noted that “section 126(b) incorporates the Good Neighbor Provision,” and therefore “the 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, EPA must evaluate downwind air quality at that deadline, not at some later date.” 
                    *Id.*
                     at 1204 (emphasis added). EPA interprets the court's holding in 
                    *Maryland*
                     as requiring the Agency, under the Good Neighbor provision, to address Good Neighbor obligations by the next applicable attainment date for downwind areas, including a Marginal 
                    ( print page 37944)
                    area attainment date under CAA section 181 for ozone nonattainment.[5] The Marginal area attainment date for the 2015 8-hour ozone NAAQS is August 3, 2021.[6]*See*
                     CAA section 181(a); 40 CFR 51.1303; 83 FR 25776 (June 4, 2018, effective August 3, 2018). Historically, EPA has considered the last full ozone season prior to the attainment date as supplying an appropriate analytic year for assessing Good Neighbor obligations. 
                    *See, e.g.,*81 FR 74540. While this would be 2020 for an August 2021 attainment date (which falls within the 2021 ozone season running from May 1 to September 30), in this circumstance, when the 2020 ozone season is wholly in the past, it is appropriate to focus on 2021 to address Good Neighbor obligations to the extent possible by the 2021 attainment date. EPA does not believe it would be appropriate to select an analytic year that is wholly in the past because EPA interprets the Good Neighbor provision as forward looking. 
                    *See*85 FR 68964, 68981; 
                    *see also Wisconsin,*
                     938 F.3d at 322. Consequently, as discussed further below, EPA is using the analytic year of 2021 in this supplemental proposal to evaluate Good Neighbor obligations for Florida, Georgia, North Carolina, and South Carolina with respect to the 2015 8-hour ozone NAAQS. The December 30, 2019, NPRM proposing approval of the 2015 8-hour ozone Good Neighbor SIPs for Florida, Georgia, North Carolina, and South Carolina predates the D.C. Circuit's decision in 
                    *Maryland.*
                     This decision also came after the close of the public comment period on the December 30, 2019, NPRM. However, this decision bears directly on EPA's action and its consideration of the comments received on the December 30, 2019, NPRM. As discussed above and in accordance with the 
                    *Wisconsin*
                     and 
                    *Maryland*
                     decisions, the Agency considers 2021 to be the relevant analytic year for the purpose of determining whether sources in Florida, Georgia, North Carolina, and South Carolina will significantly contribute to nonattainment or interfere with maintenance of the 2015 8-hour ozone NAAQS in any other states. EPA is proposing to determine that the Florida, Georgia, North Carolina, and South Carolina Good Neighbor SIP submissions for the 2015 8-hour ozone NAAQS are approvable using a 2021 analytic year. The SIP submissions from Florida, Georgia, North Carolina, and South Carolina rely on analysis of the year 2023 to show that they do not significantly contribute to nonattainment or interfere with maintenance of the 2015 8-hour ozone NAAQS in any other state. However, given the holdings in 
                    *Wisconsin*
                     and 
                    *Maryland,*
                     analysis of that year is no longer sufficient where the next attainment date for the 2015 8-hour ozone NAAQS is in 2021.[7]
                    
                     Nonetheless, the analysis EPA has conducted for the 2021 analytic year corroborates the conclusion reached in each state's submission and in the December 30, 2019, NPRM. In accordance with the holdings in 
                    *Wisconsin*
                     and 
                    *Maryland,*
                     EPA's supplemental analysis relies on 2021 as the relevant attainment year for evaluating Good Neighbor obligations for Florida, Georgia, North Carolina, and South Carolina with respect to the 2015 8-hour ozone NAAQS using the same four-step interstate transport framework described in the proposal of this action. 
                    *See*84 FR 71855. In step 1, EPA identifies locations where the Agency expects there to be nonattainment or maintenance receptors for the 2015 8-hour ozone NAAQS based on analysis of ozone concentrations at individual monitoring sites in the appropriate analytic year. Where EPA's analysis shows that a monitoring site does not fall under the definition of a nonattainment or maintenance receptor in the analytic year, that site is excluded from further analysis under EPA's four-step interstate transport framework.[8]
                    
                     For monitoring sites that are identified as nonattainment or maintenance receptors in the appropriate analytic year, EPA proceeds to step 2 of the four-step interstate transport framework by identifying whether emissions in upwind states contribute to those receptors in amounts that exceed a contribution threshold. EPA's approach to identifying ozone nonattainment and maintenance receptors in this supplemental proposal is consistent with the approach described in the December 30, 2019, NPRM, and is the same approach used in previous transport rulemakings. 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,*
                     531 F.3d 896, 910-911 (2008) (holding that EPA must give “independent significance” to each prong of CAA section 110(a)(2)(D)(i)(I)). For the purpose of this supplemental proposal, 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 CSAPR Update, where EPA defined nonattainment receptors as those areas that both currently monitor nonattainment and that EPA projects will be in nonattainment in the future compliance year.[9] In addition, in this supplemental proposal, EPA identifies a receptor to be a “maintenance” receptor for purposes of defining interference with maintenance, consistent with the method used in CSAPR and upheld by the D.C. Circuit in 
                    *EME Homer City 
                        ( print page 37945)
                        Generation, L.P.*
                     v. 
                    *EPA,*
                     795 F.3d 118, 136 (DC Cir. 2015).[10]
                    
                     Specifically, monitoring sites with a maximum projected design value in 2021 that exceeds the NAAQS are identified as maintenance receptors in 2021. EPA's method of defining these receptors takes into account both measured data and reasonable projections based on modeling analysis.[11] Recognizing that nonattainment receptors are also, by definition, maintenance receptors, EPA often uses the term “maintenance-only” to refer to receptors that are not also nonattainment receptors. Consistent with the methodology described above, monitoring sites with a projected maximum design value that exceeds the NAAQS, but with a projected average design value that is below the NAAQS, are identified as maintenance-only receptors. In addition, those sites that are currently measuring ozone concentrations below the level of the applicable NAAQS, but are projected to be nonattainment based on the average design value and that, by definition, are projected to have a maximum design value above the standard are also identified as maintenance-only receptors. Florida, Georgia, North Carolina, and South Carolina relied on the modeling included in an EPA memorandum dated March 2018 (“March 2018 memorandum”),[12]
                    
                     as well as state specific ozone precursor emission trends, design values, and regulations, to develop their SIPs as EPA had suggested. In the December 30, 2019, NPRM, EPA also relied on the modeling results included in the March 2018 memorandum. 
                    *See*84 FR 71855-71856, 71859-71861. However, EPA is now supplementing the December 30, 2019, NPRM with newly available, updated modeling that was developed using a 2016-based modeling platform prepared under the EPA/Multi-Jurisdictional Organization/state collaborative) project.[13]
                    
                     The results of this updated modeling were released with the NPRM for the Revised CSAPR Update on October 30, 2020, and finalized in the final Revised CSAPR Update without changes. 
                    *See*86 FR 23054 (April 30, 2021). The updated modeling includes 2016 base year and 2023 projection year model simulations that were analyzed to identify receptors and determine interstate ozone contributions to these receptors in 2021. Specifically, EPA developed an interpolation technique based on modeling for 2023 and measured ozone data to determine ozone design values for 2021. To estimate average and maximum design values for 2021, EPA first performed air quality modeling for 2016 and 2023 to project measured 2016 design values to 2023. The 2023 design values were then coupled with the corresponding 2016 measured design values to estimate design values in 2021. The Air Quality Modeling technical support document (TSD) developed in connection with the Revised CSAPR Update, which is included in the docket for this supplemental proposal, describes the modeling and interpolation for estimating design values in 2021.[14] EPA's analysis for this supplemental proposal, supported by the modeling analysis completed in the Revised CSAPR Update, further substantiates EPA's proposed approval in the December 30, 2019, NPRM. To quantify the contribution of emissions from specific upwind states on 2021 8-hour design values for the identified downwind nonattainment and maintenance receptors, EPA first performed nationwide, state-level ozone source apportionment modeling for 2023. The source apportionment modeling provided contributions to ozone from precursor emissions of anthropogenic nitrogen oxides (NOX) and volatile organic compounds (VOCs) in each state, individually. The modeled 2023 contributions were then applied in a relative sense to the 2021 average design value to estimate the contributions in 2021 from each state to each receptor. Details on the source apportionment modeling and the methods for determining contributions in 2021 are in the Air Quality Modeling TSD in the docket. The 2021 design values and contributions were examined to determine if Florida, Georgia, North Carolina, and South Carolina contribute at or above the threshold of one percent of the 2015 8-hour ozone NAAQS (0.70 ppb) to any downwind nonattainment or maintenance receptor.[15]
                    
                     Table 1 presents the highest contribution in 2021 from Florida, Georgia, North Carolina, and South Carolina to a downwind nonattainment or maintenance receptor. Table 1—Maximum Contribution From Each State to Downwind Nonattainment or Maintenance-Only Receptors in 2021 16
State
Maximum
                             contribution 
                             (ppb)
Downwind receptorCounty
State
AQS IDFlorida
0.34
Galveston
TX
481671034Georgia
0.39
Fairfield
CT
90011123North Carolina
0.69
Fairfield
CT
90011123( print page 37946)South Carolina
0.25
Fairfield
CT
90011123
 Based
                    
                     on the analysis of the updated modeling as described above, EPA proposes to find that it is reasonable to conclude that Florida, Georgia, North Carolina, and South Carolina, individually, will not contribute greater than one percent of the 2015 8-hour ozone NAAQS to any potential nonattainment or maintenance receptors in 2021. EPA also analyzed ozone precursor emissions trends in Florida, Georgia, North Carolina, and South Carolina to support the findings from the air quality analysis. In evaluating emissions trends, EPA first reviewed the information submitted by Florida, Georgia, North Carolina, and South Carolina and then reviewed additional information derived from EPA's National Emissions Inventory. EPA focused on state-wide emissions of NOX
                     and VOCs in Florida, Georgia, North Carolina, and South Carolina.[17]
                    
                     Combined, emissions from mobile sources, electric generating units (EGUs), industrial facilities, gasoline vapors, and chemical solvents are a large percentage of anthropogenic emissions of ozone precursors. This evaluation looks at both past emissions trends, as well as projected trends. As shown in Table 2, from 2011 to 2023 annual total NOX
                     and VOC emissions are projected to decline in the following amounts, respectively: By 56 percent and 35 percent in Florida; by 57 percent and 27 percent in Georgia; by 53 percent and 18 percent in North Carolina; and by 47 percent and 24 percent in South Carolina. The projected reductions are a result of the implementation of existing control programs that will continue to decrease NOX
                     and VOC emissions in Florida, Georgia, North Carolina, and South Carolina, as indicated by EPA's most recent 2021 and 2023 projected emissions used in the updated 2023 modeling. Table 2—Annual Emissions of NO
                        X
                         and VOC From Anthropogenic Sources in Florida, Georgia, North Carolina, and South Carolina
[Tons per year]
                        18, 19
2011
2012
2013
2014
2015
2016
2017
2018
2019
Projected 
                             2021
Projected 
                             2023FL NO
                            X
585,605
569,789
553,974
538,158
487,946
411,085
398,245
346,680
312,677
276,138
249,391FL VOC
637,315
598,992
560,669
522,345
506,276
473,769
454,694
442,470
430,246
419,961
411,321GA NO
                            X
412,070
385,178
358,287
331,395
314,900
288,421
274,956
255,975
232,538
202,406
177,951GA VOC
338,259
325,680
313,101
300,523
306,404
290,702
286,047
276,886
267,724
244,549
240,387NC NO
                            X
365,550
345,513
325,477
305,441
281,599
242,797
229,047
214,574
198,442
181,669
169,258NC VOC 20
328,942
321,229
313,516
305,803
294,299
272,534
265,404
262,394
259,385
269,915
267,208SC NO
                            X
205,952
194,924
183,896
172,868
160,064
157,222
148,786
139,694
128,656
114,238
107,420SC VOC
183,937
178,844
173,750
168,656
164,822
160,869
158,476
153,877
149,279
143,119
140,10718
                         The annual emissions data for the years 2011 through 2019 in Tables 2 and 3 were obtained from EPA's National Emissions Inventory website: 
                        *https://www.epa.gov/​air-emissions-inventories/​air-pollutant-emissions-trends-data.*
                         Emissions from miscellaneous sources are not included in the state totals presented in Table 2. The emissions for 2021 and 2023 are based on the 2016 emissions modeling platform. 
                        *See*
                         “2005 thru 2019.2021_2023_2028 Annual State Tier1 Emissions_v3” and the Emissions Modeling TSD in the docket for this proposed action.19
                         Note that the methods used for calculating emissions for certain tier 1 categories in the NEI changed over time between 2005 and 2019 and certain methods used for the NEI differ from the methods used for the 2016 Emissions Platform. These methodological differences may result in some year-to-year inconsistencies in the emissions trends and the projected emissions trends.20
                         EPA notes that for North Carolina, the projected VOC emissions are greater than historical emissions in recent years according to NEI data. However, EPA also notes that NOx emissions are the primary contributor to regional ozone formation in ozone transport, and for North Carolina, NOx emissions are projected to continue to decline. As a result of these NOx emissions reductions, North Carolina is projected to contribute below the one percent threshold in 2021 to projected nonattainment and maintenance receptors and is projected to continue to contribute below one percent in 2023 and 2028, despite the greater projected VOC emissions. Projected ozone design values and contributions data for 2021, 2023, and 2028 can be found in the file “Ozone Design Values And Contributions Revised CSAPR Update.xlsx” in the docket for this action.
 As presented below in Table 3, onroad and nonroad mobile source emissions collectively (
                    *i.e.,*
                     mobile source emissions) comprise a large portion of these states' total anthropogenic NOX
                     and VOC (
                    *i.e.,*
                     67 percent of the state total NOX
                     and 36 percent to state total VOC for Florida; 61 percent of the state total NOX
                     and 30 percent to state total VOC for Georgia; 57 percent of the state total NOX
                     and 31 percent to state total VOC for North Carolina; and 57 percent of the state total NOX
                     and 31 percent to state total VOC for South Carolina). Table 3—Annual Emissions of NO
                        X
                         and VOC From Onroad and Nonroad Mobile Sources in Florida, Georgia, North Carolina, and South Carolina
[Tons per year]
2011
2012
2013
2014
2015
2016
2017
2018
2019
Projected 2021
Projected 2023FL NO
                            X
468,496
451,186
433,876
416,565
373,961
304,708
299,476
271,122
242,768
184,676
165,897( print page 37947)FL VOC
351,631
325,059
298,486
271,914
255,262
222,173
202,502
190,278
178,054
155,760
145,133GA NO
                            X
297,838
276,697
255,555
234,413
225,072
205,747
199,437
180,291
161,144
122,097
108,363GA VOC
171,049
157,722
144,394
131,067
134,296
115,940
108,633
99,471
90,309
72,285
67,187NC NO
                            X
272,542
253,619
234,697
215,775
197,948
165,162
157,428
145,004
132,580
107,114
95,139NC VOC
176,370
162,257
148,144
134,032
124,615
104,938
99,959
96,950
93,940
88,486
81,551SC NO
                            X
144,953
137,401
129,850
122,298
111,751
111,167
104,989
95,687
86,385
68,365
61,243SC VOC
86,955
82,634
78,312
73,991
70,288
66,464
64,202
59,603
55,005
46,372
42,78921
                         Control of Air Pollution From Motor Vehicles: Tier 3 Motor Vehicle Emission and Fuel Standards (79 FR 23414, April 28, 2014); Control of Hazardous Air Pollutants From Mobile Sources (72 FR 8428, February 26, 2007); Control of Air Pollution from New Motor Vehicles: Heavy-Duty Engine and Vehicle Standards and Highway Diesel Fuel Sulfur Control Requirements (66 FR 5002, January 18, 2001); Control of Emissions of Air Pollution From Nonroad Diesel Engines and Fuel (69 FR 38957, June 29, 2004); Control of Emissions of Air Pollution From Locomotive Engines and Marine Compression-Ignition Engines Less Than 30 Liters per Cylinder (73 FR 25098, May 6, 2008); Control of Emissions From Nonroad Spark-Ignition Engines and Equipment (73 FR 59034, October 8, 2008); Control of Emissions From New Marine Compression-Ignition Engines at or Above 30 Liters per Cylinder (75 FR 22895, April 30, 2010); Control of Air Pollution From Aircraft and Aircraft Engines, Emission Standards and Test Procedures (77 FR 36342, June 18, 2012).
 The large decrease in NOX
                     emissions between 2016 emissions and projected 2023 emissions in Florida, Georgia, North Carolina, and South Carolina are primarily driven by reductions in emissions from onroad and nonroad mobile sources. As shown by the mobile source emissions trends in Table 3, EPA projects that both VOC and NOX
                     emissions will continue declining out to 2023 as newer vehicles and engines that are subject to the most recent, stringent mobile source standards replace older vehicles and engines.21 In summary, based on the projected downward trend in projected future emissions trends, in combination with the historical decline in actual emissions, there is no evidence to suggest that the overall emissions trend demonstrated in Table 2 would suddenly reverse or spike in 2021 compared to historical emissions levels or those projected for 2023. Further, there is no evidence that the projected ozone precursor emissions trends beyond 2021would not continue to show a decline in emissions.[22] This downward trend in emissions in Florida, Georgia, North Carolina, and South Carolina adds support to the air quality analysis presented above and indicates that the contributions from emissions from sources in Florida, Georgia, North Carolina, and South Carolina to ozone receptors in downwind states will continue to decline and remain below one percent of the 2015 8-hour ozone NAAQS. Thus, based on this supplemental analysis, EPA continues to propose to conclude that the air quality and emissions analyses indicate that emissions from Florida, Georgia, North Carolina, and South Carolina will not significantly contribute to nonattainment or interfere with maintenance of the 2015 8-hour ozone NAAQS in any other state. III. Supplemental Proposed Actions In its December 30, 2019, NPRM, EPA originally proposed to find that emissions from sources in Florida, Georgia, North Carolina, and South Carolina will not significantly contribute to nonattainment or interfere with maintenance of the 2015 8-hour ozone NAAQS in any other state based on information for the analytic year 2023, consistent with the 2024 Moderate area attainment date. Thus, EPA proposed to approve the interstate transport portions of the infrastructure SIP submissions from Florida, Georgia, North Carolina, and South Carolina as meeting CAA section 110(a)(2)(D)(i)(I) requirements for the 2015 8-hour ozone NAAQS.[23]*See*84 FR 71854. The analysis presented in this notice provides a new primary basis for approval to supplement EPA's proposed finding in the December 30, 2019, NPRM. EPA continues to propose to find that emissions from sources in Florida, Georgia, North Carolina, and South Carolina will not significantly contribute to nonattainment or interfere with maintenance of the 2015 8-hour ozone NAAQS in any other state. Thus, EPA continues to propose to approve the interstate transport portions of the infrastructure SIP submissions from Florida, Georgia, North Carolina, and South Carolina as meeting CAA section 110(a)(2)(D)(i)(I) requirements for the 2015 8-hour ozone NAAQS. IV. Statutory and Executive Order Reviews Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 
                    *See*42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. These actions merely propose to approve state law as meeting Federal requirements and do not impose additional requirements beyond those imposed by state law. For that reason, these proposed actions: Are not significant regulatory actions subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
                Do not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 
                    *et seq.*);
                Are certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 
                    *et seq.*);
                Do not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub.  L. 104-4);
                Do not have Federalism implications as specified inExecutive Order 13132 (64 FR 43255, August 10, 1999);
                Are not economically significant regulatory actions based on health or safety risks subject toExecutive Order 13045 (62 FR 19885, April 23, 1997);
                Are not significant regulatory actions subject toExecutive Order 13211 (66 FR 28355, May 22, 2001);
                Are not subject to requirements of Section 12(d) of the National( print page 37948)
                    Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
                Do not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, underExecutive Order 12898 (59 FR 7629, February 16, 1994). The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law. For South Carolina, because this proposed action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law, this action for the state of South Carolina does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). Therefore, this proposed action will not impose substantial direct costs on Tribal governments or preempt Tribal law. The Catawba Indian Nation Reservation is located within the boundary of York County, South Carolina. Pursuant to the Catawba Indian Claims Settlement Act, S.C. Code Ann. 27-16-120 (Settlement Act), “all state and local environmental laws and regulations apply to the Catawba Indian Nation and Reservation and are fully enforceable by all relevant state and local agencies and authorities.” The Catawba Indian Nation also retains authority to impose regulations applying higher environmental standards to the Reservation than those imposed by state law or local governing bodies, in accordance with the Settlement Act. List of Subjects in 40 CFR Part 52 Environmental protection
Air pollution control
Intergovernmental relations
Nitrogen dioxide
Ozone
Reporting and recordkeeping requirements
Volatile organic compounds
 Authority:
                    42 U.S.C. 7401 
                        *et seq* Dated: July 12, 2021. John Blevins, Acting Regional Administrator, Region 4.


# Footnotes

1.
    
                         The submittals from these six southeastern states were submitted separately under the following cover letters: Alabama Department of Environmental Management dated August 20, 2018 (received by EPA on August 27, 2018); Florida Department of Environmental Protection dated September 18, 2018 (received by EPA on September 26, 2018); Georgia Environmental Protection Division dated September 19, 2018 (received by EPA on September 24, 2018); North Carolina Department of Environmental Quality dated September 27, 2018 (received by EPA October 10, 2018); South Carolina Department of Health and Environmental Control dated and received by EPA on September 7, 2018; and Tennessee Department of Environment and Conservation dated September 13, 2018 (received by EPA on September 17, 2018). Back to Citation
 2.
    
                         On March 24, 2020, former EPA Region 4 Administrator Mary Walker signed a document (hereinafter referred to as the March 24, 2020 document) that EPA intended to become a final rule upon publication in the 
                        **Federal Register**
                        . However, the March 24, 2020 document was never published in the 
                        **Federal Register**
                        . Further, on January 19, 2021, former EPA Region 4 Administrator Mary Walker signed a document (hereinafter referred to as the January 19, 2021 document), which EPA posted to its website at 
                        *https://www.epa.gov/​air-quality-implementation-plans/​epas-approval-2015-8-hour-ozone-interstate-transport-requirements.*
                         EPA noted in that posting “Notwithstanding the fact that the EPA is posting a pre-publication version, the final rule will not be promulgated until published in the 
                        **Federal Register**
                        .” EPA will not publish either the March 24, 2020 document or the January 19, 2021 document in the 
                        **Federal Register**
                        ; therefore, neither document will result in a final rule. Back to Citation
 3.
    
                         
                        *See*
                         Revised CSAPR Update, 86 FR 23054; 
                        *see also*
                         Emissions Modeling TSD titled “Preparation of Emissions Inventories for the 2016v1 North American Emissions Modeling Platform.” This TSD is available in the docket for this proposed action and at 
                        *https://www.epa.gov/​air-emissionsmodeling/​2016v1-platform.*
                         The underlying modeling files are available on data drives in the Docket office for public review. 
                        *See*
                         the docket for the Revised CSAPR Update (EPA-HQ-OAR-2020-0272). See also in the docket for this supplemental proposal the document titled 
                        *Air Quality Modeling Data Drives_Final RCU.pdf*
                         for a file inventory and instructions on how to access the modeling files. Back to Citation
 4.
    
                         
                        *See*86 FR 23054. Back to Citation
 5.
    
                         EPA notes that the court in 
                        *Maryland*
                         did not have occasion to evaluate circumstances in which EPA may determine that an upwind linkage to a downwind air quality problem exists at steps 1 and 2 of the four-step 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 a certain degree of flexibility in effectuating the implementation of the Good Neighbor provision. Such circumstances are not at issue in this proposed action. Back to Citation
 6.
    
                         The December 30, 2019, NPRM incorrectly referred to the 2015 8-hour ozone NAAQS Marginal attainment date as August 2, 2021, and the Moderate attainment date as August 2, 2024. 
                        *See*84 FR 71857. Back to Citation
 7.
    
                         EPA recognizes that Florida, Georgia, North Carolina, and South Carolina as well as other states may have been influenced by EPA's 2018 guidance memoranda (issued prior to the 
                        *Wisconsin*
                         and 
                        *Maryland*
                         decisions) in making Good Neighbor submissions that relied on EPA's modeling of 2023. When there are intervening changes in relevant law or legal interpretation of CAA requirements, states are generally free to withdraw, supplement, and/or re-submit their SIP submissions with new analysis (in compliance with CAA procedures for SIP submissions). While Florida, Georgia, North Carolina, and South Carolina have not done this, as explained in this section, EPA's proposed independent analysis concludes that the states' submissions in this instance are approvable. Back to Citation
 8.
    
                         While EPA has focused its analysis in this notice on the year 2021, the Revised CSAPR Update modeling data in years 2023 and 2028 confirm that no new linkages to downwind receptors are projected for these states in later years. EPA notes this is consistent with an overall, long-term downward trend in emissions from these states. 
                        *See*
                         Revised CSAPR Update, 86 FR 23054; 
                        *see also*
                         Air Quality Modeling Technical Support Document for the final Revised Cross-State Air Pollution Rule Update,” available in the docket for this proposed action and at 
                        *https://www.epa.gov/​csapr/​revised-cross-state-air-pollution-rule-update.*
                         The results of this modeling are included in a spreadsheet in the docket for this proposed action titled “Ozone Design Values and Contributions for the Revised CSAPR Update.xlsx”. Back to Citation
 9.
    
                         
                        *See*81 FR 74504 (October 26, 2016). The Revised CSAPR Update also used this approach. 
                        *See*86 FR 23054 (April 30, 2021). 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 913-914 (affirming as reasonable EPA's approach to defining nonattainment in CAIR). Back to Citation
 10.
    
                         
                        *See*76 FR 48208 (August 8, 2011). The CSAPR Update and Revised CSAPR Update also used this approach. 
                        *See*81 FR 74504 (October 26, 2016) and 86 FR 23054 (April 30, 2021). Back to Citation
 11.
    
                         Further, as recognized by the court in 
                        *Wisconsin,*
                         938 F.3d at 320, nonattainment areas that do not measure an exceedance of the level of the standard in a given year, even if not sufficient to be redesignated to attainment based on the three-year design value, may qualify for up to two one-year extensions of their attainment dates, as provided at CAA section 181(a)(5). Thus, simply providing the value that would be needed in 2020 in order for an area to be designated to attainment using the three-year average does not present a complete picture of the likelihood that an area will be “reclassified” or “bumped-up.” Back to Citation
 12.
    
                         “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, available at 
                        *https://www.epa.gov/​sites/​production/​files/​2018-03/​documents/​transport_​memo_​03_​27_​18_​1.pdf*
                         and available in the docket for this SNPRM. Back to Citation
 13.
    
                         
                        *See*86 FR 23054. The results of this modeling are included in a spreadsheet in the docket for this proposed action titled 
                        *Ozone Design Values and Contributions Revised CSAPR Update.xlsx.*
                         The underlying modeling files are available on data drives in the Docket office for public review under the docket for the Revised CSAPR Update (EPA-HQ-OAR-2020-0272). 
                        *See*
                         also in the docket for this proposed action the document titled 
                        *Air Quality Modeling Data Drives_Final RCU.pdf*
                         for a file inventory and instructions on how to access the modeling files. Back to Citation
 14.
    
                         
                        *See*
                         “Air Quality Modeling Technical Support Document for the Revised Cross-State Air Pollution Rule Update,” available in the docket for this supplemental proposal and at 
                        *https://www.epa.gov/​csapr/​revised-cross-state-air-pollution-rule-update.*
                         This TSD was originally developed to support EPA's action in the Revised CSAPR Update, as relating to outstanding Good Neighbor obligations under the 2008 8-hour ozone NAAQS. While developed in this separate context, the data and modeling outputs, including interpolated design values for 2021, may be evaluated with respect to the 2015 8-hour ozone NAAQS and used in support of this supplemental proposed action. Back to Citation
 15.
    
                         This supplemental proposal relies on the same contribution threshold of one percent of the NAAQS proposed in the December 30, 2019, NPRM. 
                        *See*85 FR 68964. Back to Citation
 16.
    
                         
                        *See*
                         data file titled 
                        *Ozone Design Values and Contributions Revised CSAPR Update.xlsx*
                         in the docket for this SNPRM. Back to Citation
 17.
    
                         
                        *See*81 FR 74504, 74513-14. Back to Citation
 22.
    
                         EPA's normal practice is to only include changes in emissions from final regulatory actions in its modeling because, until such rules are finalized, any potential changes in NOX
                         or VOC emissions are speculative. Back to Citation
 23.
    
                         As mentioned in Section I above, EPA is deferring action on Alabama's and Tennessee's Good Neighbor infrastructure SIP submittals at this time. Back to Citation


[FR Doc. 2021-15097 Filed 7-16-21; 8:45 am] BILLING CODE 6560-50-P