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 Environmental Protection Agency 40 CFR Part 52
[EPA-R09-OAR-2022-0138; EPA-HQ-OAR-2021-0663; FRL-9799-01-R9]
 AGENCY: Environmental Protection Agency (EPA).
 ACTION: Proposed rule.
 SUMMARY: Pursuant to the Clean Air Act (CAA or “Act”), the Environmental Protection Agency (EPA) is proposing to disapprove a state implementation plan (SIP) submittal from Nevada addressing interstate transport for the 2015 8-hour ozone national ambient air quality standards (NAAQS). The “good neighbor” or “interstate transport” provision of the Act 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: *Comments:*
                         Written comments must be received on or before July 25, 2022.
 ADDRESSES: You may send comments, identified as Docket No. EPA-R09-OAR-2022-0138, 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 
                        *kelly.thomasp@epa.gov.*
                         Include Docket ID No. EPA-R09-OAR-2022-0138 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.
 FOR FURTHER INFORMATION CONTACT: Tom Kelly, Air Planning Office (AIR-2), U.S. Environmental Protection Agency, Region IX, (415) 972-3856, 
                        *kelly.thomasp@epa.gov.*


SUPPLEMENTARY INFORMATION: *Public Participation:*
                     Submit your comments, identified by Docket ID No. EPA-R09-OAR-2022-0138, 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-R09-OAR-2022-0138 and EPA-HQ-OAR-2021-0663. Docket No. EPA-R09-OAR-2022-0138 contains information specific to Nevada, 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 that are being used to support this action. All comments regarding information in either of these dockets are to be made in Docket No. EPA-R09-OAR-2022-0138. For additional submission methods, if you need assistance in a language other than English, or if you are a person with disabilities who needs a reasonable accommodation at no cost to you, please contact Tom Kelly, (415) 972-3856, 
                    *kelly.thomasp@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-epa-dockets.* The index to the docket for this action, Docket No. EPA-R09-OAR-2022-0138, is available electronically at 
                    *https://www.regulations.gov.*
                     While all documents in the docket are listed in the index, some information may not be publicly available due to docket file size restrictions or content (
                    *e.g.,*
                     CBI). Throughout this document, “we,” “us,” and “our” means the EPA. Table of Contents I. Background A. Description of Statutory Background B. Description of the EPA's Four Step Interstate Transport Regulatory Process C. Background on the EPA's Ozone Transport Modeling Information D. The EPA's Approach To Evaluating Interstate Transport SIPs for the 2015 8-Hour Ozone NAAQS II. SIP Submission Addressing Interstate Transport of Air Pollution for the 2015 8-Hour Ozone NAAQS III. EPA Evaluation A. Evaluation of Information Provided by Nevada Regarding Steps 1 and 2 B. Results of the EPA's Step 1 and Step 2 Modeling and Findings for Nevada C. Evaluation of Information Provided Regarding Step 3 D. Evaluation of Information Provided Regarding Step 4 E. Conclusion IV. Proposed Action V. Statutory and Executive Order Reviews I. Background A. Description of Statutory Background On October 1, 2015, the EPA promulgated a revision to the 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 so-called “prongs” within CAA 
                    ( print page 31486)
                    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 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 (“PM2.5
                    ”) standards,[4]
                    
                     and the 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 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 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 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 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 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 framework, and considerations for identifying downwind areas that may have problems maintaining the standard at Step 1 of the 4-step framework.[13] Since the release of the modeling data shared in the March 2018 
                    ( print page 31487)
                    memorandum, the EPA performed updated modeling using a 2016-based emissions modeling platform (
                    *i.e.,*
                     2016v1). This emissions platform was developed under the EPA/Multi-Jurisdictional 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 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, is described in the emissions modeling technical support document (TSD) for this proposed rule.[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 notice and the Air Quality Modeling TSD for 2015 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 notice, 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-R09-OAR-2022-0138. Comments are not 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. In Section III we evaluate how Nevada used air quality modeling information in their submission. 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 regional-scale 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 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, the 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 the 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 are we 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 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 
                    ( print page 31488)
                    contribution threshold, and multifactor control strategy assessment. 1. Selection of Analytic Year In general, 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 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. The EPA interprets the court's holding in 
                    *Maryland*
                     as requiring the states and 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; 
                    *see also Wisconsin,*
                     938 F.3d at 322. It would not make sense to analyze air quality, contribution levels, or emissions control strategies for the 2021 attainment date, for purposes of interstate transport obligations, when no emissions reductions, if shown to be needed, could be implemented by that date anyway.[26]
                    
                     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 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.*[27] 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).[28] 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 
                    ( print page 31489)
                    in 
                    *EME Homer City Generation, L.P.*
                     v. 
                    *EPA,*
                     795 F.3d 118, 136 (D.C. Cir. 2015).[29]
                    
                     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 base 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, vertical mixing, insolation, and 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 for the purpose of evaluating a state's contribution to nonattainment or maintenance of the 2015 8-hour ozone NAAQS (
                    *i.e.,*
                     0.70 ppb) at downwind receptors. This is consistent with the Step 2 approach that the 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. results from the combined impact of relatively small contributions from many upwind states, along with contributions from in-state 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 rule 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 74504 at 74518. 
                    *See also*86 FR 23054 at 23085, reviewing and explaining rationale from CSAPR, 76 FR 48208 at 48237-38, 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. a. EPA's Experience With Alternative Step 2 Thresholds 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. The EPA here shares further evaluation of its experience since the issuance of the August 2018 memorandum regarding use of alternative thresholds at Step 2. This experience leads the Agency to now believe it may not be appropriate to continue to attempt to recognize alternative contribution thresholds at Step 2. The August 2018 memorandum stated that “it may be reasonable and appropriate” for states to rely on an alternative threshold of 1 ppb threshold at Step 2.[30]
                    
                     (The memorandum also indicated that any higher alternative threshold, such as 2 ppb, would likely not be appropriate.) However, the EPA also provided that “air agencies should 
                    ( print page 31490)
                    consider whether the recommendations in this guidance are appropriate for each situation.” Following receipt and review of 49 good neighbor SIP submittals for the 2015 8-hour ozone NAAQS, the EPA's experience has been that nearly every state that attempted to rely on a 1 ppb threshold did not provide sufficient information and analysis to support a determination that an alternative threshold was reasonable or appropriate for that state. For instance, in nearly all submittals, the states did not provide the EPA with analysis specific to their state or the receptors to which its emissions are potentially linked. In one case, the proposed approval of Iowa's SIP submittal, the EPA expended its own resources to attempt to supplement the information submitted by the state, in order to more thoroughly evaluate the state-specific circumstances that could support approval.[31]
                    
                     It was at the EPA's sole discretion to perform this analysis in support of the state's submittal, and the Agency is not obligated to conduct supplemental analysis to fill the gaps whenever it believes a state's analysis is insufficient. The Agency no longer intends to undertake supplemental analysis of SIP submittals with respect to alternative thresholds at Step 2 for purposes of the 2015 8-hour ozone NAAQS. Furthermore, the EPA's experience since 2018 is that allowing for alternative Step 2 thresholds may be impractical or otherwise inadvisable for a number of additional policy reasons. For a regional air pollutant such as ozone, consistency in requirements and expectations across all states is essential. Based on its review of submittals to date and after further consideration of the policy implications of attempting to recognize an alternative Step 2 threshold for certain states, the Agency now believes the attempted use of different thresholds at Step 2 with respect to the 2015 8-hour ozone NAAQS raises substantial policy consistency and practical implementation concerns.[32]
                    
                     The availability of different thresholds at Step 2 has the potential to result in inconsistent application of good neighbor obligations based solely on the strength of a state's implementation plan submittal at Step 2 of the 4-step interstate transport framework. From the perspective of ensuring effective regional implementation of good neighbor obligations, the more important analysis is the evaluation of the emissions reductions needed, if any, to address a state's significant contribution after consideration of a multifactor analysis at Step 3, including a detailed evaluation that considers air quality factors and cost. Where alternative thresholds for purposes of Step 2 may be “similar” in terms of capturing the relative amount of upwind contribution (as described in the August 2018 memorandum), nonetheless, use of an alternative threshold would allow certain states to avoid further evaluation of potential emission controls while other states must proceed to a Step 3 analysis. This can create significant equity and consistency problems among states. Further, it is not clear that national ozone transport policy is best served by allowing for less stringent thresholds at Step 2. The EPA recognized in the August 2018 memorandum that there was some similarity in the amount of total upwind contribution captured (on a nationwide basis) between 1 percent and 1 ppb. However, the EPA notes that while this may be true in some sense, that is hardly a compelling basis to move to a 1 ppb threshold. Indeed, the 1 ppb threshold has the disadvantage of losing a certain amount of total upwind contribution for further evaluation at Step 3 (
                    *e.g.,*
                     roughly 7 percent of total upwind state contribution was lost according to the modeling underlying the August 2018 memorandum; [33]
                    
                     in the EPA's updated modeling, the amount lost is 5 percent). Considering the core statutory objective of ensuring elimination of all significant contribution to nonattainment or interference of the NAAQS in other states and the broad, regional nature of the collective contribution problem with respect to ozone, there does not appear to be a compelling policy imperative in allowing some states to use a 1 ppb threshold while others rely on a 1 percent of the NAAQS threshold. Consistency with past interstate transport actions such as CSAPR, and the CSAPR Update and Revised CSAPR Update rulemakings (which used a Step 2 threshold of 1 percent of the NAAQS for two less stringent ozone NAAQS), is also important. Continuing to use a 1 percent of NAAQS approach ensures that as the NAAQS are revised and made more stringent, an appropriate increase in stringency at Step 2 occurs, so as to ensure an appropriately larger amount of total upwind-state contribution is captured for purposes of fully addressing interstate transport. See 76 FR 48208, 48237-38 (August 8, 2011). Therefore, notwithstanding the August 2018 memorandum's recognition of the potential viability of alternative Step 2 thresholds, and in particular, a potentially applicable 1 ppb threshold, the EPA's experience since the issuance of that memorandum has revealed substantial programmatic and policy difficulties in attempting to implement this approach. Nonetheless, the EPA is not at this time rescinding the August 2018 memorandum. As discussed further below in Section III, the basis for disapproval of the Nevada SIP submission with respect to the Step 2 analysis is, in the Agency's view, warranted even under the terms of the August 2018 memorandum. The EPA invites comment on this broader discussion of issues associated with alternative thresholds at Step 2. Depending on comment and further evaluation of this issue, the EPA may determine to rescind the August 2018 memorandum in the future. 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 
                    ( print page 31491)
                    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 well-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, costs, cost effectiveness, and downwind air quality impacts of the estimated reductions, before concluding that no additional emissions controls should be required.[34] 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 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. SIP Submission Addressing Interstate Transport of Air Pollution for the 2015 8-Hour Ozone NAAQS In Nevada, the Nevada Division of Environmental Protection (NDEP or “State”) is the state agency responsible for the adoption and submission to the EPA of Nevada SIPs and SIP revisions. NDEP submitted Nevada's infrastructure SIP revision for the 2015 ozone NAAQS on October 1, 2018 (“Nevada's 2018 SIP submission” or “submittal”).[35]
                    
                     We find this submittal meets the applicable completeness criteria in Appendix V to 40 CFR part 51. We are proposing to act on Nevada's Infrastructure SIP Submittals. Nevada's 2018 SIP submission included information from the two other agencies that regulate air quality in Nevada: The Clark County Department of Air Quality [36]
                    
                     and the Washoe County Health District Air Quality Management Division.[37] The NDEP portion of Nevada's 2018 SIP submission addressed the good neighbor provisions of the CAA on page 9 of the submittal and in Appendix E.[38]
                    
                     The NDEP analysis is reiterated in the Clark County and Washoe County portions of Nevada's 2018 SIP submission, which did not include a separate transport evaluation but instead includes NDEP's analysis verbatim.[39]
                    
                     We refer to the collective information on good neighbor provisions as the “the NDEP analysis.” The NDEP analysis concludes the state does not contribute to nonattainment or interfere with maintenance of the 2015 ozone NAAQS in any other state. This determination is based on the modeling results contained in EPA's March 2018 memorandum. The NDEP analysis further states, “Nevada commits to continue to review new air quality information as it becomes available to ensure that this negative declaration is still supported by such information.” [40] The NDEP analysis follows the 4-step framework to analyze its impact on other states. In Step 1, NDEP identified the nonattainment and maintenance monitors identified in the modeling results for 2023 released with the March 2018 memorandum, which included a total of forty-five nonattainment monitors and twenty maintenance receptors.[41] In conducting Step 2, the NDEP analysis relied on the contribution modeling released with the March 2018 memorandum.[42]
                    
                     NDEP also states that the State does not support the use of a 1 percent of the NAAQS screening level to determine potentially significant contributions in the CSAPR for western states. However, the NDEP analysis described the screening threshold as a “very conservative approach since interstate contributions in the West are relatively small, especially given the large contributions from background and intrastate emissions.” [43]
                    
                     The NDEP analysis cited an EPA memorandum on significant impact levels for ozone and PM2.5
                     in prevention of significant deterioration (PSD) permitting [44]
                    
                     as “further evidence that the CSAPR screening threshold is a conservative approach to identify contributing upwind states.” [45]
                    
                     Despite this, the 2018 Nevada submittal utilized a 1 percent of the NAAQS threshold at Step 2.[46] While 
                    
                    the NDEP analysis contained concerns about the use of the CSAPR screening level (1 percent of the NAAQS) in western states, it expressed confidence in the EPA's contribution modeling, stating, “contribution modeling is the best available data with which to conduct Nevada's transport analysis,” and contribution modeling “is state-of-the-science given the USEPA's constraints.” [47]
                     Based on the EPA's contribution modeling results released in the March 2018 memorandum, Nevada's 2018 submittal concluded that the largest contribution from Nevada to a nonattainment or 
                    ( print page 31492)
                    maintenance receptors in another state in 2023 was 0.9 percent of the 2015 ozone NAAQS.[48] Nevada's 2018 SIP submission also referenced its own comment letters and those of the Western States Air Resources Council on the EPA ozone transport proposed rules, proposed changes to modeling guidance, modeling white papers, and interstate transport models. Based on its conclusion that emissions sources in Nevada do not contribute above 1 percent of the NAAQS to any nonattainment and maintenance receptors, according to the modeling results contained in the EPA's March 2018 memorandum, NDEP, Washoe County, and Clark County determined that identification of necessary emissions reductions at Step 3 of the EPA's 4-step interstate transport framework is not needed.[49]
                    
                     Accordingly, NDEP, Washoe County, and Clark County did not address reduction of upwind emissions at Step 4 of the interstate transport framework.[50] III. EPA Evaluation The EPA is proposing to find that Nevada's 2018 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 based on the EPA's evaluation of the SIP submission using the 4-step interstate transport framework. The EPA is therefore proposing to disapprove Nevada's 2018 SIP submission. A. Evaluation of Information provided by Nevada Regarding Steps 1 and 2 At Step 1 of the 4-Step interstate transport framework, Nevada relied on EPA modeling released in the March 2018 memorandum to identify nonattainment and maintenance receptors in 2023. Since new modeling has been performed by the EPA with updated emissions data, the EPA proposes to primarily rely on the most recent modeling to identify nonattainment and maintenance receptors in 2023. Nonetheless, the NDEP analysis also identified a number of nonattainment and maintenance receptor sites in 2023 using the EPA's older modeling.[51] At Step 2 of the 4-step interstate transport framework, Nevada relied on EPA modeling released in the March 2018 memorandum to identify upwind state linkages to nonattainment and maintenance receptors in 2023. Based on this, the analysis concluded that Nevada would contribute below 1 percent of the NAAQS to receptors in 2023 and was therefore not “linked” to any other state.[52]
                    
                     However, in this proposal, the EPA relies on the Agency's most recently available modeling, which uses a more recent base year and more up-to-date emissions inventories, to identify upwind contributions and “linkages” to downwind air quality problems in 2023 using a threshold of 1 percent of the NAAQS. As shown in Table 1 (and explained in III.B below), the updated EPA modeling identifies Nevada's maximum contribution to a downwind nonattainment or maintenance receptor to be greater than 1 percent of the standard (
                    *i.e.,*
                     greater than 0.70 ppb). Because the entire technical basis for the State's submittal is that the State is not linked at Step 2, the EPA proposes to disapprove the SIP submission based on the EPA's finding that such a linkage does exist. Although the State did not rely on the 1 ppb threshold in its SIP submittal, the EPA recognizes that the most recently available EPA modeling at the time the State submitted its SIP submittal indicated the State did not contribute above 1 percent of the NAAQS to a projected downwind nonattainment or maintenance receptor. Therefore, the State may not have considered analyzing the reasonableness and appropriateness of a 1 ppb threshold at Step 2 of the 4-step interstate transport framework per the August 2018 memorandum. However, the EPA's August 2018 memorandum provided that whether use of a 1 ppb threshold is appropriate must be based on an evaluation of state-specific circumstances, and no such evaluation was included in the State's submittal. The EPA's experience with the alternative Step 2 threshold is discussed in Section I.D.3. As discussed there, the EPA is considering withdrawing the August 2018 memorandum. The NDEP analysis mentions the EPA's memorandum titled “Guidance on Significant Impact Levels for Ozone and Fine Particles in the Prevention of Significant Deterioration Permitting Program” (“SILs Guidance”) without specifically proposing the replacement of the screening threshold for interstate transport (1 percent of the NAAQS) with the screening level in the guidance (1 ppb).[53]
                    
                     Even so, because the SILs Guidance is mentioned, we wish to clarify that it relates to a different provision of the CAA regarding implementation of the Prevention of Significant Deterioration (PSD) permitting program, 
                    *i.e.,*
                     a program that applies in areas that have been designated attainment of the NAAQS, and it is not applicable to the good neighbor provision, which requires states to eliminate significant contribution or interference with maintenance of the NAAQS at known and ongoing air quality problem areas in other states. B. Results of the EPA's Step 1 and Step 2 Modeling and Findings for Nevada As described in section I.B, 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 Nevada contributes at or above the threshold of 1 percent of the 2015 8-hour ozone NAAQS (0.70 ppb) to any downwind nonattainment or maintenance receptor. As shown in Table 1, the data [54]
                    
                     indicate that in 2023, emissions from Nevada contribute greater than 1 percent of the standard to nonattainment or maintenance-only receptors in Salt Lake County and Davis County, Utah.[55] 
 
 Table 1—Nevada Linkage Results Based on EPA Updated 2023 Modeling
Receptor ID
Location
Nonattainment/maintenance
2023 Average
                             design value 
                             (ppb)
2023
                             Maximum 
                             design value 
                             (ppb)
Nevada
                             contribution 
                             (ppb)490353006
Salt Lake County
Nonattainment
73.6
75.3
0.89490110004
Davis County
Nonattainment
72.9
75.1
0.86
 Therefore, based on the EPA's evaluation of the information submitted by Nevada, and based on the EPA's most recent modeling results for 2023 using the 2016v2 emission platform, the EPA proposes to find that Nevada 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. C. Evaluation of Information Provided Regarding Step 3 At Step 3 of the 4-step interstate transport framework, a state's emissions are further evaluated, 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 effectively evaluate 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 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, SIPs 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. Nevada did not conduct such an analysis in its SIP submission. The EPA modeling results released with the March 2018 memorandum indicated Nevada would not contribute above 1 percent of the NAAQS to any downwind receptor. Therefore, the NDEP analysis stated it “determined the identification of emissions reductions necessary to prevent Nevada from contributing significantly to downwind air quality problems is moot.” [56]
                    
                     Furthermore, NDEP “commit[ed] to continue to review new air quality information as it becomes available to ensure that this negative declaration is still supported by such information.” [57]
                    
                     However, as mentioned above, the EPA has newly available information that indicates that sources in Nevada are linked to downwind air quality problems for the 2015 ozone standards. We therefore propose that Nevada was required to assess additional emissions control opportunities, and we propose to disapprove its submission because Nevada did not do so. D. 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, Nevada's SIP submission did not contain an evaluation of additional emissions control opportunities (or establish that no additional controls are required), and in fact NDEP analysis explicitly declined to address Step 4.[58]
                    
                     As a result, the EPA proposes to disapprove Nevada's submittal on the separate, additional basis that the State has not developed permanent and enforceable emissions reductions necessary to meet the obligations of CAA section 110(a)(2)(d)(i)(I). E. Conclusion Based on the EPA's evaluation of Nevada's SIP submission, the EPA is proposing to find that Nevada's 2018 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 the portion of Nevada's 2018 SIP submission pertaining to interstate transport of air pollution that will significantly contribute to nonattainment or interfere with maintenance of the 2015 8-hour ozone NAAQS in other states. The following parts of the Nevada SIP submittal, transmitted to the EPA in a letter dated October 1, 2018,[59]
                    
                     comprise the material to be disapproved: The subheading (D)(i) and the text under the subheading on page 9 of the Nevada Division of Environmental Protection Portion of the Nevada State Implementation Plan for the 2015 Ozone NAAQS: Demonstration of Adequacy, dated October 1, 2018;
                Appendix E of the Nevada Division of Environmental Protection Portion of the Nevada State Implementation Plan for the 2015 Ozone NAAQS: Demonstration of Adequacy, dated October 1, 2018;
                The text under the element heading (D)(i)(I) on page 5 of the Clark County Portion of the Nevada State Implementation Plan to Meet the Ozone Infrastructure SIP Requirements of Clean Air Act Section 110(a)(2), Clark( print page 31494)
                    County Department of Air Quality, August 2018;
                Appendix C of the Clark County Portion of the Nevada State Implementation Plan to Meet the Ozone Infrastructure SIP Requirements of Clean Air Act Section 110(a)(2), Clark County Department of Air Quality, August 2018;
                The text under the subheading element (D)(i) on page 4 of the Washoe County Portion of the Nevada State Implementation Plan to Meet the Ozone Infrastructure SIP Requirements of Clean Air Act Section 110(a)(2), adopted by the Washoe County District Board of Health on July 26, 2018.
                Attachment C of the Washoe County Portion of the Nevada State Implementation Plan to Meet the Ozone Infrastructure SIP Requirements of Clean Air Act Section 110(a)(2), adopted by the Washoe County District Board of Health on July 26, 2018. Under CAA section 110(c)(1), disapproval would establish a 2-year deadline for the EPA to promulgate a FIP for Nevada 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 SIP that meets these requirements. Disapproval does not start a mandatory sanctions clock for Nevada. The remaining elements of Nevada's 2018 SIP submission are not addressed in this action and will be acted on in a separate rulemaking. 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 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 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).[60] 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 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 
                    ( print page 31495)
                    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.[61]
                    
                     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).[62] 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: May 16, 2022. Martha Guzman Aceves, Regional Administrator, Region IX.


# Footnotes

1.
    
                         National 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. Back to Citation
 2.
    
                         SIP 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. Back to Citation
 3.
    
                         See 
                        *North Carolina*
                         v. 
                        *EPA,*
                         531 F.3d 896, 909-11 (D.C. Cir. 2008). Back to Citation
 4.
    
                         See Federal Implementation Plans: Interstate Transport of Fine Particulate Matter and Ozone and Correction of SIP Approvals, 76 FR 48208 (August 8, 2011). Back to Citation
 5.
    
                         Cross-State Air Pollution Rule Update for the 2008 Ozone NAAQS, 81 FR 74504 (October 26, 2016). Back to Citation
 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). Back to Citation
 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). Back to Citation
 8.
    
                         See 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). Back to Citation
 9.
    
                         82 FR 1733, 1735. Back to Citation
 10.
    
                         See 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 docket ID No. EPA-HQ-OAR-2021-0663. Back to Citation
 11.
    
                         See 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 docket ID No. EPA-HQ-OAR-2021-0663. Back to Citation
 12.
    
                         The 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-and-comment rulemaking.” Back to Citation
 13.
    
                         See 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 docket ID No. EPA-HQ-OAR-2021-0663. Back to Citation
 14.
    
                         The results of this modeling, as well as the underlying modeling files, are included in docket ID No. EPA-HQ-OAR-2021-0663. Back to Citation
 15.
    
                         See 85 FR 68964, 68981. Back to Citation
 16.
    
                         See 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. Back to Citation
 17.
    
                         Additional details and documentation related to the MOVES3 model can be found at 
                        *https://www.epa.gov/​moves/​latest-version-motor-vehicle-emission-simulator-moves.* Back to Citation
 18.
    
                         See 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. Back to Citation
 19.
    
                         Ramboll Environment and Health, January 2021, 
                        *https://www.camx.com.* Back to Citation
 20.
    
                         March 2018 memorandum, Attachment A. Back to Citation
 21.
    
                         Id. at A-1. Back to Citation
 22.
    
                         Id. Back to Citation
 23.
    
                         For 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). Back to Citation
 24.
    
                         We 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. Back to Citation
 25.
    
                         See 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). Back to Citation
 26.
    
                         Nor does the EPA view 2022 as a reasonable analytic year for a similar reason: It would be impossible to finalize this action and implement any emissions reductions measures that could be shown to be needed by the 2022 ozone season. Thus, 2023 is the appropriate analytic year and also aligns with the next attainment date. Back to Citation
 27.
    
                         See
                        *North Carolina*
                         v. 
                        *EPA,*
                         531 F.3d at 910-11 (holding that the EPA must give “independent significance” to each prong of CAA section 110(a)(2)(D)(i)(I)). Back to Citation
 28.
    
                         See 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 at 25162, 25249 (May 12, 2005); see also 
                        *North Carolina,*
                         531 F.3d at 913-14 (affirming as reasonable EPA's approach to defining nonattainment in CAIR). Back to Citation
 29.
    
                         See 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). Back to Citation
 30.
    
                         See August 2018 memorandum at 4. Back to Citation
 31.
    
                         Air Plan Approval; Iowa; Infrastructure State Implementation Plan Requirements for the 2015 Ozone National Ambient Air Quality Standard, 85 FR 12232 (March 2, 2020). The Agency received adverse comment on this proposed approval and has subsequently formally withdrawn the proposed approval. 87 FR 9477 (Feb. 22, 2022). Back to Citation
 32.
    
                         The EPA notes that Congress has placed on the EPA a general obligation to ensure the requirements of the CAA are implemented consistently across states and regions. See CAA section 301(a)(2). Where the management and regulation of interstate pollution levels spanning many states is at stake, consistency in application of CAA requirements is paramount. Back to Citation
 33.
    
                         See August 2018 memorandum at 4. Back to Citation
 34.
    
                         As 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; CAIR, 70 FR 25162, 25195-229; or the NOX
                         SIP Call, 63 FR 57356, 57399-405. See also Revised CSAPR Update, 86 FR 23054, 23086-23116. Consistently across these rulemakings, the EPA has developed emissions inventories, analyzed different levels of control stringency at different cost thresholds, and assessed resulting downwind air quality improvements. Back to Citation
 35.
    
                         Letter dated October 1, 2018, from Greg Lovato, Administrator, NDEP, to Mike Stoker, Regional Administrator, EPA Region IX, regarding: The Nevada State Implementation Plan for the 2015 Primary and Secondary Ozone NAAQS. Back to Citation
 36.
    
                         Letter dated September 18, 2018, from Mike Sword for Marci Henson, Director of the Clark County Department of Air Quality, regarding: Clark County Portion of the Nevada Infrastructure State Implementation Plan for the 2015 Ozone NAAQS. See Appendix C for the NDEP Ozone Interstate Transport Analysis. Back to Citation
 37.
    
                         Letter dated August 28, 2018, from Charlene Albee, Director Air Quality Management Division, to Greg Lovato, Administrator, NDEP, 2015 regarding: Ozone National Ambient Air Quality Standard Infrastructure State Implementation Plan (SIP). Back to Citation
 38.
    
                         The Nevada Division of Environmental Protection Portion of the Nevada State Implementation Plan for the 2015 Ozone NAAQS: Demonstration of Adequacy, dated October 1, 2018. Back to Citation
 39.
    
                         See (1) Appendix C of the Clark County Portion of the Nevada State Implementation Plan to Meet the Ozone Infrastructure SIP Requirements of Clean Air Act Section 110(a)(2), Clark County Department of Air Quality, August 2018; and (2) Attachment C of the Washoe County Portion of the Nevada State Implementation Plan to Meet the Ozone Infrastructure SIP Requirements of Clean Air Act Section 110(a)(2), adopted by the Washoe County District Board of Health on July 26, 2018. Back to Citation
 40.
    
                         Nevada's 2018 SIP submission, 9. Back to Citation
 41.
    
                         NDEP used the terms nonattainment and maintenance receptors as the EPA defines those terms. See Appendix E, E-2, E-3, and E-4. Back to Citation
 42.
    
                         Appendix E at E-2 and E-3. Back to Citation
 43.
    
                         NDEP Portion of the 2018 Nevada Submittal, E-5. Back to Citation
 44.
    
                         Memorandum dated April 17, 2018, from Peter Tsirigotis, Director, EPA Office of Air Quality Planning and Standards, to Regional Air Division Directors, Regions 1-10, regarding: Guidance on Significant Impact Levels for Ozone and Fine Particles in the Prevention of Significant Deterioration Permitting Program. Back to Citation
 45.
    
                         Appendix E, E-5. Back to Citation
 46.
    
                         Id. at E-10. Back to Citation
 47.
    
                         Id. Back to Citation
 48.
    
                         Id. at E-6 and Attachment A. Specific contributions to nonattainment and maintenance monitors are contained in Table E-A3 (Nevada's Contributions to 2023 Ozone Design Values for Nonattainment and Maintenance Monitors Outside of Nevada). Back to Citation
 49.
    
                         Id. at E-11. Back to Citation
 50.
    
                         Id. Back to Citation
 51.
    
                         Id. at E-3 (Table E1) and E-4 (Table E2). Back to Citation
 52.
    
                         Id. at E-11. Back to Citation
 53.
    
                         Id. at E-4 and E-5 (citing Guidance on Significant Impact Levels for Ozone and Fine Particles in the Prevention of Significant Deterioration Permitting Program. Memorandum from Peter Tsirigotis, Director, EPA Office of Air Quality Planning and Standards, to Regional Air Division Directors, Regions 1-10. April 17, 2018). Back to Citation
 54.
    
                         Design values and contributions at individual monitoring sites nationwide are provided in the file: 2016v2_DVs_state_contributions.xlsx which is included in docket ID No. EPA-HQ-OAR-2021-0663. Back to Citation
 55.
    
                         These 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. That modeling showed that Nevada 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. Back to Citation
 56.
    
                         Submittal, E-11. Back to Citation
 57.
    
                         Nevada's 2018 SIP submission, 9. Back to Citation
 58.
    
                         Id. at E-11. Back to Citation
 59.
    
                         Letter dated October 1, 2018, from Greg Lovato, Administrator, NDEP, to Mike Stoker, Regional Administrator, EPA Region IX, regarding: The Nevada State Implementation Plan for the 2015 Primary and Secondary Ozone NAAQS. Back to Citation
 60.
    
                         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. Back to Citation
 61.
    
                         A 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. Back to Citation
 62.
    
                         The 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 the 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. Back to Citation


[FR Doc. 2022-11151 Filed 5-23-22; 8:45 am] BILLING CODE 6560-50-P