51238 Federal Register / Vol. 82, No. 212 / Friday, November 3, 2017 / Notices 

comments on EISs issued by other 

Federal agencies. EPA’s comment letters 

on EISs are available at: https://

cdxnodengn.epa.gov/cdx-nepa-public/ 

action/eis/search. 

EIS No. 20170213, Final, FHWA, DE, US 

113 North/South Study MillsboroSouth Area, Contact: Ryan 

O’Donoghue (302) 734–2745 

EIS No. 20170214, Draft, USAF, WA, 

KC–46A Main Operating Base #4 

(MOB 4) Beddown, Comment Period 

Ends: 12/18/2017, Contact: Capt 

Matthew Smith (210) 925–3175 

EIS No. 20170215, Final, FRA, TX, 

Texas-Oklahoma Passenger Rail Study 

Service-Level FEIS/ROD, Review 

Period Ends: 12/03/2017, Contact: 

Kevin Wright (202) 493–0845 

EIS No. 20170216, Final, FEMA, NAT, 

National Flood Insurance Program 

Nationwide Programmatic 

Environmental Impact Statement, 

Review Period Ends: 12/03/2017, 

Contact: Bret Gates (202) 646–4133 

EIS No. 20170217, Final, USACE, TX, 

Lower Bois d’Arc Creek Reservoir 

Fannin County Texas, Review Period 

Ends: 12/09/2017, Contact: Andrew 

Commer (918) 669–7400 

EIS No. 20170218, Draft, NMFS, WA, 10 

Salmon and Steelhead Hatchery 

Programs in the Duwamish-Green 

River Basin, Comment Period Ends: 

12/20/2017, Contact: Steve Leider 

(360) 753–4650 

Amended Notices 

EIS No. 20170210, Final, USFS, WY, 

Upper Green River Area Rangeland 

Project, Review Period Ends: 12/11/ 

2017, Contact: Dave Booth (307) 367– 

4326 

Revision to FR Notice Published 10/ 

27/2017; Correcting Lead Agency from 

USFWS to USFS. 

Dated: October 31, 2017. 

Kelly Knight, 

Director, NEPA Compliance Division, Office 

of Federal Activities. 

[FR Doc. 2017–23967 Filed 11–2–17; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[EPA–OAR–2016–0596; FRL–9970–36–OAR] 

RIN 2060–AT22 

Response to December 9, 2013, Clean 

Air Act Section 176A Petition From 

Connecticut, Delaware, Maryland, 

Massachusetts, New Hampshire, New 

York, Pennsylvania, Rhode Island and 

Vermont 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of final action on 

petition. 

SUMMARY: The Environmental Protection 

Agency (EPA) is denying a Clean Air 

Act (CAA) petition filed on December 9, 

2013, by the states of Connecticut, 

Delaware, Maryland, Massachusetts, 

New Hampshire, New York, 

Pennsylvania, Rhode Island and 

Vermont. The petition requested that 

the EPA expand the Ozone Transport 

Region (OTR) by adding the states of 

Illinois, Indiana, Kentucky, Michigan, 

North Carolina, Ohio, Tennessee, West 

Virginia and the areas of Virginia not 

already in the OTR in order to address 

the interstate transport of air pollution 

with respect to the 2008 ozone national 

ambient air quality standards (NAAQS). 

As a result of this denial, the geographic 

scope and requirements of the OTR will 

remain unchanged. However, the EPA 

and states will continue to implement 

programs to address interstate transport 

of ozone pollution with respect to the 

2008 ozone. 

DATES: This final action is effective on 

November 3, 2017. 

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OAR–2016–0596. All 

documents in the docket are listed and 

publicly available at http://

www.regulations.gov. Although listed in 

the index, some information is not 

publicly available, i.e., Confidential 

Business Information or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically in the docket or in hard 

copy at the Docket, EPA/DC, EPA West, 

Room 3334, 1301 Constitution Avenue 

NW., Washington, DC. The Public 

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

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

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744, and the telephone 

number for the Office of Air and 

Radiation Docket and Information 

Center is (202) 566–1742. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Gobeail McKinley, U.S. Environmental 

Protection Agency, Office of Air Quality 

Planning and Standards, Air Quality 

Policy Division, Mail code C539–01, 

Research Triangle Park, NC 27711, 

telephone (919) 541–5246; email at 

mckinley.gobeail@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

Throughout this document, wherever 

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

the U.S. EPA. 

A. How is this action organized? 

The information in this 

SUPPLEMENTARY INFORMATION section of 

this preamble is organized as follows: 

I. General Information 

A. How is this action organized? 

B. Where can I get a copy of this document 

and other related information? 

C. What acronyms, abbreviations and units 

are used in this preamble? 

II. Executive Summary of the EPA’s Decision 

on the CAA Section 176A Petition 

III. Background and Legal Authority 

A. Ozone and Public Health 

B. Sections 176A and 184 of the CAA and 

the OTR Process 

C. Legal Standard for This Action 

D. The CAA Section 176A Petition and 

Related Correspondence 

IV. The EPA’s Decision on the CAA Section 

176A Petition 

A. The CAA Good Neighbor Provisions 

B. The EPA’s Interstate Transport 

Rulemaking Under the Good Neighbor 

Provision 

C. Additional Rules That Reduce NOX and 

VOC Emissions 

D. Summary of Rationale for the Decision 

on the CAA Section 176A Petition 

V. Major Comments on the Proposed Denial 

A. Adequacy of the EPA’s Rationale 

B. Effectiveness of Ozone Precursor 

Emissions Reductions 

C. Efficiency in Addressing Statutory 

Interstate Transport Requirements 

D. Equity Among States 

E. Statutory Intent of CAA Section 176A 

(or 184) 

F. Comments on the 2015 Ozone NAAQS 

VI. Final Action to Deny the CAA Section 

176A Petition 

VII. Judicial Review and Determinations 

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

VIII. Statutory Authority 

B. Where can I get a copy of this 

document and other related 

information? 

In addition to being available in the 

docket, an electronic copy of this action 

will be posted at https://www.epa.gov/ 

ozone-pollution/2008-ozone-nationalambient-air-quality-standards-naaqssection-176a-petitions. 

C. What acronyms, abbreviations and 

units are used in this preamble? 

APA Administrative Procedure Act 

CAA or Act Clean Air Act 

CFR Code of Federal Regulations 

D.C. Circuit United States Court of Appeals 

for the District of Columbia Circuit 

EGU Electric Generating Unit 

EPA U.S. Environmental Protection Agency 

FIP Federal Implementation Plan 

FR Federal Register 

NAAQS National Ambient Air Quality 

Standards 


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1The nine states are Illinois, Indiana, Kentucky, 

Michigan, North Carolina, Ohio, Tennessee, West 

Virginia and Virginia. The parts of northern 

Virginia included in the Washington, DC 

Consolidated Metropolitan Statistical Area are 

already in the OTR. The petition seeks to add the 

remainder of the state of Virginia to the OTR. See 

Response to December 9, 2013, Clean Air Act 

Section 176A Petition From Connecticut, Delaware, 

Maryland, Massachusetts, New Hampshire, New 

York, Pennsylvania, Rhode Island and Vermont, 

Notice of Proposed Action on Petition, 82 FR 6509 

(January 19, 2017). 

2See National Ambient Air Quality Standards for 

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

3See National Ambient Air Quality Standards for 

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

NEI National Emissions Inventory 

NESHAP National Emission Standards for 

Hazardous Air Pollutants 

NOX Nitrogen Oxides 

NSPS New Source Performance Standard 

NSR New Source Review 

OMB Office of Management and Budget 

OTAG Ozone Transport Assessment Group 

OTC Ozone Transport Commission 

OTR Ozone Transport Region 

PM Particulate Matter 

RACT Reasonably Available Control 

Technology 

RTC Response to Comment 

SIP State Implementation Plan 

SO2 Sulfur Dioxide 

VOC Volatile Organic Compound 

II. Executive Summary of the EPA’s 

Decision on the CAA Section 176A 

Petition 

In December 2013, the petitioning 

states of Connecticut, Delaware, 

Maryland, Massachusetts, New 

Hampshire, New York, Pennsylvania, 

Rhode Island and Vermont (petitioners) 

submitted a petition under section 176A 

of the CAA that requests the EPA to 

expand the OTR by adding nine states 

to the region.1 In January 2017, the EPA 

issued a proposal to deny the CAA 

section 176A(a) petition. The agency 

solicited comments on this proposal. 

The EPA received oral testimony from 

17 speakers at a public hearing on the 

proposal on April 13, 2017. The EPA 

also received over 100 comments on the 

proposed denial. This final action 

addresses the major comments the 

agency received. The remaining 

comments are addressed in the 

Response to Comment (RTC) document 

available in the docket for this action. 

In this final action, the EPA is 

denying the petition to expand the OTR. 

In making this decision, the EPA 

reviewed the incoming petition, the 

public comments received, the relevant 

statutory authorities and other relevant 

materials. Section 176A of the CAA 

provides the Administrator with 

discretion to determine whether to 

expand an existing transport region. In 

light of existing control requirements 

both within and outside the OTR, the 

agency’s ongoing implementation of the 

‘‘good neighbor’’ provision (CAA 

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

updates to the Cross State Air Pollution 

Rule (CSAPR), and the emission 

reductions achieved pursuant to federal 

and state programs promulgated 

pursuant to these and other CAA 

authorities, which have improved, and 

will continue to improve, air quality in 

the OTR and throughout the United 

States (U.S.), the EPA denies the section 

176A petition to add states to the OTR 

for the purpose of addressing interstate 

transport of the 2008 ozone NAAQS. 

The EPA believes that other CAA 

provisions (e.g., section 

110(a)(2)(D)(i)(I)) provide a better 

pathway for states and the EPA to 

develop a tailored remedy that is most 

effective for addressing any remaining 

air quality problems for the 2008 ozone 

NAAQS identified by the petitioners. 

The states and the EPA have historically 

and effectively reduced ozone and the 

interstate transport of ozone pollution 

using these other CAA authorities. For 

purposes of addressing interstate 

transport with respect to the 2008 ozone 

NAAQS, the EPA believes that 

continuing its longstanding and 

effective utilization of the existing and 

expected control programs under the 

CAA’s mandatory good neighbor 

provision embodied in section 

110(a)(2)(D)(i)(I) is a more effective 

means of addressing regional ozone 

pollution transport for the areas within 

the OTR that must attain the NAAQS 

than expanding the OTR as requested. 

Furthermore, the EPA believes that 

reliance on these other CAA authorities 

is a more appropriate use of the agency’s 

limited resources. In addition, in light of 

comments asking the agency to look 

more closely at the technical merits of 

the petition, the EPA has reassessed the 

technical information submitted in 

support of the petition, both by 

petitioners and commenters on the 

proposed denial, and finds there to be 

sufficient analytical gaps to justify this 

denial action. Accordingly, the EPA 

denies the CAA section 176A petition 

filed by the nine petitioning states. 

III. Background and Legal Authority 

A. Ozone and Public Health 

Ground-level ozone is not emitted 

directly into the air, but is a secondary 

air pollutant created by chemical 

reactions between oxides of nitrogen 

(NOX) and volatile organic compounds 

(VOCs) in the presence of sunlight. For 

a discussion of ozone-formation 

chemistry, interstate transport issues, 

and health effects, see 82 FR 6511. 

On March 12, 2008, the EPA 

promulgated a revision to the NAAQS, 

lowering both the primary and 

secondary standards to 75 parts per 

billion (ppb).2 On October 1, 2015, the 

EPA strengthened the ground-level 

ozone NAAQS, based on extensive 

scientific evidence about ozone’s effects 

on public health and welfare.3 As stated 

at proposal, this action does not address 

any CAA requirements with respect to 

the 2015 ozone NAAQS. 

B. Sections 176A and 184 of the CAA 

and the OTR Process 

Subpart 1 of title I of the CAA 

includes provisions governing general 

plan requirements for designated 

nonattainment areas. This subpart 

includes provisions providing for the 

development of transport regions to 

address the interstate transport of 

pollutants that contribute to NAAQS 

violations. In particular, section 176A(a) 

of the CAA provides that, on the 

Administrator’s own motion or by a 

petition from the governor of any state, 

whenever the Administrator has reason 

to believe that the interstate transport of 

air pollutants from one or more states 

contributes significantly to a violation of 

the NAAQS in one or more other states, 

the Administrator may establish, by 

rule, a transport region for such 

pollutant that includes such states. The 

provision further provides that the 

Administrator may add any state, or 

portion of a state, to any transport 

region whenever the Administrator has 

reason to believe that the interstate 

transport of air pollutants from such 

state significantly contributes to a 

violation of the standard in the transport 

region. 

Section 176A(b) of the CAA provides 

that when the Administrator establishes 

a transport region, the Administrator 

shall establish an associated transport 

commission, comprised of (at a 

minimum) the following: Governor or 

designee of each state, the EPA 

Administrator or designee, the Regional 

EPA Administrator and an air pollution 

control official appointed by the 

governor of each state. The purpose of 

the transport commission is to assess 

the degree of interstate pollution 

transport throughout the transport 

region and assess control strategies to 

mitigate the interstate pollution 

transport. 

Subpart 2 of title I of the CAA 

includes provisions governing 

additional plan requirements for 

designated ozone nonattainment areas, 

including specific provisions focused on 

the interstate transport of ozone. In 

particular, subpart 2 includes section 


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4Enhanced vehicle I/M programs are required in 

metropolitan statistical areas in the OTR with a 

1990 Census population of 100,000 or more 

regardless of ozone attainment status. 

5See May 16, 2012, Air Quality: Widespread Use 

for Onboard Refueling Vapor Recovery and Stage II 

Waiver, 72 FR 28772 (May 16, 2012). 

6See Nitrogen Oxides Supplement to the General 

Preamble, 57 FR 55622 (November 25, 1992). 

7As stated in the EPA’s I/M rule (November 5, 

1992; 57 FR 52950) and conformity rules 

(November 14, 1995; 60 FR 57179 for transportation 

rules and November 30, 1993; 58 FR 63214 for 

general rules), certain NOX requirements in those 

rules do not apply where the EPA grants an 

areawide exemption under CAA section 182(f). 

8 40 CFR 51.1116. See also 2008 Ozone NAAQS 

Implementation Rule, 80 FR 12264, 12282 (March 

6, 2015). 

184(a), which established a single 

transport region for ozone—the OTR— 

comprised of the states of Connecticut, 

Delaware, Maine, Maryland, 

Massachusetts, New Hampshire, New 

Jersey, New York, Pennsylvania, Rhode 

Island, Vermont and the Consolidated 

Metropolitan Statistical Area that 

includes the District of Columbia and 

certain parts of northern Virginia. 

Section 184(b) of the CAA established 

certain control requirements that each 

state in the OTR is required to 

implement within the state and which 

require certain controls on sources of 

NOX and VOC statewide. Section 

184(b)(1)(A) of the CAA requires OTR 

states to include in their state 

implementation plans (SIPs) enhanced 

vehicle inspection and maintenance (I/ 

M) programs.4 Section 184(b)(2) of the 

CAA requires OTR-state SIPs to subject 

major sources of VOC in ozone transport 

regions to the same requirements that 

apply to major sources in designated 

ozone nonattainment areas classified as 

moderate, regardless of whether the 

source is located in a nonattainment 

area. Thus, the state must adopt rules to 

apply the nonattainment new source 

review (NNSR) (pursuant to CAA 

section 173) and reasonably available 

control technology (RACT) (pursuant to 

section 182(b)(2)) provisions for major 

VOC sources statewide. Section 

184(b)(2) of the CAA further provides 

that, for purposes of implementing these 

requirements, a major stationary source 

shall be defined as one that emits or has 

the potential to emit at least 50 tons per 

year of VOCs. Under CAA section 

184(b)(2), states must also implement 

Stage II vapor recovery programs, 

incremental to Onboard Refueling Vapor 

Recovery achievements, or measures 

that achieve comparable emissions 

reductions, for both attainment and 

nonattainment areas.5

Section 182(f) requires states to apply 

the same requirements to major 

stationary sources of NOX as are applied 

to major stationary sources of VOC 

under subpart 2. Thus, the same NNSR 

and RACT requirements that apply to 

major stationary sources of VOC in the 

OTR also apply to major stationary 

sources of NOX.6 While NOX emissions 

are necessary for the formation of ozone 

in the lower atmosphere, a local 

decrease in NOX emissions can, in some 

cases, increase local ozone 

concentrations, creating potential ‘‘NOX

disbenefits.’’ Accordingly, CAA section 

182(f) may be exempt from certain 

requirements of the EPA’s motor vehicle 

I/M regulations and from certain federal 

requirements of general and 

transportation conformity.7

Additionally, under section 184(c) of 

the CAA, the OTC may, based on a 

majority vote of the governors on the 

Commission, recommend additional 

control measures not specified in the 

statute to be applied within all or part 

of the OTR if necessary to bring any 

areas in the OTR into attainment by the 

applicable attainment dates. If the EPA 

approves such a recommendation, 

under CAA section 184(c)(5), then the 

Administrator must declare each state’s 

implementation plan inadequate to meet 

the requirements of CAA section 

110(a)(2)(D) and must order the states to 

include the approved control measures 

in their revised plans pursuant to CAA 

section 110(k)(5). If a CAA section 

110(k)(5) finding is issued, then states 

have 1 year to revise their SIPs to 

include the approved measures. 

States included in the OTR by virtue 

of CAA section 184(b)(1) were required 

to submit SIPs to the EPA addressing 

these requirements within 2 years of the 

1990 CAA amendments, or by 

November 15, 1992. Section 184(b)(1) of 

the CAA further provides that if states 

are later added to the OTR pursuant to 

CAA section 176A(a)(1), such states 

must submit SIPs addressing these 

requirements within 9 months after 

inclusion in the OTR. When the ozone 

NAAQS are updated, as occurred in 

2008 and 2015, the OTR states must 

submit RACT SIPs on the same 

timeframe as areas designated as 

nonattainment—classified as Moderate 

or above. For the 2008 ozone NAAQS, 

OTR RACT SIPs were due no later than 

2 years following the effective date of 

area designations (i.e., the SIPs were due 

on July 20, 2014). 8

C. Legal Standard for This Action 

Section 176A(a)(1) of the CAA states 

that the Administrator may add a state 

to a transport region if the 

Administrator has reason to believe that 

emissions from the state significantly 

contribute to a violation of the NAAQS 

within the transport region. For the 

reasons discussed in this section, the 

use of the discretionary term ‘‘may’’ in 

CAA section 176A(a) means that the 

Administrator should exercise 

reasonable discretion in implementing 

the requirements of the CAA with 

respect to interstate pollution transport 

when determining whether or not to 

approve or deny a CAA section 176A 

petition. 

The Administrator’s discretion 

pursuant to CAA section 176A(a) has 

been affirmed by the U.S. Court of 

Appeals for the District of Columbia 

Circuit (D.C. Circuit). In Michigan v. 

EPA, plaintiffs challenged whether the 

EPA may exercise its authority pursuant 

to CAA sections 110(k)(5) and 

110(a)(2)(D) of the statute to address 

interstate transport without first forming 

a transport commission pursuant to 

CAA section 176A(b). 213 F.3d 663, 672 

(2000). The D.C. Circuit held that the 

agency is only required to establish a 

transport commission ‘‘if the agency 

exercises its discretion to create a 

transport region pursuant to section 

176A(a).’’ Id. The court explained that 

‘‘EPA can address interstate transport 

apart from convening a 176A/184 

transport commission as subsection (a) 

provides that EPA ‘may’ establish a 

transport region . . . .’’ Id. Thus, the 

court held that the discretion to create 

a transport region rests with the 

Administrator. So, too, does the 

discretion to add states to or remove 

states from a transport commission. 

Consistent with the Supreme Court’s 

opinion in Massachusetts v. EPA, 549 

U.S. 497 (2007), the D.C. Circuit has 

held that agencies have the discretion to 

determine how to best allocate resources 

in order to prioritize regulatory actions 

in a way that best achieves the 

objectives of the authorizing statute. In 

Defenders of Wildlife v. Gutierrez, the 

court rejected a challenge to the 

National Marine Fisheries Service’s 

(NMFS) denial of a petition for 

emergency rulemaking to impose speed 

restrictions to protect the right whale 

from boating traffic pursuant to section 

553(e) of the Endangered Species Act, 

which requires agencies to ‘‘give an 

interested person the right to petition 

for the issuance, amendment, or repeal 

of a rule.’’ 532 F.3d 913 (DC Cir 2008). 

The NMFS denied the petition on the 

grounds that imposing such restrictions 

would divert resources from, and delay 

development of, a more comprehensive 

strategy for protecting the whale 

population. Id.at 916. The court 

determined that NMFS’s explanation for 

the denial was a reasonable decision to 

focus its resources on a comprehensive 

strategy, which in light of the 

information before the NMFS at the 


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time, was reasoned and adequately 

supported by the record. Id. Similarly, 

in WildEarth Guardians v. EPA, the 

court reviewed the EPA’s denial of a 

petition to list coal mines for regulation 

under CAA section 111(b)(1)(A). 751 

F.3d 651 (D.C. Cir. 2014). Section 

111(b)(1)(A) of the CAA provides that, 

as a means of developing standards of 

performance for new stationary sources, 

the EPA shall, by a date certain publish 

‘‘(and from time to time thereafter shall 

revise) a list of categories of stationary 

sources.’’ (emphasis added) The 

provision provides that the 

Administrator ‘‘shall include a category 

of sources in such list if in his judgment 

it causes, or contributes significantly to, 

air pollution which may reasonably be 

anticipated to endanger public health 

and welfare.’’ The EPA denied the 

petition, explaining that it must 

prioritize its actions in light of limited 

resources and ongoing budget 

uncertainties, and that denial of the 

petition was not a determination as to 

whether coal mines should be regulated 

as a source of air pollutants. 751 F.3d 

at 650. The EPA also noted as part of its 

denial that it might in the future initiate 

a rulemaking to do so. The D.C. Circuit 

held that the language in CAA section 

111(b)(1)(A)—‘‘from time to time’’ and 

‘‘in his judgment’’—means that the 

Administrator may exercise reasonable 

discretion in determining when to add 

new sources to the list of source 

categories, and that such language 

afforded agency officials discretion to 

prioritize sources that are the most 

significant threats to public health to 

ensure effective administration of the 

agency’s regulatory agenda. Id. at 651. In 

each of these cases previously 

discussed, the acting agency has been 

entitled to broad discretion to act on a 

pending petition so long as the agency 

provided a reasoned explanation. 

Notably, as each of these decisions 

focused on the case-specific 

circumstances relied upon by the acting 

agency to deny the pending petition, the 

courts did not speak to whether the 

agency might reach a different 

conclusion under different 

circumstances. Like the statutory 

provisions evaluated by the courts in 

these cases, the term ‘‘may’’ in CAA 

section 176A(a) means that the 

Administrator is permitted to exercise 

reasonable discretion in determining 

when and whether to add new states to 

a transport region. While the 

Administrator must adequately explain 

the facts and policy concerns he relied 

on in acting on the petition and conform 

such reasons with the authorizing 

statute, review of such a decision is 

highly deferential. Thus, the agency is 

entitled to broad discretion when 

determining whether to grant or deny 

such a petition. 

D. The CAA Section 176A Petition and 

Related Correspondence 

On December 9, 2013, the states of 

Connecticut, Delaware, Maryland, 

Massachusetts, New Hampshire, New 

York, Rhode Island and Vermont 

submitted a petition under CAA section 

176A requesting that the EPA add to the 

OTR the states of Illinois, Indiana, 

Kentucky, Michigan, North Carolina, 

Ohio, Tennessee, West Virginia and the 

portion of Virginia currently not within 

the OTR. On December 17, 2013, the 

petition was amended to add the state 

of Pennsylvania as a state petitioner. 

The petitioners submitted a technical 

analysis with their petition, which the 

petitioners contended demonstrates that 

the nine named upwind states 

significantly contribute to violations of 

the 2008 ozone NAAQS in the OTR. The 

petitioners acknowledged and included 

data used to support rulemakings 

promulgated by the EPA that addressed 

interstate transport with respect to both 

the 2008 ozone NAAQS, and prior 

ozone NAAQS, in order to further 

support their request to expand the 

OTR. Moreover, the petitioners 

identified those areas that are 

designated nonattainment with respect 

to the 2008 ozone NAAQS within and 

outside the OTR and conducted a linear 

extrapolation with preliminary 2012 

design values to the year 2015 to predict 

that certain areas outside the OTR will 

continue to be in nonattainment or will 

have difficulty maintaining attainment 

of the NAAQS after the EPA’s 2008 

ozone NAAQS final area designations in 

2012. In addition, the petitioners 

included supplemental modeling, 

which was used to project ozone design 

values to the years 2018 and 2020. The 

petitioners’ 2018 modeling purported to 

show that, with ‘‘on-the-way’’ OTR 

measures, areas within the OTR and 

within non-OTR states would continue 

to have problems attaining the 2008 

ozone NAAQS. Lastly, their 2020 

modeling purported to show that even 

with a 58 percent NOX and 3 percent 

VOC anthropogenic emissions reduction 

over the eastern U.S., there would be 

one area in New Jersey that would 

continue to have trouble maintaining 

the NAAQS. 

The petitioners further noted that the 

OTR states have adopted and 

implemented numerous and 

increasingly stringent controls on 

sources of VOCs and NOX that may not 

currently be required for similar sources 

in the upwind states. Petitioners 

contended that expansion of the OTR to 

include these upwind states will help 

the petitioning states attain the 2008 

ozone NAAQS. The petitioners included 

two case studies that identify the types 

of measures adopted throughout the 

current OTR, including mobile source 

and stationary source control measures 

that have been enacted to reduce 

emissions of NOX and VOCs. The 

petitioners contended that the 

expansion of the OTR is warranted so 

that the downwind states and the 

upwind states can work together to 

address interstate ozone transport for 

the 2008 ozone NAAQS. Also, the 

petitioners asserted that without 

immediate expansion of the OTR, 

attainment of the 2008 ozone NAAQS in 

many areas in the U.S. will remain 

‘‘elusive.’’ 

At the time the petition was 

submitted, the EPA’s then most recent 

effort to address the interstate transport 

of ozone pollution (i.e., CSAPR) was 

subject to litigation in the D.C. Circuit. 

As discussed in more detail later in this 

notice, the EPA issued CSAPR pursuant 

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

in order to address interstate transport 

with respect to the 1997 ozone NAAQS, 

as well as the 1997 and 2006 fine 

particulate matter (PM2.5) NAAQS. 76 

FR 48208 (August 8, 2011). On August 

21, 2012, the D.C. Circuit issued a 

decision in EME Homer City Generation, 

L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012), 

vacating CSAPR based on several 

holdings that would have limited the 

EPA’s authority pursuant to section 

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

submitted the section 176A petition in 

December 2013. Thereafter, on April 29, 

2014, the Supreme Court issued a 

decision reversing the D.C. Circuit’s 

decision and upholding the EPA’s 

interpretation of its authority pursuant 

to CAA section 110. EPA v. EME Homer 

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

(2014). 

Subsequent to the petition being filed, 

states and other stakeholders submitted 

additional information to the agency in 

support of, or, in opposition to, the 

petition. In the January 19, 2017, the 

proposed denial, the EPA summarized 

the correspondence it had received. 

These documents can be found in the 

docket for this action. 

IV. The EPA’s Decision on the CAA 

Section 176A Petition 

At proposal, the EPA explained its 

proposed basis for the denial of the CAA 

section 176A petition. The EPA 

described other authorities provided by 

the CAA for addressing the interstate 

transport of ozone pollution and the 

flexibilities those provisions provide. 


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9The text of CAA section 126 codified in the U.S. 

Code cross references CAA section 110(a)(2)(D)(ii) 

instead of CAA section 110(a)(2)(D)(i). The courts 

have confirmed that this is a scrivener’s error and 

the correct cross reference is to CAA section 

110(a)(2)(D)(i), See Appalachian Power Co. v. EPA, 

249 F.3d 1032, 1040–44 (D.C. Cir. 2001). 

10The EPA has received, but not yet acted upon, 

several CAA section 126 petitions from a number 

of the petitioning states regarding the contribution 

of specific electric generating units (EGUs) to 

interstate ozone transport with respect to the 2008 

and 2015 ozone NAAQS. Petitions have been 

submitted by Connecticut, Delaware, and Maryland. 

The list of EGUs identified in one or more of these 

petitions includes EGUs operating in Indiana, 

Kentucky, Ohio, Pennsylvania and West Virginia. 

The EPA noted its historical use of these 

authorities to address the interstate 

transport of ozone pollution and the 

advantages of those rulemakings for 

addressing current ozone nonattainment 

problems for the 2008 ozone NAAQS. 

The EPA explained that it preferred to 

use these authorities to address the 

remaining interstate transport problems 

with respect to the 2008 ozone NAAQS 

because it believes these authorities 

allow the agency to develop a tailored 

remedy that is most effective for 

addressing any remaining air quality 

problems. Additionally, the EPA 

described other measures that have 

achieved, and will continue to achieve, 

significant reductions in emissions of 

NOX and VOCs resulting in lower levels 

of transported ozone pollution that 

impact attainment and maintenance of 

the 2008 ozone NAAQS. This section 

summarizes the major points setting 

forth the EPA’s reasons for denial of the 

petition. The EPA’s basis for denying 

the petition has not fundamentally 

changed from the proposal; we continue 

to believe that other CAA mechanisms 

are more flexible and effective than 

expanding the OTR (pursuant to section 

176A) for addressing current interstate 

ozone transport issues with respect to 

the 2008 ozone NAAQS. In Section V of 

this notice, and in the RTC document 

included in the docket for this action, 

the agency provides additional 

supporting rationale for its conclusion 

in light of the public comments. 

A. The CAA Good Neighbor Provisions 

The CAA provision that states and the 

EPA have primarily relied on to address 

interstate pollution transport is section 

110(a)(2)(D)(i)(I), often referred to as the 

‘‘good neighbor’’ provision, which 

requires states to prohibit certain 

emissions from in-state sources 

impacting the air quality in other states. 

Specifically, in keeping with the CAA’s 

structure of shared state and federal 

regulatory responsibility, CAA section 

110(a)(2)(D)(i)(I) requires all states, 

within 3 years of promulgation of a new 

or revised NAAQS, to submit SIPs that 

contain adequate provisions prohibiting 

any source or other type of emissions 

activity within the state from emitting 

any air pollutant in amounts which will 

contribute significantly to 

nonattainment in, or interfere with 

maintenance by, any other state with 

respect to any NAAQS. Thus, each state 

is required to submit a SIP that 

demonstrates the state is adequately 

controlling sources of emissions that 

would impact downwind states’ air 

quality relative to the NAAQS in 

violation of the good neighbor 

provision. 

Once a state submits a good neighbor 

SIP, the EPA must evaluate the SIP to 

determine whether it meets the statutory 

criteria of the good neighbor provision, 

and then approve or disapprove, in 

whole or in part, the state’s submission 

in accordance with CAA section 110(k). 

In the event that a state does not submit 

a required SIP addressing the good 

neighbor provision, the EPA is required 

under the CAA to issue a ‘‘finding of 

failure to submit’’ that a state has failed 

to make the required SIP submission. If 

the EPA disapproves a state’s SIP 

submission or if the EPA finds that a 

state has failed to submit a required SIP, 

then the action triggers the EPA’s 

obligations under section 110(c) of the 

CAA, to promulgate a federal 

implementation plan (FIP) within 2 

years, unless the state corrects the 

deficiency, and the EPA approves the 

plan or plan revision before the EPA 

promulgates a FIP. Thus, in the event 

that a state does not address the good 

neighbor provision requirements in a 

SIP submission, the statute provides 

that the EPA must address the 

requirements in the state’s stead. 

Section 110(k)(5) of the CAA also 

provides a means for the EPA to require 

states to revise previously approved 

SIPs, including good neighbor SIPs, if 

the EPA determines that an approved 

SIP is substantially inadequate to attain 

or maintain the NAAQS, to adequately 

mitigate interstate pollutant transport, 

or to otherwise comply with 

requirements of the CAA. The EPA can 

use its authority under CAA section 

110(k)(5) to call for revision of the SIP 

by the state to correct the inadequacies 

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

and if the state fails to make the 

required submission, the EPA can 

promulgate a FIP under CAA section 

110(c) to address the inadequacies. 

Finally, section 126 of the CAA 

provides states with an additional 

opportunity to bring to the EPA’s 

attention specific instances where a 

source or a group of sources in a specific 

state may be emitting in excess of what 

the good neighbor provision would 

allow. Section 126(b) of the CAA 

provides that any state or political 

subdivision may petition the 

Administrator of the EPA to find that 

any major source or group of stationary 

sources in upwind states emits or would 

emit any air pollutant in violation of the 

prohibition of CAA section 

110(a)(2)(D)(i).9 Petitions submitted 

pursuant to this section are referred to 

as CAA section 126 petitions. Section 

126(c) of the CAA explains the impact 

of such a finding and establishes the 

conditions under which continued 

operation of a source subject to such a 

finding may be permitted. Specifically, 

CAA section 126(c) provides that it 

would be a violation of section 126 of 

the Act and of the applicable SIP: (1) 

For any major proposed new or 

modified source subject to a CAA 

section 126 finding to be constructed or 

operate in violation of the good 

neighbor prohibition of CAA section 

110(a)(2)(D)(i); or (2) for any major 

existing source for which such a finding 

has been made to operate more than 3 

months after the date of the finding. The 

statute, however, also gives the 

Administrator discretion to permit the 

continued operation of a source beyond 

3 months if the source complies with 

emission limitations and compliance 

schedules provided by the EPA to bring 

about compliance with the requirements 

contained in CAA sections 

110(a)(2)(D)(i) and 126 as expeditiously 

as practicable but no later than 3 years 

from the date of the finding. Where the 

EPA provides such limitations and 

compliance schedules, CAA section 

110(a)(2)(D)(ii) further requires that 

good neighbor SIPs ensure compliance 

with these limitations and compliance 

schedules.10

The flexibility provided by these 

statutory provisions is different from 

that provided by the requirements 

imposed upon states in the OTR. 

Generally, states in the OTR must 

impose a uniform set of requirements on 

sources within each state that meet the 

minimum requirements imposed by the 

statute. The good neighbor provision, by 

contrast, provides both the states and 

the EPA with the flexibility to develop 

a remedy that is tailored to a particular 

air quality problem, including the 

flexibility to tailor the remedy to 

address the particular precursor 

pollutants and sources that would most 

effectively address the particular 

downwind air quality problem. As 

described in the next section (Section 

IV.B. of this notice) and in the proposal, 

the EPA has previously promulgated 

four interstate transport rulemakings 


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11For purposes of these rulemakings, the western 

U.S. (or the West) consists of the 11 western 

contiguous states of Arizona, California, Colorado, 

Idaho, Montana, Nevada, New Mexico, Oregon, 

Utah, Washington and Wyoming. 

12Two of these rulemakings also addressed the 

reduction of annual NOX and sulfur dioxide (SO2) 

emissions for the purposes of addressing the 

interstate transport of particulate matter pollution 

pursuant to the good neighbor provision. 

13 62 FR 57356 (October 27, 1998). 

14 70 FR 25162 (May 12, 2005). 

15 76 FR 48208 (August 8, 2011). 

16 81 FR 74504 (October 26, 2016). 

17For one state named in the CAA section 176A 

petition, Tennessee, the EPA determined that the 

emissions reductions required by the CSAPR 

Update would fully address the state’s significant 

contribution to nonattainment and interference 

with maintenance of the 2008 ozone NAAQS in 

other states. 

pursuant to these authorities in order to 

quantify the specific emission 

reductions required in certain eastern 

states to comply with the requirements 

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

downwind nonattainment and 

maintenance concerns with respect to 

the NAAQS for ozone and PM2.5. 

B. The EPA’s Interstate Transport 

Rulemakings Under the Good Neighbor 

Provision 

To address the regional transport of 

ozone pursuant to the CAA’s good 

neighbor provision under section 

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

promulgated four regional interstate 

transport rules focusing on the 

reduction of NOX emissions, as the 

primary meaningful precursor to 

address regional ozone transport across 

state boundaries, from certain sources 

located in states in the eastern half of 

the U.S. 11 12 The four interstate 

transport rulemakings are the: NOX SIP 

Call,13 Clean Air Interstate Rule 

(CAIR),14 CSAPR15 and the CSAPR 

Update.16

The EPA summarized the history and 

key provisions of each of these 

rulemakings in the January 19, 2017, 

proposed denial. See 82 FR 6516, 6517, 

6518 and 6519. The CSAPR Update, 

which directly relates to the 2008 ozone 

NAAQS, is discussed in the next 

section. In each of these rulemakings, 

the EPA identified those sources and 

pollutants that, based on the available 

information at that time, were most 

effective in addressing the particular air 

quality problem identified by the EPA’s 

analysis. This allowed the EPA to craft 

tailored remedies that provided efficient 

and effective means of addressing the 

particular air quality problem at issue. 

In each of the regional transport rules, 

the EPA’s analyses demonstrated that 

NOX is the ozone precursor that is most 

effective to reduce when addressing 

regional transport of ozone in the 

eastern U.S. The EPA has also focused 

each rule on those sources that can most 

cost-effectively reduce emissions of 

NOX, such as electric generating units 

(EGUs) and, in one rule, certain large 

non-EGUs. These rulemakings 

demonstrate that the EPA has used and 

is continuing to use its authority under 

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

on those sources and precursors that 

most effectively address the particular 

interstate ozone transport problems in 

the eastern U.S. 

The CSAPR Update To Address the 

2008 Ozone NAAQS 

On October 26, 2016, the EPA 

published an update to CSAPR that 

addresses the good neighbor provision 

with respect to the 2008 ozone NAAQS. 

81 FR 74504 (CSAPR Update). The 

CSAPR Update requires sources in 22 

states to reduce ozone season NOX

emissions that significantly contribute 

to nonattainment or interfere with 

maintenance of the 2008 ozone NAAQS 

in other states. The EPA found that for 

each state included in the CSAPR 

Update, the state had failed to submit or 

the EPA had disapproved a complete 

SIP revision addressing the good 

neighbor provision for the 2008 ozone 

NAAQS. The EPA promulgated FIPs for 

each of the 22 states covered by the 

CSAPR Update. To accomplish 

implementation aligned with the 

applicable attainment deadline for the 

2008 ozone NAAQS, the FIPs require 

affected EGUs to participate in the 

regional allowance trading program to 

achieve emission reductions beginning 

with the 2017 ozone season (i.e., MaySeptember 2017). 

The CSAPR Update analysis found 

that emissions from eight of the nine 

states named in the CAA section 176A 

petition to be added to the OTR, in 

addition to a number of other states, 

were linked to downwind projected air 

quality problems, referred to as 

nonattainment and/or maintenance 

receptors, in the eastern U.S. in 2017 

with respect to the 2008 ozone NAAQS. 

81 FR 74506, 74538 and 74539. For one 

state named in the CAA section 176A 

petition, North Carolina, the EPA 

determined in the CSAPR Update that 

the state was not linked to any 

downwind air quality problems and, 

therefore, will not significantly 

contribute to nonattainment or interfere 

with maintenance of the 2008 ozone 

NAAQS in any other state pursuant to 

the good neighbor provision. 81 FR 

74506, 74537 and 74538. 

For those states linked to downwind 

air quality problems, the EPA next 

evaluated timely and cost-effective 

emissions reductions achievable by 

sources in each state in order to quantify 

the amount of emissions constituting 

each state’s significant contribution to 

nonattainment and interference with 

maintenance of the standard pursuant to 

the good neighbor provision. The EPA 

focused its analysis on: (1) Emissions 

reductions achievable by 2017 in order 

to assist downwind states with meeting 

the applicable attainment deadline for 

the 2008 ozone NAAQS (81 FR 74521); 

(2) reductions in only NOX emissions, 

consistent with past ozone transport 

rules (81 FR 74514); and (3) costeffective NOX emissions reductions 

from EGUs. The EPA, therefore, 

calculated emissions budgets for each 

affected state based on the cost-effective 

NOX emissions reductions achievable 

from EGUs for the 2017 ozone season. 

The EPA concluded that the 

emissions reductions achieved by 

implementation of the budgets 

constitute a portion of most affected 

states’ significant contribution to 

nonattainment or interference with 

maintenance of the 2008 ozone NAAQS 

at these downwind receptors. 81 FR 

74508, 74522.17 For most states, the EPA 

could not determine that it had fully 

addressed emissions reduction 

obligations pursuant to the good 

neighbor provision because certain 

states were projected to remain linked to 

downwind air quality problems in 2017 

even after implementation of the 

quantified emissions reductions and 

because the EPA did not quantify 

further NOX reduction potential from 

EGUs beyond 2017 or any NOX

reduction potential from non-EGUs. In 

order to determine the level of NOX

control stringency necessary to quantify 

those emissions reductions that fully 

constitute each state’s significant 

contribution to downwind 

nonattainment or interference with 

maintenance, the EPA explained in 

promulgating the final CSAPR Update 

that it would likely need to evaluate 

further emission reductions from EGU 

and non-EGU control strategies that 

could be implemented on longer 

timeframes. The CSAPR Update 

represented a significant first step by the 

EPA to quantify states’ emission 

reduction obligations under the good 

neighbor provision for the 2008 ozone 

NAAQS. Even though the CSAPR 

Update did not fully address most 

upwind states’ emission reduction 

obligation pursuant to the good 

neighbor provision, the implementation 

of the emissions budgets quantified in 

that rule are helping to address or 

resolve projected air quality problems in 

the eastern U.S., including the 


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18 In January 2017, the EPA also shared 

preliminary 2023 interstate transport data and 

solicited input from states on the EPA’s interstate 

transport assessment for the 2015 ozone NAAQS. 82 

FR 1733 (January 6, 2017). The EPA included input 

and feedback received from the public submitted in 

response to the Notice of Data Availability in 

conducting the updated modeling. 

19The VOC percentages are for anthropogenic 

VOCs only. Emissions from natural sources, such as 

trees, also comprise around 70 percent of total VOC 

emissions nationally, with a higher proportion 

occurring during the ozone season and in areas with 

more vegetative cover. 

20For more information, see the ‘‘2014 NEI 

Summary Spreadsheet’’ in the docket. 

21 81 FR 23414 (April 28, 2014). 

22 65 FR 6698 (February 10, 2000). 

23 66 FR 5002 (January 18, 2001). 

24 77 FR 62624 (October 15, 2012). 

25 75 FR 25324 (May 7, 2010). 

26 81 FR 73478 (October 25, 2016). 

27 76 FR 57106 (September 15, 2011). 

28 72 FR 8428 (February 26, 2007). 

29 69 FR 38958 (June 29, 2004). 30 73 FR 37096 (June 30, 2008). 31 75 FR 22896 (April 30, 2010). 32 77 FR 36342 (June 18, 2012). 33 67 FR 68242 (November 8, 2002). 

34 73 FR 59034 (October 8, 2008). 

35For more information, see the ‘‘2011, 2017 and 

2025 NEI Summary Spreadsheet’’ in the docket. 

designated nonattainment areas within 

the OTR. 

The EPA is actively continuing the 

work with states necessary to address 

any remaining obligations under the 

good neighbor provision with respect to 

the 2008 ozone NAAQS. The EPA is 

performing updated ozone transport air 

quality modeling and analysis to 

characterize interstate transport beyond 

2017.18 The results of this analysis will 

provide updated information on any 

remaining ozone problems and linkages 

between states. 

C. Additional Rules That Reduce NOX

and VOC Emissions 

In addition to the significant efforts to 

implement the good neighbor provision 

for the 2008 and prior ozone NAAQS, 

there are also numerous federal and 

state emission reduction rules that have 

already been adopted, which have 

resulted or will result in the further 

reduction of ozone precursor emissions, 

including emissions from states named 

in the CAA section 176A petition and 

petitioning states. Many of these rules 

directly require sources to achieve 

reductions of NOX, VOC, or both, and 

others require actions that will 

indirectly result in such reductions. As 

a result of these emissions reductions, 

the interstate transport of ozone has 

been and will continue to be reduced 

over time. 

The majority of man-made NOX and 

VOC emissions that contribute to ozone 

formation in the U.S. comes from the 

following sectors: On-road and nonroad 

mobile sources, industrial processes 

(including solvents), consumer and 

commercial products, and the electric 

power industry. In 2014, the most recent 

year for which the National Emissions 

Inventory (NEI) is available, the largest 

contributors of annual NOX emissions 

nationally are on-road and nonroad 

mobile sources (accounted for about 56 

percent) and the electric power industry 

(EGUs; accounted for about 13 percent). 

With respect to VOCs, the largest 

contributors of annual man-made 

emissions nationally are industrial 

processes (including solvents; 

accounted for about 48 percent) and 

mobile sources (accounted for about 27 

percent).19 20

The EPA establishes emissions 

standards under various CAA 

authorities for numerous classes of 

automobile, truck, bus, motorcycle, 

earth mover, aircraft, and locomotive 

engines, and for the fuels used to power 

these engines. The pollutant reduction 

benefits from new engine standards 

increase each year as older and morepolluting vehicles and engines are 

replaced with newer, cleaner models. 

The benefits from fuel programs 

generally begin as soon as a new fuel is 

available. Further, the ongoing emission 

reductions from mobile source federal 

programs, such as those listed 

previously, will provide for substantial 

emissions reductions well into the 

future, and will complement state and 

local efforts to attain the 2008 ozone 

NAAQS. 

There are several existing national 

rules that continue to achieve emission 

reductions through 2025 and beyond 

with more protective emission 

standards for on-road vehicles that 

include: Control of Air Pollution from 

Motor Vehicles: Tier 3 Motor Vehicle 

Emission and Fuel Standards; 21 Control 

of Air Pollution from New Motor 

Vehicles: Tier 2 Motor Vehicle 

Emissions Standards and Gasoline 

Sulfur Control Requirements; 22 Control 

of Air Pollution from New Motor 

Vehicles: Heavy-Duty Engine and 

Vehicle Standards and Highway Diesel 

Fuel Sulfur Control Requirements; 23

Model Year 2017 and Later Light-Duty 

Vehicle Greenhouse Gas Emissions and 

Corporate Average Fuel Economy 

Standards; 24 Model Year 2012–2016 

Light-Duty Vehicle Greenhouse Gas 

Emission Standards and Corporate 

Average Fuel Economy Standards; 25

Greenhouse Gas Emissions and Fuel 

Efficiency Standards for Medium- and 

Heavy-Duty Engines and Vehicles— 

Phase 2; 26 Phase 1 Greenhouse Gas 

Emissions Standards and Fuel 

Efficiency Standards for Medium- and 

Heavy-Duty Engines and Vehicles 27 and 

Control of Hazardous Air Pollutants 

from Mobile Sources.28

Similarly, already adopted regulations 

for non-road engines and equipment 

that will achieve further reductions 

include: Control of Emissions of Air 

Pollution from Nonroad Diesel Engines 

and Fuel; 29 Republication for Control of 

Emissions of Air Pollution from 

Locomotive Engines and Marine 

Compression-Ignition Engines Less 

Than 30 Liters per Cylinder; 30 Control 

of Emissions from New Marine 

Compression-Ignition Engines at or 

Above 30 Liters per Cylinder; 31 the 

International Maritime Organization’s 

Emission Control Area to Reduce 

Emissions from Ships in the U.S. 

Caribbean; Control of Air Pollution 

From Aircraft and Aircraft Engines; 32

Emission Standards and Test 

Procedures; Control of Emissions from 

Nonroad Large Spark-Ignition Engines, 

and Recreational Engines (Marine and 

Land-Based); 33 and Control of 

Emissions from Nonroad Spark-Ignition 

Engines and Equipment.34

As a result of the rules and programs 

listed in this section, various other state 

programs and efforts, and wider 

economic trends, ozone levels across the 

nation and the OTR have been 

declining—e.g., down by more than 30 

percent since 1980 nationwide. Ozone 

levels across the nation are expected to 

further decline over the next several 

years due to emissions controls already 

in place. The EPA’s emissions 

projections in support of the 2015 ozone 

NAAQS modeling show declining 

emissions of NOX and VOCs between 

2017 and 2025. In the states comprising 

the OTR plus the nine upwind states 

named in the CAA section 176A 

petition, total NOX emissions over the 

upcoming 7-year period (2017–2025) are 

expected to decline by almost 20 

percent on average and VOC emissions 

are expected to decline by more than 10 

percent on average over the same 

period.35

D. Summary of Rationale for the 

Decision on the CAA Section 176A 

Petition 

As proposed, the EPA is finalizing its 

denial of the CAA section 176A petition 

because we believe that the statute 

provides other, more effective means of 

addressing the impact of interstate 

ozone transport on any remaining air 

quality problems within the OTR with 

respect to the 2008 ozone NAAQS. 

Continuing those existing efforts is a 

better use of the agency’s limited 

resources. As described at proposal, the 

statute provides several provisions that 


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allow states and the EPA to address 

interstate ozone transport with a remedy 

better tailored to the nature of the 

particular air quality problem, focusing 

on those precursor emissions and 

sources that most directly impact 

downwind ozone nonattainment and 

maintenance problems and which can 

be controlled most cost effectively. The 

EPA and states are actively using these 

provisions, and numerous federal and 

state measures have reduced, and will 

continue to reduce, the VOC and NOX

emissions that contribute to ozone 

formation and the interstate transport of 

ozone pollution. The EPA does not 

believe that it is necessary to add more 

states to the OTR at this time in order 

to effectively address transported 

pollution in the OTR relative to the 

2008 ozone NAAQS. 

While the CAA contains several 

provisions, both mandatory and 

discretionary, to address interstate 

pollution transport, the EPA’s decision 

whether to grant or deny a CAA section 

176A petition to expand an existing 

transport region is discretionary. 

Section 176A of the CAA states that the 

Administrator may add any state or 

portion of a state to an existing transport 

region whenever the Administrator has 

reason to believe that the interstate 

transport of air pollutants from such 

state significantly contributes to a 

violation of the standard in the transport 

region. The EPA does not dispute that 

certain named upwind states in the 

petition might impact air quality in one 

or more downwind states that are 

measuring violations of the 2008 ozone 

NAAQS. However, the EPA believes 

that states and the EPA can effectively 

address the upwind states’ impacts on 

downwind ozone air quality through the 

good neighbor provision. The EPA has 

already taken steps to address interstate 

transport with respect to the 2008 ozone 

NAAQS through the promulgation of 

the CSAPR Update, which reduces 

emissions starting with the 2017 ozone 

season. The EPA used the authority of 

CAA sections 110(a)(2)(D)(i)(I) and 

110(c) to tailor a remedy focused on the 

precursor pollutant most likely to 

improve ozone levels (currently NOX) in 

downwind states and those sources that 

can most cost-effectively reduce 

emissions within a limited timeframe 

(i.e., EGUs). The EPA further 

implemented the remedy through an 

allowance trading program that achieves 

emission reductions while providing 

sources with the flexibility to 

implement the control strategies of their 

choice. 

We believe that the continued use of 

the authority provided by the good 

neighbor provision to address the 

interstate transport of ozone pollution 

plus other regulations that are already in 

place will permit the states and the EPA 

to achieve any additional mandatory 

reductions to address the 2008 ozone 

NAAQS without the need to implement 

the additional requirements that 

inclusion in the OTR would entail. As 

described in the proposal, this approach 

to address the interstate transport of 

ozone is a proven, efficient, and costeffective means of addressing 

downwind air quality concerns that the 

agency has employed and refined over 

nearly two decades. However, the EPA 

notes that the addition of states to the 

OTR pursuant to the CAA section 176A 

authority—and the additional planning 

requirements that would entail—could 

be given consideration as an appropriate 

means to address the interstate transport 

requirements of the CAA should the 

agency’s approach or other 

circumstances change in the future. 

As described in this action, the CAA 

provides the agency and states with the 

authority to mitigate the specific sources 

that contribute to interstate pollution 

through implementation plans to satisfy 

the requirements of the good neighbor 

provision, CAA section 

110(a)(2)(D)(i)(I), and through the 

related petition process under CAA 

section 126. This authority gives the 

EPA and states numerous potential 

policy approaches to address interstate 

pollution transport of ozone, and the 

EPA has consistently and repeatedly 

used its authority under CAA section 

110(a)(2)(D)(i)(I) to approve state plans 

for reducing ozone transport or to 

promulgate FIPs to specifically focus on 

the sources of ozone transport both 

within and outside the OTR. The NOX

SIP Call, CAIR, CSAPR, CSAPR Update 

and numerous individual SIP approvals 

demonstrate that the EPA has a long 

history of using its CAA section 110 

authority to specifically address 

interstate pollution transport in a 

tailored way that is specific to a NAAQS 

and set of pollution sources that are the 

primary contributors to interstate 

pollution transport. As described in 

Section IV.B of this notice, using the 

authority of the good neighbor provision 

has allowed the EPA to focus its efforts 

on pollution sources that are 

responsible for the largest contributions 

to ozone transport and that can costeffectively reduce emissions, and also 

enables the agency to focus on NOX as 

the primary driver of long range ozone 

transport—an approach the courts have 

found to be a reasonable means of 

addressing interstate ozone transport. 

Michigan v. EPA, 213 F.3d at 688 (‘‘EPA 

reasonably concluded that long-range 

ozone transport can only be addressed 

adequately through NOX reductions’’); 

see also EPA v. EME Homer City 

Generation, L.P., 134 S. Ct. at 1607 

(affirming as ‘‘efficient and equitable’’ 

the EPA’s use of cost to apportion 

emission reduction responsibility 

pursuant to the good neighbor 

provision). 

As explained previously, adding 

states to an OTR under CAA section 

176A will not afford the states and EPA 

with the flexibility to focus on specific 

sources and ozone precursor emissions 

tailored to address the downwind state’s 

current air quality problems and needed 

remedy to achieve attainment of the 

2008 NAAQS. The statute prescribes a 

specific set of controls for a variety of 

sources to control emissions of both 

VOCs and NOX. CAA section 

110(a)(2)(D)(i)(I), on the other hand, 

permits the EPA and the regulated 

community the flexibility to focus 

controls on specific sources and 

pollutants that most efficiently address 

the air quality problem being addressed. 

The EPA determined in the CSAPR 

Update that regional NOX emissions 

reductions are the most effective means 

for providing ozone benefits for areas in 

the eastern United States, including the 

OTR, currently violating the 2008 ozone 

NAAQS, and that NOX reductions can 

be most efficiently achieved by focusing 

on those sources that can costeffectively reduce emissions within a 

limited timeframe. Accordingly, the 

EPA does not believe that the 

requirements which would be imposed 

upon states added to the OTR would be 

the most effective means of addressing 

any remaining interstate transport 

concerns with respect to the 2008 ozone 

NAAQS. 

The implementation of controls 

within the OTR, when combined with 

the numerous federal and state emission 

reduction programs that have already 

been adopted that have resulted in the 

reduction of ozone precursor emissions 

either directly or as a co-benefit of those 

regulations, have helped to significantly 

reduce ozone levels. These programs 

will continue to reduce ozone precursor 

emissions and ozone concentrations 

both within and outside of the OTR over 

many years to come. The EPA believes 

the most efficient way to address any 

remaining 2008 ozone NAAQS 

interstate transport problems is to 

continue to address any required 

reductions through a combination of 

tailored programs, including the 

implementation of the CSAPR Update, 

further development of implementation 

plans pursuant to section 110, 

development of local attainment plans, 

and, if appropriate, consideration of 


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51246 Federal Register / Vol. 82, No. 212 / Friday, November 3, 2017 / Notices 

36Technical Support Document for the Petition to 

the United States Environmental Protection Agency 

for the Addition of Illinois, Indiana, Kentucky, 

Michigan, North Carolina, Ohio, Tennessee, 

Virginia and West Virginia to the Ozone Transport 

Region (December 9, 2013) (EPA–HQ–OAR–2016– 

0596–0002 docket number) (hereinafter ‘‘Petition 

TSD’’). 37Petition TSD 4–14. 

additional emissions limitations 

resulting from action on CAA section 

126 petitions. 

The Administrator may exercise 

reasonable discretion in determining 

whether or not to approve or deny a 

CAA section 176A petition. The EPA 

has reviewed the request of the 

petitioners to add additional states to 

the OTR in light of required control 

strategies for ozone transport regions 

and the other statutory tools available to 

the agency and states to address the 

interstate transport of ozone pollution. 

The agency believes that continuing its 

longstanding and effective use of the 

existing and expected control programs 

under the CAA’s mandatory good 

neighbor provision embodied in section 

110(a)(2)(D)(i)(I), including 

implementation of the CSAPR Update 

beginning in 2017 and technical work 

now underway to fully address the good 

neighbor provision for the 2008 

NAAQS, is a more effective approach 

for addressing regional interstate ozone 

transport problems relative to the 2008 

ozone standard. 

The EPA, therefore, denies the 

petitioners’ request to add at this time 

additional states to the OTR for the 

purpose of addressing interstate 

transport of the 2008 ozone NAAQS. 

The agency will instead continue to use 

other authorities available within the 

CAA in order to address the long-range, 

interstate transport of ozone pollution. 

This response only considers the 

effectiveness of the OTR expansion to 

achieve appropriate emission reductions 

to address the 2008 ozone NAAQS. The 

EPA notes that, under different 

circumstances, the OTR provisions have 

been an effective tool for air quality 

management, and could be similarly 

effective in the future for addressing 

interstate transport of ozone pollution. 

Accordingly, nothing in this document 

should be read to limit states’ ability to 

file a petition under CAA section 176A 

in the future or to prejudge the outcome 

of such a petition, if filed. 

V. Major Comments on the Proposed 

Denial 

The EPA solicited comment on the 

proposed denial of the petition based on 

the EPA’s preference for addressing 

interstate transport with respect to the 

2008 ozone NAAQS pursuant to other 

CAA authorities. This section addresses 

significant comments received on the 

January 19, 2017, proposed denial. 

Remaining comments are addressed in a 

separate RTC document found in the 

docket for this action. 

A. Adequacy of the EPA’s Rationale 

Commenters believed that the EPA’s 

explanation for denial in the proposal 

was inadequate. Commenters stated that 

the EPA’s explanation for the proposed 

denial of the petition failed to provide 

a technical review of the data submitted 

by the petitioners and instead focused 

on the availability of other CAA 

programs. Commenters asserted the EPA 

‘‘must adequately explain the facts and 

policy concerns relied on in acting on 

the petition and conform such reasons 

with the authorizing statute.’’ For 

example, they claimed, the EPA offered 

no analysis of relative costs of other 

tools and the efficiency of those 

approaches nor did the EPA propose to 

find the petition technically inadequate 

with respect to the air quality data 

presented in the technical support 

document (TSD) for the petition.36

Commenters stated that the agency 

failed to provide empirical evidence to 

support the basis for the proposed 

denial. Some commenters believed 

empirical data are required in order for 

the agency to respond to a CAA section 

176A petition. Some commenters 

believed that the EPA’s supporting 

technical data for the CAIR and CSAPR 

rules technically justify expansion of 

the OTR, pointing in particular to the 

Petition TSD. Commenters in support of 

the proposed denial claimed there are 

errors with the petitioners’ supporting 

data. In addition, some commenters 

acknowledged that recent air quality 

measurements and emission reductions 

of ozone precursor pollutants show that 

air quality has improved. In contrast, 

some commenters opposed to the 

proposed denial encouraged the EPA to 

grant the petition in part based on data 

provided by petitioners that showed 

that some of the states outside the OTR 

were violating the NAAQS and believed 

the OTR requirements would also help 

those areas meet the NAAQS. 

Response: The EPA disagrees that it 

bears the burden of conducting 

extensive air quality or other empirical 

analysis in response to a CAA section 

176A petition. Petitioners for 

administrative action generally should 

establish the merits of their petition in 

the first instance. See, e.g., RadioTelevision News Dirs. Ass’n v. FCC, 184 

F.3d 872, 881 (D.C. Cir. 1999). While the 

agency has reviewed the technical 

information supplied in support of the 

petition, there have been significant 

changes to emissions levels, regulatory 

requirements, and ambient air quality 

that have occurred in the interim since 

the petition was submitted in December 

2013. The EPA has taken into account 

this additional supporting air quality 

information, including current air 

quality conditions, some recent on-thebooks control strategies, and significant 

changes in emissions inventories that 

have occurred over the past several 

years. In general, commenters did not 

call into question the EPA’s view at 

proposal that ozone levels across the 

nation and the OTR have been declining 

and are expected to further decline over 

the next several years (82 FR 6520). As 

a separate matter, neither petitioners nor 

commenters provided information 

supporting the reasonableness of 

imposing the suite of section 184 of the 

CAA control strategies as a whole to 

address any remaining interstate air 

quality impact that states named in the 

petition would have with respect to the 

2008 ozone NAAQS. In its proposed 

denial, the agency emphasized its 

preference for continuing the more 

tailored, flexible, and cost-effective 

approach of addressing interstate 

transport of ozone under CAA section 

110(a)(2)(D)(i)(I). In response to 

comments asserting that the agency 

failed to more fully address the 

technical information underlying the 

petition, the agency will respond briefly 

regarding why it believes the 

information presented in support of the 

petition is insufficient given the totality 

of information the agency considered, 

including more recent air quality 

information. 

The air quality information relied 

upon, in part, by petitioners included 

the EPA’s CAIR modeling from 2005, 

which is now over 10 years old, and the 

CSAPR base case modeling from 2011.37

These two sets of modeling do not 

capture the reductions in ozone 

precursors that have occurred as a result 

of the implementation of either the 

CSAPR, which went into effect in 2015, 

or the CSAPR Update, which went into 

effect for the 2017 ozone season and was 

specifically designed to address the 

2008 ozone NAAQS at issue in this 

petition. Petitioners’ data also do not 

capture other changes in the emissions 

inventory and pollution control 

requirements that have occurred since 

that time. As the EPA noted in the 

proposal, 82 FR 6519, the modeling for 

the final CSAPR Update in 2016, the 

modeling currently underway to address 

states’ remaining interstate transport 

obligations for the 2008 ozone NAAQS, 


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38Status of Designated Areas for the Ozone-8Hr 

(2008) NAAQS, https://www3.epa.gov/airquality/ 

urbanair/sipstatus/reports/ozone-8hr__2008__

areabynaaqs.html (last visited September 20, 2017). 

39Further, the statutory basis for granting a CAA 

section 176A petition is tied to interstate transport 

of air pollutants. See 42 U.S.C. 7506a(a). Intrastate 

air quality problems, in and of themselves, would 

not be a basis for granting this petition. 

40Power Plant Emission Trends (NOX Tab), 

https://www3.epa.gov/airmarkets/progress/ 

datatrends/index.html (last visited September 20, 

2017). 

41See, e.g., EPA v. EME Homer City Generation, 

L.P., 134 S. Ct. 1584, 1606–07 (2014). 

and recent air quality monitor design 

values provide a more current picture of 

air quality issues and projections. 

The EPA acknowledges that the 

petitioners originally may have 

submitted information reflective of air 

quality prior to December 2013, but the 

EPA believes it is appropriate to 

consider all relevant information 

available at the time it takes action on 

the petition, not only the information 

provided in the petition, but more 

current information reflecting additional 

developments in federal regulations and 

changes in air quality. The EPA believes 

it would be unreasonable for the agency 

to consider OTR expansion and subject 

states to OTR requirements without 

considering the most recent information 

that is directly relevant to the 2008 

ozone NAAQS air quality problems 

intended to be addressed by the 

petitioners. The EPA notes that at the 

time the petitioners submitted the 

petition in December 2013, the CSAPR 

implementation requirements had been 

vacated by the D.C. Circuit, and there 

was uncertainty regarding if and when 

the rule’s emissions reductions would 

take effect. However, subsequent to the 

petitioners filing the petition, on April 

29, 2014, the Supreme Court issued a 

decision reversing the D.C. Circuit’s 

decision on the CSAPR and on October 

23, 2014, the lower court granted the 

EPA’s request to lift the stay on the 

CSAPR. In addition to the emissions 

reductions as a result of CSAPR, the 

EPA has issued the CSAPR Update 

which further reduces NOX emission 

during the ozone season for a number of 

eastern states. Because the data used by 

the petitioners are now dated, they do 

not reflect the sustained trend of 

declining emissions and improved air 

quality. As noted in the proposal, since 

2013 when the petition was submitted, 

there has been a long-term trend of 

improving air quality in the eastern U.S. 

For instance, petitioners identified 2012 

preliminary design values showing that 

the designated nonattainment areas of 

Charlotte-Rock Hill, NC-SC; ChicagoNaperville, IL-IN-WI; Cincinnati, IN-KYOH; Cleveland-Akron-Lorain, OH; 

Columbus, OH; Knoxville, TN; 

Memphis, AR-MS-TN; and St. Louis-St. 

Charles-Farmington, IL-MO would be in 

violation of the 2008 ozone NAAQS. 

Further the petitioners extrapolated the 

2012 design values to 2015 to project 

that the designated nonattainment areas 

of Chicago-Naperville, IL-IN-WI; 

Cincinnati, IN-KY-OH; ClevelandAkron-Lorain, OH; and Columbus, OH 

would continue to violate the NAAQS. 

However, most of these areas are now 

measuring attainment of the NAAQS.38

Thus, the nature of the remaining 2008 

ozone NAAQS nonattainment issues in 

the non-OTR states is not as severe in 

terms of the number of nonattainment 

areas as it appeared to be in the past.39

These improvements have been driven 

in part by CSAPR and other air 

pollution control programs and rules, 

see Section IV.C of this notice, as well 

as a well-documented, long-term trend 

of transition toward sources of 

electricity generation in the power 

sector that have lowered NOX

emissions.40

The EPA also observes an analytical 

gap in the information submitted in 

support of this petition as to the 

reasonableness of the remedy that 

would be imposed by application of the 

suite of requirements under CAA 

section 184 to address the air quality 

problems at issue. The EPA need not 

dispute now (nor did it at proposal) that 

the states named in the petition may 

impact air quality at downwind areas in 

states within the OTR, at least as of the 

time of the CSAPR Update modeling. 

See 82 FR 6518. In the agency’s view, 

however, the air quality information 

submitted here, standing alone, does not 

automatically warrant expanding the 

OTR to this group of states at this time. 

Under the approach the EPA has 

historically taken to identify control 

measures to address regional interstate 

transport (in the NOX SIP Call, CAIR, 

CSAPR, and CSAPR Update), a linkage 

to a downwind air quality problem 

would not automatically result in 

imposition of mandatory controls, such 

as those that would be required under 

CAA section 184 if this petition were 

granted. Rather, the EPA has also 

historically considered the 

reasonableness of application of control 

strategies available within a linked state, 

usually by examining which precursors 

to ozone formation it would be most 

effective to control, as well as the 

costeffectiveness of those controls. 

Neither petitioners nor commenters in 

support of the petition supply an 

analysis regarding the reasonableness of 

applying the controls that would be 

required under CAA section 184 if the 

petition were granted, such as providing 

an analysis of their effectiveness in 

addressing the interstate transport 

problem at issue or the costs associated 

with those mandatory controls. As the 

EPA emphasized at proposal, 82 FR 

6520 and 6521, application of 

appropriate controls through an 

examination of which precursors and 

sources to address and the cost 

effectiveness of available control 

strategies has been an integral principle 

of its efforts to address interstate 

transport of air pollution in federal 

regional transport rules.41 As discussed 

in Section V.B. of this notice, there are 

good grounds to question the 

reasonableness of application of at least 

some CAA section 184 requirements in 

the non-OTR states in this petition. The 

agency is, therefore, well-justified in 

continuing to rely primarily on its CAA 

section 110(a)(2)(D)(i)(I) authority in 

transport rules to focus on the 

pollutants and the sources in a manner 

that most effectively and efficiently 

addresses long range ozone transport. 

B. Effectiveness of Ozone Precursor 

Emissions Reductions 

Some commenters highlighted the 

benefits of the OTC, as well as the 

benefits of RACT, I/M, and NSR. 

Commenters believed the EPA’s reliance 

on other CAA tools to justify denial is 

inadequate because the EPA has not 

analyzed the costs of those tools or 

acknowledged that the cost per ton of 

emission reduced is lower in the nonOTR states than in the OTR states. They 

asserted that the EPA is overestimating 

control cost and underselling the ability 

of sources to meet more stringent limits. 

Other commenters that support denial 

of the petition questioned the 

effectiveness of VOC emission 

reductions on air quality in areas within 

the OTR. The commenters claimed that 

VOC emissions from the states outside 

of the current OTR states are not 

effective and would not improve air 

quality or reduce the ozone 

concentrations in the Baltimore, 

Philadelphia, New York and 

Connecticut areas. 

Response: While the EPA 

acknowledges that the OTR has been an 

effective tool for addressing widespread 

and persistent ozone transport problems 

in the East, petitioners have not 

demonstrated that the suite of 

mandatory controls that would apply to 

new states added to the OTR would be 

a more effective means than its current 

approach under the good neighbor 

provision for addressing any remaining 

ozone transport problems with respect 


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42 Jiang, G.; Fast, J.D. (2004) Modeling the effects 

of VOC and NOX emission sources on ozone 

formation in Houston during the TexAQS 2000 field 

campaign. Atmospheric Environment 38: 5071– 

5085. 

43Liao, K. et al. (2013) Impacts of interstate 

transport of pollutants on high ozone events over 

the Mid-Atlantic United States. Atmospheric 

Environment 84, 100–112. 

to the 2008 ozone NAAQS. These 

existing efforts represent a better use of 

limited EPA and state resources. The 

EPA appreciates that the process 

provided by the OTR regulations, via 

the OTC, has fostered a collaborative 

process for current OTR states to 

address ozone transport issues. 

However, at this time, we do not believe 

that the benefits of this process 

outweigh the concerns that the 

mandatory requirements imposed in the 

OTR are not the measures best suited to 

addressing any remaining downwind air 

quality problems in the most reasonable 

manner, i.e., by focusing on those 

sources and precursor emissions most 

likely to lead to cost-effective 

downwind air quality benefits. 

For instance, the EPA has previously 

explained that ‘‘authoritative 

assessments of ozone control 

approaches’’ have concluded that VOC 

reductions are generally most effective 

for addressing ozone locally, including 

in dense urbanized areas and 

‘‘immediately downwind.’’ See CSAPR 

Final Rule, 76 FR 48222; see also 82 FR 

6517 (citing 63 FR 57381). Yet granting 

this petition would require mandatory 

VOC controls pursuant to section 184(b) 

over a vast region that would not be 

local to or nearby the remaining ozone 

problems in the OTR that the petition 

aims to address. Petitioners have not 

connected these types of VOC 

reductions over such a wide region with 

specific air quality benefits within the 

existing OTR. The EPA continues to 

believe that NOX emission reductions 

strategies are more effective than VOC 

reductions in lowering ozone 

concentrations over longer distances. 

The EPA believes that regional ozone 

formation is primarily due to NOX, but 

VOCs are also important because VOCs 

influence how efficiently ozone is 

produced by NOX, particularly in dense 

urban areas. Reductions in 

anthropogenic VOC emissions will 

typically have less of an impact on the 

long-range transport of ozone, although 

these emission reductions can be 

effective in reducing ozone in nearby 

urban areas where ozone production 

may be limited by the availability of 

VOCs. Therefore, a combination of 

localized VOC reductions in urban areas 

with additional NOX reductions across a 

larger region will help to reduce ozone 

and precursors in nonattainment areas, 

as well as downwind transport across 

the eastern U.S. Further, NOX

reductions will reduce peak ozone 

concentrations in nonattainment areas. 

As noted in the proposal, model 

assessments have looked at impacts on 

peak ozone concentrations after 

potential emission reduction scenarios 

for NOX and VOCs for NOX-limited and 

VOC-limited areas. Specifically, one 

study 42 concluded that NOX emission 

reductions strategies would be effective 

in lowering ozone mixing ratios in 

urban areas and another study showed 

NOX reductions would reduce peak 

ozone concentrations in nonattainment 

areas in the Mid-Atlantic (i.e., a 10 

percent reduction in EGU and non-EGU 

NOX emissions would result in 

approximately a 6 ppb reduction in 

peak ozone concentrations in 

Washington, DC).43

C. Efficiency in Addressing Statutory 

Interstate Transport Requirements 

Commenters in support of granting 

the petition believed expansion of OTR 

is an efficient method to address 

interstate transport of pollution that 

could satisfy the intent of the good 

neighbor provision and give upwind 

states a successful coordination process 

for addressing ozone pollution. Some 

commenters believed the collaborative 

process inherent in the OTC’s mission is 

efficient and uniquely suited to address 

transport and achieve timely attainment 

of the ozone NAAQS and clean air. 

They believed there are two important 

mechanisms in the OTR process that 

would reduce ozone levels: (1) The 

establishment of a minimum baseline 

for emissions control in the area, and (2) 

a framework for states to collaborate in 

the development and implementation of 

additional measures if necessary to 

solve the ozone problem. They also 

believed OTR expansion would obviate 

the need for future good neighbor FIPs 

and CAA section 126 petitions. They 

argue that the EPA has a history of 

‘‘inaction, delay, and failure’’ to 

adequately address interstate transport 

under CAA sections 110(a)(2)(D)(i)(I) 

and 126. One commenter claimed that 

states have not taken the initiative to 

address interstate transport 

requirements until required by the EPA. 

In addition the commenter believes that 

they have to force EPA to fulfill its 

statutory obligations by litigation. They 

believed the CSAPR Update is 

inadequate because it addresses only a 

part of most states’ interstate transport 

obligations. They further noted the 

EPA’s delayed action on CAA section 

126 petitions. The commenter asserted 

that these statutory tools are resource 

intensive and time-consuming. They 

believed the EPA should expand the 

OTR to include all the states that 

contribute materially to regional ozone 

levels because it will facilitate the 

development of a more efficient stateled response to address interstate ozone 

transport. Another commenter believed 

that the EPA cannot selectively choose 

not to use CAA section 176A as a tool 

because it prefers other provisions, and 

that this ignores the statutory goal that 

states attain the standard as 

expeditiously as practicable. 

Response: The EPA appreciates the 

time and resources needed for the 

agency and states to take action to 

address interstate transport obligations. 

However, the agency disagrees that 

expansion of the OTR would necessarily 

be a faster or more efficient method to 

address interstate ozone transport than 

continuing to work within the wellestablished framework of the EPA’s 

historical approach to addressing 

interstate transport pursuant to the good 

neighbor provision. Because addressing 

the good neighbor obligation is required 

of all states following NAAQS 

promulgation, and not just those areas 

that are eventually designated 

nonattainment, states are required to 

submit their plans for addressing their 

CAA section 110(a)(2)(D) obligations 3 

years after the promulgation of a 

NAAQS. 42 U.S.C. 7410(a). Thus, the 

CAA section 110(a)(2)(D)(i)(I) process on 

its face provides a faster timeframe for 

implementation of interstate transport 

requirements for a new NAAQS than 

application of OTR requirements, which 

run from the effective date of 

designations and are set under CAA 

section 182 through a separate 

rulemaking process. 

In any case, both the OTR SIP process 

and the good neighbor process are statedriven in the first instance. States are 

expected to submit approvable 

implementation plans by the deadlines 

required in the statute and states can 

choose to submit plans—under either 

the good neighbor or OTR process—that 

achieve greater emission reductions 

faster than required by the CAA. Even 

though the EPA has sometimes been 

required to apply FIPs to address good 

neighbor obligations, which have in 

turn been litigated, the good neighbor 

provision process has proven to be 

successful historically. Moreover, given 

increasing experience applying the 

EPA’s prior interstate transport rules 

and the fact that many interstate 

transport issues have already been 

addressed through litigation, the states 

and the EPA are increasingly positioned 

to implement this provision in a 


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timelier fashion. Lastly, it is important 

to note that, notwithstanding the fact 

that OTR states do have OTR control 

requirements, the EPA has generally 

(most recently via the CSAPR Update) 

had to seek additional emission 

reductions from OTR states through the 

good neighbor process to address 

interstate transport and help areas 

within and outside the OTR reduce 

ozone concentrations. 

Some commenters alleged that the 

EPA has delayed or failed to act on CAA 

section 126 petitions from states. All of 

the CAA section 126 petitions submitted 

by the states in the OTR (i.e., 

Connecticut, Delaware and Maryland) 

for the 2008 ozone NAAQS were 

submitted in 2016, and the agency is 

continuing to review these petitions. 

Action on these petitions is beyond the 

scope of this action. However, the EPA 

observes that four of the six petitions 

the EPA has received from OTR states 

since 2016 concern sources within 

another OTR state, which tends to 

demonstrate limitations in some 

respects to the efficacy of the OTR 

process. 

D. Equity Among States 

Commenters stated that the 

‘‘disparity’’ between environmental 

performance of sources within the OTR 

and those outside the OTR has grown. 

One commenter estimated that the 

difference in cost of controls for further 

reductions from OTR sources could be 

in the range of $10,000 to $40,000 per 

ton, while in the non-OTR states it 

could be as low as $500 to $1,200 per 

ton. Commenters further stated that 

denial of the petition will continue to 

leave OTR states at a competitive 

disadvantage, as the control 

requirements within the OTR increase 

the costs to business and industry, 

while the non-OTR states are allowed to 

emit at far higher levels. 

Other commenters asserted in contrast 

that OTR control requirements are 

costly and burdensome. They claimed 

the mandatory requirements would 

impose a substantial cost burden upon 

both the permitting authorities and the 

regulated communities. One commenter 

asserted that the petitioners’ notion of 

economic fairness as a basis for the 

petition is inappropriate and states that 

the EPA has no authority to require 

controls on that basis. This commenter 

suggested that OTR states should be 

required to address their requirements 

first before seeking an expansion. The 

commenter contended that OTR states 

are not fully implementing required 

OTR and other ozone controls, and, if 

they were, it may sufficiently control 

ozone to obviate the need for expansion 

of the OTR. 

Response: As an initial matter, the 

statutory basis for granting a CAA 

section 176A petition is tied to the 

interstate transport of air pollutants. See 

42 U.S.C. 7506a(a). The EPA recognizes, 

however, that equity, or fairness, can 

play a role in apportioning 

responsibility for addressing air quality 

problems to which multiple states are 

contributing. These concerns have 

played a role in the legal analysis of the 

EPA’s past rulemakings under CAA 

section 110(a)(2)(D)(i)(I). In EPA v. EME 

Homer City, the Supreme Court upheld 

the agency’s approach in the CSAPR of 

eliminating amounts of air pollution 

that can cost effectively be reduced as 

an efficient and equitable solution to the 

allocation problem of the good neighbor 

provision. 134 S. Ct. 1584, 1607 (2014). 

The Court noted that the EPA’s 

approach was ‘‘[e]quitable because, by 

imposing uniform cost thresholds on 

regulated states, EPA’s rule subjects to 

stricter regulation those States that have 

done relatively less in the past to 

control their pollution.’’ Id. Thus, the 

agency’s approach to implementing the 

good neighbor provision explicitly 

considers the equity concerns raised by 

commenters when apportioning 

emission reduction responsibility 

among multiple upwind states. 

However, the agency does not believe 

Congress intended for it to exercise its 

discretion under CAA section 176A to 

resolve an alleged economic disparity or 

competitive disadvantage that is 

inherent in the creation of the OTR 

under CAA section 184 in a manner that 

is unrelated to the primary purpose of 

addressing interstate transport. Nor have 

petitioners provided meaningful 

information to substantiate that alleged 

disparity. Commenters’ passing 

reference to the potential for obtaining 

reductions at costs-per-ton of $500 to 

$1,200 in the non-OTR states, rather 

than $10,000 to $40,000 per ton in the 

OTR states, was not submitted with 

supporting evidence. In any case, even 

if we assumed those numbers were true 

for some types of control measures, it is 

by no means clear (and is in fact highly 

doubtful) that all of the mandatory 

control requirements that would be 

required of a new OTR state under CAA 

section 184 would be at that level of 

cost effectiveness. By contrast, the 

EPA’s approach under the good 

neighbor provision, as recognized by the 

Supreme Court, operates fairly by 

establishing control levels and 

apportioning responsibility among 

states based on a uniform level of 

control, represented by cost. 

E. Statutory Intent of CAA Section 176A 

(or 184) 

Some commenters believe that the 

current geography of the OTR no longer 

reflects the region most relevant to the 

nature of interstate ozone pollution in 

the East as it is now understood; they 

point out that New England states (e.g., 

New Hampshire, Maine and 

Massachusetts) no longer exceed the 

NAAQS, and their sources contribute 

less at downwind receptors than the 

states requested to be added to the OTR. 

They asserted that Congress created 

CAA section 176A to address changes in 

the geographical distribution of the 

ozone problem by providing a process 

for adding or removing states from the 

OTR. Therefore, they claimed that the 

EPA must set the boundaries of the 

transport region based on the scientific 

evidence presented and its own related 

analyses to provide the proper forum for 

states to address their obligations with 

respect to ozone transport. The 

commenters concluded that each 

iteration of the EPA’s own transport 

rules have identified a larger area. 

Response: As an initial matter, the 

agency does not have before it a petition 

to remove any states from the OTR. In 

addition, the EPA already adjusts good 

neighbor remedies in transport rules to 

capture the geographical distribution of 

states that are most effective in 

addressing each specific NAAQS ozone 

pollution issue. For example, states like 

Massachusetts, Rhode Island, and 

Connecticut were included in the NOX

SIP Call to address the 1979 ozone 

NAAQS. In contrast, those three states 

were not included in the CSAPR, which 

addressed the 1997 ozone NAAQS. 

Furthermore, states like Texas and 

Oklahoma are included in the CSAPR 

Update that addresses the 2008 ozone 

NAAQS but were not included in the 

NOX SIP Call or CAIR to address prior 

ozone NAAQS issues. 

F. Comments on the 2015 Ozone 

NAAQS 

A number of commenters raised 

concerns relating to the 2015 ozone 

NAAQS stating that: (1) The EPA should 

not limit the petition response to 2008 

ozone NAAQS interstate transport 

issues, (2) if the EPA were to grant the 

petition, the OTR requirements would 

help states attain the 2015 ozone 

NAAQS, and (3) the petition response 

should apply to any and all future ozone 

NAAQS. One commenter suggested that 

the EPA’s response should be limited to 

the 2008 ozone NAAQS because the 

petitioners’ data focuses on the 2008 

NAAQS, interstate transport SIPs for the 

2015 ozone NAAQS are not due yet, and 


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51250 Federal Register / Vol. 82, No. 212 / Friday, November 3, 2017 / Notices 

designations have not yet occurred for 

the 2015 ozone NAAQS. 

Response: Comments regarding the 

2015 ozone NAAQS are outside the 

scope of this action. The petition 

requested the EPA to expand the OTR 

on the basis of alleged air quality 

problems associated with attaining and 

maintaining the 2008 ozone NAAQS. 

The December 2013 petition was 

submitted prior to the EPA 

strengthening the ozone NAAQS in 

2015. Consequently, the EPA’s proposal 

focused on the appropriate mechanism 

to address interstate transport issues 

relative to the 2008 ozone NAAQS—not 

the 2015 ozone NAAQS. The EPA is, 

therefore, limiting this final action to 

the 2008 ozone NAAQS. Comments on 

any determinations made in prior 

rulemaking actions to identify 

downwind air quality problems relative 

to the 2015 ozone NAAQS or to quantify 

upwind state emission reduction 

obligations relative to those air quality 

problems, including the EPA’s decision 

to focus on certain precursor emissions 

or sources, are not within the scope of 

this action. 

VI. Final Action To Deny the CAA 

Section 176A Petition 

Based on the considerations outlined 

at proposal, after considering all 

comments, and for the reasons 

described in this action, the EPA is 

denying the CAA section 176A petition 

submitted by nine petitioning states in 

December 2013. The EPA continues to 

believe an expansion of the OTR is 

unnecessary at this time and would not 

be the most efficient or effective way to 

address the remaining interstate 

transport issues for the 2008 ozone 

NAAQS in states currently included in 

the OTR. Additional local and regional 

ozone precursor emissions reductions 

are expected in the coming years from 

already on-the-books rules. The EPA 

believes its authority and the states’ 

authority under other CAA provisions 

(including CAA section 

110(a)(2)(D)(i)(I)) will allow the agency 

and states to develop a more effective 

remedy for addressing any remaining air 

quality problems for the 2008 ozone 

NAAQS identified by the petitioners. 

VII. Judicial Review and 

Determinations Under Section 307(b)(1) 

of the CAA 

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

which Federal Courts of Appeal have 

venue for petitions of review of final 

actions by the EPA. This section 

provides, in part, that petitions for 

review must be filed in the Court of 

Appeals for the District of Columbia 

Circuit if (i) the agency action consists 

of ‘‘nationally applicable regulations 

promulgated, or final action taken, by 

the Administrator,’’ or (ii) such action is 

locally or regionally applicable, if ‘‘such 

action is based on a determination of 

nationwide scope or effect and if in 

taking such action the Administrator 

finds and publishes that such action is 

based on such a determination.’’ 

This final action is ‘‘nationally 

applicable.’’ Additionally, the EPA finds 

that this action is based on a 

determination of ‘‘nationwide scope and 

effect.’’ This action makes a 

determination on a petition from nine 

states in the Northeast, which would 

impact another nine states in the MidAtlantic, Southern, and Midwestern 

areas of the U.S. These 18 states span 

five regional federal judicial circuits as 

well as the District of Columbia. The 

determinations on which this action is 

based rest in part on the scope and 

effect of certain other nationally 

applicable rulemakings under the CAA, 

including the CSAPR and the CSAPR 

Update. For these reasons, this final 

action is ‘‘nationally applicable,’’ and 

the Administrator also finds that this 

action is based on a determination of 

nationwide scope and effect for 

purposes of CAA section 307(b)(1). 

Pursuant to CAA section 307(b)(1), 

any petitions for review of this final 

action should be filed in the Court of 

Appeals for the District of Columbia 

Circuit within 60 days from the date this 

action is published in the Federal 

Register. 

VIII. Statutory Authority 

42 U.S.C. 7401 et seq. 

Dated: October 27, 2017. 

E. Scott Pruitt, 

Administrator. 

[FR Doc. 2017–23983 Filed 11–2–17; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

[OMB 3060–1166] 

Information Collection Approved by 

the Office of Management and Budget 

AGENCY: Federal Communications 

Commission. 

ACTION: Notice. 

SUMMARY: The Federal Communications 

Commission (FCC) has received Office 

of Management and Budget (OMB) 

approval for a revision of a currently 

approved public information collection 

pursuant to the Paperwork Reduction 

Act of 1995. An agency may not conduct 

or sponsor a collection of information 

unless it displays a currently valid OMB 

control number, and no person is 

required to respond to a collection of 

information unless it displays a 

currently valid control number. 

Comments concerning the accuracy of 

the burden estimates and any 

suggestions for reducing the burden 

should be directed to the person listed 

in the FOR FURTHER INFORMATION

CONTACT section below. 

FOR FURTHER INFORMATION CONTACT: 

Cathy Williams, Office of the Managing 

Director, at (202) 418–2918, or email: 

Cathy.Williams@fcc.gov. 

SUPPLEMENTARY INFORMATION: The total 

annual reporting burdens and costs for 

the respondents are as follows: 

OMB Control Number: 3060–1166. 

OMB Approval Date: October 23, 

2017. 

OMB Expiration Date: October 31, 

2020. 

Title: Section 1.21001, Participation 

in Competitive Bidding for Support; 

Section 1.21002, Prohibition of Certain 

Communications During the 

Competitive Bidding Process. 

Form Number: N/A. 

Number of Respondents and 

Responses: 750 respondents and 750 

responses. 

Estimated Time per Response: 1.5 

hours. 

Frequency of Response: On occasion 

reporting requirement. 

Total Annual Burden: 1,125 hours. 

Total Annual Cost: No cost. 

Obligation To Respond: Required to 

obtain or retain benefits. Statutory 

authority for this information collection 

47 U.S.C. 154, 254 and 303(r). 

Nature and Extent of Confidentiality: 

There is no need for confidentiality. 

Information collected in each 

application for universal service support 

will be made available for public 

inspection, and the Commission is not 

requesting that respondents submit 

confidential information to the 

Commission as part of the pre-auction 

application process. Respondents 

seeking to have information collected on 

an application for universal service 

support withheld from public 

inspection may request confidential 

treatment of such information pursuant 

to section 0.459 of the Commission’s 

rules, 47 CFR Section 0.459. 

Privacy Act Impact Assessment: No 

impact(s). 

Needs and Uses: The Commission 

will use the information collected under 

this collection to determine whether 

applicants are eligible to participate in 

auctions for Universal Service Fund 

support. On November 18, 2011, the 

Commission released an order 


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