Document zbk5LJv4D8XDoxr698056eLx0

STEPTQE & A T T O R N E Y S AT LAW Chase Tower, 17th Floor P.O, Box 1588 Charleston, WV 25326-1588 (304) 353-8000 (304) 353-8180 Fax www.sS5ptoe-j<teson.com Wnte' Contaci Information May 31,2018 Honorable Scott Pruitt Administrator IIS - Environmental Protection Agency Mail Code 1101A 1200 Pennsylvania Avenue. N,W> Washington, DC 20460 RE: New York CAA Section 126 Petition. Dear Administrator Pruitt, On March 12, 2018, the New York Department o f Environmental Conservation filed a petition pursuant to Section 126 o f the federal Clean Air Act (CAA) directed at some 123 electric generating units (ECUs), 166 "non-electric generating units" and 59 oil and gas sector facilities in the states of Illinois. Indiana, Kentucky, Maryland, Michigan, Ohio, Pennsylvania, Virginia and West Virginia. By final rule effective on May 11, 2018 (83 Federal Register 21909) EPA extended the deadline for acting on the petition to no later than November 9, 2018, Even though the Environmental Protection Agency (EPA) lias not yet opened a formal comment period related to this petition, the defects in the petition, are significant enough to compel the submission o f comments at this time on behalf o f the Midwest Ozone Group1, MOG's concerns regarding, the New York petition go to the fundamental premise o f CAA 126 ~~to provide a carefully crafted mechanism by which states can resolve disputes o f interstate transport o f air pollutants as they relate to significant contribution to a nonattainment or maintenance problem. The basic premise o f CAA 126 as applied in this case is that New York must first demonstrate that It has an ozone non-attainment or maintenance problem before it can assert a claim against an upwind source, See CAA 126(b) and 110(a)(2)(D)(ii), 1The members of and participante in the Midwest Ozone Group include: American Coalition for Clean Coal Electricity, American Electric Power, American Forest & Paper Association, American Wood Council, Ameren, Alcoa, Appalachian Region Independent Power Producers Association (ARIPPA), ArcelorMittal, Associated Electric Cooperative, Citizens Energy Group, Council of Industrial Boiler Owners, Duke Energy, East Kentucky' Power Cooperative, FirstEnergy, Indiana Energy Association, Indiana Utility Group, LGE / K, National Lime Association, Ohio Utility Group, Olympus Power, and City Water, Light and Power (Springfield IL). W est Virginia Ohio Kentucky Pennsylvania Texas Colorado Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 \ ED 002061 00182360-00001 In these comments MOG has identified many deficiencies with the New York petition including the fact that EPA has established other processes to address interstate transport through the approval o f Good Neighbor implementation plans submitted by the upwind states targeted by the petition and the use o f outdated emission data for the sources that are targeted by the petition. Significantly, the following three deficiencies go to the fundamental question o f whether New York has an air quality problem that justifies the filing o f the petition: 1. The petition fails to address exceptional events. Consideration, o f exceptional events by EPA, will show that all New York monitors currently attain the 2008 ozone NAAQS when monitoring data influenced by these exceptional events are excluded. 2. The petition fails to address international transport. Consideration o f international emissions by EPA will show that "but for" .international transport from. Canada and Mexico every monitor in N ew York would attain both the 2008 and 2015 ozone NAAQS. 3. The petition fails to consider EPA 's most recent 12 km Good Neighbor modeling which demonstrates that all o f the New York monitors will attain the 2008 ozone NAAQS. MOG's application, o f the EPA modeling to a 4km grid goes further and demonstrates that all New York, monitors will also attain the 2015 ozone NAAQS. MOG submits that the New York petition is fatally flawed on both legal and technical grounds and urges EPA to reject the petition. Very truly yours. David M. Flannery Legal Counsel Midwest Ozone Group cc: William L. Wehrum Assistant Administrator Office o f Air and. Radiation U.S, Environmental Protection Agency Alexandra Dapolito Dunn Regional Administrator Region 1 U.S. Environmental Protection Agency Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00182360-00002 Peter D. Lopez Regional Administrator Region 2 U S. Environmental Protection Agency Cosmo Servidio Regional Administrator Region 3 U.S. Environmental Protection Agency Trey Glenn Regional Administrator Region 4 U.S. Environmental Protection Agency Cathy Stepp Regional Administrator Region 5 U.S. Environmental Protection Agency Richard Wayland Director Air Quality Assessment Division U.S. Environmental Protection Agency Michael Koerber Associate Director for Policy Air Quality Assessment Division U.S. Environmental Protection Agency Basil Seggos Commissioner New York State Department of Environmental Conservation Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00182360-00003 COMMENTS OF THE MIDWEST OZONE GROUP REGARDING STATE OF NEW YORK CLEAN AIR ACT 126 PETITION MAY 31, 2018 Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00182360-00004 TABLE OF CONTENTS 1. New York's petition should be rejected because it incorrectly characterizes the emissions of targeted states and so u rces..................................................... 3 2. Emission trends for states targeted by the petition have been decreasing for many years and will continue to do so for the foreseeable future.................. 5 3. EPA projects that in 2023 all New York monitors will attain or are already in attainment of the 2008 75 ppb ozone NAAQS................................................. 6 4. State-of-the-art modeling by the Midwest Ozone Group shows that all of New York's monitors will attain the 2015 ozone NAAQS...................................... 8 5. The CSAPR Eipdate Rule and the 2008 and 2015 "Good Neighbor" plans resolve (both legally and technically) the issues that have been raised by the New York petition........................................................................................................ 10 6. The petition's request to have emission control limits set on a daily basis is a consideration that EPA previously addressed and rejected and daily limits should also be rejected h e re ................................................................................................... 11 7. The New York monitors that are currently measuring the highest ozone concentrations are already nearly attaining the 2008 ozone NAAQS without consideration of any other mitigating factors................................................... 11 8. Consideration of Exceptional Events that occurred in 2016 would bring all New York monitors into attainment with the 2008 Ozone N A AQS........ 12 9. New York's basis for ignoring the EPA's Good Neighbor SIP modeling data has no m erit....................................................................................................... 18 10. The exclusion of New Jersey from list of states targeted by the petition ignores the impact of New Jersey and its mobile source emissions on New York's m o n ito rs...................................................................................................... 19 11. The New York petition cannot be sustained based only on the possibility of two maintenance monitors.................................................................................... 21 12. International emissions must be addressed as an integral part of the consideration of this petition................................................................................. 24 13. Mobile sources - not point sources - have the largest impact on New York monitors...................................................................................................................... 27 14. New York's reliance on the Dunkirk Monitor is inappropriate since that monitor attains both the 2008 and 2015 Ozone NAAQS................................... 28 15. New York has failed to provide any data addressing the cost effectiveness of the controls that it has proposed....................................................................... 29 16. New York admits that some targeted sources are already achieving their requested control levels........................................................................................... 30 17. The zero-out modeling performed by New York is not valid for source contribution calculations........................................................................................... 30 18. New York fails to offer any analysis of air quality or interstate transport for any time period after 2017 even though 2023 is the critical assessment date.... 30 19. New York did not apply an EPA approved modeling technique to perform its analysis.................................................................................................................... 30 i Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00182360-00005 20. Controls on local sources must be addressed first by New York before EPA can approve emission reductions on sources in the target states...................... 31 Conclusion................................................................................................................................. 32 Sierra Club v. EPA 18cv3472 NDCA ii Tier 3/4 ED 002061 00182360-00006 COMMENTS OF THE MIDWEST OZONE GROUP REGARDING STATE OF NEW YORK, CLEAN AIR ACT 126 PETITION1 MAY 31, 2018 On March 12, 2018, the State of New York filed a petition pursuant to Section 126 of the federal Clean Air Act (CAA) directed at some 123 electric generating units (EGUs), 166 "non electric generating units" and 59 oil and gas sector facilities in the states of Illinois, Indiana, Kentucky, Maryland, Michigan, Ohio, Pennsylvania, Virginia and West Virginia. By final rule effective on May 11,2018 (83 Federal Register 21909) EPA extended the deadline for acting on the petition to no later than November 9, 2018. The petition not only directly affects numerous facilities owned and operated by the members of and participants in the Midwest Ozone Group (MOG) but also raises several significant policy matters that are of significant concern to MOG. While MOG will defer to the owners of the individual sources on matters specific to those facilities, these comments are being offered to address more general concerns about the legal and technical deficiencies of the petition. MOG is an affiliation of companies, trade organizations, and associations that draw upon their collective resources to seek solutions to the development of legally and technically sound national ambient air quality management programs.12 MOG's primary efforts are to work with policy makers in evaluating air quality policies by encouraging the use of sound science. MOG has been actively engaged in a variety of EPA issues and initiatives related to the development and implementation of air quality policy, including the development of transport rules, NAAQS standards, nonattainment designations, petitions under 176A and 126 of the Clean Air Act, NAAQS implementation guidance, the development o f Good Neighbor state implementation plans and related regional haze issues. MOG members and participants operate a variety of emission sources including more than 75,000 MW o f coal-fired and coal-refuse fired electric power generation in more than ten states. They are concerned about the development o f technically unsubstantiated interstate air pollution rules and the impacts on their facilities, their employees, their contractors, and the consumers of their products. 1Questions or inquiries about these comments should be directed to David M. Flannery, Kathy G. Beckett, or Edward L. Kropp, Legal Counsel, Midwest Ozone Group, Steptoe & Johnson PLLC, 707 Virginia Street East, Charleston West Virginia 25301; 304-353-8000; dave.flannery@steptoe-iohnson.com and kathv.beckett@steptoe-iohnson.com and skipp.kropp@steptoe-iolmson.com respectively. These comments were prepared with the technical assistance of Alpine Geophysics, LLC. 2The members of and participants in the Midwest Ozone Group include: American Coalition for Clean Coal Electricity, American Electric Power, American Forest & Paper Association, American Wood Council, Ameren, Alcoa, Appalachian Region Independent Power Producers Association (ARIPPA), ArcelorMittal, Associated Electric Cooperative, Citizens Energy Group, Council of Industrial Boiler Owners, Duke Energy, East Kentucky Power Cooperative, FirstEnergy, Indiana Energy Association, Indiana Utility Group, LGE / KU, National Lime Association, Ohio Utility Group, Olympus Power, and City Water, Light and Power (Springfield IL). Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00182360-00007 MOG's concerns regarding the New York petition go to the fundamental premise of CAA 126 - to provide a carefully crafted mechanism by which states can resolve disputes of interstate transport of air pollutants as they relate to significant contribution to a nonattainment or maintenance problem. The basic premise of CAA 126 as applied in this case is that New York must first demonstrate that it has an ozone non-attainment or maintenance problem before it can assert a claim against an upwind source. See CAA 126(b) and 110(a)(2)(D)(ii). In conjunction with the denial of the Connecticut 126 petition involving the Brunner Island facility, EPA itself described the process of evaluating a 126 petition as follows: The EPA's basisfo r thisfinal action denying the petition has notfundamentally changed from the proposal. We continue to believe that Connecticut has not demonstrated that Brunner Island emits or would emit in violation o fthe good neighborprovision such that it will significantly contribute to nonattainment or interfere with maintenance o fthe 2008 ozone NAAQS in Connecticut. Moreover, the E P A 's own analysis provides no basis to conclude that the Brunner Islandfacility either currently emits or would emitpollution in violation o f the good neighborprovisionfo r the 2008 ozone NAA QS. In section III o fthis notice, and in the RTC document included in the docket for this action, the agency explains the rationale supporting its conclusion in light o f the public comments. As an initial matter, the E P A 's historical approach to evaluating CAA section 126(b) petitions looksfirst to see whether a petition identifies or establishes a sufficient basisfo r the requested section 126(b)finding. The EPAfirst evaluates the technical analysis in the petition to see i f that analysis, standing alone, is sufficient to support a section 126(b) finding. Ihe EPA focuses on the analysis in the petition because the statute does not require the EPA to conduct an independent technical analysis to evaluate claims made in section 126(b) petitions. Ihe petitioner thus bears the burden o festablishing, as an initial matter, a technical basisfo r the specificfinding requested. The EPA has no obligation to prepare an analysis to supplement a petition thatfails, on itsface, to include an initial technical demonstration. Such a petition, or a petition thatfails to identify the specific finding requested, could befound insufficient.3 In these comments, MOG has identified many deficiencies with the New York petition. These deficiencies include the use of outdated upwind source emission data and the likelihood that the petition will be mooted when states and EPA act later this year to submit and approve Good Neighbor implementation plans specifically directed at satisfying Clean Air Act requirements with respect to interstate transport consistent with EPA 's recently issued guidance on Good Neighbor*2 3https://www. gpo.gov/fdsvs/pkg/FR-2018-04-13/pdf/2018-07752.pdf 2 Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00182360-00008 SIPs4 In addition, there are three deficiencies that go to the fundamental question of whether New York has an air quality problem that justifies the filing of the petition: The petition fails to address exceptional events. Consideration of exceptional events by EPA will show that all New York monitors currently attain the 2008 ozone NAAQS when monitoring data influenced by these exceptional events are excluded. The petition fails to address international transport. Consideration of international emissions by EPA will show that "but for" international transport from Canada and Mexico every monitor in New York would attain both the 2008 and 2015 ozone NAAQS. The petition fails to consider EPA 's most recent 12 km Good Neighbor modeling which demonstrates that all of the New York monitors will attain the 2008 ozone NAAQS. M OG's application of the EPA modeling to a 4km grid goes further and demonstrates that all New York monitors will also attain the 2015 ozone NAAQS. For reasons based upon these deficiencies and others set forth below, the Midwest Ozone Group strongly believes that EPA must deny the New York 126 petition. 1. New York's petition should be rejected because it incorrectly characterizes the emissions of targeted states and sources. The beginning point for the New York petition is its reliance on some EPA modeling data that was developed in support of the 2016 CSAPR Update Rule. From this data New York selected 10 states that it asserts should be considered today to be "significantly contributing states" in violation of the good neighbor provision of CAA Section 110(a)(2)(D)(i). The 10 states initially identified as "significantly contributing" include: Illinois, Indiana, Kentucky, Maryland, Michigan, New Jersey, Ohio, Pennsylvania, Virginia and West Virginia. Beyond the fact that the petition did not otherwise rely on any EPA generated data in support of its petition, the data selected to identify these target states are extremely outdated and not representative of emissions that occurred in 2017 - the year selected by New York for review. The following chart compares the data that is used by New York to characterize 2017 EGU emissions compared with the actual EGU NOx emissions in 2017 as measured by Continuous Emission Monitors (CEM) and reported to EPA 's CAME) office:3 4See EPA's Stephen Page memorandum, dated October 27, 2017 (https://www.epa.gov/sites/production/files/201710/documents/final 2008 o3 naaqs transport memo 10-27-17b.pdf) and EPA's Peter Tsirigotis memorandum dated March 27, 2018 (https://www.epa.gov/airmarkets/inarch-2018-memo-and-supplemental-informationregarding-interstate-transport-sips-2015. 3 Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00182360-00009 State / Region IL IN KY MD MI NJ OH PA VA/DC wv Sec 126 Subtotal CT DE NY N orth East WI NC IN South AR MO OK TX W est US Total 2017 Ozone Season NOx Tons from All EGUs M odeled Actual as CSAPR Base; IP M R eported to C S A P R -C E M 5.14 CAM D/CEM D elta 15,706 43,842 14,531 22,419 1,175 21,423 38,968 4,348 20,053 2,939 18,915 1,409 32,167 4,001 16,958 1,684 15,209 2,317 29,599 50,870 21,005 14,435 8,595 36,435 10,438 25,582 8,069 18,463 2,369 7,119 255,522 140,556 114,966 Delta from CSAPR (% ) -7% -49% -49% -32% -47% -58% -29% -72% -23% -28% -45% 493 362 7,396 2,730 8,690 21,929 6,383 80,999 11,888 20,572 24,329 66,585 180,994 688,872 430 459 5,614 1,611 8,103 16,474 10,135 54,262 12,811 15,400 11,043 54,375 148,488 479,761 63 (97) 1,782 1,119 586 5,456 (3,752) 26,737 (923) 5,172 13,286 12,210 32,506 209,111 -13% 27% -24% -41% -7% -25% 59% -33% 8% -25% -55% -18% -18% -30% The New York petition also states (p.10 of 17) that it relied upon 2014 National Emissions Inventory (NEI) data to identify 400 tons sources. Even though New York concedes that in doing so it included emissions that were overstated, it nevertheless conducts its analysis based upon these incorrect and outdated emissions. In the case of 14 forest products industry sources included in the analysis and listed in Appendix B of the petition, the projected 2017 emissions are overstated by almost 7,500 tons. This error is not only significant in making a determination of 2017 emissions, it results in a much greater error in assessing those sources in 2023 - the attainment year applicable to both the 2008 and 2015 ozoneNAAQS. Several large coal-fired industrial boilers in various sectors were shutdown, replaced with new natural gas boilers, or retrofitted with new natural gas burners4 Sierra Club v. EPA 18cv3472 NDCA 4 Tier 3/4 ED 002061 00182360-00010 that emit less NOx as a result of the Boiler MACT rule that was implemented after 2014. These lower emissions will be reflected in the actual emissions inventories for 2017 and beyond. Reliance on such outdated data obfuscates the effect of on-going emission reduction programs. New York's reliance on this outdated information dramatically overstates the impact of these sources on its monitors and requires EPA to deny the New York petition as it did, in part, for the same reason as EPA did in issuing the proposed denial o f the Connecticut petition related to the Brunner Island Plant5 2. Emission trends for states targeted by the petition have been decreasing for many years and will continue to do so for the foreseeable future. The New York petition is directed at sources in nine upwind states that have in fact experienced a significant reduction in NOx emissions over recent years. These reductions not only reflect the good faith of these upwind states in regulating their own sources but also the effectiveness of EPA programs adopted to meet the Good Neighbor provisions of the Clean Air Act and to reduce emissions from industrial source categories. Set forth below is a table developed from EPA modeling platform summaries6 illustrating total anthropogenic emission reduction and EGU-only emission reduction in the states targeted by the New York petition. 583 Fed. Reg. 7716 (February 22, 2018). Sierra Club v. EPA 18cv3472 NDCA 5 Tier 3/4 ED 002061 00182360-00011 State Illinois Indiana Kentucky Maryland Michigan New Jersey Ohio Pennsylvania Virginia West Virginia Sec 126 Total New York Annual Anthropogenic NOx Emissions (Tons) 2011 2017 2023 506,607 354,086 293,450 444,421 317,558 243,954 327,403 224,098 171,194 165,550 108,186 88,383 443,936 296,009 228,242 191,035 127,246 101,659 546,547 358,107 252,828 562,366 405,312 293,048 313,848 199,696 161,677 174,219 160,102 136,333 3,675,930 2,550,399 1,970,766 Emissions Delta (2017-2011) Tons %\ 152,521 -30% 126,863 -29% 103,305 -32% 57,364 -35% 147,927 -33% 63,789 -33% 188,439 -34% 157,054 -28% 114,152 -36% 14,117 -8% 1,125,531 -31% i Emissions Delta (2023-2011) Tons %! 213,156 -42% 200,467 -45% 156,209 -48% 77,167 -47% 215,694 -49% 89,376 -47% 293,719 -54% 269,318 -48% 152,171 -48% 37,886 -22% 1,705,164 -46% 388,350 264,653 230,001 123,696 -32% 158,349 -41% State Illinois Indiana Kentucky Maryland Michigan New Jersey Ohio Pennsylvania Virginia West Virginia Sec 126 Total New York Annual EGU NOx Emissions (Tons) 2011 2017 2023 73,689 31,132 3a 764 119,388 89,739 63,397 92,279 57,520 42,236 19,774 6,001 9,720 77,893 52,829 33,708 7,241 2,918 5,222 104,203 68,477 37,573 153,563 95,828 49,131 40,141 7,589 20,150 56,620 63,485 46,324 744,792 475,518 338,225 Emissions Delta (2017-2011) Tons % 42,557 -58% 29,649 -25% 34,759 -38% 13,773 -70% 25,064 -32% 4,323 -60% 35,727 -34% 57,735 -38% 32,553 -81% (6,865) 12% 269,274 -36% i Emissions Delta (2023-2011) Tons %! 42,926 -58% 55,991 -47% 50,043 -54% 10,054 -51% 44,186 -57% 2,019 -28% 66,630 -64% 104,432 -68% 19,992 -50% 10,296 -18% 406,568 -55% 27,379 10,191 16,256 17,188 -63% 11,123 -41% As can be seen from this table, the states being targeted by the New York petition are projected to reduce their annual anthopogenic NOx emissions by 31% (1.125 million tons) through 2017 and 46% from 3.68 million tons to 1.97 million tons between 2011 and 2023. Comparatively, these targeted states are projected to reduce EGU-only annual NOx emissions by 36% (269 thousand tons) through 2017. The 2017 actual NOx emissions reductions are even greater than the predicted reductions as shown by the CEM-reported emissions presented in earlier sections of this document as compared to the modeled 2017 EGU emissions. Futhermore, a 55% reduction in annual EG U N O x emissions from the NY petition targeted states, or 406 thousand tons, is projected by EPA between 2011 and 2023. Emission trends for these states have been deceasing for many and will continue to decrease for the foreseeable future as the result of nothing mode than on-the-books controls. 3 EPA projects that in 2023 all New York monitors will attain or are already in attainment of the 2008 75 ppb ozone NAAQS. Sierra Club v. EPA 18cv3472 NDCA 6 Tier 3/4 ED 002061 00182360-00012 On October 27, 2017, EPA issued guidance and supporting data on how states should develop approvable Good Neighbor SIPs related to the 2008 ozone NAAQS.*7 The following is the opening paragraphs of that memorandum: The purpose o f this memorandum is to provide supplemental information to states and the Environmental Protection Agency Regional offices as they develop or review state implementation plans (SIPs) that address section 110(a)(2)(D)(i)(I) o f the Clean Air Act (CAA), also called the "good neighbor ''provision, as itpertains to the 2008 ozone National Ambient Air Quality Standards (NAAQS) o f 75 parts per billion (ppb). Specifically, we are providing future year ozone design values and contribution modeling outputsfo r monitors in the UnitedStates based on updated air quality modeling (for 2023) and monitoring data. The E P A 's updated modeling indicates that there are no monitoring sites, outside o f California, that are projected to have nonattainment or maintenance problems with respect to the 2008 ozone NAAQS o f 75 ppb in 2023. EPA's modeling data has been confirmed by modeling performed for MOG by Alpine Geophysics.8 6Stephen Page memorandum, October 27, 2017: https://www.epa.gov/sites/production/files/201710/documents/final 2008 o3 naaqs transport memo 10-27-17b.pdf. 7"''Good Neighbor" Modeling for the 2008 8-Hour Ozone State Implementation Plans, Final Modeling Report", prepared by Alpine Geophysics, December 2017 http://midwestozonegroup.com/files/Ozone Modeling Results Supporting GN SIP Obligations Final Dec 2017 .pdf 7 Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00182360-00013 The data taken from the EPA 12km grid modeling are displayed in the following table: Monitor 360010012 360050133 360150003 360270007 360530006 360610135 360671015 360715001 360750003 360790005 360810124 360850067 360870005 361030002 361030004 361030009 361111005 361192004 State New York New York New York New York New York New York New York New York New York New York New York New York New York New York New York New York New York New York County Albany Bronx Chemung Dutchess Madison New York Onondaga Orange Oswego Putnam Queens Richmond Rockland Suffolk Suffolk Suffolk Ulster Westchester DVb (2011) 68.0 74.0 66.5 72.0 67.0 73.3 69.3 67.0 68.0 70.0 78.0 81.3 75.0 83.3 78.0 78.7 69.0 75.3 DVf (2023) Ave 55.4 68.0 54.9 58.6 55.0 65.3 57.8 55.3 55.7 58.4 70.1 71.9 62.0 72.5 66.3 68.5 57.4 68.1 DVf (2023) Max 57.0 69.9 55.3 60.2 55.0 67.8 60.1 56.9 57.3 59.2 71.9 73.4 62.8 74.0 68.0 69.7 57.4 68.8 It is thus apparent that current emission control programs are more than adequate to satisfy Good Neighbor obligations o f states such as New York even without consideration o f a more refined grid modeling platform. 4. State-of-the-art modeling by the Midwest Ozone Group shows that all of New York's monitors will attain the 2015 ozone NAAQS. To address its own concerns about whether modeling with a 12 km grid is sufficiently refined to address the land/water interface issues, M OG undertook to run EPA's model at a finer 4km grid. As is shown in the following chart, when EPA 's air quality modeling platform is run with a 4 km grid (rather than a 12 km grid) predicted ozone concentration at all monitors in New York are in attainment with respect to both the 2008 ozone NAAQS as well as the more stringent 2015 ozone NAAQS.8 Sierra Club v. EPA 18cv3472 NDCA 8 Tier 3/4 ED 002061 00182360-00014 Monitor NY County 360010012 Albany 360050133 Bronx 360150003 Chemung 360270007 Dutchess 360530006 Madison 360610135 New York 360671015 Onondaga 360715001 Orange 360750003 Oswego 360790005 Putnam 360810124 Queens 360850067 Richmond 360870005 Rockland 361030002 Suffolk 361030004 Suffolk 361030009 Suffolk 361111005 Ulster 361192004 Westchester DVb (2011) 68.0 74.0 66.5 72.0 67.0 73.3 69.3 67.0 68.0 70.0 78.0 81.3 75.0 83.3 78.0 78.7 69.0 75.3 12km Modeling DVf (2023) DVf (2023) Ave Max 55.4 57.0 68.0 69.9 54.9 55.3 58.6 60.2 55.0 55.0 65.3 67.8 57.8 60.1 55.3 56.9 55.7 57.3 58.4 59.2 70.1 71.9 71.9 73.4 62.0 62.8 72.5 74.0 66.3 68.0 68.5 69.7 57.4 57.4 68.1 68.8 4km Modeling DVf (2023) DVf (2023) Ave Max 56.5 58.2 64.7 66.4 55.1 55.5 56.8 58.4 54.8 54.8 61.5 63.7 57.6 59.8 54.9 57.0 55.9 57.5 56.7 57.5 68.0 69.8 69.6 71.0 61.1 63.1 70.7 72.1 64.5 66.2 66.8 67.9 55.4 55.4 64.4 64.9 Modeling of this type using a finer grid is specifically recommended under existing EPA guidance which states: The use o fg rid resolutionfin er than 12 ion would generally be more appropriate for areas with a combination o f complex meteorology, strong gradients in emissions sources, and/or land-water interfaces in or near the nonattainment area(s).89 Emphasis added. Accordingly, when state o f the art modeling is used to assess air quality in New York at the appropriate attainment date, all receptors - without exception- are in attainment with the 2015 ozone NAAQS compelling the denial of the New York petition. 8http://www3.epa.gov/scram001/gxiidance/guide/Draft 03-PM-RH Modeling Guidance-2014.pdf 9 Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00182360-00015 5. The CSAPR U pdate Rule and the 2008 and 2015 "Good Neighbor" plans resolve (both legally and technically) the issues that have been raised by the New York petition. W hile the petition acknowledges (p.6 o f 17) the near-term deadlines for action by EPA on the Good Neighbor plans of the targeted states related to the 2008 ozone NAAQS, the petition fails to address the fact that action on these plans addresses exactly the same provision of the Clean Air Act as does their petition (CAA 110(a)(2)(D)(i) and would effectively satisfy their petition as it relates to the 2008 ozone NAAQS. This close relationship was addressed by EPA in its proposed denial of the Connecticut 126 petition involving the Brunner Island Plant when EPA stated910*: Put another way, requiring additional reductions would result in eliminating emissions that do not contribute significantly to nonattainment or interfere with maintenance o f the NAAQS, an action beyond the scope o f the prohibition in CAA section 110(a)(2)(D)(i)(I) and therefore beyond the scope o fEPA's authority to make the requested finding under CAA section 126(b). See EPA v. EM E Homer City Generation, L P ., 124 S. Ct. 1584, 1604 n.18, 1608-09 (2014) (holding the EPA may not require sources in upwind states to reduce emissions by more than necessary to eliminate significant contribution to nonattainment or interference with maintenance o f the NAAQS in downwind states under the good neighbor provision). The petition also fails to acknowledge the October 1, 2018 deadline that is applicable to all target states for the submittal of Good Neighbor plans related to the 2015 ozone NAAQS. These Good Neighbor plans would also address CAA 110(a)(2)(D)(i) and effectively eliminates any need for the relief requested in the petition. In addition to the 2008 and 2015 ozone NAAQS Good Neighbor State Implementation Plans (SIPs), EPA's CSAPR Update Rule was also adopted to implement and satisfy CAA Section 110(a)(2)(D)(i) obligations. The combination of these actions has already has or ultimately will resolve the responsibility of the states and sources named in the New York petition (filed pursuant to CAA Section 126) because both sections of the CAA call for the application of the same legal standard. CAA 126(b) provides - Any state or political subdivision may petition the Administrator fo r a finding that any major source or group o f stationary sources emit or would emit any air pollutant in violation o f the prohibition o f section 110(a)(2)(D)(ii) ... 11 CAA 110(a)(2)(D)(i) provides - 983 Fed. Reg. 7712 (February 22, 2018). 10Appalachian Power Co. v. EPA, 249 F.3d 1032 (D.C. Cir.) held this to be a scrivener's error and that the reference here was intended to be to section 110(a)(2)(D)(i) rather than to section 110(a)(2)(D)(ii) as written. 10 Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00182360-00016 Each plan s h a ll... contain adequate provisions ... prohibiting ... source ... from emitting any air pollutant in amounts which w i l l ... contribute significantly to non-attainment in, or interfere with maintenance by, any other state Thus, resolution of the question of interstate transport under CAA 110(a)(2)(D)(i) effectively and legally resolves any issues that might be the bases for a petition filed under CAA 126(b). 6. The petition's request to have emission control limits set on a daily basis is a consideration that EPA previously addressed and rejected and daily limits should also be rejected here. One of the requests advanced in the New York petition (see page 17 of 17.) is to have emission limits imposed on a daily - rather than ozone season - basis. Such a proposal has previously been considered and rejected by EPA in connection with the CSAPR Update Rule. MOG urges that it also be rejected here. During proceeding on the CSAPR Update rulemaking, EPA carefully considered requests from Northeast states urging that the C SAPR budget be applied on a short term basis. EPA made the final decision to establish a program for the regulation of NOx emissions from EGUs on an ozone season average basis rather than on any shorter time fram e.12 7. The New York monitors that are currently measuring the highest ozone concentrations are already nearly attaining the 2008 ozone NAAQS without consideration of any other mitigating factors. While the petition mentions three monitors in the state with 2017 design values in excess of the 2008 ozone NAAQS level of 75 ppb, the design values for each of those monitors is only 76 ppb - 1 ppb above the 2008 ozone NAAQS. Elsewhere in these comments, MOG will note several factors which when taken into account are likely to reduce these concentrations significantly. However, even without the consideration of those factors, it is critical that the petition fails altogether to take this 1 ppb increment into account in offering its proposed remedy. Failure to do so is a failure to avoid over-control that would result from the imposition of emission reductions on upwind states and sources that are more than necessary to bring downwind state monitors into attainment. The following are the preliminary 2017 design values for those three monitors that exceed the 2008 (75 ppb) ozone NAAQS:*1 1181 Fed Reg. 74523, October 26, 2016. 11 Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00182360-00017 360850067 361030002 361030004 Susan Wagner HS Babylon Riverhead Prelim 2017 DV 76 76 76 Failure to address whether the proposed remedy results in over-control is a failure that requires denial of any Section 126 petition. Upwind states are not required to achieve a higher level of control than that which is necessary to achieve attainment in a downwind area. 8. Consideration of Exceptional Events that occurred in 2016 would bring all New York monitors into attainment with the 2008 Ozone NAAQS. The Clean Air Act and EPA recognize that Exceptional Events can result in higher design values for many monitors in both the upwind and downwind states. If Exceptional Events are not accounted for, use of the resulting higher design values will not only result in inaccurate nonattainment designations, but also in ultimately higher future year predictions of ozone concentrations and the inaccurate representation that additional control measures are necessary. The importance o f the need to exclude data influenced by Exceptional Events is recognized by Congress in the provisions of Clean Air Act 319(b)(3)(B) which provides as follows: Regulations promulgated under this section shall, at a minimum, provide that (i) the occurrence o fan exceptional event must be demonstrated by reliable, accurate data that is promptly produced and provided by Federal, State, or local government agencies; (ii) a clear causal relationship must exist between the measured exceedances o fa national ambient air quality standard and the exceptional event to demonstrate that the exceptional event caused a specific air pollution concentration at a particular air quality monitoring location; (Hi) there is a public process fo r determining whether an event is exceptional; and (iv) there are criteria andproceduresfo r the Governor o fa State topetition the Administrator to exclude air quality monitoring data that is directly due to exceptional eventsfrom use in determinations by the Administrator with respect to exceedances or violations o f the national ambient air quality standards. EPA's regulations on Exceptional Events appear at 40 CFR 50.14 (81 Fed. Reg. 68216, October 3, 2016) and provide the framework for addressing Exceptional Events. The regulations include requirements related to demonstrating (a) that a clear, causal relationship exists between the event and monitored exceedance(s) (b) the event was o f human origin and not likely to recur or was natural in origins and (c) the occurrence was not reasonably controllable or preventable.12 12 Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00182360-00018 In addition, EPA has also offered guidance related to Exceptional Events12314that, among other things, requires that demonstrations include: A narrative conceptual model that describes the event(s) causing the exceedance or violation and a discussion o f how emissions from the event(s) led to the exceedance or violation at the affected monitor(s); A demonstration that the event affected air quality in such a way that there exists a clear causal relationship between the specific event and the monitored exceedance or violation; Analyses comparing the claimed event-influenced concentration(s) to concentrations at the same monitoring site at other times. The Administrator shall not require a State to prove a specific percentile point in the distribution of data; A demonstration that the event was both not reasonably controllable and not reasonably preventable; A demonstration that the event was caused by human activity that is unlikely to recur at a particular location or was a natural event; and Documentation that the submitting air agency followed the public comment process. A number of states have already made requests to have the air masses caused by the Canadian wildfires that occurred in 2016 be declared Exception Events - thus allowing monitored data influenced by those events to be excluded from the calculation of the design value for the affected monitor. Among the states submitting these requests are several o f New Y ork's neighboring states including: Connecticut - The Connecticut demonstration related to the May 2016 event was submitted on May 23, 2017. In addition to showing that Canadian wildfire caused the event, the demonstration noted that ". . . the exceedances of May 25-26th cannot be attributed to EGUs operating on high electric demand days as is more typically the case later in the ozone season." EPA concurred in that demonstration on July 31, 2017. New Jersey - The New Jersey demonstration related to the May 2016 was submitted on May 31, 2017.15 In addition to showing that Canadian wildfire caused the event in New Jersey, the demonstration also noted that the event had had a similar impact on many other states including Wisconsin, Michigan, Illinois, Indiana, Ohio, Pennsylvania and New York. EPA concurred in that demonstration on October 24, 2017. 12 Guidance on the Preparation of Exceptional Events Demonstrations for Wildfire Events that May Influence Ozone Concentrations, Final, EPA, September 2016: https://www.epa.gov/sites/production/files/201609/documents/exceptional events guidance 9-16-16 fmal.pdf 13https://www.epa.gov/air-qualilv-analvsis/exceptional-event.s-documents-ozone-connecticnt 14https://www.epa.gov/air-qualitv-analvsis/exceptiorial-event.s-documents-ozone-new-iersev 13 Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00182360-00019 Massachusetts - The Massachusetts demonstration related to the May 2016 event was submitted on May 25, 2017.16 EPA concurred in that demonstration on September 19, 2017. Maryland - While the Maryland demonstration dated May 26, 2017, nominally addresses July 2016 event, the demonstration report itself includes data which assesses how the design values for Maryland's monitors are affected by both the May and July 2016 events.17 M OG is not aware that EPA has yet addressed the merit of the Maryland demonstration. Pennsylvania - Pennsylvania has also made a demonstration related to the May 2016 event dated November 2017.18 We are not aware that EPA has yet addressed the merit of the Pennsylvania demonstration. MOG has analyzed the 2016 design values o f all o f the monitors in New York to determine the impact on design values after data collected during these 2016 Exceptional Events are excluded. To illustrate the process used to assess these monitors, MOG offers the following graphics related to the Suffolk (361030002) and Richmond (360850067) monitors in New York. In the case of each monitor MOG has graphically identified the 10 highest ozone concentrations that occurred in 2016 and have highlighted in red those readings that occurred on dates related to the May 2016 and July 2016 Canadian wildfire events. These graphics demonstrate the significance of the exclusion of those data points affected by the two Exceptional Events identified. 15 https://www.epa.gov/air-qualitv-analvsis/exceptional--events-documents-ozone-massachusetts 16hltp://www.mde.state.md.us/programs/Air/AirOualityMonitormg/Documents/MDE JUL 21 22 2016 EE demo.p c 1 http://www.elibrarv.dep.state.pa.us/dsweb/Get/Document-117484/Qzone%20EE%20Analvsis%20Mav%2024-26~ 2017.pdf- 14 Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00182360-00020 AQS_S!TE_!D Row Labels 5/25/2016 7/15/2016 6/21/2016 53/26/2016 7/22/2016 7/16/2016 7/17/2016 7/21/2016 7/30/2016 8/24/2016 5/12/2016 361030002 ^ Sum of Daily MDA8 0.085 0.076 0.073 0.073 0.070 0.070 0.067 0.067 0.065 0.064 0.064 Suffolk, N ew York Value 2016 4th (fire) 20 1 6 4th (no fire) 2014-16 DV (fire) 2014-16 DV (no fire) Ozone MDA8 (ppb) 73 67 72 70 Babylon Monitor (361030002) in Suffolk, New York and 0.073 ppm 4th High 0.090 0.080 Red bars indicate values occurring between May 24-26,2016 or July 21-22, 2016 0.070 0.060 _ 0.050 EQ. S 0.040 0<0 Q 0.030 u> g 0.020 (M 0.010 | 5/25/2016 7/15/2016 6/21/2016 5/26/2016 7/22/2016 7/16/2016 7/17/2016 7/21/2016 7/30/2016 8/24/2016 5/12/2016 jTatal ; 0.085 0.076 0.073 0.073 0.070 0.070 0.067 0.067 0.065 0.064 0.064 Top 10 Observed Ozone Days in 2016 Sierra Club v. EPA 18cv3472 NDCA 15 Tier 3/4 ED 002061 00182360-00021 AQS_S!TE_!D Row Labels 5/25/2016 7/22/2015 5/2 5/21)15 7/21/2015 7/6/2016 5/28/2016 7/29/2016 7/28/2016 6/11/2016 7/15/2016 360850067 Sum of Daily MDA8 0.086 0.081 0.078 0.077 0.075 0.074 0.073 0.071 0.071 0.071 Richmond, N ew York Value 2016 4th (fire) 20 1 6 4th (no fire) 2014-16 DV (fire) 2014-16 DV (no fire) Ozone MDA8 (ppb) 77 71 76 74 Susan Wagner Hs Monitor (S60850067) in Richmond, New York and 0.077 ppm 4th High 0.100 ------------------------------------------------------------------------------------------------------------------ 0.090 Red bars indicate values occurring between May 24-26,2016 or July 21-22, 2016 Top 10 Observed Ozone Days in 2016 While Connecticut, Massachusetts, New Jersey, Pennsylvania, Maryland and several other states have requested consideration of Exceptional Events for 2016 Canadian wildfire event, New York has made no such request. However, as can be seen in the following data, had the May and July events been excluded, the design values for 25 of New York's monitors (highlighted in green) would be significantly low er19. In the case of each monitor, the measurements collected during on the days in May and July 2016 impacted by the Canadian wildfire for which Exceptional Events analysis should have been filed, resulted in new 4thhigh values and new 3 year design values for each monitor for comparison to the 2008 and 2015 ozone NAAQS. 18 https://www.epa.gov/sites/productioii/files/2017-12/documenls/nv ni ct new vork-northem new iersevlong island 120d tsd final.pdf 16 Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00182360-00022 AQS Site ID 360010012 360050110 360050133 360130006 360270007 360290002 360310002 360310003 360319991 360337003 360410005 360430005 360450002 360551007 360610135 360631006 360671015 360715001 360750003 360790005 360810124 360850067 360870005 360910004 361010003 361030002 361030004 361030009 361099991 361173001 361192004 State Name New York New York New York New York New York New York New York New York New York New York New York New York New York New York New York New York New York New York New York New York New York New York New York New York New York New York New York New York New York New York New York County Name Albany Bronx Bronx Chautauqua Dutchess Erie Essex Essex Essex Franklin Elamilton Herkimer Jefferson Monroe New York Niagara Onondaga Orange Oswego Putnam Queens Richmond Rockland Saratoga Steuben Suffolk Suffolk Suffolk Tompkins Wayne Westchester 2014-2016 Design Value (ppm) 0.064 0.067 0.070 0.068 0.068 0.069 0.062 0.065 0.058 0.058 0.060 0.063 0.063 0.063 0.069 0.066 0.064 0.066 0.060 0.068 0.069 0.076 0.072 0.063 0.059 0.072 0.072 0.066 0.063 0.064 0.074 Fire Excluded 2014-2016 Design Value ippm) 0 IK,.1 o."60 0.070 i uk,7 i U' 07 ( i !08 0 o(,| o.i 63 0.058 '/57 0 Il5`> o o5S 0.1162 0.063 0.068 O.N65 O.N62 (i 065 0.060 0.068 0.067 0.074 0.O71 o 062 0.059 0.070 0.070 O.i *65 0.O6! 0 063 (i 072 Sierra Club v. EPA 18cv3472 NDCA 17 Tier 3/4 ED 002061 00182360-00023 With respect to the three monitors highlighted in the New York petition, MOG has also recalculated what the preliminary 2017 design value for each monitor would be if the Exceptional Events are considered. Significantly, all three of the New York monitors with preliminary design values above the 2008 ozone NAAQS, would be below the 2008 standard if only the 2016 Canadian wildfire related exceptional events were addressed. AQS Site ID 360850067 361030002 361030004 Local Site Name Susan Wagner HS Babylon Riverhead 2017 DV With wildfire 76 76 76 2017 DV Without wildfire 74 74 74 In the absence of a request by New York to exclude data related to these wildfire affected time periods, MOG requests that EPA do so as it evaluates the merit of this petition. Because consideration of only the 2016 Canadian Exceptional Events is adequate to bring he design values of all New York into attainment with the 2008 ozone NAAQS, the relief requested by New York would necessarily result in prohibited over-control. In the alternative, we note that EPA 's March 27, 2018, Good Neighbor SIP guidance memorandum specifically calls into question whether "downwind areas have considered and/or used available mechanisms for regulatory relief." The fact that New York has not requested relief from the impact of these exceptional events does indeed become an independent basis for the denial of its petition. 9. New York's basis for ignoring the EPA's Good Neighbor SIP modeling data has no merit. The New York petition complains that EPA 's CSAPR Update Rule was designed by EPA to be a "partial remedy" to address interstate transport in 2017 (p. 6 of 17). The petition, however, dismisses EPA's Good Neighbor SIP data19201 discussed above that clearly demonstrates that the CSAPR Update becomes a full remedy when it is extended to applicable compliance date determined by EPA to be appropriate for the 2008 ozone NAAQS. A review of the three reasons offered by New York for dismissing the EPA Good Neighbor SIP data illustrates that New York's rejection of the EPA data has no merit. 19 EPA Peter Tsirigotis memorandum of March 27, 2018 ('https://www.epa.gov/airmarkets/march-2018-memo-andsuppleinental-information-regarding-inlerstate-traiisport-sips-2015 at p. A-2. 20Stephen Page memorandum, October 27, 2017: https://www.epa.gov/sites/production/files/201710/documents/final 2008 o3 naaas transport, memo 10-27-17b.pdf 18 Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00182360-00024 a. The initial reason stated by New York for ignoring EPA's most recent Good Neighbor modeling data is New York's belief that enforceable limits are needed before the modeling could be considered. This concern ignores that EPA's projection of emissions in 2023 is based upon "on-the-book" regulations and control requirements that are self-implementing and do not require any further regulatory actions. EPA 's modeling relied only upon control programs currently in place and in effect. As such, nothing more is needed to evaluate these control programs in 2023. b. New York also offers a concern about the ability of EPA 's modeling to address monitors located at a 1and/water interface.22EPA 's Good Neighbor modeling was, of course, conducted using a 12 km modeling grid. EPA 's March 27, 2018 Good Neighbor SIP guidance memorandum addressed this very issue by selecting from its 12km modeling data only those values that were modeled over land. This approach showed that all receptors in New York did indeed attain the 2015 ozone NAAQS with the exception of the Suffolk (361030002) monitor which has a 3 year "No Water" 2023en design value of 74.0 ppb. As will be discussed in the next section of these comments, moving to 4 km modeling in accordance with EPA modeling guidance demonstrates that even the Suffolk monitor is in attainment. c. New York also declined to consider the EPA Good Neighbor modeling because it was based on 2023 whereas New York asserts that relief under a 126 petition must be implemented in no more than 3 years. Given that 2023 is the likely attainment year for the 2015 ozone NAAQS and given the time that would be needed for EPA to approve the New York petition and to apply a three year compliance schedule to any such determination, EPA 's selection of 2023 for its modeling is very reasonable. 10. The exclusion of New Jersey from list of states targeted by the petition ignores the impact of New Jersey and its mobile source emissions on New York's monitors. Even though New Jersey was identified by New York as a "significantly contributing" state based on EPA's 2016 CSAPR Update Rule modeling, the petition excludes New Jersey from the states targeted by New York's request for new controls. (See March 12, 2018 cover letter) This exclusion is remarkable because New Jersey's contribution to New York's air quality is greater than that of any other of the 10 "significantly contributing" states In excluding New Jersey, the New York petition states (page 14 of 17): As pointed out in EPA's Stephen Page memorandum, October 27, 2017 (https://www.epa.gov/sites/production/files/2017-10/documents/final 2008 o3 naaas transport memo 10-2717b.pdf) and again in the Peter Tsirigotis memorandum of March 27, 2018 (https://www.epa.gov/airmarkets/march2018-memo-and-supplemental-information-regarding-interstate-transport-sips-2015 atp. B-3), when EPA's methodology to account for the land/water interface was applied to the New York monitors, all of the New York monitors were modeled to be attainment with the 2015 ozone NAAQS except for the Suffolk monitor (361030002) which had a "no water' design value of 74.0 ppb. 19 Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00182360-00025 New Jersey is excludedfrom this appendix since it did not contribute to any non-attainment or maintenance monitors. However, as can be seen in the following graphics based on an ozone source apportionment data associated with CSAPR Update modeling relied upon by New York23, New Jersey contributes more to the ozone concentrations in New York than any of the states targeted by the petition. Equally significant is that New Jersey's impacts are overwhelmingly from motor vehicles and area and non road sources. The EGU contributions shown in the following graphics are based upon the grossly overstated emissions from that source category in the 10 states that New York identified in the petition. Susan WagitarHS iS.......................................................2.0.7.0.5.A..T.S.j.w.u.i.li.-.7.5.....T.S.v.s.s.h..t..B.a.y.f.tw..a.g. as Babylon *W * 0 5 * r ftn rttx - 7S ppi> Uwe&sM Cay W 88 ire kfevS i *: N ' d f t i & M ' . S S U Pcif $ 'Of'S Q J Poisvt ::> ite r S o y ri y *:3:'kl3: 22 http://www.midwestozonegroup.com/files/Relative Contribution of Upwind Sources on Kev Monitors.pdf 20 Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00182360-00026 Rivarhead S3 S-iiJ.if ire iS: f.i v S f V e h k i'y S: A ^ya/A iR/W A S 3S U Pcif iS ti r'S G U PcskA A C A i/FAa / A i t e r SS Bo-^niiV SS ttii& i 11. The New York petition cannot be sustained based only on the possibility of two maintenance monitors. As MOG data has demonstrated, even without addressing Exceptional Events, international emissions or additional local controls, New York will not have any nonattainment monitors in 2023 with respect to either the 2008 or 2015 ozone NAAQS. In 2023, only the Suffolk monitor (361030002) and the Richmond monitor (360850067) are predicted to have a maximum single year design value above the 2015 ozone NAAQS which under EPA's CSAPR Update definition would be enough to make them maintenance monitors and be given the same amount of weight as nonattainment monitors in developing Good Neighbor requirements. However, as EPA has recently explained, it is not necessary to address maintenance as it was addressed in the CSAPR Update. EPA's January 17,2018, b rief in the CSAPR Update litigation (Wisconsin et al. v EPA, Case No. 16-1406) offers the following statement on pages 77 and 78 which recognizes that alternatives measures for addressing maintenance receptors are appropriate in circumstances not constrained by the time limits imposed on the CSAPR Update Rule: Ultimately, Petitioners 'complaint that maintenance-linked states are unreasonably subject to the "same degree o f emission reductions"as nonattainment linked states mustfail. Indus. Br. 25. There is no legal or practical prohibition on the R u le 's use o f a single level o f control stringencyfo r both kinds o f receptors, provided that the level o f control is demonstrated to result in meaningful air quality improvements without triggering eitherfa cet o f the Supreme C ourt's testfo r over-control. So while concerns at maintenance receptors can potentially be eliminated at a lesser level o f control in some cases given the smaller problem being addressed, this is a practical possibility, not a lesal requirement. See 81 Fed. Reg. at 74,520. Here, E P A 's use o f 21 Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00182360-00027 the same level o f control for both maintenance-linked states and nonattainmentlinked states is attributable to the fact that the Rule considered only emission reduction measures available in time for the 2017 ozone season. Id. at 74,520. Under this constraint, both sets o f states reduced significant emissions, without over control, at the same level o f control. Id. at 74,551-52. Accordingly, E P A 's selection o f a uniform level o f controlfor both types o f receptors was reasonable. (Emphasis added.) It is clear therefore, that in other circumstances where the remedy is not constrained by the same time limitations as were imposed on the CSAPR Update, an alternative mechanism should be developed to recognize the smaller nature of the problem being addressed.234 Section 175A of the Clean Air Act addresses the circumstance in which a state requests redesignation from nonattainment to attainment in which case maintenance is addressed by requiring a demonstration that attainment will be maintained for at least 10 years. CAA Section 175A(a) states as follows: Each State which submits a request under section 7407 (d) o f this title fo r redesignation o f a nonattainment area fo r any air pollutant as an area which has attained the nationalprim ary ambient air quality standardfor that airpollutant shall also submit a revision o f the applicable State implementation plan to providefo r the maintenance o f the national primary ambient air quality standard fo r such air pollutant in the area concernedfor at least 10 years after the redesignation. Theplan shall contain such additional measures, i f any, as may be necessary to ensure such maintenance. In addition, EPA long-time policy for addressing maintenance is set forth in the Calcagni memorandum25which contains the following statement on page 9: A State may generally demonstrate maintenance o f the NAAOS by either showing thatfuture emissions o f a pollutant or its precursors w ill not exceed the level o f the attainment inventory, or by modeling to show that the future mix o f source and emission rates w ill not cause a violation o f the NAAQS. Under the Clean Air Act, many areas are required to submit m odeled attainment demonstrations to show that proposed reductions in emissions w ill be sufficient to attain the applicable NAAQS. For these areas, the maintenance demonstration shcndd be based upon the same level 23Consideration of alternative approaches to address maintenance areas is central theme of EPA's Peter Tsirigotis memorandum dated March 27, 2018 (https://www.epa.gov/airmarkets/march~2018-memo-and~supplemental~ information-regarding-interstate-transport-sips-2015), where on pages A-2 and A-3, EPA sets forth a series of options that are being considered for allowing greater flexibility in addressing the question of whether an upwind state is interfering with a downwind maintenance area. 24Procedures for Processing Requests to Redesignate Areas to Attainment, John Calcagni memorandum, 4 September 1992. 22 Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00182360-00028 o fmodeling. In areas where no such modeling was required, the State should be able to rely on the attainment inventory approach. In both instances, the demonstration should be for a period o f 10 years following the redesignation. As demonstrated below, it is clear that the only two possible maintenance monitors in New York remain in attainment for 10 years and thus CAA requirements to address maintenance are satisfied. Monitor 360850067 Richmond, NY 100 95 \: a 90 13 1: 3 85 :; eofi 80 \j 'oSi 75 1!1<Ou 70 1 o 111a< is 65 60 55 # 3-yrDV 1 CSAPRDV(Ave) CSAPR DV (Max) 2015 Ozone NAAQS 50 2004 2006 2008 2010 2012 2014 2016 2018 2020 2022 2024 2026 2028 2030 Monitor 361030002 Suffolk, NY 100 95 iI a. S -S3 \ CL 90 85 ss* ! 3 80 IIi!as<u I S I : w O ON 75 70 65 II<o is 60 55 3-yr DV CSAPR DV (Ave) CSAPR DV (Max) 2015 Ozone NAAQS 50 2004 2006 2008 2010 2012 2014 2016 2018 2020 2022 2024 2026 2028 2030 Sierra Club v. EPA 18cv3472 NDCA 23 Tier 3/4 ED 002061 00182360-00029 It is clear therefore that The New York petition cannot be sustained based only on the possibility of two maintenance monitors. 12. International emissions must be addressed as an integral part of the consideration of this petition. International emission must be considered as an integral part o f any assessment o f interstate transport such as New York would have EPA consider in acting on its petition.256 The CAA addresses international emissions directly in Section 179(B)(a) which states: (a) Implementation plans and revisions Notw ithstanding any other provision o f law, an implementation plan or plan revision required under this chapter shall be approved by the Administrator i f (1) such plan or revision meets all the requirements applicable to it under the chapter other than a requirement that such plan or revision demonstrate attainment and maintenance o f the relevant national ambient air quality standards by the attainment date specified under the applicable provision o f this chapter, or in a regulation promulgated under such provision, and (2) the submitting State establishes to the satisfaction o f the Administrator that the implementation plan o f such State would be adequate to attain and maintain the relevant national ambient air quality standards by the attainment date specified under the applicable provision o f this chapter, or in a regulation promulgated under such provision, but for emissions emanating from outside o f the United States. (Emphasis added.) Addressing international emissions in the context of the New York petition is critically important because the petition seeks to implement the Good Neighbor provisions of CAA Section 110(a)(2)(D). In connection with such matters, the U.S. Supreme Court has ruled that it is essential that Good Neighbor states be required to eliminate only those amounts of pollutants that contribute to the nonattainment ofNAAQS in downwind States. Specifically, the Supreme Court stated: "EPA cannot require a State to reduce its output of pollution by more than is necessary to achieve attainment in every downwind State.. "27In addition, the D C. Circuit has commented that " .. . the good neighbor provision requires upwind States to bear responsibility for their fair share of the mess in downwind States." Slip op at 11. 25Consideration of alternative approaches to address international emissions is also a central theme of EPA's Peter Tsirigotis memorandum dated March 27, 2018 on page A-3 (https://www.epa.gov/ainnarkets/march-2018-memoand-supplemental-infonnation-regarding-interstate-transport-sips-2015) . 26 EPA v. EME Homer City Generation, 134 S. Ct. 1584, 1608 (2014). 24 Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00182360-00030 In addressing CAA Section 110(a)(2)(D)(i)(I) the DC Circuit has ruled that this section "gives EPA no authority to force an upwind state to share the burden of reducing other upwind states' emissions." North Carolina v. EPA, 531 F 2d at 921. At the request of MOG, Alpine Geophysics employed EPA's modeling data for 2017 to prepare the following graphic which depicts the projected 2017 8-hour ozone Design Values across the US excluding boundary condition contributions and the international emissions sector. Note that this projection shows all monitors in the continental US with a design value equal to or less than 66 ppb when these categories are excluded. Projected 2017 ozone design values (ppb) excluding the contribution from boundary condition, initial condition, Canadian and Mexican emission sources Focusing only on the three worst monitors in New York and applying EPA modeling data for 2017 and 2013, the following chart shows that accounting for boundary conditions and Canada/Mexico emissions brings the worst of the New York monitors to a level of 52.55 ppb. If only the Canada/Mexico portion o f international transport were considered, EPA 's 2023 modeling shows that all of New York's monitors would attain both the 2008 and 2015 ozone NAAQS in 2023. Sierra Club v. EPA 18cv3472 NDCA 25 Tier 3/4 ED 002061 00182360-00031 M onitor ID 360850067 361030002 361030004 Local Site Name Susan W agner HS B ab y lo n R iv erh ea d 2009-2013 Average D esign V alu e 81.3 83.3 78.0 2017 Average Base Case 2017 Average M DA8 Ozone D esign V alue (ppb) Initial & 2017 Base Canada & 2017 Base Boundary C ase wr/o M exico Case vito C o n d itio n BC and Contribution Can/M ex Contribution Can/M ex 75.8 1.40 74.40 17.14 57.26 76.8 1.25 75.55 15.67 59.88 70.6 0.99 69.61 12.69 56.92 M onitor ID 360850067 361030002 361030004 Local Site Nam e Susan W agner HS B ab y lo n R iv erh ea d 2009-2013 Average D esign V alu e 81.3 83.3 78.0 2023 Average Base Case 2023 Average M DA8 Ozone D esign Value (ppb) Initial & 2023 Base Canada & 2023 Base Boundary Case w/o M exico Case w/o C o n d itio n BC and Contribution Can/M ex Contribution Can/M ex 71.2 1.82 69.38 16.83 52.55 71.3 1.78 69.52 17.17 52.35 64.9 0.97 63.93 12.56 51.37 These data demonstrate that but for Canadian and Mexican international emissions, all of New York's monitors would be in attainment with the 2008 and 2015 ozone NAAQS. These facts are made all the more important because New York has made no attempt to avail itself of this available mechanism for regulatory re lie f-a clear factor to be considered in evaluating a request of this kind.*28 We also note that in its response to comments associated with its April 30, 2018 final rule establishing initial air quality designations for the 2015 ozone NAAQS, EPA offers the following comment on international transport: The EPA encourages affected air agencies to coordinate with their EPA Regional office to identify approaches to evaluate the potential impacts o f international transport and to determine the most appropriate information and analytical methods fo r each a rea 's unique situation. The EPA w ill also work with states that are developing attainmentplansfo r which section 179B is relevant, and ensure the states have the benefit o f the EPA's understanding o f international transport o f ozone and ozone precursors. To assist in this effort, EPA is currently developing or has developed the following implementation tools to stratospheric ozone intrusion exceptional events implementation guidance, and technical guidance on preparing approvable demonstrations under CAA section 1 7 9 B 29 The failure of New York to pursue this available mechanism for relief provides an additional basis for the denial of its 126 petition. 2' EPA Peter Tsirigotis memorandum of March 27, 2018 (https://www.epa.gov/airmarkets/march-2018-inemo-and~ supplemental-information-regarding-interstate-transport-sips-2015 atp. A-2. 28https://wwvv.epa.gov/sites/production/files/2018-Q4/documents/placeholder 2.pdf 26 Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00182360-00032 13. Mobile sources - not point sources - have the largest impact on New York monitors. The petition erroneously concludes that major stationary sources in other states are causing their ozone air quality concerns. Specifically, the petition offers the following statement on page 5 of 17 of the petition: The high concentrations o f ozone that are transported to New York State are largely the result o f emission from major stationary sources ofN O x located out-of-state. Contrary to this statement and as demonstrated in the ozone source apportionment run of the 2017 EPA CS APR platform30, it is clear that even with considerably overestimated emissions levels for EGUs, ozone impacts on New York's problem monitors are overwhelmingly from motor vehicles and area and non-road sources. 360850067 - Susan Wagner HS - 2017 OSAT Results 40 35 30 II 1 l325 Other 1111 asn;, Wmm States 15% Other http://www.midwestozonegroup.com/files/Rdative Contribution of Upwind Sources on Key Momtors.pdf 27 Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00182360-00033 361030002 - Babylon - 2017 OSAT Results 45 40 -- I 30 lilB I I 25 Other 11111 50".' 3 15 12% A rea/N o rtro ad Point EGU ^ Target States OTR States ft; Other Other 361030004 - Riverhead - 2017 OSAT Results 40 35 wmm Gthes <17"'.. III fidget 11% MV A rea/N o n ro ad Point EGU ^ Target States $ OTR States w Other Other 14. New York's reliance on the Dunkirk Monitor is inappropriate since that monitor attains both the 2008 and 2015 Ozone NAAQS. The Dunkirk monitor (360130006) is cited in the petition (p. 12 of 17) as a monitor that has "the potential to exceed the NAAQS - particularly, the updated 2015 standards - due to transported ozone pollution." Putting aside the question of the origination of the ozone measured at that monitor, it is obvious that the petition is incorrect in this conclusion inasmuch as this monitor has consistently measured design values below the 2015 ozone NAAQS and would experience even lower levels if measurements related to the 2016 Canadian wildfire exceptional events are excluded - all as shown in the following table: Sierra Club v. EPA 18cv3472 NDCA 28 Tier 3/4 ED 002061 00182360-00034 AQS Site ID State County Local Site Name 360130006 New York Chautauqua Dunkirk 2014 66 4th High Daily Max Design Value (ppb) 2016 (Excl 2015 2016 Fire Dates) 71 69 66 3-yr MDA8 Design Value (ppb) 2014-2016 2015-2017 (Excl 2016 (Excl 2016 2014-2016 Fire Dates) 2015-2017* Fire Dates)* 68 67 68 67 2017* 66 * Prelirrrinary b a s e d o n 21 M a rc h 2018 d o w n lo a d from https://w w w .epa.gov/outdoor-air-quality-data/m onitor-values-report 15. New York has failed to provide any data addressing the cost effectiveness of the controls that it has proposed. The New York petition fails to offer any assessment of the potential costs and air quality benefits of the control strategy that it is urging. Failure to do so, creates an additional fatal flaw in their petition. Thi s very point was addressed directly by EPA in its denial of the Connecticut petition against Brunner Island. In its final determination, EPA offered the following comment: As discussed infurther detail in section III, the sta te's analysis o f Brunner Isla n d 's impact on air cpiality in Connecticutprovides insufficient information regarding the so u rce's impact on Connecticut air quality on high ozone days a n d it does not reflect the fa c ility 's current operations. Moreover, the petition does not evaluate the potential costs and air quality benefits that would inform the EPA 's evaluation o f whether additional emission reductions are cost effective, consistent with the E P A 's interpretation o f the good neighbor provision.... Accordingly, the EPA denies Connecticut's CAA section 126(b) petition.31 Failure to provide these same data in the case of the New York petition requires EPA to deny it as well. 0 https://www.gpo.gov/fdsvs/pkg/FR-2018-04-13/pdf/2018-07752.pdf 29 Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00182360-00035 16. New York admits that some targeted sources are already achieving their requested control levels. The petition concedes (p. 17 of 17) that some sources already achieve the emission rate it requests, a clear admission that these sources are not the cause o f the problem being complained of by New York. 17. The zero-out modeling performed by New York is not valid for source contribution calculations. To assess the impact of the 400 ton sources, the petition states that New York "zeroed out" all such sources. Such an approach is considered inappropriate for this purpose as "zero out" modeling perturbs the emissions in the air quality model, highlighting the nonlinearity in the system and failing to account for the sum of contributions from every category in predicted ozone concentrations. Where zero out modeling is adequate for source sensitivity analyses, the petition does not seek to eliminate the 400 ton sources but rather to impasse an incremental level of control on them. Beyond the obvious overstatement of the emission change involved, the scenario modeled by New York is so radical as to alter the ability of the computer model to accurately predict ozone concentrations, let alone determine the relative contribution of the identified sources. 18. New York fails to offer any analysis of air quality or interstate transport for any time period after 2017 even though 2023 is the critical assessment date. Although the attainment data for the 2015 ozone NAAQS is 2023 or later and although EPA has selected 2023 as the compliance date for Good Neighbor plans related to the 2008 ozone NAAQS, the New York petition offers no data or analyses after 2017. The petition therefore, fails to address the substantive technical issue involved and cannot be used to demonstrate the need for additional controls on sources in the target states. 19. New York did not apply an EPA approved modeling technique to perform its analysis. New York concedes (p. 11 of 17) that it did not apply EPA approved modeling techniques to its analysis. Specifically, New York has identified two changes that it made in EPA's methodology. Significantly one such change made by New York was to base its modeling on days where the model predicted concentrations as low as 60 ppb - far below even the 2015 (70 ppb) ozone NAAQS. By permitting a maximum impact value to be calculated on modeled low concentration days, New York has potentially overstated the impact of identified sources on days when 30 Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00182360-00036 nonattainment or maintenance concentrations are observed. For example, on low concentration days (when the model demonstrates attainment), the transport patterns may come from the identified upwind states region. Comparatively, on high concentration days (when the model demonstrates nonattainment), the transport patterns may be stagnant or indicate flow from regions within the state or directionally different from low concentration days. Because the modeling data supporting the analysis is not readily available (see issue 14 above), thorough review ofNew York's method cannot be conducted. This "adjustment" inappropriately includes emission and meteorological conditions that are potentially unrelated to the issues to be addressed in a 126 petition. New York also notes that one of the "adjustments" to EPA 's approved modeling was to examine only a portion of the ozone season rather than the entire season (p. 11 of 17). This was done because of "resource constraints"; however, in performing its analysis on this limited basis, New York has failed to determine if other factors could be influencing its monitors during the remainder of the ozone season. 20. Controls on local sources must be addressed first by New York before EPA can approve emission reductions on sources in the target states. When an area is measuring nonattainment of a NAAQS, the Clean Air Act (CAA) requires that the effects and benefits of local controls on all source sectors be considered first, prior to pursuing controls of sources in upwind states. CAA 107(a) states that " [ejach State shall have the primary responsibility for assuring air quality within the entire geographic area comprising such State." In addition, CAA 110(a)(1) requires that a state SIP "provides for implementation, maintenance, and enforcement" of the NAAQS "in each air quality control region . . . within such State." Moreover, by operation o f law, additional planning and control requirements are applicable to areas that are designated to be in nonattainment. This issue is important not only to assessing the merit of the New York petition but also because upwind states must be confident this has occurred as they prepare to submit approvable Good Neighbor state implementation plans to address the 2008 and 2015 ozone NAAQS this year. EPA's current interstate transport modeling platforms fail to incorporate local emission reductions programs that are required to improve ambient ozone concentration in 2023. Only through a full assessment of these local emissions reductions can EPA determine whether there are any bases for the imposition o f additional emissions controls in upwind states. This is because additional control requirements in upwind states can only be legally imposed if, after consideration of local controls, there is a continuing non attainment issue in downwind areas.32 31E M E H om er et.al. v E P A , 134 S. Ct. at 1608. 31 Sierra Club v. EPA 18cv3472 NDCA Tier 3/4 ED 002061 00182360-00037 The CAA addresses the affirmative obligations of the states to meet the deadlines for submittal and implementation of state implementation plans designed to specifically address their degree of nonattainment designation. Review of Section 172(c)(1) of the CAA provides that State Implementation Plans (SIPs) for nonattainment areas shall include "reasonably available control measures", including "reasonably available control technology" (RACT), for existing sources of emissions. Section 182(a)(2)(A) requires that for Marginal Ozone nonattainment areas, states shall revise their SIPs to include RACT. Section 182(b)(2)(A) of the CAA requires that for Moderate Ozone nonattainment areas, states must revise their SIPs to include RACT for each category ofVOC sources covered by a CTG document issued between November 15,1990, and the date of attainment. CAA section 182(c) through (e) applies this requirement to States with ozone nonattainment areas classified as Serious, Severe and Extreme. The CAA also imposes the same requirement on States in ozone transport regions (OTR). Specifically, CAA Section 184(b) provides that a state in the Ozone Transport Region (OTR) must revise their SIPs to implement RACT with respect to all sources of VOCs in the state covered by a CTG issues before or after November 15, 1990. CAA Section 184(a) establishes a single OTR comprised of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont and the Consolidated Metropolitan Statistical Area (CMSA) that includes the District of Columbia. Given the significance of the need for local controls to address concern about the NY-NJ-CT nonattainment area, MOG urges EPA to confirm that all appropriate local controls are adequately accounted for by New York as its addresses the merit of the New York petition. Conclusion The action requested by New York in its Section 126 petition is notjustified on either legal or technical basis. Ozone precursor emissions have been and will continue to be reduced absent the New York petition due to the CSAPR Update Rule, PA RACT 2 and other on-the-books controls, including controls in New York. This year, upwind states will be submitting Good Neighbor SIP plans that are likely to demonstrate that the existing programs will be adequate to satisfy Good Neighbor SIP obligations. Additionally, appropriately accounting for Exceptional Events, international emissions and local controls also serve to demonstrate compliance with Clean Air Act requirements. Accordingly, the Midwest Ozone Group urges that EPA deny the Clean Air Act Section 126 petition filed by New York on March 12, 2018.32 Sierra Club v. EPA 18cv3472 NDCA 32 Tier 3/4 ED 002061 00182360-00038