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Federal Register / Vol. 86, No. 229 / Thursday, December 2, 2021 / Rules and Regulations
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presented in the July 19, 2021 SNPRM
and in accordance with the CAA.
II. Response to Comments EPA received four sets of adverse comments and one set of supportive comments on the December 30, 2019, NPRM. The comments were submitted by the Midwest Ozone Group, Sierra Club, New Jersey Department of Environmental Protection, New York State Department of Environmental Conservation, and one anonymous commenter. The full set of comments is provided in the docket for this final rule. This section contains summaries of the comments and EPAs responses.
Comment 1: Several commenters asserted that EPAs December 30, 2019
NPRM improperly focused on the analytic year of 2023, which the commenters argue ignores the August 2021 attainment date faced by Marginal 2015 ozone nonattainment areas. These commenters asserted that EPAs decision focused on 2023 consistent with the August 2024 attainment date for Moderate nonattainment areas under the 2015 8-hour ozone NAAQS, rather than the August 2021 attainment date for Marginal nonattainment areas, which contravenes the statutory text and the Wisconsin decision, and is arbitrary and capricious. The commenters specifically mention that the distinction EPA has drawn between Marginal and Moderate areas is misleading, that it is unreasonable for EPA to expect downwind areas to voluntarily request reclassifications to Moderate, and that EPA has not provided adequate support for its assumption that Marginal areas will achieve attainment by 2021. A
commenter also contended that the CSAPR Update is insufficient to bring all downwind states into attainment with the 2015 8-hour ozone NAAQS, citing a conclusion made in the December 30, 2019, NPRM in support of a 2023 analytic year and monitoring data from the 2017 ozone season indicating certain 8-hour daily maximum concentrations at air quality monitors in Delaware were above the level of the NAAQS. In addition, a commenter asserted that recent monitoring data at other monitoring sites suggests that these areas will continue to have difficulty attaining the NAAQS in 2021.
Response 1: The comments related to the 2023 analytic year refer to a D.C.
Circuit court decision addressing, in part, the issue of the relevant analytic year for the purposes of evaluating interstate ozone transport under the Good Neighbor provision. On September 13, 2019, the D.C. Circuit
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issued the Wisconsin decision, remanding the CSAPR Update 81 FR
74504, October 26, 2016 to the extent that it failed to require upwind states to eliminate their significant contribution no later than the next applicable attainment date by which downwind states must come into compliance with the NAAQS, as established under CAA
section 181a. See 938 F.3d 303, 313. In the December 30, 2019 NPRM, EPA had interpreted that holding as limited to the attainment dates for Moderate nonattainment area or higher classifications under CAA section 181
on the basis that Marginal nonattainment areas have reduced planning requirements and other considerations. See 84 FR 71854, 7185658.
On May 19, 2020, however, the D.C.
Circuit issued the Maryland decision that cited the Wisconsin decision in holding that EPA must assess the impact of interstate transport on air quality at the next downwind attainment date, including Marginal area attainment dates, in evaluating the basis for EPAs denial of a petition under CAA section 126b. See 958 F.3d 1185, 120304. The court noted that section 126b incorporates the Good Neighbor Provision, and therefore the EPA
must find a violation of section 126 if an upwind source will significantly contribute to downwind nonattainment at the next downwind attainment deadline. Therefore, the EPA must evaluate downwind air quality at that deadline, not at some later date. Id. at 1204 emphasis added. EPA interprets the courts holding in Maryland as requiring the Agency, under the Good Neighbor provision, to address Good Neighbor obligations by no later than the next applicable attainment date for downwind areas, including a Marginal area attainment date under section 181
for ozone nonattainment.6
The December 30, 2019 NPRM
proposing approval of the 2015 8-hour ozone Good Neighbor SIPs for Florida, Georgia, North Carolina, and South Carolina on the basis of a 2023 analytic year analysis predates the D.C. Circuits decisions in Wisconsin and Maryland.
6 EPA notes that the court in Maryland did not have occasion to evaluate circumstances in which EPA may determine that an upwind linkage to a downwind air quality problem exists at steps 1 and 2 of the four-step interstate transport framework by a particular attainment date, but for reasons of impossibility or profound uncertainty the Agency is unable to mandate upwind pollution controls by that date. See Wisconsin, 938 F.3d at 320. The D.C.
Circuit noted in Wisconsin that upon a sufficient showing, these circumstances may warrant a certain degree of flexibility in effectuating the implementation of the Good Neighbor provision.
Such circumstances are not at issue in the present action.

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In the July 19, 2021 SNPRM, EPA
explained why it now considers 2021 to be the relevant analytic year for the purposes of determining whether sources in Florida, Georgia, North Carolina, and South Carolina will significantly contribute to downwind nonattainment or interfere with maintenance of the 2015 8-hour ozone NAAQS in any other state. See 86 FR
37944. Also in the July 19, 2021
SNPRM, EPA conducted an additional analysis for the year 2021, and provided additional notice and opportunity for public comment. Id. Thus, comments regarding the improper use of 2023 as a model year are now moot.7
Multiple commenters stated that the approach for identifying nonattainment and maintenance receptors in the original December 30, 2019 NPRM
failed to identify all of the potential receptors relevant in a 2021 analytic year. In addition to their objections to EPAs selection of the 2023 analytic year, these commenters argued that measured design values at certain monitoring sites made clear that certain areas would not be able to attain the 2015 8-hour ozone NAAQS by the 2021
Marginal area attainment date. The shift in the July 19, 2021 SNPRM and this final action to a 2021 analytic year partially addresses the concerns raised by these commenters. To the extent commenters are arguing that EPAs method of defining nonattainment and maintenance receptors for Good Neighbor purposes ignores certain areas that may have air quality problems in 2021 based solely on historical measured data, EPA disagrees with these comments. EPAs method of defining these receptors, as described in section II of the SNPRM takes into account both measured data and reasonable projections based on modeling analysis.8
7 EPA recognizes that this action is now being finalized after the Marginal area attainment date has passed and after the close of the 2021 ozone season.
However, this does not change EPAs analysis or its conclusion. The modeling information available in the record and included in the supplemental proposal also indicates that these four states will not be linked to any downwind nonattainment or maintenance receptors in 2023 and 2028, confirming that no new linkages to downwind receptors are projected in later years.
8 Further, as recognized by the court in Wisconsin, 938 F.3d at 320, nonattainment areas that measure clean data in a given year, even if not sufficient to be redesignated to attainment based on the three-year design value, may qualify for up to two one-year extensions of their attainment dates, as provided at CAA section 181a5. Thus, simply providing the value that would be needed in 2020
in order for an area to be designated to attainment using the three-year average, as some commenters did, does not present a complete picture of the likelihood that an area will be reclassified or bumped-up.

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