The Many Moving Parts Related To Interstate Transport of Air Pollutants
(Updated November 16, 2017)

The following are a collection of legal, technical and policy resources related to significant developments and innovative
approaches that are occurring with respect to the interstate transport of air pollutants.  This document includes the
following sections:

1.        EPA Overview
2.        States Position on Transport Rule
3.        CSAPR Litigation
4.        AAPCA Position on International Transport
5.        Good Neighbor SIP Modeling
6.        New York Modeling
7.        Maryland 126 Petition
8.        Delaware 126 Petition
9.        176A Petition
10.        Regional Haze
11.        International Emissions: MOG White Paper

1.                  EPA Overview
http://www.csg.org/aapca_site/events/documents/Woods-2017AAPCASlides_NAAQS_Final.pdf

EPA’s slide presentation at the September 2017 meeting of the Association of Air Pollution Control Agencies (AAPCA)
offers the agency summary of a variety of issues related to interstate transport of air pollutants, including recent material
on the implementation of the 2008 and 2015 ozone NAAQS. EPA notes the several mechanisms created under the Clean
Air Act for addressing interstate transport, including section 110(a)(2)(D)(i)(l) (also known as the “good neighbor”
provisions), Section 126 and Section 176A.

Section 110(a)(2)(D)(i)(1), “good neighbor” SIPs”, EPA notes that 24 states do not have approved good neighbor SIPs
related to the 2008 ozone NAAQS and that EPA is under deadline to issue FIPs related to those state beginning in June
2018 and ending March 2019.

Section 176A, nine (9) Northeast states inside the Northeast Ozone Transport Region (NEOTR) petitioned EPA to add 9
upwind states to the NEOTR. As will be discussed below, that petition has now been denied by EPA.

Section 126, three (3) petitions are currently pending. The petition filed by Connecticut names the Brunner Island station
in Pennsylvania. The petition filed by Delaware names stations in Pennsylvania, and West Virginia. The petition filed by
Maryland names stations located in Indiana, Kentucky, Ohio, Pennsylvania and West Virginia. MOG responses to the
Maryland and Delaware petitions are set out below.     

Section 110(a)(2)(D), the Cross State Air Pollution Rule (CSAPR) Update was finalized September 7, 2016 and is currently
being challenges in the DC Circuit. See a discussion of initial briefs set out in item 3 below.

2.                  States Position on Transport Rule
http://www.csg.org/aapca_site/events/documents/Johnston-CSAPR_Framework_TN_GA_NC_09-21-2017.pdf

In this presentation, the States of Georgia, Tennessee and North Carolina offer an alternative approach to the
development of future transport rules such as CSAPR.


3.                  CSAPR Litigation

As of the publication of this document, the final CSAPR Update Rule is being challenged in the DC Circuit. Briefing is
underway with initial briefs already filed. The following are the highlights of the initial briefs that have been filed:

I.        Initial Briefs

a.        
States:  http://www.midwestozonegroup.com/files/States_CSAPR_Update_Initial_Brief.pdf

In their challenge to the CSAPR Update, a group of states and cities led by the State of Wisconsin challenged EPA’s
CSAPR Update. The following is a summary of the arguments they are advancing:

  • EPA’s methodology is unlawful because it imposes FIPs upon states without considering whether their substantial
    costs are rationally related to any downwind state’s nonattainment or maintenance.

  • EPA arbitrarily ignored monitored data when identifying maintenance receptors.

  • EPA adopted an unreasonable approach to coastal monitors.

  • EPA arbitrarily failed to timely act—within a year—on SIPs submitted by several states and instead unlawfully
    delayed making a decision on those plans for several years while it developed data sufficient to justify denial.

  • EPA arbitrarily and unlawfully included biogenic sources of ozone with manmade activities in determining the
    significance of upwind states.

  • EPA failed to provide adequate notice of its intent to use CSAPR modeling in the west.

  • EPA’s bait-and-switch approach to downwind NAAQS levels and interstate transport issues is arbitrary and requires
    this court’s intervention.

b.        Industry: http://www.midwestozonegroup.com/files/Industry_Petitioners_CSAPR_Update_Initial_Brief.pdf

In their challenge to the CSAPR Update, industry groups challenged EPA’s CSAPR Update. The following is a summary of
the arguments they are advancing:

  • Critical aspects of the Rule are arbitrary, unsupported, and unlawful. Among other things, the Rule’s defects
    prevented EPA from ensuring against impermissible over-control of upwind-state emissions.

  • Ignoring logic and its own prior practice, EPA arbitrarily relied exclusively on air-quality modeling to identify
    downwind “problem” areas to be addressed Rule, without giving meaningful weight to current measured, real-world
    air quality.

  • EPA’s disregard of key factors meant that it failed to ensure against unjustified overstatement of downwind ozone
    concentrations for which upwind states were held liable: EPA (i) failed to account properly for its methodology’s
    overstatement of projected ozone at near-shoreline receptors; (ii) disregarded non-U.S. emissions’ substantial
    effects; and (iii) failed to consider all emission-reduction requirements that were effective by ozone-season 2017.

  • In assessing whether the Rule over-controls, EPA considered only those air quality effects at each downwind
    receptor that were attributable to the Rule’s emission-reduction requirements in the subset of regulated upwind
    states that EPA “linked” to that particular downwind receptor. EPA’s over-control analysis was, therefore, fatally
    flawed by its refusal to consider the full effects of required emission reductions throughout the multistate region
    regulated by the Rule. Moreover, failing to give proper recognition to the CAA principle that each state bears
    primary responsibility for assuring NAAQS attainment within its borders, EPA did not account properly for ozone-
    reducing effects of emission controls reasonably available in downwind states with nonattainment areas. In addition,
    EPA failed to support and explain factual aspects of its modeling that conflicted with announced EPA determinations
    concerning projected EGU retirements and emission rates.

  • EPA arbitrarily required the same degree of emission reductions from all upwind states, regardless of the nature of
    the downwind “problem” to be resolved—thereby requiring states linked solely to projected “maintenance-only”
    receptors to reduce emissions to the same degree as states linked to projected nonattainment receptors. And EPA
    arbitrarily failed to adjust state emission budgets upwards to account for the infeasibility of accomplishing new
    combustion-control installations by ozone-season 2017.

  • Several state- and facility-specific determinations were arbitrary and unsupported.  EPA’s heat-input calculation and
    redefinition of “existing” units produced inequitable results for certain Illinois EGUs. Significant elements of EPA’s
    budget-calculation methodology yielded unsupported, arbitrarily stringent budgets for Indiana and Mississippi and
    required costly emission reductions in Mississippi for no air-quality benefit. Calculation errors produced an
    unrealistically low budget for Oklahoma. Furthermore, EPA’s unexplained departure from data-substitution rules
    improperly reduced certain Oklahoma EGUs’ allowances.

c.        NGOs: http://www.midwestozonegroup.com/files/Sierra_Club_CSAPR_Update_Initial_Brief.pdf

In their challenge to the CSAPR Update, NGO groups and the State of Delaware challenged EPA’s CSAPR Update. The
following is a summary of the arguments they are advancing:

  • EPA acted unlawfully and arbitrarily by adopting emission budgets that do not eliminate upwind states’ significant
    contributions to downwind nonattainment and maintenance areas by the deadlines for attainment of 2008 ozone
    standard. EPA’s claim that it is excused from compliance with this statutory requirement when it acts before the
    deadline for promulgation of a federal plan is contrary to the plain language of the statute, contrary to decisions of
    this Court and the Supreme Court, and unreasonable. Further, by failing to provide for pollution reductions
    achievable in the near-term through engaging already-installed controls, optimizing the use of installed controls,
    and shifting generation to lower-emitting sources, and by authorizing sources to emit above the budgets through
    the use of banked allowances, EPA contravened the statutory requirement to eliminate upwind states’ significant
    contributions as expeditiously as practicable and acted arbitrarily.

  • Separately, Delaware contends that EPA’s application of the rule to marginal nonattainment areas and failure to
    require reductions of significant contribution to those areas, including Delaware, suffers similar flaws. In addition,
    EPA unreasonably failed to consider how its modeling beyond NAAQS attainment deadlines unfairly and
    permanently shifted the responsibility to reduce pollution from upwind states to downwind areas like Delaware.


4.                    AAPCA Position on International Transport   
http://www.midwestozonegroup.com/files/AAPCA-PrinciplesForAddressingInterstateandInternationalOzoneTransport-9-15-
17.pdf

In a letter to EPA dated September 15, 2017 AAPCA offered a series of recommendations for how EPA should revise its
approach to addressing interstate transport. The following is an excerpt from that letter:

Now is the time for EPA to make meaningful updates to its approach to address interstate transport for the ozone NAAQS.
Recent state and local comments highlight the need for EPA action on the following issues:

  • Re-evaluate the 1 percent threshold for significant contribution, including the assessment for the 2015 ozone
    NAAQS

  • Determine that states should not be required to offset international or non-anthropogenic emissions through
    interstate transport requirements

  • Embrace a state-driven process to address interstate transport, including EPA action on timely and relevant SIPs
    and a re-assessment of expectations for Infrastructure SIPs
  • Adjust EPA’s methodology for cost-effective nitrogen oxide (NOx) controls

  • Reassess its approach to identifying downwind maintenance and nonattainment receptors

  • Address controls on in-state sources first

  • Abandon non-transparent and unreliable modeling platforms

  • Pursue other provisions for regulatory relief for international transport


5.                    Good Neighbor SIP Modeling

a.        Protocol:      
http://www.midwestozonegroup.com/files/Interstate_Transport_Model_Protocol_to_address_Kentucky_SIP_obligations2.pdf

Alpine Geophysics has undertaken modeling in support of the development by the Commonwealth of Kentucky of a Good
Neighbor SIP related to the 2008 ozone NAAQS. This protocol has been finalized to reflect comments of EPA.

b.        
Midwest Ozone Group Results:
http://www.midwestozonegroup.
com/files/Ozone_Modeling_Results_Supporting_Kentucky_GN_SIP_Obligations_Final_Nov_2017_.pdf

The results of the modeling performed by Alpine Geophysics demonstrates that in 2023 there are no nonattainment or
maintenance monitors in the East with respect to the 2008 ozone NAAQS. There is therefore no reason to determine
significant contribution or to pursue additional emission reductions from other states.    

c.        
EPA Results:                 
https://www.epa.gov/sites/production/files/2017-10/documents/final_2008_o3_naaqs_transport_memo_10-27-17b.pdf

EPA also performed modeling of 2023 and reached the same conclusion as the Midwest Ozone Group that in 2023 there
are no nonattainment or maintenance monitors in the East with respect to the 2008 ozone NAAQS.

6.                  New York Modeling   
http://www.midwestozonegroup.com/files/New_York_Peakers.pptx

Modeling performed by the New York Department of Environmental Conservation illustrates the significant impact on air
quality that can be caused by the operation of small peaking units on high ozone days. According to the results provided
by the agency, when emissions from these older peaking units were “zeroed-out” on a high ozone day, modeled ambient
ozone concentrations were reduced by as much as 4.8 ppb.  

7.                   Maryland 126 Petition

a.        MOG Comments: http://www.midwestozonegroup.com/files/PRUITT_LETTER.PDF

The Midwest Ozone Group filed comments with EPA in which it explained why the petition should be denied. Among the
reasons cited are the following:

  • Maryland’s current ozone air quality is already measuring attainment of the 2008 ppb) ozone NAAQS

  • The increases in ozone concentrations in 2016 at the Cecil monitor occurred at a time when EGU NOx emissions
    decreased

  • NOx emission trends for states targeted by the petition are decreasing

  • The most significant individual source NOx category contributor to ozone concentrations at the Cecil monitor are
    motor vehicle emissions from within Maryland.  Also, the 36 EGU’s identified in Maryland’s §126 petition are merely
    a subset of the 6% contribution from all EGU’s from the Target states.

  • Maryland’s air quality improves with noted reductions in local ozone precursors.

  • EPA projects that in 2017 all Maryland monitors, including Cecil, will be in attainment of, the 2008 75 ppb ozone
    NAAQS.

  • The only maintenance monitor in Maryland that has been identified by EPA is the Harford monitor – a monitor
    location where ambient ozone concentrations are more affected by bay breeze than interstate transport.

  • EPA Tier 3 modeling demonstrates that all Maryland monitors, including Cecil and Harford, will be in attainment with
    the 2008 ozone NAAQS in 2025 thus satisfying the agency’s long standing test for addressing maintenance areas

  • Had EPA air modeling projections taken into account the significant emissions reduction programs that are legally
    mandated to occur, it would have predicted Maryland to have no nonattainment or maintenance areas.
           a.        Pennsylvania RACT II.
           b.        OTC Measures.
           c.        Intra-Maryland Measures

  • The CSAPR Update Rule legally and practically resolves the issues raised by the Maryland petition.

  • The 2015 70 ppb ozone NAAQS currently does not provide a basis for the petition.

  • International emissions must be addressed as an integral part of the consideration of this petition.

b.        MD Complaint    http://www.midwestozonegroup.com/files/MD_Complaint.pdf

On September 29, 2017 the State of Maryland filed suit against EPA in federal District Court in Maryland related to EPA
failure to act on their 126 petition. In their complaint Maryland requested the Court to grant the following relief, among
other things:

  • Declare that EPA is in violation of § 126 of the Act for failing to timely hold a public hearing with regard to Maryland’
    s § 126 petition, and for failing to timely make the requested finding or to deny the petition;

  • Order EPA to (1) hold a public hearing on Maryland’s § 126 petition within thirty (30) days, and (2) make the
    requested finding or deny the § 126 petition, after considering comments from the public hearing, within sixty (60)
    days;

8.                  Delaware 126 Petition

MOG Comments: http://midwestozonegroup.com/files/Delaware.PDF

On August 8, 2016, the State of Delaware filed a petition naming the Harrison Power Station in West Virginia. On August
29, 2016, the Midwest Ozone Group filed comments with EPA asking that the petition be denied for, among others, the
following reasons:

  • Delaware’s current ozone air quality is already measuring attainment of the 2008 (75 ppb) and 2015 (70 ppb) ozone
    NAAQS.  

  • EPA itself projects that in 2017 all Delaware monitors will attain and maintain both the 2008 75 ppb and 2015 70
    ppb ozone NAAQS.

  • EPA itself has determined that Delaware does not have any ozone nonattainment or maintenance areas.

  • The 2015 70 ppb ozone NAAQS currently does not provide a basis for the petition.  

  • Delaware’s air quality is improving and will continue to improve with nothing more than implementation of existing
    regulatory programs.

  • Any future non-attainment or maintenance concerns by Delaware can be addressed under CAA §179B by
    accounting for international emissions.

9.                    176A Petition

a.        EPA denial:
http://www.midwestozonegroup.
com/files/Final_Section_176A_Petition_Denial_Action_October_27_2017_Prepublication_Version.pdf


On October 27, 2017, EPA denied the petition of the NE states to expand the Northeast Ozone Transport Region. In
denying the petition, EPA offered the following comments:

  • “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.”

  • “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.”

b.        MOG Comments:
http://www.midwestozonegroup.com/files/MOG_Comments_In_Support_of_Proposed_Denial_of_176A_Petition.pdf

On May 15, 2017, the Midwest Ozone Group filed comments on the petition to expand the NE Ozone Transport Region.
The following are the points offered by the Midwest Ozone Group in opposition to that petition:

  • Establishment of an Ozone Transport Region is a Discretionary Decision by the Administrator.

  • Other programs are already being implemented which reduce ozone precursor emissions from states.

  • CAA Section 176A deals only with nonattainment, making maintenance issues extraneous to the issues before EPA
    in addressing this petition.

  • To provide a basis for concluding that a state significantly contributes to nonattainment  in the OTR, the petition
    must establish that the Target States are significant contributors to nonattainment in the Petitioning states

  • There has already been significant improvement in ozone air quality in the Petitioning States.

  • Emissions reductions will continue as the result of nothing more than on-the-books controls.

  • Petitioners seek to use the 176A process to achieve a “level economic playing field” that is not authorized in the
    CAA and ignores the significant and adequate emission reductions that sources in the upwind states have achieved
    under current federal and    state regulatory programs.

  • EPA air modeling projections do not take into account significant emission reduction programs that are legally
    mandated to occur, including:
           o        Pennsylvania RACT II,
           o        Connecticut RACT,
           o        OTC Measures.

  • Increases in ozone concentrations in 2016 occurred at a time when EGU emissions decreased.

  • OTR states are significant contributors to any remaining nonattainment and are therefore responsible for reducing
    NAAQS violations not attributable to upwind states.

  • Data indicate that EGU emissions from outside of OTR are not contributing significantly to high episode ozone
    concentrations within the OTR.

  • Emission impact of local sources is significantly greater per ton on ozone concentrations at local monitors than
    emission from sources in upwind states.

  • International emissions must be addressed as an integral part of the consideration of this petition.

10.              Regional Haze

a.        MANE-VU memo:
http://midwestozonegroup.com/files/Winter_NOX_Control_Memo_170905.docx

MANE-VU released for comments its August 29, 2017, memo entitled “Impact of Wintertime SCR/SNCR Optimization on
Visibility Impairing Nitrate Precursor Emissions.” This proposed  the establishment of wintertime requirement for the
operation of NOx control equipment for the stated purpose of meeting visibility glide path requirements in 2028.

b.        
MOG Comments:
http://www.midwestozonegroup.com/files/Foerter_and_Jakuta_Correspondence.PDF.

On September 28, 2017 the Midwest Ozone Group filed comments on that memo asking that it be withdrawn for the
following reasons:

  • MANE-VU should submit SIPs in 2021 because of significant reductions in visibility impairment due to regulatory
    programs that will impact sources over the next several years.  

  • Mobile sources are the most significant contributor to visibility impairment in MANE-VU but MANE-VU failed to
    assess their impact.  

  • The single-minded focus of the memo on EGUs fails to assess the extent to which EGUs collectively or individually
    may, or may not, have an impact on visibility at Brigantine.

  • Reliance on the historical BOR for the units examined in the memo is an arbitrary action that ignores the capability
    of the existing NOx control equipment at the selected EGUs to achieve that the historical BOR.

  • Had the memo used 2016 emission rates for the EGUs examined, and not the BOR for those plants, it is clear that
    the proposed strategy would have resulted is significantly lower emission reductions – and with no analysis in either
    case about what if any improvement in visibility would have resulted at Brigantine.

  • Recent 2015 nitrate-based visibility impairment at Brigantine is attributable to northeastern state wintertime EGU
    operations.

  • The back trajectory analyses described in the memo clearly indicate that on the most critical nitrate impacted days
    selected for examination at Brigantine NWR in winter 2015, the winds were out of the North and initiated outside of
    the U.S.

  • Before asserting its position that an additional control requirement of any kind should be imposed on upwind US
    EGUs, MANE-VU has an obligation to assess international and non-anthropogenic emissions with a view towards
    adjusting the glidepath in accordance with EPA’s regional haze rules.   

11.             International Emissions: MOG White Paper
http://www.midwestozonegroup.com/files/Assessment_of_International_Transport_and_Improved_Ozone_Air_Quality_62.
22.17.docx

The Midwest Ozone Group has analyzed international emissions and the manner in which international emissions are
addressed under Section 179B of the Clean Air Act and provided a summary of those thoughts in this paper. International
emissions are a significant contributor to ozone concentrations to all monitors in the U.S. “But for” international emissions,
no monitor in the U.S. is predicted by EPA to have an ozone concentration greater than 66 ppb in 2017. Given the
tremendous progress that has already been made by states in improving air quality, properly addressing international
emission will eliminate the negative impact of the ozone NAAQS on economic development and job growth.