[Federal Register Volume 86, Number 82 (Friday, April 30, 2021)]
[Rules and Regulations]
[Pages 23054-23235]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-05705]
[[Page 23053]]
Vol. 86
Friday,
No. 82
April 30, 2021
Part II
Environmental Protection Agency
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40 CFR Parts 51, 52, 78, et al.
Revised Cross-State Air Pollution Rule Update for the 2008 Ozone NAAQS;
Final Rule
Federal Register / Vol. 86 , No. 82 / Friday, April 30, 2021 / Rules
and Regulations
[[Page 23054]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 51, 52, 78, and 97
[EPA-HQ-OAR-2020-0272; FRL-10021-34-OAR]
RIN 2060-AU84
Revised Cross-State Air Pollution Rule Update for the 2008 Ozone
NAAQS
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The U.S. Environmental Protection Agency (EPA) is taking this
action to address interstate transport of ozone pollution under the
``good neighbor provision'' of the Clean Air Act (CAA). This final
action is taken in response to the United States Court of Appeals for
the District of Columbia Circuit's (D.C. Circuit) remand of the Cross-
State Air Pollution Rule (CSAPR) Update in Wisconsin v. EPA on
September 13, 2019. The CSAPR Update finalized Federal Implementation
Plans (FIPs) for 22 states to address their good neighbor obligations
for the 2008 ozone National Ambient Air Quality Standards (NAAQS). The
D.C. Circuit found that the CSAPR Update, which was published on
October 26, 2016 as a partial remedy to address upwind states'
obligations prior to the 2018 Moderate area attainment date under the
2008 ozone NAAQS, was unlawful to the extent it allowed those states to
continue their significant contributions to downwind ozone problems
beyond the statutory dates by which downwind states must demonstrate
their attainment of the air quality standards. On the same grounds, the
D.C. Circuit also vacated the CSAPR Close-Out in New York v. EPA on
October 1, 2019. This final rule resolves 21 states' outstanding
interstate ozone transport obligations with respect to the 2008 ozone
NAAQS.
This action finds that for 9 of the 21 states for which the CSAPR
Update was found to be only a partial remedy (Alabama, Arkansas, Iowa,
Kansas, Mississippi, Missouri, Oklahoma, Texas, and Wisconsin), their
projected ozone precursor emissions in the 2021 ozone season and
thereafter do not significantly contribute to a continuing downwind
nonattainment and/or maintenance problem, and therefore the states'
CSAPR Update FIPs (or the SIPs subsequently approved to replace certain
states' CSAPR Update FIPs) fully address their interstate ozone
transport obligations with respect to the 2008 ozone NAAQS. This action
also finds that for the 12 remaining states (Illinois, Indiana,
Kentucky, Louisiana, Maryland, Michigan, New Jersey, New York, Ohio,
Pennsylvania, Virginia, and West Virginia), their projected 2021 ozone
season nitrogen oxides (NOX) emissions significantly
contribute to downwind states' nonattainment and/or maintenance
problems for the 2008 ozone NAAQS. In this final action, EPA is issuing
new or amended FIPs for these 12 states to replace their existing CSAPR
NOX Ozone Season Group 2 emissions budgets for electricity
generating units (EGUs) with revised budgets via a new CSAPR
NOX Ozone Season Group 3 Trading Program. EPA is requiring
implementation of the revised emission budgets beginning with the 2021
ozone season. Based on EPA's assessment of remaining air quality issues
and additional emission control strategies for EGUs and other emissions
sources in other industry sectors (non-EGUs), EPA is further
determining that these NOX emission reductions fully
eliminate these states' significant contributions to downwind air
quality problems for the 2008 ozone NAAQS. In this action, EPA is also
finalizing an error correction of its June 2018 approval of Kentucky's
good neighbor SIP.
DATES: This final rule is effective on June 29, 2021.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OAR-2020-0272. All documents in the docket are listed on the
www.regulations.gov website. Although listed in the index, some
information is not publicly available, e.g., Confidential Business
Information or other information whose disclosure is restricted by
statute. Certain other material, such as copyrighted material, is not
placed on the internet and will be publicly available only in hard copy
form. Publicly available docket materials are available electronically
through www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Mr. Daniel Hooper, Clean Air Markets
Division, Office of Atmospheric Programs (Mail Code 6204M),
Environmental Protection Agency, 1200 Pennsylvania Avenue NW,
Washington, DC 20460; telephone number: (202) 343-9167; email address:
[email protected].
SUPPLEMENTARY INFORMATION:
Preamble Glossary of Terms and Abbreviations
The following are abbreviations of terms used in the preamble.
4-step good neighbor framework 4-step framework
AEO Annual Energy Outlook
AQAT Air Quality Assessment Tool
AQM TSD Air Quality Modeling Technical Support Document
CAA or Act Clean Air Act
CAIR Clean Air Interstate Rule
CAMx Comprehensive Air Quality Model with Extensions
CBI Confidential Business Information
CEMS Continuous Emission Monitoring System(s)
CFR Code of Federal Regulations
CMDb Control Measures Database
CMV Commercial Marine Vehicle
CoST Control Strategy Tool
CRA Congressional Review Act
CSAPR Cross-State Air Pollution Rule
EGU Electric Generating Unit
EISA Energy Independence and Security Act
EPA U.S. Environmental Protection Agency
FIP Federal Implementation Plan
FR Federal Register
HDGHG Greenhouse Gas Emissions Standards and Fuel Efficiency
Standards for Medium- and Heavy-Duty Engines and Vehicles
IC Internal Combustion
ICI Industrial, Commercial, and Institutional
ICR Information Collection Request
IPM Integrated Planning Model
iSIP Infrastructure State Implementation Plan
km Kilometer
lb/mmBtu Pounds per Million British Thermal Units
LEC Low Emission Combustion
LNB Low-NOX Burners
MJO Multi-Jurisdictional Organizations
mmBtu Million British Thermal Units
MOVES Motor Vehicle Emission Simulator
MSAT2 Mobile Source Air Toxic Rule
NAAQS National Ambient Air Quality Standard
NEI National Emission Inventory
NESHAP National Emission Standards for Hazardous Air Pollutants
NOX Nitrogen Oxides
NODA Notice of Data Availability
Non-EGU Non-electric Generating Unit
NSPS New Source Performance Standard
NUSA New Unit Set-Aside
OSAT/APCA Ozone Source Apportionment Technology/Anthropogenic
Precursor Culpability Analysis
OMB Office of Management and Budget
OTC Ozone Transport Commission
OTR Ozone Transport Region
PEMS Predictive Emissions Monitoring System
PM2.5 Fine Particulate Matter
ppb Parts Per Billion
RACT Reasonably Available Control Technology
RIA Regulatory Impact Analysis
RICE Reciprocating Internal Combustion Engines
RRF Relative Response Factor
RTC Document Response to Comment Document
SCR Selective Catalytic Reduction
SIP State Implementation Plan
SMOKE Sparse Matrix Operator Kernel Emissions
SNCR Selective Non-catalytic Reduction
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SO2 Sulfur Dioxide
TIP Tribal Implementation Plan
TSD Technical Support Document
tpy Ton Per Year
ULNB Ultra-low NOX Burner
VOC Volatile Organic Compound
WRF Weather Research and Forecasting Model
Table of Contents
I. Executive Summary
A. Purpose of Regulatory Action
B. Summary of the Major Provisions of the Regulatory Action
C. Costs and Benefits
II. General Information
A. Does this action apply to me?
III. EPA's Legal Authority for the Final Rule
A. Statutory Authority
B. Prior Good Neighbor Rulemakings Addressing Regional Ozone
IV. Air Quality Issues Addressed and Overall Approach for the Final
Rule
A. The Interstate Ozone Transport Challenge
1. Nature of Ozone and the Ozone NAAQS
2. Ozone Transport
3. Health and Environmental Effects
B. Relationship Between This Regulatory Action and the 2015
Ozone NAAQS
C. Approach To Address the Remanded Transport Obligations for
the 2008 Ozone NAAQS
1. Events Affecting Application of the Good Neighbor Provision
for the 2008 Ozone NAAQS
2. FIP Authority for Each State Covered by the Final Rule
3. The 4-Step Good Neighbor Framework
V. Analyzing Downwind Air Quality and Upwind-State Contributions
A. Overview of Air Quality Modeling Platform
B. Emission Inventories
1. Foundation Emission Inventory Data Sets
2. Development of Emission Inventories for EGUs
3. Development of Emission Inventories for Non-EGU Point Sources
4. Development of Emission Inventories for Onroad Mobile Sources
5. Development of Emission Inventories for Commercial Marine
Vessels
6. Development of Emission Inventories for Other Nonroad Mobile
Sources
7. Development of Emission Inventories for Nonpoint Sources
C. Air Quality Modeling To Identify Nonattainment and
Maintenance Receptors
D. Pollutant Transport From Upwind States
1. Air Quality Modeling To Quantify Upwind State Contributions
2. Application of Screening Threshold
VI. Quantifying Upwind-State NOX Reduction Potential To
Reduce Interstate Ozone Transport for the 2008 NAAQS
A. The Multi-Factor Test
B. Identifying Levels of Control Stringency
1. EGU NOX Mitigation Strategies
2. Non-EGU NOX Mitigation Strategies
3. Mobile Source NOX Mitigation Strategies
C. Emission Reduction Potential of Control Stringencies
1. EGU Emission Reduction Potential
2. Non-EGU Emission Reduction Potential
D. Assessing Cost, EGU and Non-EGU NOX Reductions,
and Air Quality
1. EGU Assessment
2. Non-EGU Assessment
3. Overcontrol Analysis
VII. Implementation of Emission Reductions
A. Regulatory Requirements for EGUs
B. Quantifying State Emissions Budgets
C. Elements of New Trading Program
1. Applicability
2. State Budgets, Variability Limits, Assurance Levels, and
Penalties
3. Unit-Level Allocations of Emission Allowances
4. Transitioning From Existing CSAPR NOX Ozone Season
Group 2 Trading Program
5. Compliance Deadlines
6. Monitoring and Reporting
7. Recordation of Allowances
8. Conforming Revisions to Regulations for Existing Trading
Programs
D. Submitting a SIP
1. SIP Option To Modify 2022 Allocations
2. SIP Option To Modify Allocations in 2023 and Beyond
3. SIP Revisions That Do Not Use the New Group 3 Trading Program
4. No SIP Option for Additional States To Participate in the New
Trading Program
E. Title V Permitting
F. Relationship to Other Emission Trading and Ozone Transport
Programs
1. Existing Trading Programs
2. Title IV Interactions
3. NOX SIP Call Interactions
VIII. Costs, Benefits, and Other Impacts of the Final Rule
IX. Summary of Changes to the Regulatory Text for the Federal
Implementation Plans and Trading Programs
A. Amended CSAPR Update FIP Provisions
B. New CSAPR NOX Ozone Season Group 3 Trading Program
Provisions
C. Transitional Provisions
D. Conforming Revisions, Corrections, and Clarifications to
Existing Regulations
X. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
I. National Technology Transfer and Advancement Act (NTTAA)
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act
L. Determinations Under CAA Section 307(b)(1) and (d)
I. Executive Summary
This final rule resolves the interstate transport obligations of 21
states under the good neighbor provision of the Clean Air Act (CAA or
the Act), CAA section 110(a)(2)(D)(i)(I), for the 2008 ozone National
Ambient Air Quality Standards (NAAQS). The 2008 ozone NAAQS is an 8-
hour standard that was set at 75 parts per billion (ppb).\1\ The U.S.
Environmental Protection Agency (EPA or the Agency) published the
Cross-State Air Pollution Rule (CSAPR) Update on October 26, 2016,
which, among other things, partially addressed the interstate transport
of emissions from 21 states with respect to the 2008 ozone NAAQS.\2\
See 81 FR 74504. On December 21, 2018, EPA published the CSAPR Close-
Out Rule, which found that the CSAPR Update was a complete remedy for
20 of those states based on air quality analysis of the year 2023.\3\
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\1\ See 73 FR 16436 (March 27, 2008).
\2\ In the CSAPR Update, EPA found that the finalized Tennessee
emission budget fully addressed Tennessee's good neighbor obligation
with respect to the 2008 ozone NAAQS. See 81 FR 74504, 74508 n. 19
(Oct. 26, 2016).
\3\ See 83 FR 65878 (Dec. 21, 2018).
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On September 13, 2019, the United States Court of Appeals for the
District of Columbia Circuit (D.C. Circuit) remanded the CSAPR Update,
concluding that it was invalid in one respect because it unlawfully
allowed upwind states to continue their significant contributions to
downwind air quality problems beyond the statutory dates by which
downwind States must demonstrate their attainment of ozone air quality
standards. Wisconsin v. EPA, 938 F.3d 303, 318-20 (D.C. Cir. 2019)
(Wisconsin) (per curiam); see also id. 336-37 (concluding that remand
without vacatur was appropriate). Subsequently, on October 1, 2019, in
a judgment order, the D.C. Circuit vacated the CSAPR Close-Out on the
same grounds on which it had remanded without vacatur the CSAPR Update
in Wisconsin. New York v. EPA, 781 Fed. App'x 4, 7 (D.C. Cir. 2019)
(New York). The court found the CSAPR Close-Out inconsistent with the
Wisconsin holding because the rule analyzed the year 2023 rather than
2021 and failed to demonstrate that it was an impossibility to address
significant contribution by the 2021 Serious area attainment date
(``the next applicable attainment date''). To address the Wisconsin and
New York decisions, EPA proposed this rule in the Federal
[[Page 23056]]
Register on October 30, 2020 to revise the CSAPR Update (85 FR
68964).\4\
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\4\ On July 28, 2020, the U.S. District Court for the Southern
District of New York issued a decision establishing a deadline of
March 15, 2021, for EPA to issue a final rule fully resolving good
neighbor obligations under the 2008 ozone NAAQS for seven upwind
states. New Jersey v. Wheeler, No. 1:20-cv-01425 (S.D.N.Y. July 28,
2020).
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In this final rule, in accordance with Wisconsin and New York, EPA
has aligned its analysis and the implementation of emission reductions
required to address significant contribution with the 2021 ozone
season, which corresponds to the July 20, 2021 Serious area attainment
date for the 2008 ozone NAAQS. EPA has further determined which
emission reductions are impossible to achieve by the 2021 attainment
date and whether any such additional emission reductions should be
required beyond that date. See Wisconsin, 938 F.3d at 320; New York,
781 Fed. App'x at 7.
In this action on remand, EPA is not reopening any determinations,
findings, or statutory or regulatory interpretations that are not
required to address the Wisconsin remand, unless the Agency has
explicitly so stated. This final action addressing the remand of the
CSAPR Update in Wisconsin also has the effect of addressing the
outstanding obligations that resulted from the D.C. Circuit's vacatur
of the CSAPR Close-Out in New York. See New York, 781 Fed. App'x at 7.
A. Purpose of the Regulatory Action
The purpose of this rulemaking is to protect public health and
welfare by eliminating emissions in certain upwind states that
significantly contribute to nonattainment, or interfere with
maintenance, of the 2008 ozone NAAQS in the U.S. Ground-level ozone
causes a variety of negative effects on human health, vegetation, and
ecosystems. In humans, acute and chronic exposure to ozone is
associated with premature mortality and a number of morbidity effects,
such as asthma exacerbation. Ozone exposure can also negatively impact
ecosystems, for example, by limiting tree growth. Studies have
established that ozone transport occurs on a regional scale (i.e.,
hundreds of miles) over much of the eastern U.S., with elevated
concentrations occurring in rural as well as metropolitan
areas.5 6 As discussed in more detail in section IV.A.1,
assessments of ozone control approaches have concluded that nitrogen
oxides (NOX) control strategies are effective to reduce
regional-scale ozone transport.\7\
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\5\ Bergin, M.S. et. al. (2007) Regional air quality: Local and
interstate impacts of NOX and SO2 emissions on
ozone and fine particulate matter in the eastern United States.
Environmental Sci & Tech. 41: 4677-4689.
\6\ Liao, K. et. al. (2013) Impacts of interstate transport of
pollutants on high ozone events over the Mid-Atlantic United States.
Atmospheric Environment 84, 100-112.
\7\ See also 82 FR 51238, 51248 (Nov. 3, 2017) (citing 76 FR
48208, 48222 (Aug. 8, 2011)) and 63 FR 57381 (Oct. 27, 1998).
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Clean Air Act section 110(a)(2)(D)(i)(I), which is also known as
the ``good neighbor provision,'' requires states to prohibit emissions
that will contribute significantly to nonattainment or interfere with
maintenance in any other state with respect to any primary or secondary
NAAQS.\8\ The statute vests states with the primary responsibility to
address this ``interstate transport'' of air pollutants through the
development of good neighbor State Implementation Plans (SIPs), which
are one component of larger SIP submittals typically required three
years after EPA promulgates a new or revised NAAQS. These larger SIPs
are often referred to as ``infrastructure'' SIPs or iSIPs. See CAA
section 110(a)(1) and (2). EPA supports state efforts to submit good
neighbor SIPs for the 2008 ozone NAAQS and has shared information with
states to facilitate such SIP submittals. However, the CAA also
requires EPA to fill a backstop role by issuing Federal Implementation
Plans (FIPs) where states fail to submit good neighbor SIPs or EPA
disapproves a submitted good neighbor SIP. See generally CAA section
110(k) and 110(c).
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\8\ 42 U.S.C. 7410(a)(2)(D)(i)(I).
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On October 26, 2016, EPA published the CSAPR Update, which
finalized FIPs for 22 states that EPA found failed to submit a complete
good neighbor SIP (15 states) \9\ or for which EPA issued a final rule
disapproving their good neighbor SIP (7 states).\10\ The FIPs
promulgated for these states included new NOX ozone season
emission budgets for electric generating units (EGUs) to reduce
interstate transport for the 2008 ozone NAAQS. These emission budgets
took effect in 2017 in order to assist downwind states with attainment
of the 2008 ozone NAAQS by the 2018 Moderate area attainment date. EPA
acknowledged at the time that the FIPs promulgated for 21 of the 22
states only partially addressed good neighbor obligations under the
2008 ozone NAAQS. The 22 states for which EPA promulgated FIPs to
reduce interstate ozone transport as to the 2008 ozone NAAQS are listed
in Table I.A-1.
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\9\ Alabama, Arkansas, Illinois, Iowa, Kansas, Maryland,
Michigan, Mississippi, Missouri, New Jersey, Oklahoma, Pennsylvania,
Tennessee, Virginia, and West Virginia.
\10\ Indiana, Kentucky, Louisiana, New York, Ohio, Texas, and
Wisconsin.
Table I.A-1--List of 22 Covered States for the 2008 8-Hour Ozone NAAQS
in the CSAPR Update
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State
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Alabama
Arkansas
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maryland
Michigan
Mississippi
Missouri
New Jersey
New York
Ohio
Oklahoma
Pennsylvania
Tennessee
Texas
Virginia
West Virginia
Wisconsin
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In response to the D.C. Circuit's remand of the CSAPR Update in
Wisconsin and the court's vacatur of the CSAPR Close-Out in New York,
this rule finds that 12 of the 22 states listed in Table I.A-1 require
further ozone season NOX emission reductions to address the
good neighbor provision as to the 2008 ozone NAAQS. As such, EPA is
promulgating new or revised FIPs for these states that include new EGU
NOX ozone season emission budgets, with implementation of
these emission budgets beginning with the 2021 ozone season.\11\ The 12
states for which EPA is promulgating new or revised FIPs to reduce
interstate ozone transport as to the 2008 ozone NAAQS in this
rulemaking are listed in Table I.A-2.
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\11\ As discussed in section IV.C.2.c., in 2018 EPA approved a
SIP revision for Indiana replacing the state's CSAPR Update FIP with
equivalent state regulations. This SIP revision, like the CSAPR
Update FIP it replaced, was partial in nature. EPA is issuing a new
FIP rather than a revised FIP for Indiana in this action.
Table I.A-2--List of 12 Covered States for the 2008 8-Hour Ozone NAAQS
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State
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Illinois
Indiana
Kentucky
Louisiana
Maryland
Michigan
[[Page 23057]]
New Jersey
New York
Ohio
Pennsylvania
Virginia
West Virginia
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The enhanced control stringency represented by the new EGU NOx
ozone season emission budgets for these states will take effect 60 days
after publication in the Federal Register, which corresponds to the
effective date of the rule as a whole.\12\ This date will fall before
the July 20, 2021, Serious area attainment date for the 2008 ozone
NAAQS. EPA has determined that it is feasible for the EGUs subject to
this rule to comply with the enhanced stringency of the budgets and
that there is sufficient time before the effective date to prepare to
meet these budgets by either undertaking the emission control measures
EPA has identified in this action, or by taking advantage of compliance
flexibilities available through the new interstate emissions trading
program EPA is establishing.\13\ As explained in greater detail below,
due to timing considerations, one aspect of EPA's selected EGU control
stringency--installation of state-of-the-art combustion controls--will
not take effect until the 2022 ozone season, and this is accounted for
in EPA's budget-setting process.
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\12\ As discussed in section VII.C.4.a, EPA is ensuring that the
enhanced control stringency represented by the new budgets will not
take effect until the rule's effective date by issuing supplemental
allowances for the portion of the 2021 ozone season occurring before
the rule's effective date.
\13\ In general, throughout this notice, where EPA refers to
``addressing good neighbor obligations,'' ``implementing
reductions,'' or ``compliance feasibility'' by or in the 2021 ozone
season (or similar formulations), this does not refer to the
beginning of the ozone season on May 1, but rather to the effective
date of this action, which is when the enhanced control stringency
represented by the new EGU NOx ozone season emission budgets will
take effect.
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EPA is further adjusting these states' emission budgets for each
ozone season from 2022 to 2024 to incentivize ongoing operation of
identified emission controls to address significant contribution, until
such time that air quality projections demonstrate resolution of the
downwind nonattainment and/or maintenance problems for the 2008 ozone
NAAQS. No further budget adjustments will be made after that time
(i.e., after the 2024 ozone season). EPA is implementing the new state-
level ozone season emission budgets through a new CSAPR NOX
Ozone Season Group 3 Trading Program. Based on EPA's assessment of
remaining air quality issues and additional emission controls, EPA is
further determining that these NOX emission reductions fully
eliminate these states' significant contribution to nonattainment and
interference with maintenance of the 2008 ozone NAAQS in other states.
As discussed in more detail in section IV.C.2.b below, for one
state, Kentucky, EPA is making an error correction under CAA section
110(k)(6) of its June 2018 approval of the Commonwealth's SIP, which
had concluded that the CSAPR Update was a complete remedy based on
modeling of the 2023 analytic year. EPA finds that the basis for that
conclusion was invalidated by the decisions in Wisconsin and New York.
With finalization of this error correction and disapproval of
Kentucky's SIP, Kentucky's good neighbor obligations are outstanding.
In light of the Wisconsin remand of Kentucky's FIP and EPA's error
correction, the Agency has the necessary authority to amend the CSAPR
Update FIP for Kentucky.
For the nine remaining states with FIPs promulgated under the CSAPR
Update that EPA previously found partially addressed good neighbor
obligations for the 2008 ozone NAAQS (Alabama, Arkansas, Iowa, Kansas,
Mississippi, Missouri, Oklahoma, Texas, and Wisconsin), EPA's updated
air quality and contributions analysis shows that these states are not
linked to any downwind air quality problems in 2021.\14\ Therefore, EPA
finds that the existing CSAPR Update FIPs (or the SIP revisions later
approved to replace the CSAPR Update FIPs) for these states satisfy
their good neighbor obligations for the 2008 ozone NAAQS.\15\
Consequently, EPA is not requiring additional emission reductions from
sources in these states in this final rule.
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\14\ EPA's use of a contribution threshold to determine, without
further analysis of potential emission reduction opportunities, that
certain states have no remaining good neighbor obligations with
respect to a given NAAQS is part of the analytic approach that was
followed in the CSAPR rulemaking and upheld by the Supreme Court.
See EPA v. EME Homer City Generation, L.P., 572 U.S. 489, 521-22
(2014).
\15\ As discussed in section IV.C.2.c., in 2017 and 2019 EPA
approved SIP revisions for Alabama and Missouri replacing the
states' CSAPR Update FIPs with equivalent state regulations. These
SIP revisions, like the CSAPR Update FIPs they replaced, were
partial in nature. EPA is therefore determining in this action that
the states' existing SIP provisions satisfy these states' good
neighbor obligations for the 2008 ozone NAAQS.
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B. Summary of the Major Provisions of the Regulatory Action
To reduce interstate ozone transport under the authority provided
in CAA section 110(a)(2)(D)(i)(I), this rule further limits ozone
season (May 1 through September 30) NOX emissions from EGUs
in 12 states using the same framework EPA used in the CSAPR and other
good neighbor rules (the 4-step good neighbor framework or 4-step
framework). The 4-step good neighbor framework provides a process to
address the requirements of the good neighbor provision for ground-
level ozone NAAQS: (1) Identifying downwind receptors that are expected
to have problems attaining or maintaining the NAAQS; (2) determining
which upwind states contribute to these identified problems in amounts
sufficient to ``link'' them to the downwind air quality problems (i.e.,
here, a contribution threshold equal to or greater than 1 percent of
the NAAQS); (3) for states linked to downwind air quality problems,
identifying upwind emissions that significantly contribute to downwind
nonattainment or interfere with downwind maintenance of the NAAQS; and
(4) for states that are found to have emissions that significantly
contribute to nonattainment or interfere with maintenance of the NAAQS
downwind, implementing the necessary emission reductions through
enforceable measures. In this final rule, EPA applies this 4-step
framework to respond to the D.C. Circuit's remand in Wisconsin and to
revise the CSAPR Update with respect to the 2008 ozone NAAQS.
In order to apply the first step of the 4-step framework to the
2008 ozone NAAQS, EPA performed air quality modeling coupled with
ambient measurements in an interpolation technique to project ozone
concentrations at air quality monitoring sites in 2021.\16\
(``Interpolation'' is a
[[Page 23058]]
numerical method for constructing new data points within the range of a
discrete set of known data points, in this case the known data are the
2016 measured-based and 2023 modeling-based ozone concentrations.) EPA
evaluated 2021 projected ozone concentrations at individual monitoring
sites and considered current ozone monitoring data at these sites to
identify receptors that are anticipated to have problems attaining or
maintaining the 2008 ozone NAAQS. Such monitoring sites are referred to
as nonattainment and/or maintenance receptors. Based on EPA's analysis,
the Agency identified four nonattainment and/or maintenance receptors
in 2021 (i.e., three receptors in Connecticut and one in Texas). EPA
received comments on its approach to identify nonattainment and/or
maintenance receptors in 2021. A summary of these comments, as well as
EPA's responses, can be found in section V and in the Response to
Comments (RTC) document for this final rule.
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\16\ The next relevant attainment date for the 2008 ozone NAAQS
is July 20, 2021, for Serious nonattainment areas. 80 FR 12264,
12268; 40 CFR 51.1103. As discussed in section V, historically, EPA
has considered the full ozone season prior to the attainment as
supplying an appropriate analytic year for assessing good neighbor
obligations. While this would be 2020 for a July 2021 attainment
date (which falls within the 2021 ozone season running from May 1 to
September 30), in this circumstance, because the 2020 ozone season
is wholly in the past, it is appropriate to focus on 2021 in order
to address good neighbor obligations to the extent possible by the
2021 attainment date. It would not be appropriate to select an
analytical year that is wholly in the past, because the agency
interprets the good neighbor provision as forward looking. See 85 FR
at 68981; see also Wisconsin, 938 F.3d at 322. Consequently, in this
action EPA uses the analytic year 2021.
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To apply the second step of the framework, EPA used an air quality
modeling-based technique to quantify the contributions in 2021 from
upwind states to ozone concentrations at individual monitoring sites,
as described in section V. Once quantified, EPA then evaluated these
contributions relative to a screening threshold of 1 percent of the
NAAQS (i.e., 0.75 ppb) for those monitoring sites identified as
nonattainment and/or maintenance receptors in step 1. States with
contributions that equal or exceed 1 percent of the NAAQS were
identified as warranting further analysis for significant contribution
to nonattainment or interference with maintenance. States with
contributions below 1 percent of the NAAQS were considered to not
significantly contribute to nonattainment or interfere with maintenance
of the NAAQS in downwind states. Based on EPA's updated air quality and
contribution analysis using 2021 as the analytic year, EPA is
determining that the following 12 states have contributions that equal
or exceed 1 percent of the 2008 ozone NAAQS, and thereby warrant
further analysis for significant contribution to nonattainment or
interference with maintenance: Illinois, Indiana, Kentucky, Louisiana,
Maryland, Michigan, New Jersey, New York, Ohio, Pennsylvania, Virginia,
and West Virginia. EPA received comments on its approach to quantify
interstate contributions and the use of a 1 percent of the NAAQS
screening threshold. A summary of these comments, as well as EPA's
responses, can be found in section V and in the RTC document for this
final rule.
At the third step of the 4-step framework, EPA applied the multi-
factor test used in the CSAPR Update, which evaluates cost, available
emission reductions, and downwind air quality impacts to determine the
amount of linked upwind states' emissions that ``significantly''
contribute to downwind nonattainment or maintenance receptors. In this
action, EPA applied the multi-factor test to both EGU and non-EGU
source categories and assessed potential emission reductions in all
years for which there is a potential remaining interstate ozone
transport problem (i.e., through 2025), in order to ensure a full
remedy in accordance with the Wisconsin decision.
In the proposed rule, EPA identified a control stringency that
reflects the optimization of existing selective catalytic reduction
(SCR) controls and installation of state-of-the-art NOX
combustion controls at EGUs, represented by a cost of $1,600 per ton of
NOX reduced. In this final rule, EPA is determining that
optimization of existing selective non-catalytic reduction (SNCR)
controls should also be included in EPA's identified EGU control
stringency. As discussed in further detail in Section VI, EPA adjusted
its representative cost for optimizing existing SNCR controls to $1,800
per ton in response to comments received on the proposed rule, as well
as further EPA review of available information. EPA views $1,600 per
ton for optimization of existing SCR controls and installation of
state-of-the-art NOX combustion controls and $1,800 per ton
for optimization of existing SNCRs as comparable for policy purposes.
In addition, other considerations beyond marginal cost and air quality
improvement, as outlined in the section VI.D discussion of the multi-
factor test, support inclusion of emission reduction potential from
optimization of existing SNCR controls in EPA's identified EGU control
stringency in this rule.
At the selected control stringency in this final rule, downwind
ozone air quality improvements continue to be maximized relative to a
representative marginal cost. That is, the ratio of emission reductions
to marginal cost and the ratio of ozone improvements to marginal cost
are maximized relative to the other control stringency levels
evaluated. EPA finds that these cost-effective EGU NOX
reductions will make meaningful and timely improvements in downwind
ozone air quality to address interstate ozone transport for the 2008
ozone NAAQS, as discussed in section VI.D.1 below. Further, this
evaluation shows that emission budgets reflecting the optimization of
existing SCRs and SNCRs, and installation of state-of-the-art
NOX combustion controls at EGUs do not over-control upwind
states' emissions relative to either the downwind air quality problems
to which they are linked at step 1 or the 1 percent contribution
threshold that triggers further evaluation at step 2 of the 4-step
framework.
EPA notes that two of these EGU emission controls (optimization of
existing SCR controls and installation of state-of-the-art
NOX combustion controls) were also selected in the CSAPR
Update for the 2017 ozone season, and which at that time EPA
characterized as only a partial remedy. For this rule, EPA extends its
evaluation of the reduction potential from these emission controls to
years beyond 2017 in order to assess a full remedy. EPA's updated
analysis, as discussed in more detail in section VI, leads the Agency
to find that these emission controls can provide additional cost-
effective emission reductions for the 2021 through 2024 ozone seasons.
While EPA's analysis indicates that the majority of EGUs implemented
these emission controls in response to the CSAPR Update, changes in the
power sector since the 2017 ozone season and updated air quality and
contribution analysis show that there is a demonstrated need to update
the emission budgets for these 12 states to incentivize ongoing
operation of identified emission controls to fully eliminate
significant contribution and interference with maintenance. Likewise,
EPA finds that many EGUs are already operating their existing SNCR
controls to some extent but that additional cost-effective emission
reductions for the 2021 through 2024 ozone seasons are available. Taken
together, the emission budgets established in this final rule reflect
EPA's identified EGU control stringency of optimization of all existing
post-combustion controls (SCRs and SNCRs) by the 2021 ozone season, and
the installation of state-of-the-art NOX combustion controls
by the 2022 ozone season.
For non-EGU industry sectors and emissions sources, EPA applied the
step 3 multi-factor test to determine whether any emission reductions
should be required from non-EGU sources to address significant
contribution under the 2008 ozone NAAQS. EPA acknowledged in the
proposed rule that its current datasets with information on emissions,
existing controls on
[[Page 23059]]
emissions sources, emission-reduction potential, and air quality
impacts for these sources are not as well developed as the datasets it
has for EGUs. Nonetheless, using the best information currently
available to the Agency, including some additional analysis conducted
between the proposed rule and this final action, EPA is concluding that
there are relatively fewer emission reductions available at a cost
threshold comparable to the cost threshold selected for EGUs. In EPA's
reasoned judgment, the Agency concludes such reductions are estimated
to have a much smaller effect on any downwind receptor in the year by
which EPA finds such controls could be installed. For these reasons,
EPA is finding that limits on ozone season NOX emissions
from non-EGU sources are not required to eliminate significant
contribution or interference with maintenance under the 2008 ozone
NAAQS (see section VI.D.2).
Based on EPA's analysis at step 3, the Agency is promulgating EGU
NOX ozone season emission budgets developed using a uniform
control stringency of optimization of existing SCRs and SNCRs, and
installation of state-of-the-art NOX combustion controls.
EPA is determining that with implementation of this control stringency,
the 12 states in Table I.A-2 will have fully addressed significant
contribution under the good neighbor provision for the 2008 ozone
NAAQS. EPA is aligning implementation of emission budgets with relevant
attainment dates for the 2008 ozone NAAQS, consistent with CAA
requirements and the D.C. Circuit's decision in Wisconsin v. EPA.\17\
As EPA's final 2008 Ozone NAAQS SIP Requirements Rule \18\ established
the attainment date of July 20, 2021, for ozone nonattainment areas
currently designated as Serious, EPA is establishing emission budgets
and implementation of these emission budgets starting with the 2021
ozone season as shown in Table I.B-1.\19\
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\17\ See 938 F.3d 303, 320 (D.C. Cir. 2019) (holding that EPA
must align interstate transport compliance deadlines with downwind
attainment deadlines unless EPA can demonstrate an impossibility or
other necessity).
\18\ 80 FR 12264, 12268; 40 CFR 51.1103.
\19\ As discussed in section VII.C.4.a, EPA is ensuring that the
enhanced control stringency represented by the new budgets will not
take effect until the rule's effective date by issuing supplemental
allowances for the portion of the 2021 ozone season occurring before
the rule's effective date. Those supplemental allowances are not
reflected in the 2021 Budget column in Table I.B-1.
Table I.B-1--EGU NOX Ozone Season Emission Budgets
[Ozone Season NOX Tons] *
----------------------------------------------------------------------------------------------------------------
State 2021 Budget 2022 Budget 2023 Budget 2024 Budget
----------------------------------------------------------------------------------------------------------------
Illinois........................................ 9,102 9,102 8,179 8,059
Indiana......................................... 13,051 12,582 12,553 9,564
Kentucky........................................ 15,300 14,051 14,051 14,051
Louisiana....................................... 14,818 14,818 14,818 14,818
Maryland........................................ 1,499 1,266 1,266 1,348
Michigan........................................ 12,727 12,290 9,975 9,786
New Jersey...................................... 1,253 1,253 1,253 1,253
New York........................................ 3,416 3,416 3,421 3,403
Ohio............................................ 9,690 9,773 9,773 9,773
Pennsylvania.................................... 8,379 8,373 8,373 8,373
Virginia........................................ 4,516 3,897 3,980 3,663
West Virginia................................... 13,334 12,884 12,884 12,884
---------------------------------------------------------------
Total....................................... 107,085 103,705 100,526 96,975
----------------------------------------------------------------------------------------------------------------
* Note--The 2022 and beyond budgets incorporate the installation of state-of-the-art NOX combustion controls,
whereas the 2021 budgets do not. Additionally, the 2024 emissions budget applies to 2024 and each year
thereafter.
EPA further determined which emission reductions are impossible to
achieve by the 2021 attainment date and whether any such additional
emission reductions should be required beyond that date.\20\ See
Wisconsin, 938 F.3d at 320. EPA estimates that one part of the selected
control stringency--installation of state-of-the-art NOX
combustion controls--requires approximately one to six months depending
on the unit. Recognizing that the final rule will become effective
slightly after the start of the 2021 ozone season, EPA determined it is
not possible to install state-of-the-art NOX combustion
controls on a regional scale by the 2021 ozone season. Therefore, the
2021 ozone season emission budgets reflect only the optimization of
existing SCR and SNCR controls at the affected EGUs, but the emission
budgets for the 2022 ozone season and beyond reflect both the continued
optimization of existing SCR and SNCR controls and installation of
state-of-the-art NOX combustion controls. Detailed
installation-timing information for this technology is available in
section VI.B and the EGU NOX Mitigation Strategies Final
Rule TSD.
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\20\ As described in detail in sections VI.B and VI.C, some
mitigation efforts that require the installation of significant new
plant hardware (e.g., combustion control upgrade, selective
catalytic reduction, and non-selective catalytic reduction) are not
possible by the 2021 attainment date. However, EPA factored some of
these measures (i.e., combustion controls) into its quantification
of significant contribution starting at the later date of the start
of the 2022 ozone season.
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As discussed in section VI.D.1, EPA's air quality projections
anticipate that with the implementation of the identified control
stringency for EGUs, downwind nonattainment and maintenance problems
for the 2008 ozone NAAQS will persist through the 2024 ozone season.
Therefore, EPA is adjusting emission budgets for upwind states that
remain linked to downwind nonattainment and maintenance problems
through the 2024 ozone season to incentivize the continued optimization
of existing SCR and SNCR controls, and installation of state-of-the-art
NOX combustion controls. The 2024 emission budgets will then
continue to apply in each year thereafter.
To apply the fourth step of the 4-step framework (i.e.,
implementation), EPA is including enforceable measures in the
promulgated FIPs to achieve the required emission reductions in each of
the 12 states. Specifically, the FIPs require power plants in the 12
states to participate in a new CSAPR NOX Ozone Season Group
3 Trading Program that largely replicates the existing CSAPR
NOX Ozone Season Group 2 Trading
[[Page 23060]]
Program with the main differences being the geography and budget
stringency. This final rule leaves unchanged the budget stringency of
the existing CSAPR NOX Ozone Season Group 1 and Group 2
trading programs for the states that remain covered by those programs.
EPA is finalizing the proposed feature of the budget-setting
process in which budgets are adjusted in 2022, 2023, and 2024 to
account for future unit retirements and construction of new units that
are known with sufficient certainty as of this final action. As
discussed in section VII.C.3.b, in response to comments, EPA has made
the methodology for allocating allowances to existing units in this
final rule more consistent with the budget-setting process by
eliminating allocations to units following their retirements in
instances where the future retirements were scheduled in advance with
sufficient certainty to be taken into account in the budget-setting
process.
As proposed, to promote compliance flexibility without relaxing the
program stringency identified as appropriate to address states'
obligations under CAA section 110(a)(2)(D)(i)(I), EPA is creating a
limited initial bank of allowances for use in the new Group 3 trading
program by converting allowances banked in 2017-2020 under the existing
Group 2 trading program at a formula-based conversion ratio. The target
bank amount is based on the sum of the states' ``variability limits''--
that is, the amounts by which emissions from a given state's units can
exceed the state's emission budget before incurring a penalty surrender
ratio. As discussed in section VII.C.4.b, in response to comments
requesting greater certainty, in the final rule EPA has modified the
proposed conversion ratio formula so as to yield an expected fixed
conversion ratio of 8:1 (i.e., eight Group 2 allowances must be
exchanged for each Group 3 allowance). Participation in the conversion
process is mandatory for the sources in states covered by the Group 3
trading program and, if the Group 3 sources' accounts collectively do
not hold enough Group 2 allowances to exchange for the entire target
bank amount, for holders of Group 2 allowances in non-source accounts
as well.\21\
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\21\ Compliance accounts of sources in states that continue to
be covered by the existing Group 2 trading program will not be
included in the conversion process.
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As discussed in section VII.C.4.c, the final rule also provides a
second opportunity for sources to create an additional limited number
of Group 3 allowances through the voluntary conversion of additional
Group 2 allowances at an 18:1 conversion ratio (known as a ``safety
valve''). Any 2017-2020 Group 2 allowances that have not already been
exchanged for Group 3 allowances through the process of creating the
initial bank may be used to obtain additional Group 3 allowances
through the safety valve mechanism. The availability of the starting
bank and any additional allowances converted using this ``safety
valve'' ensures that compliance with the rule is feasible and addresses
any market liquidity concerns raised by commenters.
The remainder of this preamble is organized as follows: section III
describes EPA's legal authority for this final action; section IV
describes the human health and environmental context, as well as EPA's
approach for addressing interstate transport for the 2008 ozone NAAQS;
section V describes EPA's assessment of downwind receptors of concern
and upwind state ozone contributions to those receptors, including the
air quality modeling platform and emission inventories that EPA used;
section VI describes EPA's application of the multifactor test at step
3 of the 4-step framework to EGU and non-EGU sources, quantification of
upwind state obligations in the form of final EGU NOX
emission budgets, and assessment of overcontrol; section VII details
the implementation requirements including key elements of the CSAPR
NOX Ozone Season Group 3 Trading Program and deadlines for
compliance; section VIII describes the expected costs, benefits, and
other impacts of this final rule; section IX discusses changes to the
existing regulatory text; and section X discusses the statutes and
executive orders affecting this final rule. Each section includes a
summary of the principal comments received with respect to that topic,
as well as EPA's responses. The Revised Cross State Air Pollution
Update Rule--Response to Comment document (RTC), which includes a
compilation of all comments received and EPA's responses, has been
included in the docket for this action.
C. Costs and Benefits
A summary of the key results of the cost-benefit analysis that was
prepared for this final rule is presented in Table I.C-1. Table I.C-1
presents estimates of the present values (PV) and equivalent annualized
values (EAV), calculated using discount rates of 3 and 7 percent as
directed by OMB's Circular A-4, of the health benefits, climate
benefits, compliance costs, and net benefits of the final rule, in 2016
dollars, discounted to 2021. The estimated net benefits are the
estimated benefits minus the estimated costs of the final rule.
Table I.C-1--Estimated Health Benefits, Climte Benefits, Compliance Costs, and Net Benefits of the Final Rule,
2021 Through 2040
[Millions 2016$, discounted to 2021]
----------------------------------------------------------------------------------------------------------------
3% Discount rate 7% Discount rate
----------------------------------------------------------------------------------------------------------------
Present Value:
Health Benefits b.............. $4,800 and $37,000................... $3,200 and $25,000.
Climate Benefits b............. $4,400............................... $4,400.
Compliance Costs c............. $370................................. $260.
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Net Benefits............... $8,800 and $41,000................... $7,300 and $29,000.
----------------------------------------------------------------------------
Equivalent Annualized Value:
Health Benefits................ $320 and $2,500...................... $300 and $2,400.
Climate Benefits............... $290................................. $290.
Compliance Costs............... $25.................................. $25.
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Net Benefits............... $590 and $2,800...................... $570 and $2,700.
----------------------------------------------------------------------------------------------------------------
a Numbers may not sum due to independent rounding.
[[Page 23061]]
b The health benefits are associated with several point estimates and are presented at real discount rates of 3
and 7 percent. The two benefits estimates are separated by the word ``and'' to signify that they are two
separate estimates. The estimates do not represent lower- and upper-bound estimates and should not be summed.
Climate benefits are based on changes (reductions) in CO2 emissions and are calculated using four different
estimates of the social cost of carbon (SC-CO2) (model average at 2.5 percent, 3 percent, and 5 percent
discount rates; 95th percentile at 3 percent discount rate). For the presentational purposes of this table, we
show the climate benefits associated with the average SC-CO2 at a 3 percent discount rate, but the Agency does
not have a single central SC-CO2 point estimate. We emphasize the importance and value of considering the
benefits calculated using all four SC-CO2 estimates; the additional benefit estimates are presented in Table
VIII.5 in Section VIII. As discussed in Chapter 5 of the Regulatory Impact Analysis for the Final Revised
Cross-State Air Pollution Rule Update for the 2008 Ozone NAAQS, a consideration of climate benefits calculated
using discount rates below 3 percent, including 2 percent and lower, are also warranted when discounting
intergenerational impacts.
cTo estimate these annualized costs, EPA uses a conventional and widely accepted approach that applies a capital
recovery factor (CRF) multiplier to capital investments and adds that to the annual incremental operating
expenses. Annual costs were calculated using a 4.25% real discount rate consistent with the rate used in IPM's
objective function for cost-minimization.
As shown in Table I.C-1, the PV of the health benefits of this
final rule, discounted at a 3-percent discount rate, is estimated to be
about $4,800 million and $37,000 million, with an EAV of about $320
million and $2,500 million. At a 7-percent discount rate, the PV of the
health benefits is estimated to be $3,200 million and $25,000 million,
with an EAV of about $300 million and $2,400 million. The two health
benefits estimates for each discount rate reflect alternative ozone and
PM2.5 mortality risk estimates. The PV of the climate
benefits of this final rule, discounted at a 3-percent rate, is
estimated to be about $4,400 million, with an EAV of about $290
million. The PV of the compliance costs, discounted at a 3-percent
rate, is estimated to be about $370 million, with an EAV of about $25
million. At a 7-percent discount rate, the PV of the compliance costs
is estimated to be about $260 million, with an EAV of about $25
million.
II. General Information
A. Does this action apply to me?
This final rule affects EGUs, and regulates the groups identified
in Table II.A-1:
Table II.A-1--Regulated Groups
------------------------------------------------------------------------
Industry group NAICS *
------------------------------------------------------------------------
Fossil fuel-fired electric power generation.................. 221112
------------------------------------------------------------------------
* North American Industry Classification System.
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
are regulated by this action. Other types of entities not listed in the
table could also be regulated. To determine whether your EGU entity is
regulated by this action, you should carefully examine the
applicability criteria found in 40 CFR 97.1004, as promulgated in this
final action. If you have questions regarding the applicability of this
action to a particular entity, consult the person listed in the FOR
FURTHER INFORMATION CONTACT section.
III. EPA's Legal Authority for the Final Rule
A. Statutory Authority
The statutory authority for this final action is provided by the
CAA as amended (42 U.S.C. 7401 et seq.). Specifically, sections 110 and
301 of the CAA provide the primary statutory underpinnings for this
action. The most relevant portions of CAA section 110 are subsections
110(a)(1), 110(a)(2) (including 110(a)(2)(D)(i)(I)), 110(c)(1), and
110(k)(6).
CAA section 110(a)(1) provides that states must make SIP
submissions ``within 3 years (or such shorter period as the
Administrator may prescribe) after the promulgation of a national
primary ambient air quality standard (or any revision thereof),'' and
that these SIP submissions are to provide for the ``implementation,
maintenance, and enforcement'' of such NAAQS.\22\ The statute directly
imposes on states the duty to make these SIP submissions, and the
requirement to make the submissions is not conditioned upon EPA taking
any action other than promulgating a new or revised NAAQS.\23\
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\22\ 42 U.S.C. 7410(a)(1).
\23\ See EPA v. EME Homer City Generation, L.P., 572 U.S. 489,
509-10 (2014).
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EPA has historically referred to SIP submissions made for the
purpose of satisfying the applicable requirements of CAA sections
110(a)(1) and 110(a)(2) as ``infrastructure SIP'' or ``iSIP''
submissions. CAA section 110(a)(1) addresses the timing and general
requirements for iSIP submissions, and CAA section 110(a)(2) provides
more details concerning the required content of these submissions.\24\
It includes a list of specific elements that ``[e]ach such plan''
submission must address.\25\
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\24\ 42 U.S.C. 7410(a)(2).
\25\ EPA's general approach to infrastructure SIP submissions is
explained in greater detail in individual notices acting or
proposing to act on state infrastructure SIP submissions and in
guidance. See, e.g., Memorandum from Stephen D. Page on Guidance on
Infrastructure State Implementation Plan (SIP) Elements under Clean
Air Act Sections 110(a)(1) and 110(a)(2) (Sept. 13, 2013).
---------------------------------------------------------------------------
CAA section 110(c)(1) requires the Administrator to promulgate a
FIP at any time within two years after the Administrator: (1) Finds
that a state has failed to make a required SIP submission; (2) finds a
SIP submission to be incomplete pursuant to CAA section 110(k)(1)(C);
or (3) disapproves a SIP submission. This obligation applies unless the
state corrects the deficiency through a SIP revision that the
Administrator approves before the FIP is promulgated.\26\
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\26\ 42 U.S.C. 7410(c)(1).
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CAA section 110(a)(2)(D)(i)(I), also known as the ``good neighbor''
provision, provides the primary basis for this final action.\27\ It
requires that each state SIP include provisions sufficient to
``prohibit[ ], consistent with the provisions of this subchapter, any
source or other type of emissions activity within the State from
emitting any air pollutant in amounts which will--(I) contribute
significantly to nonattainment in, or interfere with maintenance by,
any other State with respect to any [NAAQS].'' \28\ EPA often refers to
the emission reduction requirements under this provision as ``good
neighbor obligations'' and submissions addressing these requirements as
``good neighbor SIPs.''
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\27\ 42 U.S.C. 7410(a)(2)(D)(i)(I).
\28\ Id.
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Once EPA promulgates a NAAQS, EPA must designate areas as being in
``attainment'' or ``nonattainment'' of the NAAQS, or
``unclassifiable.'' CAA section 107(d).\29\ For ozone, nonattainment is
further split into five classifications based on the severity of the
violation--Marginal, Moderate, Serious, Severe, or Extreme. Higher
classifications provide states with progressively more time to attain
while imposing progressively more stringent control requirements. See
CAA sections 181, 182.\30\ In general, states with nonattainment areas
classified as Moderate or higher must submit plans to EPA to bring
these areas into
[[Page 23062]]
attainment according to the statutory schedule. CAA section 182.\31\ If
an area fails to attain the NAAQS by the attainment date associated
with its classification, it is ``bumped up'' to the next
classification. CAA section 181(b).\32\
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\29\ 42 U.S.C. 7407(d).
\30\ 42 U.S.C. 7511, 7511a.
\31\ 42 U.S.C. 7511a.
\32\ 42 U.S.C. 7511(b).
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Section 301(a)(1) of the CAA also gives the Administrator the
general authority to prescribe such regulations as are necessary to
carry out functions under the Act.\33\ Pursuant to this section, EPA
has authority to clarify the applicability of CAA requirements and
undertake other rulemaking action as necessary to implement CAA
requirements. In this final rule, among other things, EPA is clarifying
the applicability of CAA section 110(a)(2)(D)(i)(I) with respect to the
2008 ozone NAAQS. In particular, EPA is using its authority under CAA
sections 110 and 301 to issue new or amended FIPs to revise
NOX ozone season emission budgets for 12 states to eliminate
their significant contribution to nonattainment or interference with
maintenance of the 2008 ozone NAAQS in another state, and EPA is making
findings as to 9 additional states that the CSAPR Update FIPs (or SIP
revisions later approved to replace those FIPs) are a complete remedy
and need no further revision.\34\ In addition, EPA is addressing its
obligation to respond to the D.C. Circuit's remand of the CSAPR Update
in Wisconsin v. EPA, 938 F.3d 303, with respect to the 21 states for
which the FIPs created by that rule were found to be only a partial
remedy. This final rule wholly resolves the Agency's obligations on
remand. Finally, CAA section 301 \35\ affords the Agency any additional
authority that may be needed in order to make certain other changes to
its regulations under 40 CFR parts 51, 52, 78, and 97, in order to
effectuate the purposes of the Act. Such changes are discussed in
section VII of this preamble.
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\33\ 42 U.S.C. 7601(a)(1).
\34\ 42 U.S.C. 7410, 7601.
\35\ 42 U.S.C. 7601.
---------------------------------------------------------------------------
B. Prior Good Neighbor Rulemakings Addressing Regional Ozone
EPA has issued several rules interpreting and clarifying the
requirements of CAA section 110(a)(2)(D)(i)(I) with respect to the
regional transport of ozone for states in the eastern United States.
These rules, and the associated court decisions addressing these rules,
summarized here, provide important direction regarding the requirements
of CAA section 110(a)(2)(D)(i)(I).
The NOX SIP Call, promulgated in 1998, addressed the
good neighbor provision for the 1979 1-hour ozone NAAQS.\36\ The rule
required 22 states and the District of Columbia to amend their SIPs to
reduce NOX emissions that contribute to ozone nonattainment
in downwind states. EPA set ozone season NOX budgets for
each state, and the states were given the option to participate in a
regional trading program, known as the NOX Budget Trading
Program.\37\ The D.C. Circuit largely upheld the NOX SIP
Call in Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 2000), cert. denied,
532 U.S. 904 (2001).
---------------------------------------------------------------------------
\36\ 63 FR 57356 (Oct. 27, 1998). As originally promulgated, the
NOX SIP Call also addressed good neighbor obligations
under the 1997 8-hour ozone NAAQS, but EPA subsequently stayed and
later rescinded the rule's provisions with respect to that standard.
See 84 FR 8422 (March 8, 2019).
\37\ ``Allowance Trading,'' sometimes referred to as ``cap and
trade,'' is an approach to reducing pollution that has been used
successfully to protect human health and the environment. Trading
programs have two key components: Emissions budgets (the sum of
which provide a cap on emissions), and tradable allowances equal to
the budgets that authorize allowance holders to emit a specific
quantity (e.g., one ton) of the pollutant. This approach ensures
that the environmental goal is met while the tradable allowances
provide flexibility for individual participants to establish and
follow their own compliance path. Because allowances can be bought
and sold in an allowance market, these programs are often referred
to as ``market-based.''
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EPA's next rule addressing the good neighbor provision, the Clean
Air Interstate Rule (CAIR), was promulgated in 2005 and addressed both
the 1997 fine particulate matter (PM2.5) NAAQS and 1997
ozone NAAQS.\38\ CAIR required SIP revisions in 28 states and the
District of Columbia to reduce emissions of sulfur dioxide
(SO2) and/or NOX--important precursors of
regionally transported PM2.5 (SO2 and annual
NOX) and ozone (summer-time NOX). As in the
NOX SIP Call, states were given the option to participate in
regional trading programs to achieve the reductions. When EPA
promulgated the final CAIR in 2005, EPA also issued findings that
states nationwide had failed to submit SIPs to address the requirements
of CAA section 110(a)(2)(D)(i) with respect to the 1997
PM2.5 and 1997 ozone NAAQS.\39\ On March 15, 2006, EPA
promulgated FIPs to implement the emission reductions required by
CAIR.\40\ CAIR was remanded to EPA by the D.C. Circuit in North
Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008), modified on reh'g, 550
F.3d 1176. For more information on the legal issues underlying CAIR and
the D.C. Circuit's holding in North Carolina, refer to the preamble of
the CSAPR rule.\41\
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\38\ 70 FR 25162 (May 12, 2005).
\39\ 70 FR 21147 (April 25, 2005).
\40\ 71 FR 25328 (April 28, 2006).
\41\ 76 FR 48208, 48217 (Aug. 8, 2011).
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In 2011, EPA promulgated the CSAPR to address the issues raised by
the remand of CAIR. The CSAPR addressed the two NAAQS at issue in CAIR
and additionally addressed the good neighbor provision for the 2006
PM2.5 NAAQS.\42\ The CSAPR required 28 states to reduce
SO2 emissions, annual NOX emissions, and/or ozone
season NOX emissions that significantly contribute to other
states' nonattainment or interfere with other states' abilities to
maintain these air quality standards.\43\ To align implementation with
the applicable attainment deadlines, EPA promulgated FIPs for each of
the 28 states covered by the CSAPR. The FIPs require EGUs in the
covered states to participate in regional trading programs to achieve
the necessary emission reductions. Each state can submit a good
neighbor SIP at any time that, if approved by EPA, would replace the
CSAPR FIP for that state.
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\42\ 76 FR 48208.
\43\ The CSAPR was revised by several rulemakings after its
initial promulgation in order to revise certain states' budgets and
to promulgate FIPs for five additional states addressing the good
neighbor obligation for the 1997 ozone NAAQS. See 76 FR 80760 (Dec.
27, 2011); 77 FR 10324 (Feb. 21, 2012); 77 FR 34830 (June 12, 2012).
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The CSAPR was the subject of an adverse decision by the D.C.
Circuit in August 2012.\44\ However, this decision was reversed in
April 2014 by the Supreme Court, which largely upheld the rule,
including EPA's approach to addressing interstate transport in the
CSAPR. EPA v. EME Homer City Generation, L.P., 572 U.S. 489 (2014) (EME
Homer City I). The rule was remanded to the D.C. Circuit to consider
claims not addressed by the Supreme Court. Id. In July 2015 the D.C.
Circuit generally affirmed EPA's interpretation of various statutory
provisions and EPA's technical decisions. EME Homer City Generation,
L.P. v. EPA, 795 F.3d 118 (2015) (EME Homer City II). However, the
court remanded the rule without vacatur for reconsideration of EPA's
emissions budgets for certain states, which the court found may have
over-controlled those states' emissions with respect to the downwind
air quality problems to which the states
[[Page 23063]]
were linked. Id. at 129-30, 138. For more information on the legal
issues associated with the CSAPR and the Supreme Court's and D.C.
Circuit's decisions in the EME Homer City litigation, refer to the
preamble of the CSAPR Update.\45\
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\44\ On August 21, 2012, the D.C. Circuit issued a decision in
EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012),
vacating the CSAPR. EPA sought review with the D.C. Circuit en banc
and the D.C. Circuit declined to consider EPA's appeal en banc. EME
Homer City Generation, L.P. v. EPA, No. 11-1302 (D.C. Cir. January
24, 2013), ECF No. 1417012 (denying EPA's motion for rehearing en
banc).
\45\ 81 FR 74504, 74511 (Oct. 26, 2016).
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In 2016, EPA promulgated the CSAPR Update to address interstate
transport of ozone pollution with respect to the 2008 ozone NAAQS.\46\
The final rule updated the CSAPR ozone season NOX emissions
budgets for 22 states to achieve cost-effective and immediately
feasible NOX emission reductions from EGUs within those
states.\47\ EPA aligned the analysis and implementation of the CSAPR
Update with the 2017 ozone season in order to assist downwind states
with timely attainment of the 2008 ozone NAAQS.\48\ The CSAPR Update
implemented the budgets through FIPs requiring sources to participate
in a revised CSAPR NOX ozone season trading program
beginning with the 2017 ozone season. As under the CSAPR, each state
could submit a good neighbor SIP at any time that, if approved by EPA,
would replace the CSAPR Update FIP for that state. The final CSAPR
Update also addressed the remand by the D.C. Circuit of certain states'
CSAPR phase 2 ozone season NOX emissions budgets in EME
Homer City II. Further details regarding the CSAPR Update are discussed
in sections IV.C.1.a and IV.C.1.b below.
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\46\ 81 FR 74504.
\47\ One state, Kansas, was made newly subject to the CSAPR
ozone season NOX requirement by the CSAPR Update. All
other CSAPR Update states were already subject to ozone season
NOX requirements under the CSAPR.
\48\ 81 FR 74516. EPA's final 2008 Ozone NAAQS SIP Requirements
Rule, 80 FR 12264, 12268 (Mar. 6, 2015), revised the attainment
deadline for ozone nonattainment areas designated as Moderate to
July 20, 2018. See 40 CFR 51.1103. In order to demonstrate
attainment by this deadline, states were required to rely on design
values calculated using ozone season data from 2015 through 2017,
since the July 20, 2018, deadline did not afford enough time for
measured data of the full 2018 ozone season.
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In December 2018, EPA promulgated the CSAPR ``Close-Out,'' which
determined that no further enforceable reductions in emissions of
NOX were required with respect to the 2008 ozone NAAQS for
20 of the 22 eastern states covered by the CSAPR Update, and reflected
that determination in revisions to the existing state-specific sections
of the CSAPR Update regulations for those states.\49\ Further details
on the CSAPR Close-Out are discussed in section IV.C.1.c below.
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\49\ 83 FR 65878, 65882 (Dec. 21, 2018). After promulgating the
CSAPR Update and before promulgating the CSAPR Close-Out, EPA
approved a SIP from Kentucky resolving the Commonwealth's good
neighbor obligations for the 2008 ozone NAAQS. 83 FR 33730 (July 17,
2018). In this action, EPA is making an error correction under CAA
section 110(k)(6) to convert this approval to a disapproval, because
the Kentucky approval relied on the same analysis which the D.C.
Circuit determined to be unlawful in the CSAPR Close-Out. Our action
with respect to Kentucky is discussed in section IV.C.2.b. below.
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The CSAPR Update and the CSAPR Close-Out were both subject to legal
challenges in the D.C. Circuit. Wisconsin v. EPA, 938 F.3d 303 (D.C.
Cir. 2019) (Wisconsin); New York v. EPA, 781 Fed. App'x 4 (D.C. Cir.
2019) (New York). As discussed in greater detail in section IV.C.1.d
below, in September 2019, the D.C. Circuit upheld the CSAPR Update in
virtually all respects, but remanded the rule because it was partial in
nature and did not fully eliminate upwind states' significant
contribution to nonattainment or interference with maintenance of the
2008 ozone NAAQS by ``the relevant downwind attainment deadlines'' in
the CAA. Wisconsin, 938 F.3d at 313-15. In October 2019, the D.C.
Circuit vacated the CSAPR Close-Out on the same grounds that it
remanded the CSAPR Update in Wisconsin, specifically that the Close-Out
rule did not address good neighbor obligations by ``the next applicable
attainment date'' of downwind states. New York, 781 Fed. App'x at 7.
IV. Air Quality Issues Addressed and Overall Approach for the Final
Rule
A. The Interstate Ozone Transport Challenge
Interstate transport of NOX emissions poses significant
challenges with respect to the 2008 ozone NAAQS in the eastern U.S. and
thus presents a threat to public health and welfare.
1. Nature of Ozone and the Ozone NAAQS
Ground-level ozone is not emitted directly into the air but is
created by chemical reactions between NOX and volatile
organic compounds (VOC) in the presence of sunlight. Emissions from
electric utilities and industrial facilities, motor vehicles, gasoline
vapors, and chemical solvents are some of the major sources of
NOX and VOC.
Because ground-level ozone formation increases with temperature and
sunlight, ozone levels are generally higher during the summer.
Increased temperature also increases emissions of volatile man-made and
biogenic organics and can indirectly increase NOX emissions
as well (e.g., increased electricity generation for air conditioning).
The 2008 primary and secondary ozone standards are both 75 ppb as
an 8-hour level.\50\ Specifically, the standards require that the 3-
year average of the fourth highest 24-hour maximum 8-hour average ozone
concentration may not exceed 75 ppb as a truncated value (i.e., digits
to right of decimal removed).\51\ In general, areas that exceed the
ozone standard are designated as nonattainment areas, pursuant to the
designations process under CAA section 107 and are subject to
heightened planning requirements depending on the degree of severity of
their nonattainment classification, see CAA sections 181, 182.
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\50\ 73 FR 16436 (Mar. 27, 2008).
\51\ 40 CFR part 50, Appendix P to part 50.
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2. Ozone Transport
Studies have established that ozone formation, atmospheric
residence, and transport occur on a regional scale (i.e., thousands of
kilometers) over much of the eastern U.S.\52\ While substantial
progress has been made in reducing ozone in many areas, interstate
ozone transport is still an important component of peak ozone
concentrations during the summer ozone season.
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\52\ Bergin, M.S. et al. (2007) Regional air quality: Local and
interstate impacts of NOX and SO2 emissions on
ozone and fine particulate matter in the eastern United States.
Environmental Sci & Tech. 41: 4677-4689.
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EPA has previously concluded in the NOX SIP Call, CAIR,
and the CSAPR that, for reducing regional-scale ozone transport, a
NOX control strategy would be most effective. NOX
emissions can be transported downwind as NOX or, after
transformation in the atmosphere, as ozone. As a result of ozone
transport, in any given location, ozone pollution levels are impacted
by a combination of local emissions and emissions from upwind sources.
The transport of ozone pollution across state borders compounds the
difficulty for downwind states in meeting health-based air quality
standards (i.e., NAAQS). Assessments of ozone, for example those
conducted for the October 2015 Regulatory Impact Analysis of the Final
Revisions to the National Ambient Air Quality Standards for Ground-
Level Ozone (EPA-452/R-15-007), continue to show the importance of
NOX emissions for ozone transport. This analysis is in the
docket for this final rule and can be also found at EPA's website at:
https://www.epa.gov/ttnecas1/docs/20151001ria.pdf.
Further, studies have found that EGU NOX emission
reductions can be effective in reducing individual 8-hour peak ozone
concentrations and in
[[Page 23064]]
reducing 8-hour peak ozone concentrations averaged across the ozone
season. For example, a study that evaluates the effectiveness on ozone
concentrations of EGU NOX reductions achieved under the
NOX Budget Trading Program (i.e., the NOX SIP
Call) shows that regulating NOX emissions in that program
was highly effective in reducing both ozone and dry-NO3
concentrations during the ozone season. Further, this study indicates
that EGU emissions, which are generally released higher in the air
column through tall stacks and are significant in quantity, may
disproportionately contribute to long-range transport of ozone
pollution on a per-ton basis.\53\
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\53\ Butler, et al., ``Response of Ozone and Nitrate to
Stationary Source Reductions in the Eastern USA''. Atmospheric
Environment, 2011.
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Previous regional ozone transport efforts, including the
NOX SIP Call, CAIR, and the CSAPR, required ozone season
NOX reductions from EGUs to address interstate transport of
ozone. EPA took comment on regulating EGU NOX emissions to
address interstate ozone transport in the notice-and-comment process
for these rulemakings. EPA received some comments suggesting it modify
its pollutant focus to either include VOCs in addition to
NOX, or apply a more granular time scale. However, EPA did
not modify its proposed approach in this final rule. These comments, as
well as EPA's responses, are addressed in section VI.A and VII.B.
As described in section VI, EPA's analysis finds that the power
sector continues to be capable of making NOX reductions at
reasonable cost that reduce interstate transport with respect to
ground-level ozone. EGU NOX emission reductions can be made
in the near-term under this final rule by fully operating existing EGU
NOX post-combustion controls (i.e., SCRs and SNCRs)--
including optimizing NOX removal by existing operational
controls and turning on and optimizing existing idled controls;
installation of (or upgrading to) state-of-the-art NOX
combustion controls; and shifting generation to units with lower
NOX emission rates. Further, additional assessment reveals
that these available EGU NOX reductions would make
meaningful and timely improvements in ozone air quality.
EPA also observes that significant emission reduction potential
from EGUs is available through post-combustion control retrofits (e.g.,
new SCRs and new SNCRs). These controls reduce emissions and can have a
meaningful air quality impact, but, in contrast to the controls
discussed above, they are only available on a longer time frame
(reflecting the time required to develop, construct, and install the
technology) that exceeds the expected downwind nonattainment and
maintenance problems for the 2008 ozone NAAQS and are estimated to have
a higher cost.
3. Health and Environmental Effects
Exposure to ambient ozone causes a variety of negative effects on
human health, vegetation, and ecosystems. In humans, acute and chronic
exposure to ozone is associated with premature mortality and a number
of morbidity effects, such as asthma exacerbation. In ecosystems, ozone
exposure causes visible foliar injury, decreases plant growth, and
affects ecosystem community composition. See EPA's October 2020
Regulatory Impact Analysis for the Proposed Revised Cross-State Air
Pollution Rule (CSAPR) Update for the 2008 Ozone NAAQS (EPA-452/P-20-
003), in the docket for this rule and available on EPA's website at:
https://www.epa.gov/sites/production/files/2020-10/documents/revised_csapr_update_ria_proposal.pdf, for more information on the
human health and welfare and ecosystem effects associated with ambient
ozone exposure.
B. Relationship Between This Regulatory Action and the 2015 Ozone NAAQS
On October 1, 2015, EPA strengthened the ground-level ozone NAAQS
to 70 ppb on an eight-hour averaging time.\54\ While reductions
achieved by this rule may have the effect of aiding in attainment and
maintenance of the 2015 standard, this action is taken solely with
respect to EPA's authority to address remaining CAA good neighbor
obligations under the 2008 ozone NAAQS. EPA and states are working
outside of this final action to address the CAA good neighbor provision
for the 2015 ozone NAAQS, including consideration of any necessary
control requirements for EGU and non-EGU sources.
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\54\ 80 FR 65291 (Oct. 26, 2015). On December 20, 2020, EPA
published its decision, based on the air quality criteria, to retain
the existing 8-hour NAAQS for ozone. See https://www.epa.gov/ground-level-ozone-pollution/ozone-national-ambient-air-quality-standards-naaqs.
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EPA received several comments regarding the relationship of this
rule to the 2015 ozone NAAQS and the schedule for implementation of
good neighbor obligations related to that NAAQS. These comments are out
of the scope of this action, which considers states' obligations under
2008 ozone NAAQS in response to the Wisconsin remand and the New York
vacatur. Wisconsin v. EPA, 938 F.3d 303 (D.C. Cir. 2019). New York v.
EPA, 781 F. App'x 4 (D.C. Cir. 2019). This action does not address any
state's obligations under the 2015 ozone NAAQS. Nonetheless, the
emission reductions and associated improvement in ozone levels achieved
by this action are beneficial toward reducing ozone for purposes of the
2015 ozone NAAQS and its associated attainment planning and good
neighbor requirements. In some cases, the reductions necessary to
address significant contribution or interference with maintenance at
receptors identified in this action for purposes of the 2008 ozone
NAAQS will have the effect of incidentally improving ozone levels at
potential receptors under the 2015 ozone NAAQS.
C. Approach To Address the Remanded Transport Obligations for the 2008
Ozone NAAQS
1. Events Affecting Application of the Good Neighbor Provision for the
2008 Ozone NAAQS
EPA is taking this action to address the remand of the CSAPR Update
in Wisconsin v. EPA, 938 F.3d 303 (D.C. Cir. 2019). This section will
discuss the key, relevant aspects of the CSAPR Update, the related
CSAPR Close-Out, and the D.C. Circuit's decisions in Wisconsin and New
York v. EPA, 781 Fed. App'x 4 (D.C. Cir. 2019) (the latter of which
vacated the Close-out Rule based on the same reasoning as the Wisconsin
decision remanding the Update). The basis for EPA's authority under CAA
section 110(c) (42 U.S.C. 7410(c)) to promulgate good neighbor FIPs for
the 21 states subject to this action on remand is discussed in sections
III and IV.C.2.
a. The CSAPR Update
On October 26, 2016, the CSAPR Update was published in the Federal
Register. 81 FR 74504. The purpose of the CSAPR Update was to address
the good neighbor provision for the 2008 ozone NAAQS, as well as
address the remanded CSAPR obligations for the 1997 ozone NAAQS. The
CSAPR Update required EGUs in 22 states to reduce ozone season
NOX emissions that significantly contribute to other states'
nonattainment or interfere with other states' abilities to maintain the
2008 ozone NAAQS.
To establish and implement the CSAPR Update emissions budgets, EPA
followed the same 4-step analytic process that it used in the CSAPR, an
[[Page 23065]]
approach which reflects the evolution of the Agency's prior regional
interstate transport rulemakings related to ozone NAAQS. The 4-step
framework is described in more detail in sections IV.C.3 and VI.A.
In the CSAPR Update, to evaluate the scope of the interstate ozone
transport problem at step 1, EPA identified downwind areas that were
expected to have problems attaining and maintaining the 2008 ozone
NAAQS using modeling that projected air quality to a future compliance
year. See 81 FR 74517. EPA aligned the analysis and implementation of
the CSAPR Update with the 2017 ozone season (May 1-September 30) in
order to assist downwind states with attainment of the 2008 ozone NAAQS
by the 2018 Moderate area attainment date. Id. at 74516. (EPA's final
2008 Ozone NAAQS SIP Requirements Rule established the attainment
deadline of July 20, 2018, for ozone nonattainment areas classified as
Moderate.\55\) Because the attainment date fell during the 2018 ozone
season, the 2017 ozone season was the last full season from which data
could be used to determine attainment of the NAAQS by that date.
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\55\ See 80 FR 12264, 12268 (Mar. 6, 2015); 40 CFR 51.1103.
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At step 2, EPA identified upwind states that collectively
contribute to these identified downwind areas. In the CSAPR Update, EPA
used a screening threshold of 1 percent of the NAAQS to identify states
``linked'' to downwind ozone problems sufficient for further evaluation
for significant contribution to nonattainment or interference with
maintenance of the NAAQS under the good neighbor provision. 81 FR
74518. This same threshold for analysis was used in the CSAPR as to the
1997 ozone NAAQS. See 76 FR at 48237-38.
At step 3, EPA quantified emissions from upwind states that would
significantly contribute to nonattainment or interfere with maintenance
by first evaluating various levels of uniform NOX control
stringency, each represented by an estimated representative marginal
cost per ton of NOX reduced. EPA then applied the same
multi-factor test that was used in the CSAPR to evaluate cost,
available emission reductions, and downwind air quality impacts to
determine the appropriate level of uniform NOX control
stringency that addressed the impacts of interstate transport on
downwind nonattainment or maintenance receptors. EPA used this multi-
factor assessment to gauge the extent to which emission reductions
could be implemented in the future compliance year (i.e., 2017) and to
evaluate the potential for over- and under-control of upwind state
emissions.
Within the multi-factor test, EPA identified a ``knee in the
curve,'' i.e., a point at which the cost-effectiveness of the emission
reductions was maximized, so named for the discernable turning point
observable in a multi-factor (i.e., multi-variable) curve. See 81 FR
74550. EPA concluded that this was at the point where emissions budgets
reflected a uniform NOX control stringency represented by an
estimated marginal cost of $1,400 per ton (2011$) of NOX
reduced. This cost threshold in turn represented a control strategy of
installing or upgrading combustion controls and optimizing existing SCR
controls. In light of this multi-factor test, EPA determined this level
of stringency in emissions budgets represented the level at which
incremental EGU NOX reduction potential and corresponding
downwind ozone air quality improvements were maximized--relative to
other control stringencies evaluated--with respect to marginal cost.
That is, the ratio of emission reductions to marginal cost and the
ratio of ozone improvements to marginal cost were maximized relative to
the other levels of control stringency evaluated. EPA found that
feasible and cost-effective EGU NOX reductions were
available to make meaningful and timely improvements in downwind ozone
air quality to address interstate ozone transport for the 2008 ozone
NAAQS for the 2017 ozone season. Id. at 74508. Further, the Agency's
evaluation showed that emissions budgets reflecting the $1,400 per ton
cost threshold did not over-control upwind states' emissions relative
to either the downwind air quality problems to which they were linked
or the 1 percent contribution threshold in step 2 that triggered their
further evaluation in step 3. Id. at 74551-52.
At step 4, EPA finalized EGU ozone season NOX emissions
budgets developed using uniform control stringency represented by
$1,400 per ton. These budgets represented emissions remaining in each
state after elimination of the amounts of emissions that EPA identified
would significantly contribute to nonattainment or interfere with
maintenance of the 2008 ozone NAAQS in downwind states. EPA promulgated
FIPs requiring the covered power plants in the 22 covered states to
participate in the CSAPR NOX Ozone Season Group 2 Trading
Program starting in 2017.\56\
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\56\ The NOX ozone season trading program created
under the CSAPR was renamed the CSAPR NOX Ozone Season
Group 1 Trading Program and now applies only to sources in Georgia.
In the CSAPR Update, EPA found that Georgia did not contribute to
interstate transport with respect to the 2008 ozone NAAQS, but the
state has an ongoing ozone season NOX requirement under
the CSAPR with respect to the 1997 ozone NAAQS.
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b. Partial Nature of the CSAPR Update
At the time it promulgated the CSAPR Update, EPA considered the
FIPs to be ``partial'' and that the rule ``may not be sufficient to
fully address these states' good neighbor obligations'' for the 2008
ozone NAAQS for 21 of the 22 states included in that rule. 81 FR 74508,
74521 (Oct. 26, 2016). Based on information available at the time of
the rule's promulgation, EPA was unable to conclude that the CSAPR
Update fully addressed most of the covered states' good neighbor
obligations for the 2008 ozone NAAQS. Id. at 74521. Information
available at the time indicated that, even with the CSAPR Update
implementation, several downwind receptors were expected to continue
having problems attaining and maintaining this NAAQS and that emissions
from upwind states were expected to continue to contribute greater than
or equal to 1 percent of the NAAQS to these areas during the 2017 ozone
season. Id. at 74551-52. Further, EPA could not conclude at that time
whether additional EGU and non-EGU reductions implemented on a longer
timeframe than 2017 would be needed to address states' good neighbor
obligations for this NAAQS.
Additionally, EPA determined it was not feasible to complete an
emissions control analysis that may otherwise have been necessary to
evaluate full elimination of each state's significant contribution to
nonattainment or interference with maintenance and also ensure that
emission reductions already quantified in the rule would be achieved by
2017. Id. at 74522. EPA was unable to fully consider both non-EGU ozone
season NOX reductions and further EGU reductions that may
have been achievable after 2017. Id. at 74521. See section IV.D.3
below.
Thus, EPA also could not make an emission reduction-based
conclusion that the CSAPR Update would fully resolve states' good
neighbor obligations with respect to the 2008 ozone NAAQS because the
reductions evaluated and required by the CSAPR Update were limited in
scope (both by technology and sector). As a result of the remaining air
quality problems and the limitations
[[Page 23066]]
on EPA's analysis, for all but one of the 22 affected states, EPA did
not determine in the CSAPR Update that the rule fully addressed those
states' downwind air quality impacts under the good neighbor provision
for the 2008 ozone NAAQS. Id. at 74521. For one state, Tennessee, EPA
determined in the final CSAPR Update that Tennessee's emissions budget
fully eliminated the state's significant contribution to downwind
nonattainment and interference with maintenance of the 2008 ozone NAAQS
because the downwind air quality problems to which the state was linked
were projected to be resolved with implementation of the CSAPR Update.
Id. at 74552.
c. The CSAPR Close-Out
Following implementation of the CSAPR Update and the approval of
Kentucky's SIP (under a court-ordered deadline),\57\ on December 21,
2018, EPA issued the CSAPR ``Close-Out'' to address any good neighbor
obligations that remained for the 2008 ozone NAAQS for the 20 remaining
states in the CSAPR Update region. See 83 FR 65878 (Dec. 21, 2018). The
CSAPR Close-Out made a determination that, based on additional
information and analysis, the CSAPR Update fully addressed the
remaining 20 affected states' good neighbor obligations for the 2008
ozone NAAQS. In particular, EPA determined that 2023 was an appropriate
future analytic year considering relevant attainment dates and the time
EPA estimated to be necessary to implement new NOX control
technologies at EGUs. Based on EPA's analysis of projected air quality
in that year, EPA determined that, for the purposes of addressing good
neighbor obligations for the 2008 ozone NAAQS, there would be no
remaining nonattainment or maintenance receptors in the eastern U.S. As
a result of this determination, EPA found that, with continued
implementation of the CSAPR Update, these 20 states would no longer
contribute significantly to nonattainment in, or interfere with
maintenance by, any other state with respect to the 2008 ozone NAAQS.
Id.
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\57\ See 83 FR 33730 (July 17, 2018) (approval of Kentucky's SIP
for the 2008 ozone NAAQS). See section IV.C.2.b. for discussion of
the final action regarding Kentucky in this notice.
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d. D.C. Circuit Decisions in Wisconsin v. EPA and New York v. EPA
The CSAPR Update was subject to petitions for judicial review, and
the D.C. Circuit issued its opinion in Wisconsin v. EPA on September
13, 2019. 938 F.3d 303. The D.C. Circuit upheld the CSAPR Update in all
respects save one: The court concluded that the CSAPR Update was
inconsistent with the CAA to the extent that it was partial in nature
and did not fully eliminate upwind states' significant contribution to
nonattainment or interference with maintenance of the 2008 ozone NAAQS
by the downwind states' 2018 Moderate attainment date. Id. at 313.
The court identified three bases for this holding: (1) The D.C.
Circuit's prior opinion in North Carolina v. EPA, 531 F.3d 896 (2008),
which held, in the context of CAIR, that the good neighbor provision
requires states to eliminate significant contribution ``consistent with
the provisions'' of Title I of the CAA, including the attainment dates
applicable in downwind areas, 938 F.3d at 314 (citing 531 F.3d at 912);
(2) the unreasonableness of EPA's interpretation of the phrase
``consistent with the provisions [of Title I]'' in the good neighbor
provision as allowing for variation from the attainment schedule in CAA
section 181 because it would enable significant contribution from
upwind states to continue beyond that statutory timeframe, 938 F.3d at
315-18; and (3) the court's finding that the practical obstacles EPA
identified regarding why it needed more time to implement a full remedy
did not rise to the level of an ``impossibility,'' id. at 318-20. With
respect to the third basis, the court also found EPA must make a higher
showing of uncertainty regarding non-EGU point-source NOX
mitigation potential before declining to regulate such sources. Id. at
318-20.
However, the court identified flexibilities that EPA retains in
administering the good neighbor provision, acknowledging that EPA has
latitude in defining which upwind contribution ``amounts'' count as
significant and thus must be abated, permitting EPA to consider, among
other things, the magnitude of upwind states' contributions and the
cost associated with eliminating them. 938 F.3d at 320. The court
further noted that, in certain circumstances, EPA can grant extensions
of the attainment deadlines under the Act; for instance, the court
cited CAA section 181(a)(5), which allows EPA to grant one-year
extensions from attainment dates under certain circumstances. Id.
Finally, the court noted that EPA can attempt to show
``impossibility.'' Id. The court also recognized that the statutory
command that compliance with the good neighbor provision must be
achieved consistent with Title I might be read, upon a sufficient
showing of necessity, to allow some deviation from downwind deadlines,
so long as it is rooted in Title I's framework and provides a
sufficient level of protection to downwind States. Id.
The court in Wisconsin remanded but did not vacate the CSAPR
Update, finding that vacatur of the rule could cause harm to public
health and the environment or disrupt the trading program EPA had
established and that the obligations imposed by the rule may be
appropriate and sustained on remand. Id. at 336. The court also
rejected petitioners' request to place EPA on a six-month schedule to
address the remand, noting the availability of ``mandamus'' relief
before the D.C. Circuit should EPA fail to ``modify the rule in a
manner consistent with our opinion.'' Id. at 336-37.
On October 1, 2019, in a judgment order, the D.C. Circuit vacated
the CSAPR Close-Out on the same grounds that it remanded the Update in
Wisconsin. New York v. EPA, 781 Fed. App'x 4 (D.C. Cir. 2019). Because
the Close-Out analyzed the year 2023 rather than 2021 (``the next
applicable attainment date'') and failed to demonstrate that it was
impossible to address significant contribution by the 2021 attainment
date, the court found the rule ran afoul of the Wisconsin holding. Id.
at 7. ``As the EPA acknowledges, the Close-Out Rule `relied upon the
same statutory interpretation of the Good Neighbor Provision' that we
rejected in Wisconsin. Thus, the Agency's defense of the Close-Out Rule
in these cases is foreclosed.'' Id. at 6-7 (internal citation omitted).
The court left open the possibility that the flexibilities identified
in Wisconsin, 938 F.3d at 320, and outlined above, may be available to
EPA on remand. Id.
Following Wisconsin and New York, EPA on remand must address good
neighbor obligations for the 21 states within the CSAPR Update region
for which the Update was only a partial remedy. As explained in the
following section, EPA already retains FIP authority as to 20 of these
states. In addition, EPA is taking action pursuant to CAA section
110(k)(6) (42 U.S.C. 7410(k)(6)) to find that Kentucky's SIP was
approved in error and is thus promulgating a FIP for Kentucky
consistent with the obligations for the other remaining CSAPR Update
region states.
2. FIP Authority for Each State Covered by the Final Rule
On March 12, 2008, EPA promulgated a revision to the ozone NAAQS,
lowering both the primary and
[[Page 23067]]
secondary standards to 75 ppb. See National Ambient Air Quality
Standards for Ozone, Final Rule, 73 FR 16436 (March 27, 2008).
Specifically, the standards require that an area may not exceed 0.075
parts per million (75 ppb) using the 3-year average of the fourth
highest 24-hour maximum 8-hour rolling average ozone concentration.
These revisions of the NAAQS, in turn, triggered a 3-year deadline for
states to submit SIP revisions addressing infrastructure requirements
under CAA sections 110(a)(1) and 110(a)(2), including the good neighbor
provision. Several events affected the timely application of the good
neighbor provision for the 2008 ozone NAAQS, including reconsideration
of the 2008 ozone NAAQS and legal developments pertaining to the CSAPR,
which created uncertainty surrounding EPA's statutory interpretation
and implementation of the good neighbor provision.\58\ Notwithstanding
these events, EPA ultimately affirmed that states' good neighbor SIPs
were due on March 12, 2011.
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\58\ These events are described in detail in section IV.A.2 of
the CSAPR Update. See 81 FR 74515.
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a. FIP Authority for the CSAPR Update States
EPA subsequently took several actions that triggered EPA's
obligation under CAA section 110(c) to promulgate FIPs addressing the
good neighbor provision for several states.\59\ First, on July 13,
2015, EPA published a rule finding that 24 states failed to make
complete submissions that address the requirements of section
110(a)(2)(D)(i)(I) related to the interstate transport of pollution as
to the 2008 ozone NAAQS. See 80 FR 39961 (effective August 12, 2015).
This finding triggered a two-year deadline for EPA to issue FIPs to
address the good neighbor provision for these states by August 12,
2017. The CSAPR Update finalized FIPs for 13 of these states (Alabama,
Arkansas, Illinois, Iowa, Kansas, Michigan, Mississippi, Missouri,
Oklahoma, Pennsylvania, Tennessee, Virginia, and West Virginia),
requiring their participation in a NOX trading program. EPA
also determined in the CSAPR Update that the Agency had no further FIP
obligation as to nine additional states identified in the finding of
failure to submit because these states did not contribute significantly
to nonattainment in, or interfere with maintenance by, any other state
with respect to the 2008 ozone NAAQS. See 81 FR 74506.\60\ \61\ On June
15, 2016, and July 20, 2016, EPA published additional rules finding
that Maryland and New Jersey, respectively, also failed to submit
transport SIPs for the 2008 ozone NAAQS. See 81 FR 38963 (June 15,
2016) (New Jersey, effective July 15, 2016); 81 FR 47040 (July 20,
2016) (Maryland, effective August 19, 2016). The finding actions
triggered two-year deadlines for EPA to issue FIPs to address the good
neighbor provision for Maryland by August 19, 2018, and for New Jersey
by July 15, 2018. The CSAPR Update also finalized FIPs for these two
states.
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\59\ This section of the preamble focuses on SIP and FIP actions
for those states addressed in the CSAPR Update. EPA has also acted
on SIPs for other states not mentioned in this action. The
memorandum, ``Proposed Action, Status of 110(a)(2)(D)(i)(I) SIPs for
the 2008 Ozone NAAQS,'' more fully describes the good neighbor SIP
status for the 2008 ozone NAAQS and is available in the docket for
this rule.
\60\ The nine states were Florida, Georgia, Maine,
Massachusetts, Minnesota, New Hampshire, North Carolina, South
Carolina, and Vermont. These determinations were not challenged in
Wisconsin, and EPA is not reopening these determinations in this
rule.
\61\ The two remaining states addressed in the findings of
failure to submit (California and New Mexico) were not part of the
CSAPR Update or the CSAPR Close-Out analysis and are not addressed
in this rule.
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In addition to these findings, EPA finalized disapproval or partial
disapproval actions for good neighbor SIPs submitted by Indiana,
Kentucky, Louisiana, New York, Ohio, Texas, and Wisconsin.\62\ These
disapprovals triggered EPA's obligation to promulgate FIPs to implement
the requirements of the good neighbor provision for those states within
two years of the effective date of each disapproval or, in the case of
Kentucky, within two years of the issuance of the judgment in a
subsequent Supreme Court decision.\63\ EPA promulgated FIPs in the
CSAPR Update for each of these states.
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\62\ See the following actions: Indiana (81 FR 38957, June 15,
2016); Kentucky (78 FR 14681, March 7, 2013); Louisiana (81 FR
53308, August 12, 2016); New York (81 FR 58849, August 26, 2016);
Ohio (81 FR 38957, June 15, 2016); Texas (81 FR 53284, August 12,
2016); and Wisconsin (81 FR 53309, August 12, 2016).
\63\ In the 2013 disapproval action for Kentucky, EPA stated
that it had no mandatory duty to issue a FIP because of the D.C.
Circuit's holding in EME Homer City Generation, L.P. v. EPA, 696
F.3d 7 (D.C. Cir. 2012), that EPA cannot impose good neighbor FIPs
without first quantifying states' obligations. See 78 FR 14681. In
2014, the Supreme Court reversed the D.C. Circuit's holding. EPA v.
EME Homer City Generation, L.P., 572 U.S. 489, 509-10 (2014). In
light of the Supreme Court's decision, on review of our 2013
disapproval action for Kentucky in the Sixth Circuit, EPA requested,
and the court granted, a vacatur and remand of the portion of EPA's
final action that determined that a FIP obligation was not
triggered. See Order, Sierra Club v. EPA, No. 13-3546, ECF No. 74-1
(6th Cir. Mar. 13, 2015). On remand, EPA determined that its FIP
obligation as to Kentucky was triggered as of June 2, 2014, the date
of issuance of the Supreme Court's judgment. See 81 FR 74513.
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As discussed in more detail above in section IV.C.1, in issuing the
CSAPR Update, EPA could not determine that it had entirely addressed
EPA's outstanding CAA obligations to implement the good neighbor
provision with respect to the 2008 ozone NAAQS for 21 of 22 states
covered by that rule. Accordingly, the CSAPR Update did not fully
satisfy EPA's obligation under CAA section 110(c) to address the good
neighbor provision requirements for those states by approving SIPs,
issuing FIPs, or some combination of those two actions. EPA found that
the CSAPR Update FIPs fully addressed the good neighbor provision for
the 2008 ozone NAAQS only with respect to Tennessee.
b. Correction of EPA's Determination Regarding Kentucky's SIP Revision
and Its Impact on EPA's FIP Authority for Kentucky
After promulgating the CSAPR Update and before promulgating the
CSAPR Close-Out, EPA approved a SIP submission from Kentucky resolving
the Commonwealth's good neighbor obligations for the 2008 ozone NAAQS
based on a demonstration that no further emission reductions were
needed from Kentucky with the CSAPR Update FIP for Kentucky in place.
See 83 FR 33730 (July 17, 2018). The action was separate from the CSAPR
Close-Out because it was taken in response to a May 23, 2017 order from
the U.S. District Court for the Northern District of California
requiring EPA to take a final action fully addressing the good neighbor
obligation for the 2008 ozone NAAQS for Kentucky by June 30, 2018.\64\
EPA was obligated to address the outstanding obligation by either
approving a SIP revision submitted by Kentucky or promulgating a FIP to
address any remaining obligation.\65\
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\64\ See Order, Sierra Club v. Pruitt, No. 3:15-cv-04328 (N.D.
Cal. May 23, 2017).
\65\ The obligation ultimately derives from EPA's 2013 action
disapproving Kentucky's SIP addressing the 2008 ozone NAAQS on the
basis that Kentucky relied on the CAIR program for the 2008 ozone
NAAQS good neighbor obligation. However, as previously discussed,
the trigger for the timing of the obligation was the 2014 issuance
of the Supreme Court's judgment in EPA v. EME Homer City Generation,
L.P., 572 U.S. 489 (2014). See supra note 63.
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On May 10, 2018, Kentucky submitted a final SIP revision to EPA, on
which the Agency finalized approval consistent with the court-ordered
deadline. See 83 FR 33730. The Kentucky SIP revision that EPA approved
relied on the reductions from the CSAPR Update FIP for Kentucky and
provided a technical analysis, including emission projections and air
quality modeling for 2023, showing that
[[Page 23068]]
with the CSAPR Update level of reductions, the receptors to which
Kentucky was linked were attaining and maintaining the 2008 ozone NAAQS
in 2023. This allowed EPA to conclude that Kentucky did not have any
further obligation for the 2008 ozone NAAQS, and EPA approved the SIP
revision. The SIP revision from Kentucky was an analytical
demonstration only, and it did not replace the CSAPR Update FIP;
rather, the CSAPR Update FIP was left in place for Kentucky and was
relied on in the state's demonstration.
The approval relied on the same rationale and technical analysis--
including the use of a 2023 analytic year--that was eventually used for
the other CSAPR Update FIP states in the CSAPR Close-Out. EPA's
approval stated:
``no additional emission reductions are necessary to address the
good neighbor provision for the 2008 ozone NAAQS beyond those
required by the Cross-State Air Pollution Rule Update (CSAPR Update)
federal implementation plan (FIP). Accordingly, EPA is approving
Kentucky's submission because it partially addresses the
requirements of the good neighbor provision for the 2008 ozone
NAAQS, and it resolves any obligation remaining under the good
neighbor provision after promulgation of the CSAPR Update FIP. The
approval of Kentucky's SIP submission and the CSAPR Update FIP,
together, fully address the requirements of the good neighbor
provision for the 2008 ozone NAAQS for Kentucky.''
83 FR 33730.
Subsequent to EPA's approval of the Kentucky SIP submission, EPA
issued the CSAPR Close-Out, which concluded that, based on essentially
the same analysis used for Kentucky, none of the other 20 CSAPR Update
states had further good neighbor obligations to address the 2008 8-hour
ozone NAAQS. In the Fall of 2019, the D.C. Circuit issued the Wisconsin
and New York decisions remanding the CSAPR Update Rule and vacating the
CSAPR Close-Out (see section IV.C.1.d.).
Kentucky's CSAPR Update FIP, which Kentucky relied on (and did not
replace) in its SIP revision, is part of the CSAPR Update remand, and
EPA must address it in this action. Further, the D.C. Circuit's review
of the CSAPR Close-Out found fault with, and vacated, the same
rationale for other states that EPA had used to approve Kentucky's SIP
submission in June 2018.
Therefore, in light of the remand of Kentucky's CSAPR Update FIP in
Wisconsin and vacatur of the CSAPR Close-Out in New York, EPA is
determining in this final action that its approval of Kentucky's SIP
revision as fully resolving the state's 2008 ozone NAAQS good neighbor
obligations was in error. Section 110(k)(6) of the CAA (42 U.S.C.
7410(k)(6)) gives the Administrator authority, without any further
submission from a state, to revise certain prior actions, including
actions to approve SIPs, upon determining that those actions were in
error. The court's remand of the partial FIP for Kentucky in Wisconsin
and the vacatur of EPA's conclusions for states identically situated to
Kentucky in the CSAPR Close-Out means that EPA's approval of Kentucky's
SIP was in error. EPA is compelled on remand to act consistently with
the court's opinion and has reassessed Kentucky's good neighbor
obligations under the 2008 ozone NAAQS here. In doing so, EPA's
analysis identifies an additional emission reduction obligation for
Kentucky. Therefore, EPA is correcting the error in Kentucky's SIP
approval through this final rulemaking, as allowed by the CAA when a
prior SIP approval was in error. This error correction under CAA
section 110(k)(6) revises the approval of Kentucky's SIP to a
disapproval and rescinds any statements that the SIP submission fully
addresses the requirements of the good neighbor provision for the 2008
ozone NAAQS for Kentucky. The Kentucky approval relied on the same
analysis that the D.C. Circuit determined to be unlawful in the CSAPR
Close-Out: It only addressed conditions in 2023, ignoring the 2021
attainment date without a showing of impossibility or necessity in
doing so. Kentucky's remanded partial FIP has been reassessed in this
action, consistent with EPA's methodology to address the other 20
states with remanded CSAPR Update FIPs, and consistent with the D.C.
Circuit's direction in Wisconsin and New York. As discussed in greater
detail in the sections that follow, EPA is determining that there are
additional emission reductions that are required for Kentucky to fully
satisfy its good neighbor obligations for the 2008 ozone NAAQS. The
analysis on which EPA reaches this conclusion for Kentucky is the same,
regionally consistent analytical framework on which the Agency is
taking action for all of the other CSAPR Update states with remanded
FIPs.
Comment: The Agency received several comments regarding its error
correction for Kentucky from the state and from sources in Kentucky.
The commenters generally disagreed with EPA's use of CAA section
110(k)(6) to correct the error in the SIP approval based on the
Wisconsin and New York decisions. Commenters did not agree that the
court decisions are applicable to the Kentucky action or that EPA had
any other basis to determine that Kentucky has outstanding good
neighbor obligations under the 2008 ozone NAAQS. Two commenters also
argued that EPA overestimated emissions from Kentucky in the modeling
released with the proposed rule of this action.
Response: EPA disagrees that there is no basis to correct its error
in approving Kentucky's SIP revision or to find that Kentucky has
outstanding good neighbor obligations under the 2008 ozone NAAQS.
Wisconsin and New York require the state or EPA to analyze the
interstate impacts of Kentucky's emissions by the 2021 Serious
attainment date. The Kentucky SIP approval is based on analysis of the
2023 ozone season. Further, the Kentucky SIP approval relies on
reductions achieved from Kentucky's CSAPR Update FIP, which was
remanded by Wisconsin. The information provided by commenters on
emissions from Kentucky was already reflected in EPA's modeling and did
not present information with regard to Kentucky that changed EPA's 2021
analysis, which shows Kentucky has further good neighbor obligations
under the 2008 ozone NAAQS. Comments related to EPA's technical basis
for concluding that Kentucky has further obligations, including
comments regarding alleged additional emission reductions achieved by
Kentucky sources, are addressed in the RTC document.
c. CSAPR Update SIP Revisions That Do Not Affect FIP Authority
Subsequent to the promulgation of the CSAPR Update, EPA approved
SIPs fully replacing the CSAPR Update FIPs for Alabama, Indiana, and
Missouri.\66\ In those SIP approvals and consistent with the
conclusions of the CSAPR Update, EPA found that the SIPs partially
satisfy Alabama's, Indiana's, and Missouri's good neighbor obligations
for the 2008 ozone NAAQS. Thus, EPA continues to have an obligation to
fully address good neighbor requirements for the 2008 ozone NAAQS with
respect to Alabama and Missouri, stemming from the July 13, 2015,
findings of failure to submit, and Indiana, due to the June 15, 2016,
disapproval of the state's good neighbor SIP. See 80 FR 39961; 81 FR
38957. Other states have also submitted 2008 ozone NAAQS good neighbor
SIPs or SIPs to replace their CSAPR FIPs, some of which EPA has
approved and some
[[Page 23069]]
of which still remain pending. These circumstances do not affect the
scope or basis for this rulemaking.
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\66\ See 82 FR 46674 (Oct. 6, 2017) (Alabama); 83 FR 64472 (Dec.
17, 2018) (Indiana); 84 FR 66316 (Dec. 4, 2019) (Missouri).
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d. Summary of Authority for FIPs for This Action
Table IV.C-1 summarizes the statutory deadline for EPA to address
its FIP obligation under CAA section 110(c) and the event that
activated EPA's obligation for each of the 21 CSAPR Update states that
are the subject of this final action. For more information regarding
the actions triggering EPA's FIP obligation and EPA's action on SIPs
addressing the good neighbor provision for the 2008 ozone NAAQS, see
the memorandum, ``Final Action, Status of 110(a)(2)(D)(i)(I) SIPs for
the 2008 Ozone NAAQS,'' in the docket for this action.
Table IV.C-1--Actions That Activated EPA's Statutory FIP Deadlines
----------------------------------------------------------------------------------------------------------------
Statutory FIP
State Type of action (Federal Register citation, deadline
publication date) [dagger]
----------------------------------------------------------------------------------------------------------------
Alabama.................................. Finding of Failure to Submit (80 FR 39961, 7/13/2015) 8/12/2017
Arkansas................................. Finding of Failure to Submit (80 FR 39961, 7/13/2015) 8/12/2017
Illinois................................. Finding of Failure to Submit (80 FR 39961, 7/13/2015) 8/12/2017
Indiana.................................. SIP disapproval (81 FR 38957, 6/15/2016)............. 7/15/2018
Iowa..................................... Finding of Failure to Submit (80 FR 39961, 7/13/2015) 8/12/2017
Kansas................................... Finding of Failure to Submit (80 FR 39961, 7/13/2015) 8/12/2017
Kentucky................................. SIP disapproval (78 FR 14681, 3/7/2013).............. 6/2/2016
Louisiana................................ SIP disapproval (81 FR 53308, 8/12/2016)............. 9/12/2018
Maryland................................. Finding of Failure to Submit (81 FR 47040, 7/20/2016) 8/19/2018
Michigan................................. Finding of Failure to Submit (80 FR 39961, 7/13/2015) 8/12/2017
Mississippi.............................. Finding of Failure to Submit (80 FR 39961, 7/13/2015) 8/12/2017
Missouri................................. Finding of Failure to Submit (80 FR 39961, 7/13/2015) 8/12/2017
New Jersey............................... Finding of Failure to Submit (81 FR 38963, 6/15/2016) 7/15/2018
New York................................. SIP disapproval (81 FR 58849, 8/26/2016)............. 9/26/2018
Ohio..................................... SIP disapproval (81 FR 38957, 6/15/2016)............. 7/15/2018
Oklahoma................................. Finding of Failure to Submit (80 FR 39961, 7/13/2015) 8/12/2017
Pennsylvania............................. Finding of Failure to Submit (80 FR 39961, 7/13/2015) 8/12/2017
Texas.................................... SIP disapproval (81 FR 53284, 8/12/2016)............. 9/12/2018
Virginia................................. Finding of Failure to Submit (80 FR 39961, 7/13/2015) 8/12/2017
West Virginia............................ Finding of Failure to Submit (80 FR 39961, 7/13/2015) 8/12/2017
Wisconsin................................ Partial SIP disapproval as to prong 2 (81 FR 53309, 8/ 9/12/2018
12/2016).
----------------------------------------------------------------------------------------------------------------
[dagger] For states other than Kentucky, the FIP deadline is two years from the effective date of the SIP
disapproval or Finding of Failure to Submit, which generally trails the publication date by 30 days. For
Kentucky, the FIP deadline is two years after the issuance of the Supreme Court's judgment in EPA v. EME Homer
City Generation, L.P., 572 U.S. 489 (2014). See supra note 63.
3. The 4-Step Good Neighbor Framework
The CSAPR and the subsequent CSAPR Update, building on EPA's prior
methodologies in the NOX SIP Call and CAIR, established a 4-
step process to address the requirements of the good neighbor
provision.\67\ In this final action to address the remand of the CSAPR
Update, EPA follows the same steps. These steps are: (1) Identifying
downwind receptors that are expected to have problems attaining or
maintaining the NAAQS; (2) determining which upwind states contribute
to these identified problems in amounts sufficient to ``link'' them to
the downwind air quality problems; (3) for states linked to downwind
air quality problems, identifying upwind emissions that significantly
contribute to downwind nonattainment or interfere with downwind
maintenance of the NAAQS; and (4) for states that are found to have
emissions that significantly contribute to nonattainment or interfere
with maintenance of the NAAQS downwind, implementing the necessary
emission reductions through enforceable measures.
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\67\ See CSAPR, Final Rule, 76 FR 48208, 48248-48249 (Aug. 8,
2011); CSAPR Update, Final Rule, 81 FR 74504, 74517-74521 (Oct. 26,
2016).
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Step 1--In the CSAPR, downwind air quality problems were assessed
using modeled future air quality concentrations for a year aligned with
attainment deadlines for the NAAQS considered in that rulemaking. The
assessment of future air quality conditions generally accounts for on-
the-books emission reductions and the most up-to-date forecast of
future emissions in the absence of the transport policy being evaluated
(i.e., base case conditions). The locations of downwind air quality
problems are identified as those with receptors that are projected to
be unable to attain (i.e., nonattainment receptor) or maintain (i.e.,
maintenance receptor) the NAAQS. In the CSAPR Update, EPA also
considered current monitored air quality data to further inform the
projected identification of downwind air quality problems. These same
considerations are included for this final rule. EPA is not reopening
the definition of nonattainment and maintenance receptors promulgated
in the CSAPR Update. Further details and application of step 1 for this
rule are described in section V.
Step 2--The CSAPR and the CSAPR Update used a screening threshold
of 1 percent of the NAAQS to identify upwind states that were
``linked'' to downwind air pollution problems. States with
contributions greater than or equal to the threshold for at least one
downwind problem receptor (i.e., nonattainment or maintenance receptor
identified in step 1) were identified as needing further evaluation for
actions to address transport if their air quality was impacted.\68\ EPA
evaluated a given state's contribution based on the average relative
downwind impact calculated over multiple days.\69\ States whose air
[[Page 23070]]
quality impacts to all downwind problem receptors were below this
threshold did not require further evaluation for actions to address
transport--that is, these states were determined to not contribute to
downwind air quality problems and therefore had no emission reduction
obligations under the good neighbor provision. EPA has used this
threshold because a notable portion of the transport problem in the
eastern half of the United States can result from relatively small
contributions from a number of upwind states. Use of the 1 percent
threshold for the CSAPR is discussed in the preambles to the proposed
and final CSAPR rules. See 75 FR 45237 (Aug. 2, 2010); 76 FR 48238
(Aug. 8, 2011). The same metric is discussed in the CSAPR Update Rule.
See 81 FR 74538. While EPA has updated its air quality data for
determining contributions, the Agency is not reopening the use of the 1
percent threshold in this action to address the remand of the CSAPR
Update. Application of step 2 for this rule is described in section V.
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\68\ For ozone the impacts would include those from (VOC) and
NOX, and from all sectors.
\69\ The number of days used in calculating the average
contribution metric has historically been determined in a manner
that is generally consistent with EPA's recommendations for
projecting future year ozone design values. Our ozone attainment
demonstration modeling guidance at the time of CSAPR recommended
using all model-predicted days above the NAAQS to calculate future
year design values (https://www3.epa.gov/ttn/scram/guidance/guide/final-03-pm-rh-guidance.pdf). In 2014 EPA issued draft revised
guidance that changed the recommended number of days to the top-10
model predicted days (https://www3.epa.gov/ttn/scram/guidance/guide/Draft-O3-PM-RH-Modeling_Guidance-2014.pdf). For the CSAPR Update EPA
transitioned to calculating design values based on this draft
revised approach. The revised modeling guidance was finalized in
2019 and, in this regard, EPA is calculating both the ozone design
values and the contributions based on a top-10 day approach. U.S.
Environmental Protection Agency, 2018. Modeling Guidance for
Demonstrating Attainment of Air Quality Goals for Ozone,
PM2.5, and Regional Haze, Research Triangle Park, NC.
(https://www3.epa.gov/ttn/scram/guidance/guide/O3-PM-RH-Modeling_Guidance-2018.pdf).
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Step 3--For states that are linked in step 2 to downwind air
quality problems, the CSAPR and the CSAPR Update evaluated
NOX reductions that were available in upwind states by
applying a uniform control stringency (represented by a cost per ton of
NOX reduced) to entities in these states. EPA evaluated
multiple factors, including NOX reduction potential, cost,
and downwind air quality improvements available at several control
stringencies in the multi-factor test. This evaluation quantified the
magnitude of emissions that significantly contribute to nonattainment
or interfere with maintenance of a NAAQS downwind and apportioned
upwind responsibility among linked states, an approach upheld by the
U.S. Supreme Court in EPA v. EME Homer City.\70\ In this action, EPA
applies this same approach to identify NOX emission
reductions necessary to address significant contribution for the 2008
ozone NAAQS.
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\70\ EPA v. EME Homer City Generation, L.P., 572 U.S. 489
(2014).
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In EME Homer City, the Supreme Court held that ``EPA cannot require
a State to reduce its output of pollution by more than is necessary to
achieve attainment in every downwind State or at odds with the one-
percent threshold the Agency has set.'' 572 U.S. at 521. The Court
acknowledged that ``instances of `over-control' in particular downwind
locations may be incidental to reductions necessary to ensure
attainment elsewhere.'' Id. at 492.
``Because individual upwind States often `contribute
significantly' to nonattainment in multiple downwind locations, the
emissions reductions required to bring one linked downwind State
into attainment may well be large enough to push other linked
downwind States over the attainment line. As the Good Neighbor
Provision seeks attainment in every downwind State, however,
exceeding attainment in one State cannot rank as `over-control'
unless unnecessary to achieving attainment in any downwind State.
Only reductions unnecessary to downwind attainment anywhere fall
outside the Agency's statutory authority.''
Id. at 522 (footnotes excluded).
The Court further explained that ``while EPA has a statutory duty
to avoid over-control, the Agency also has a statutory obligation to
avoid `under-control,' i.e., to maximize achievement of attainment
downwind.'' Id. at 523. Therefore, in the CSAPR Update, EPA evaluated
possible over-control by considering whether an upwind state is linked
solely to downwind air quality problems that can be resolved at a lower
cost threshold, or if upwind states would reduce their emissions at a
lower cost threshold to the extent that they would no longer meet or
exceed the 1 percent air quality contribution threshold. See 81 FR at
74551-52. This evaluation of cost, NOX reductions, and air
quality improvements, including consideration of potential over-
control, results in EPA's determination of upwind emissions that
significantly contribute to nonattainment or interfere with maintenance
of the NAAQS downwind and should therefore be eliminated. This allows
EPA to then determine an enforceable emissions limit (often embodied in
the form of an emissions budget) for the covered sources. Emissions
budgets are the remaining allowable emissions after the elimination of
emissions identified as significantly contributing to nonattainment or
interfering with maintenance of the standard downwind.
In both the CSAPR and the CSAPR Update, EPA focused its step 3
analysis on EGUs. In the CSAPR Update, EPA did not quantify non-EGU
stationary source emission reductions to address interstate ozone
transport for the 2008 ozone NAAQS for two reasons. First, EPA
explained that there was greater uncertainty in EPA's assessment of
non-EGU NOX mitigation potential, and that more time would
be required for states and EPA to improve non-EGU point source data and
pollution control assumptions before it could develop emission
reduction obligations based on that data. See 81 FR 74542. Second, EPA
explained that it did not believe that significant, certain, and
meaningful non-EGU NOX reduction was in fact feasible for
the 2017 ozone season. Id. In Wisconsin, the D.C. Circuit found that
the practical obstacles EPA identified with respect to its evaluation
of non-EGUs did not rise to the level of an ``impossibility,'' 938 F.3d
at 318-20. The court also found that EPA must make a higher showing of
uncertainty regarding non-EGU point-source NOX mitigation
potential before declining to regulate such sources on such a basis,
id. Therefore, as discussed in more detail in section VI, in this final
action on remand from Wisconsin, EPA has included all major stationary
source sectors in the linked upwind states in its ``significant
contribution'' analysis at step 3 of the 4-step framework.
Step 4--the CSAPR and the CSAPR Update established interstate
trading programs to implement the necessary emission reductions. Each
state subject to the program is assigned an emissions budget for the
covered sources. Emissions allowances are allocated to units covered by
the trading program, and the covered units then surrender allowances
after the close of each control period in an amount equal to their
ozone season EGU NOX emissions. Emissions allowances are
allocated to units covered by the respective trading program, and the
covered units then surrender allowances after the close of each control
period in an amount equal to their ozone season EGU NOX
emissions.
All of EPA's trading programs established under the good neighbor
provision allow for interstate trading. However, in order to ensure
that each state achieves reductions proportional to the level of their
significant contribution, beginning with the CSAPR, EPA established
``assurance levels'' set as percentage of each state's budget (e.g.,
121 percent) above which emissions from sources in that state become
subject to a higher ``penalty'' surrender ratio. These assurance levels
are designed to allow for a certain level of year-to-year variability
within power sector emissions to account for fluctuations in demand and
EGU
[[Page 23071]]
operations. The levels are therefore set by determining a ``variability
limit,'' calculated based on an analysis of the historical level of
variability in EGU operations.
Thus, both the CSAPR and the CSAPR Update set assurance levels
equal to the sum of each state's emissions budget plus its variability
limit. The CSAPR and the CSAPR Update included assurance provisions to
limit state emissions to levels below 121 percent of the state's ozone
season NOx emissions budget by requiring additional allowance
surrenders in the instance that emissions in the state exceed this
level. This limit on the degree to which a state's emissions can exceed
its budget is responsive to previous court decisions (see discussion in
section VII.C.2 of this preamble) and was not part of the CSAPR Update
aspects remanded to EPA in Wisconsin. EPA is applying the same
variability limits and assurance provisions in this rule.\71\
Implementation using a trading program is further described in section
VII.
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\71\ Historical heat input and NOX emissions in
states covered by the CSAPR programs may be found in the
``Historical CSAPR Update Emissions and Heat Input 2000 to
2019.xlsx'' file.
---------------------------------------------------------------------------
EPA received several comments related to its overall approach in
this rulemaking. These comments related to the following topics: (1)
Whether this rule remains only a partial remedy in terms of both the
amount of emission reductions achieved and the timing of
implementation; (2) whether any additional EGU emission reductions
relative to the CSAPR Update are permissible in light of the CSAPR
Update record and the scope of the D.C. Circuit's decision in
Wisconsin; and (3) EPA's use of cost to define significant
contribution. Other comments on EPA's overall approach in this action
are addressed in the RTC document.
Comment: Numerous commenters asserted that despite EPA purporting
to fully address the covered states' good neighbor obligations, the
rule remains only a partial solution, and allows upwind states'
significant contribution to nonattainment and interference with
maintenance of the 2008 ozone NAAQS to continue past the next
attainment date. One commenter asserts that this rule will ``hinder''
attainment of the 2015 ozone NAAQS in downwind states. Many commenters
claim that the rule is insufficient to ensure downwind attainment of
the NAAQS. The commenters question EPA's application of the 4-step
framework and disagree with the Agency's conclusions drawn from that
analysis, particularly with respect to the EPA's determinations at step
3 and the emissions controls adopted at step 4. Some commenters also
challenge the legal basis for the selection of the 2021 analytic year,
as opposed to 2020, and whether EPA has met the requirement to obtain
reductions ``as expeditiously as practicable'' or otherwise complied
with the holdings in Wisconsin and New York to eliminate significant
contribution on par with the relevant downwind attainment deadlines.
See, e.g. Wisconsin, 938 F.3d at 315. Some argue that EPA depends on
claims of technical infeasibility or scientific uncertainty and flawed
cost effectiveness considerations in not requiring more emission
reductions on a shorter timeframe. Others believe the implementation
timeframe of this rule to be a phased plan in direct conflict with
Wisconsin and New York. One commenter concludes there is a ``mismatch''
between EPA's 4-step framework's multi-factor test at step 3 and the
implementation timeframes in this rule. They also argue that EPA should
consider the cost of RACT in downwind states when analyzing the
maximized cost effectiveness of controls in upwind states. Several
commenters also brought attention to the length of time between when
2008 ozone NAAQS good neighbor SIPs were initially due and the proposed
rule in October 2020.
Response: This rule is a full remedy for the good neighbor
provision for the covered upwind states for the 2008 ozone NAAQS based
on EPA's analysis. The good neighbor provision does not obligate upwind
states to fully resolve a downwind nonattainment or maintenance
problem. CAA section 110(a)(2)(D)(i)(I) only requires that upwind
states prohibit those emissions that ``contribute significantly to
nonattainment'' or ``interfere with maintenance of the NAAQS.'' As
such, the objective of the good neighbor provision is the elimination
of upwind significant contribution or interference with maintenance. It
does not require that the upwind states bear the full burden of
bringing downwind states into attainment. Ultimate achievement of the
NAAQS downwind is accomplished through the larger framework of the CAA,
including under sections 110, 181, 182 and other provisions to attain
the NAAQS. Thus, in this action, EPA must determine what amount of
upwind contribution is significant (or interferes with maintenance) and
require elimination of that significant contribution while avoiding
overcontrol or undercontrol. EPA v. EME Homer City Generation, L.P.,
572 U.S. 489, 521-23 (2014).
Further, it is not correct to say that good neighbor obligations
can only be found to be fully addressed when there is no longer any
remaining air quality problem at the downwind receptors. Indeed, the
Supreme Court recognized in EME Homer City, 572 U.S. at 521-22, that
under the framework EPA has adopted, EPA could not require a state to
further reduce its emissions once it is at or below the 1 percent
contribution threshold at all receptors. The aim of the good neighbor
provision is to eliminate significant contribution to nonattainment and
interference with maintenance, not to achieve final attainment at the
downwind receptor. Further, in upholding EPA's approach to defining and
allocating upwind responsibility in the CSAPR, the Court in EME Homer
City recognized the discretion EPA has in defining what constitutes
``significant'' contribution, and did not hold that obligations on
upwind states must be imposed to ``maximize'' downwind attainment
without consideration of any other factors. Accord Wisconsin, 938 F.3d
at 320 (recognizing EPA's discretion to interpret ``significant
contribution'').
The comments do not establish a basis for asserting that EPA's
approach to defining significant contribution or interference with
maintenance is unlawful or unreasonable. They do not explain what is
meant by ``excessive amounts of ozone pollution,'' ``excessive upwind
contributions,'' ``sufficient emission reductions,'' or ``sufficient
upwind reductions.'' These comments do not inform how EPA should define
significant contribution nor do they recognize that EPA has discretion
to define significant contribution. The D.C. Circuit first upheld the
validity of using cost as part of the method for determining
``significance'' in Michigan v. EPA, 213 F.3d 663, 675-79 (D.C. Cir.
2000). The Supreme Court upheld that same approach in EPA v. EME Homer
City Generation, L.P., 572 U.S. 489, 512-20 (2014) (``Eliminating those
amounts that can cost[hyphen]effectively be reduced is an efficient and
equitable solution to the allocation problem the Good Neighbor
Provision requires the Agency to address.''). EPA applied this approach
again in the CSAPR Update, its first action to address good neighbor
obligations under the 2008 ozone NAAQS. And while that action only
provided a partial remedy, no party in Wisconsin challenged as a
general matter EPA's ability to use cost-effectiveness in determining
and allocating upwind responsibility. Wisconsin and New York recognized
EPA's discretion to define significant
[[Page 23072]]
contribution. Wisconsin v. EPA, 938 F.3d 303, 319-20 (D.C. Cir. 2019)
(``EPA, though, possesses a measure of latitude in defining which
upwind contribution `amounts' count as `significant[ ]' and thus must
be abated.''); New York v. Envtl. Prot. Agency, 781 F. App'x 4, 7 (D.C.
Cir. 2019) (``[I]n determining what constitutes a significant
contribution to downwind nonattainment, the agency can consider the
amount of upwind states' contributions and the cost of abating
them.'').
With respect to the timing of when such reductions must be
achieved, EPA agrees that ``as expeditiously as practicable'' is the
first-order statutory directive. See CAA section 181(a)(1); Wisconsin,
938 F.3d at 313. EPA's approach in this rule, after determining
significant contribution, implements all reductions that EPA identified
as possible by the 2021 attainment date, and requires additional
reductions of EGUs in later ozone seasons to the extent not possible by
that date to fully eliminate significant contribution. In this case,
implementing reductions any faster than the 2021 ozone season is
impossible because 2020 is in the past. Commenters are incorrect to
assert that EPA has unlawfully failed to require all necessary
reductions by the 2021 attainment date. EPA has required those
reductions that it has determined are possible by that date; EPA has
also made a determination that additional reductions that are only
possible after that date are nonetheless necessary to eliminate
significant contribution or interference with maintenance, as EPA has
interpreted those terms, and is requiring those later reductions as
expeditiously as practicable. Achieving necessary reductions past the
next attainment date when EPA finds it is impossible to do so
beforehand is consistent with the statute and prior caselaw. Wisconsin
and New York recognized these flexibilities available to EPA in
acknowledging that for reasons of necessity or impossibility, EPA may
deviate from the attainment schedule for downwind areas established in
the Act. Wisconsin v. EPA, 938 F.3d 303, 320 (D.C. Cir. 2019). New York
v. EPA, 781 F. App'x 4, 7 (D.C. Cir. 2019). Indeed, these commenters
are not asserting that EPA lacks authority to require reductions beyond
the attainment date, only that EPA should have required the reductions
by that date. But these comments fail to establish a technical or
evidentiary basis to overturn EPA's judgment that such additional
reductions are not in fact possible by the 2021 attainment date.
EPA disagrees that Wisconsin held that it must address good
neighbor obligations by the full ozone season prior to the attainment
date (i.e., here, 2020). The decision recognized that the agency must
fully address good neighbor obligations (to the extent EPA determines
possible) by the attainment date itself. 938 F.3d at 315. EPA's
practice of addressing obligations by the full ozone season prior to
the attainment date, while not mandated by statute or caselaw,
continues to make good policy sense, because it assists downwind areas
with improved three-year design values \72\ used in determining whether
attainment has been achieved. However, in this instance, as one
commenter correctly notes, reductions in 2020 are not possible since
this rule was not proposed until after the 2020 ozone season. EPA
nonetheless can still meet the legal mandate to achieve those
reductions that are possible by the 2021 attainment date.
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\72\ The ozone design value at a particular monitoring site is
the 3-year average of the annual fourth highest daily maximum 8-hour
ozone concentration at that site.
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Further, EPA is not relying on ``scientific uncertainty'' as a
justification for not requiring reductions earlier. As explained
elsewhere in this record, EPA has determined the amount of time needed
for installation and operation of various control strategies. With
respect to the optimization of existing SNCR controls, EPA notes that
it is requiring that strategy as reflected in the final budgets by the
2021 attainment date, as explained in sections VI.B.1, C.1, and D.1.
EPA defined significant contribution in this rule based on an
assessment of control alternatives under the 4-step good neighbor
framework's step 3 multi-factor test. EPA's determination of what
controls to require and when they can first be implemented are based on
EPA's technical evaluation and application of the third step multi-
factor analysis in the 4-step framework. The only ``mismatch'' that one
commenter identified at the third step is no mismatch at all; it is
simply the reality that some of the controls that EPA is requiring in
this rule cannot be installed before the 2021 ozone season, and some
controls that EPA assessed cannot be installed and operational before
air quality problems are projected to resolve under the 2008 ozone
NAAQS (i.e., by the 2025 ozone season). These comments have not
explained how EPA's evaluation of control options under that test was
arbitrary or capricious.
The reasons for alleged past delays in implementing ozone transport
obligations is out of the scope of this action on remand. However, EPA
notes that the time it has taken to get reductions in place to address
interstate ozone transport is due to multiple factors, including past
judicial stays of major transport rules such as the NOX SIP
Call and the CSAPR. In addition, EPA had made a determination in the
CSAPR Close-out that it had fully addressed good neighbor obligations;
it was not until the D.C. Circuit ruled in Wisconsin that the basis for
this conclusion was revealed to be insufficient. The CSAPR Update has
and continues to achieve upwind reductions for the 2008 ozone NAAQS. As
explained elsewhere in the preamble to this action, EPA now finds it to
be a full remedy for nine upwind states.
Comment: Several commenters said that the CSAPR Update was already
a complete remedy with regard to the EGU sector. One commenter
described EPA's response to the remand as ``unreasonable'' and its re-
application of the 4-step framework as ``erroneous.'' Other commenters
opined that EPA has no legal basis to require short-term EGU controls
under the Wisconsin remand. In their opinion, Wisconsin found that the
CSAPR Update fully eliminated significant contribution from EGUs, which
they supported by quoting portions of the decision. They asserted that
Wisconsin only authorized EPA to search for emission reductions from
non-EGUs and to narrowly reconsider the CSAPR Update in terms of the
statutory downwind attainment dates.
Response: The commenters are incorrect that EPA lacks a legal basis
to re-assess and fully address good neighbor obligations for the
covered states under the Wisconsin remand. As an initial matter, the
CSAPR Update was, by EPA's own admissions, a partial rule. See 81 FR at
74521-22. The court's analysis upholding the portions of the rule in
Wisconsin cited by these commenters was against a backdrop that the
rule was only partial in nature. See, e.g., 938 F.3d at 327. Wisconsin
required EPA to provide a complete remedy by the next applicable
attainment date. This was confirmed in the New York decision vacating
the CSAPR Close-out. The D.C. Circuit found that rule violated the
holding in Wisconsin by failing to analyze the 2021 analytic year
without a sufficient showing of impossibility or necessity. To the
extent that EPA had attempted to fully address the relevant obligations
in the CSAPR Close-Out Rule, that action has been vacated. Therefore,
on remand, EPA not only needs to use a different analytic year to
[[Page 23073]]
inform its analysis under the 4-step framework, but it also needs to
apply that framework in order to determine what, if any, obligations
must be addressed, and what emission reductions must be required.
EPA disagrees that Wisconsin prevents requiring additional
necessary controls on EGUs. As stated in the preamble to the CSAPR
Update, EPA did not view the CSAPR Update as necessarily fully
eliminating significant contribution from EGUs. See 81 FR 74522.
Wisconsin recognized that EPA anticipated ``further EGU reductions that
are achievable after 2017'' may be necessary to completely eliminate
significant contribution or interference with maintenance for the 2008
ozone NAAQS. Wisconsin v. EPA, 938 F.3d 303 (D.C. Cir. 2019) (quoting
81 FR 74522). In the present action, evaluation of a full remedy in
accordance with Wisconsin under the 4-step framework, and particularly
the step 3 multi-factor test, establishes that additional reductions
from EGUs should be required in 12 of the states currently subject to
the CSAPR Update. For nine other states, their continued obligations
under the CSAPR Update satisfy their good neighbor obligations for the
2008 ozone NAAQS. That same analysis shows that reductions from non-
EGUs are not justified under the same test.
Comment: Some commenters argued that EPA's use of cost in defining
significant contribution has no statutory basis and is contrary to
NAAQS attainment planning caselaw and the Supreme Court's holding in
EPA v. EME Homer City Generation, L.P., 572 U.S. 489 (2014) (``EME
Homer City''), because it does not result in sufficient emission
reduction for attainment and maintenance of the NAAQS. The commenter
also said that even if EPA could use cost as a basis for defining
significant contribution for non-attainment, the Agency could not do so
for interference with maintenance. Another commenter described EPA's
proposed cost threshold of $1,600 per ton as ``arbitrary'' and
inconsistent with the CAA and EME Homer City, as this cost threshold is
insufficient to enable downwind states reach attainment or maintenance.
Further, commenters argued, EPA's use of cost-effectiveness as a metric
at step 3 fails to identify what the ultimate goal should be, as cost-
effectiveness can only be used to evaluate which way to best achieve a
goal. One commenter argued that EPA should require upwind reductions so
long as the downwind benefit of such reductions continues to outweigh
their cost.
Response: The approach used here is materially the same approach
the Agency applied in the NOX SIP Call, the CSAPR, and in
the CSAPR Update. These comments essentially seek to relitigate EME
Homer City, as well as the D.C. Circuit's prior opinion in Michigan v.
EPA, 213 F.3d 663 (D.C. Cir. 2000). Contrary to the commenters'
interpretation, EME Homer City allowed the use of cost both to define
and to allocate upwind state responsibility. 572 U.S. 489, 518-520
(2014) (``The Agency, tasked with choosing which among equal
``amounts'' to eliminate, has chosen sensibly to reduce the amount
easier, i.e., less costly, to eradicate.''). Notably, in the CSAPR
rulemaking, EPA used cost as part of a multi-factor effectiveness
metric in the multi-factor test to determine the ``amount'' of upwind
contribution that is ``significant'' in a very similar manner as EPA
did in the CSAPR Update and now here in this action on remand. See 76
FR 48208, 48248-51 (Aug. 8, 2011). In the NOX SIP Call, EPA
took a similar approach. See 213 F.3d at 675 (``Although the dividing
line was a very low threshold of contribution, in the end EPA's rule
called for termination of only a subset of each state's contribution.
EPA decided that the 23 `significant contributors' need only reduce
their ozone by the amount achievable with `highly cost-effective
controls.' '') (emphasis added) (citing 63 FR at 57403).
Commenters fail to identify why an alternative method for
determining ``contribution'' is compelled by the statute, or that EPA's
approach is unlawful, arbitrary, or capricious. Contrary to these
commenters' assertion, the good neighbor provision does not contemplate
that an upwind state's obligation can only ever be resolved once a
downwind receptor is fully in attainment. The Supreme Court recognized
in EME Homer City that the 1 percent contribution threshold used at
step 2 must necessarily be a stopping point in EPA's analysis because a
state that contributed less than that would not be assessed for
reductions at step 3 in the first place. 572 U.S. at 521. The Supreme
Court in EME Homer City recognized that the problem of defining
``significant contribution'' in the context of a regional pollutant
like ozone is inherently extremely complex. Id. at 514. The Court found
that using cost (and specifically, a uniform cost-effectiveness
threshold) to allocate the reduction obligation was both equitable and
efficient. Id. at 519.
Further, the case law on barring use of cost considerations in the
attainment planning context cited by one commenter is inapplicable. EPA
has discretion to interpret significant contribution, as recognized by
Wisconsin and New York. Wisconsin v. EPA, 938 F.3d 303, 319-20 (D.C.
Cir. 2019) (``EPA, though, possesses a measure of latitude in defining
which upwind contribution `amounts' count as `significant[ ]' and thus
must be abated.''). New York v. Envtl. Prot. Agency, 781 F. App'x 4, 7
(D.C. Cir. 2019) (``[I]n determining what constitutes a significant
contribution to downwind nonattainment, the agency can consider the
amount of upwind states' contributions and the cost of abating
them.'').
The comment that cost effectiveness does not provide an adequate
basis for EPA to select the correct level of stringency misapprehends
the full scope of the step 3 multi-factor analysis EPA applies in the
4-step framework. EPA's analysis at step 3 additionally considers the
total amount of reductions to be achieved by a control stringency as
well as the effect on air quality at downwind receptors. EPA also must
take into consideration the minimum amount of time needed for controls
to be installed and operational, because if an air quality problem is
no longer present by the time controls could be operational, then there
is no need for those controls to be required. See 572 U.S. at 521.
Thus, it is not just the relative cost effectiveness of a control
stringency but its ultimate effect on a downwind problem that informs
EPA's determination of ``significance.'' \73\
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\73\ To some degree, these commenters may be overstating the
relative importance of ``cost'' in EPA's step 3 analysis. EPA's
design of cost thresholds derives from the identification of
discrete types of NOX emission control strategies. EPA
then identifies a representative cost-effectiveness on a per ton
basis for that technology. In the step 3 analysis, it is not the
cost per ton value itself that is inherently meaningful, but rather
how that cost-effectivess value relates to other control
stringencies, how many emission reductions may be obtained, and how
air quality is ultimately impacted. Said differently, when EPA
determines not to require controls at a higher cost threshold, it is
not on grounds that they are simply ``too expensive for industry.''
Further, there are always inherent uncertainties in identifying a
precise cost per ton value for any particular control stringency,
but this in itself does not upset EPA's ability to render an overall
policy judgment based on the step 3 factors as to the level of
emission reductions required. As an example, EPA explains in Section
VI.D.1 why its cost thresholds for EGU control stringencies at
$1,600 per ton and $1,800 per ton in this action generate
essentially the same point on a cost curve for purposes of its step
3 analysis. In any case, EPA notes that the Agency's determination
not to require further EGU controls than EPA identified in this
action, and to a certain extent non-EGU controls, is based primarily
on timing, not a determination of relative cost-effectiveness.
Likewise, emission controls included in the emission budgets in this
rulemaking would likely still be included even if their
representative cost levels were somewhat higher, so long as they
still present a compelling result in the multi-factor test taking
timing and downwind air quality impacts into account.
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[[Page 23074]]
The uniform control stringency selected in this rule for EGUs
compares favorably with prior transport rulemakings in terms of cost-
effectiveness, overall cost, total reductions, and downwind benefits.
By contrast, when EPA analyzed the best available current data on non-
EGUs for potential control, EPA's analysis showed that at a comparable
cost level ($2,000/ton--on a weighted average basis, rather than the
90th percentile value used as a representative marginal cost used for
EGU SCR optimization, far fewer NOX emission reductions were
available and their corresponding effect on downwind receptors was much
smaller, on the order of a few hundredths of a ppb.
Regarding the comment that EPA has failed to give independent
effect to the requirement to prohibit emissions that interfere with
maintenance of the NAAQS in other states (i.e., prong 2): EPA gives
effect to prong 2 through identifying receptors that may have trouble
attaining the NAAQS under varying air quality and meteorological
conditions. EME Homer City upheld EPA's approach to using cost to
determine ``amounts'' with respect to both prong 1 and 2, and this is
settled law. EPA v. EME Homer City Generation, 572 U.S. at 518-520.
EPA's use of the term ``significant contribution'' in its analysis at
the third step of the 4-step framework is applied for both prongs 1 and
2. This approach to giving effect to the ``interfere with maintenance''
prong has been upheld twice by the D.C. Circuit. See EME Homer City,
795 F.3d at 136; Wisconsin, 938 F.3d at 325-27. In effect, EPA's
determination of what level of upwind contribution constitutes
``interference'' with a maintenance receptor is the same determination
as what constitutes ``significant contribution'' for a nonattainment
receptor. Nonetheless, this continues to give independent effect to
prong 2 because EPA applies a broader definition for identifying
maintenance receptors, which accounts for the possibility of problems
maintaining the NAAQS under realistic potential future conditions.
While EPA and others may occasionally use the language of
``significance'' as a shorthand for determinations at the third step
under both prongs 1 and 2, this does not detract from the fact that EPA
gives prong 2 independent effect under the 4-step framework.
EPA has explained elsewhere in the record for this action why the
selected control stringency selected in this rule is appropriate in
light of EPA's application of the step 3 multi-factor test of the 4-
step framework. To the extent commenters argue that EPA should have
selected a higher cost threshold or required more reductions based on
the technical data, those issues are addressed elsewhere in the record.
V. Analyzing Downwind Air Quality and Upwind-State Contributions
In this section, EPA describes the air quality modeling and
analyses performed to identify nonattainment and/or maintenance
receptors and evaluate interstate contributions to these receptors from
individual upwind states for the 2021 analytic year. Although the air
quality modeling was performed using an air quality modeling platform
that covers the contiguous 48 states, the analysis to identify
receptors and evaluate contributions focuses on the 21 upwind states
that are the subject of this rule with respect to the 2008 ozone NAAQS.
In this action, EPA is not addressing the good neighbor obligations of
any other state, nor is it addressing the obligations of any state,
including the 21 covered by this action, with respect to the 2015 ozone
NAAQS.
The year 2021 was selected as the appropriate future analytic year
for this rule because it coincides with the July 20, 2021, Serious area
attainment date under the 2008 ozone NAAQS. In the CSAPR Update, EPA
had aligned its analysis and implementation of emission reductions with
the 2017 ozone season (ozone seasons run each year from May 1-September
30) in order to assist downwind states with timely attainment of the
2008 ozone NAAQS by the Moderate area attainment date of July 20, 2018.
See 81 FR 74516. In order to demonstrate attainment by this deadline,
states were required to rely on design values calculated using ozone
season data from 2015 through 2017, since the July 20, 2018, deadline
did not afford enough time for measured data of the full 2018 ozone
season. Similarly, for the Serious area attainment date in 2021, states
will rely on design values calculated using ozone season data from 2018
through 2020. However, it is not possible to impose emission reductions
on upwind states in the 2020 ozone season, which has already passed.
Reductions in the 2021 ozone season will nonetheless occur in time for
the 2021 attainment date and therefore assist downwind states in
achieving attainment by the July 20, 2021, attainment date, in
compliance with the Wisconsin holding. See Wisconsin, 938 F.3d at 309
(the CSAPR Update was unlawful to the extent it allowed upwind states
to ``continue their significant contributions to downwind air quality
problems beyond the statutory deadlines by which downwind States must
demonstrate their attainment of air quality standards'') (emphasis
added). Further, EPA continues to interpret the good neighbor provision
as forward-looking, based on Congress's use of the future-tense
``will'' in section 110(a)(2)(D)(i), an interpretation upheld in
Wisconsin, 938 F.3d at 322. It would be ``anomalous,'' id., for EPA to
impose good neighbor obligations in 2021 and future years based solely
on finding that ``significant contribution'' had existed at some time
in the past.
EPA has also conducted additional analysis of remaining air quality
receptors and contribution in years beyond 2021, in order to ensure a
complete step 3 analysis. EPA has analyzed these later years to
determine whether any additional emission reductions that are
impossible to obtain by the 2021 attainment date may yet be necessary
in order to fully address significant contribution. This comports with
the D.C. Circuit's direction in Wisconsin that implementing good
neighbor obligations beyond the dates established for attainment may be
justified on a proper showing of impossibility and/or necessity. See
938 F.3d at 320. However, for purposes of EPA's initial analysis of air
quality at step 1 of the 4-step framework, in accordance with
Wisconsin, EPA has selected the 2021 ozone season, corresponding with
the 2021 Serious area attainment date.
The remainder of this section includes information on: (1) The air
quality modeling platform used in support of this final rule with a
focus on the base year and future year base case emission inventories,
(2) the method for projecting design values in 2021, and (3) the
approach for calculating ozone contributions from upwind states.\74\
The Agency also provides the design values for nonattainment and
maintenance receptors and the predicted interstate contributions that
are at or above the 1 percent of the NAAQS screening threshold. The
2016 base period and 2021, 2023, and 2028 future design values and
contributions for all ozone monitoring sites are provided in the docket
for this rule. The Air Quality Modeling Technical Support Document
[[Page 23075]]
(AQM TSD) in the docket for this rule contains more detailed
information on the air quality modeling aspects of this rule.
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\74\ For the 2023 and 2028 modeling used in the step 3 analysis,
EPA followed the same method for projecting design values and
approach for calculating contributions as described for the 2021
analytic year.
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A. Overview of Air Quality Modeling Platform
EPA used the 2016-based modeling platform for the air quality
modeling for this final rule. This modeling platform includes 2016 base
year emissions from anthropogenic and natural sources and 2016
meteorology. The platform also includes anthropogenic emission
projections for 2023 and 2028. The emissions data contained in this
platform were developed by EPA, Multi-Jurisdictional Organizations
(MJOs), and state and local air agencies as part of the Emissions
Inventory Collaborative Process. This process resulted in a common-use
set of emissions data for a 2016 base year and 2023 and 2028 that can
be leveraged by EPA and states for regulatory air quality modeling.\75\
The air quality modeling was performed for a modeling region (i.e.,
modeling domain) that covers the contiguous 48 states using a
horizontal resolution of 12 x 12 km. EPA used the CAMx version 7beta6
for air quality modeling for both the proposed rule and this final
rule.\76\ Additional information on the 2016-based air quality modeling
platform can be found in the AQM TSD.
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\75\ http://views.cira.colostate.edu/wiki/wiki/9169.
\76\ EPA did not receive any comments on the use of CAMx version
7beta6 for the air quality modeling for this rule.
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B. Emission Inventories
EPA developed emission inventories for the proposed rule, including
emission estimates for EGUs, non-EGU point sources, stationary nonpoint
sources, onroad mobile sources, nonroad mobile sources, wildfires,
prescribed fires, and biogenic emissions that are not the result of
human activities. EPA's air quality modeling relies on this
comprehensive set of emission inventories because emissions from
multiple source categories are needed to model ambient air quality and
to facilitate comparison of model outputs with ambient measurements. To
prepare the emission inventories for air quality modeling, EPA
processed the emission inventories using the Sparse Matrix Operator
Kernel Emissions (SMOKE) Modeling System version 4.7 to produce the
gridded, hourly, speciated, model-ready emissions for input to the air
quality model. Additional information on the development of the
emission inventories and on data sets used during the emissions
modeling process are provided in the Technical Support Document (TSD)
``Preparation of Emissions Inventories for the 2016v1 North American
Emissions Modeling Platform,'' hereafter known as the ``Emissions
Modeling TSD.'' This TSD is available in the docket for this rule and
at https://www.epa.gov/air-emissions-modeling/2016v1-platform.
1. Foundation Emission Inventory Data Sets
Emissions data were developed that represented the year 2016 to
support air quality modeling of a base year from which future air
quality could be forecasted. As noted above, EPA used the Inventory
Collaborative 2016 version 1 (2016v1) Emissions Modeling Platform,
released in October 2019, as the primary basis for the inventories
supporting the air quality modeling. This platform was developed
through a national collaborative effort between EPA and state and local
agencies along with MJOs. The original starting point for the U.S.
portions of the 2016 inventory was the 2014 National Emissions
Inventory (NEI), version 2 (2014NEIv2), although all of the inventory
sectors were updated to better represent the year 2016 through the
incorporation of 2016-specific state and local data along with
nationally applied adjustment methods. The future base case inventories
developed for 2023 and 2028 represent projected changes in activity
data and predicted emission reductions from on-the-books actions,
planned emission control installations, and promulgated federal
measures that affect anthropogenic emissions.\77\
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\77\ Biogenic emissions and emissions from wildfires and
prescribed fires were held constant between 2016 and the future
years because (1) these emissions are tied to the 2016
meteorological conditions and (2) the focus of this rule is on the
contribution from anthropogenic emissions to projected ozone
nonattainment and maintenance.
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2. Development of Emission Inventories for EGUs
Annual NOX and SO2 emissions for EGUs in the
2016 base year inventory are based primarily on data from continuous
emission monitoring systems (CEMS) and other monitoring systems allowed
for use by qualifying units under 40 CFR part 75, with other EGU
pollutants estimated using emission factors and annual heat input data
reported to EPA. For EGUs not reporting under part 75, EPA used the
most recent data submitted to the NEI by the states. Emissions data for
sources that did not have data provided for the year 2016 were pulled
forward from data submitted for 2014. The Air Emissions Reporting Rule,
(80 FR 8787 February 19, 2015), requires that Type A point sources
large enough to meet or exceed specific thresholds for emissions be
reported to EPA every year, while the smaller Type B point sources must
only be reported to EPA every three years. For more information on how
the 2016 EGU emissions data were developed and prepared for air quality
modeling, see the Emissions Modeling TSD.
EPA projected future 2023 and 2028 baseline EGU emissions using the
version 6--January 2020 reference case of the Integrated Planning Model
(IPM).\78\ \79\ IPM, developed by ICF Consulting, is a state-of-the-
art, peer-reviewed, multi-regional, dynamic, deterministic linear
programming model of the contiguous U.S. electric power sector. It
provides forecasts of least cost capacity expansion, electricity
dispatch, and emission control strategies while meeting energy demand
and environmental, transmission, dispatch, and reliability constraints.
EPA has used IPM for over two decades to better understand power sector
behavior under future business-as-usual conditions and to evaluate the
economic and emission impacts of prospective environmental policies.
The model is designed to reflect electricity markets as accurately as
possible. EPA uses the best available information from utilities,
industry experts, gas and coal market experts, financial institutions,
and government statistics as the basis for the detailed power sector
modeling in IPM. The model documentation provides additional
information on the assumptions discussed here as well as all other
model assumptions and inputs.\80\
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\78\ https://www.epa.gov/powersectormodeling.
\79\ The 2016v1 platform released in October 2019 used the May
2019 reference case. The January 2020 IPM reference case is a later
version than what was originally released with 2016v1.
\80\ Detailed information and documentation of EPA's Base Case,
including all the underlying assumptions, data sources, and
architecture parameters can be found on EPA's website at:
www.epa.gov/airmarkets/powersectormodeling.
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The IPM version 6--January 2020 reference base case accounts for
updated federal and state environmental regulations, committed EGU
retirements and new builds, and technology cost and performance
assumptions as of late 2019. This projected base case accounts for the
effects of the finalized Mercury and Air Toxics Standards rule, the
CSAPR and the CSAPR Update, New Source Review settlements, and other
on-the-books federal and state rules through 2019 \81\ impacting
SO2, NOX,
[[Page 23076]]
directly emitted particulate matter, and CO2, and final
actions EPA has taken to implement the Regional Haze Rule.
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\81\ For any specific version of IPM there is a cutoff date
after which it is no longer possible to incorporate updates into the
input databases. For version 6--January reference case, that cutoff
date was November 2019.
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Additional 2021 EGU emissions baseline levels were developed
through engineering analytics as an alternative approach that did not
involve IPM. EPA developed this inventory for use in step 3 of this
final rule, where it determines emission reduction potential and
corresponding emission budgets. IPM includes optimization and perfect
foresight in solving for least cost dispatch. Given that this final
rule will likely become effective either immediately prior to or
slightly after the start of the 2021 ozone season, EPA adopted a
similar approach to the CSAPR Update where it relied on IPM in a
relative way in step 3 to avoid overstating optimization and dispatch
decisions that were not possible in the short time frame. EPA does this
by using the difference in emission rate observed between IPM runs with
and without the cost threshold applied, rather than using absolute
values. In both the CSAPR Update and in this rule at step 3, EPA
complemented that projected IPM EGU outlook with historical (e.g.,
engineering analytics) perspective based on historical data that only
factors in known changes to the fleet. This 2021 engineering analytics
data set is described in more detail in the Ozone Transport Policy
Analysis Final Rule TSD.
3. Development of Emission Inventories for Non-EGU Point Sources
The non-EGU point source emissions in the 2016 base case inventory
match those in the 2016v1 platform. Some non-EGU point source emissions
were based on data submitted for 2016, others were projected from 2014
to 2016, and the emissions for remaining small sources were kept at
2014 levels. Prior to air quality modeling, the emission inventories
were processed into a format that is appropriate for the air quality
model to use. Projection factors and percent reductions in this final
rule reflect comments received as a result of the Inventory
Collaborative development process, along with emission reductions due
to national and local rules, control programs, plant closures, consent
decrees, and settlements. Reductions from several Maximum Achievable
Control Technology and National Emission Standards for Hazardous Air
Pollutants (NESHAP) standards are included. Projection approaches for
corn ethanol and biodiesel plants, refineries and upstream impacts
represent requirements pursuant to the Energy Independence and Security
Act of 2007 (EISA). Details on the development and processing of the
non-EGU emissions inventories for 2016, 2023, and 2028 are available in
the Emissions Modeling TSD.
For aircraft emissions at airports, the emissions used were based
on adjustments to emissions in the 2017 NEI (see https://www.epa.gov/air-emissions-inventories/2017-national-emissions-inventory-nei-data
for data and a TSD). EPA developed and applied factors to adjust the
2017 emissions to 2016, 2023, and 2028 based on activity growth
projected by the Federal Aviation Administration Terminal Area Forecast
\82\ system, published in 2018.
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\82\ https://www.faa.gov/data_research/aviation/taf/.
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Emissions at rail yards were represented as non-EGU point sources.
The 2016 rail yard emissions are largely consistent with the 2017 NEI
rail yard emissions. The 2016, 2023, and 2028 rail yard emissions were
developed through the Inventory Collaborative process. The rail yard
emissions were interpolated from the 2016 and 2023 emissions. Class I
rail yard emissions were projected using the Energy Information
Administration's 2019 Annual Energy Outlook (AEO) freight rail energy
use growth rate projections for 2016, 2023, and 2028 with the fleet mix
assumed to be constant throughout the period.
Point source oil and gas emissions for 2016 were based on the
2016v1 point inventory, while nonpoint oil and gas emissions were
primarily based on a run of EPA Oil and Gas Tool for the year 2016. The
2016 oil and gas inventories were projected to 2023 and 2028 using
regional projection factors by product type based on AEO 2019
projections. NOX and VOC reductions that are co-benefits to
the NESHAP and New Source Performance Standards (NSPS) for Stationary
Reciprocating Internal Combustion Engines (RICE) are reflected for
select source categories. In addition, Natural Gas Turbines and Process
Heaters NSPS NOX controls and NSPS Oil and Gas VOC controls
are reflected for select source categories. Additional information on
the development and modeling of the oil and gas emission inventories
can be found in the Emissions Modeling TSD.
4. Development of Emission Inventories for Onroad Mobile Sources
Onroad mobile sources include exhaust, evaporative, and brake and
tire wear emissions from vehicles that drive on roads, parked vehicles,
and vehicle refueling. Emissions from vehicles using regular gasoline,
high ethanol gasoline, diesel fuel, and electric vehicles were
represented, along with buses that used compressed natural gas. EPA
developed the onroad mobile source emissions for states other than
California using EPA's Motor Vehicle Emissions Simulator (MOVES) 2014b.
MOVES2014b was used with inputs provided by state and local agencies,
where available, in combination with nationally available data sets.
Onroad emissions for the platform were developed based on emissions
factors output from MOVES2014b run for the year 2016, coupled with
activity data (e.g., vehicle miles traveled and vehicle populations)
representing the year 2016. The 2016 activity data were provided by
some state and local agencies, and the remaining activity data were
derived from the 2014NEIv2. The onroad emissions were computed within
SMOKE by multiplying emission factors developed using MOVES with the
appropriate activity data. Onroad mobile source emissions for
California were consistent with the emissions provided by the state.
The future-year emissions for onroad mobile sources represent all
national control programs known at the time of modeling except for the
Greenhouse Gas Emissions and Fuel Efficiency Standards for Medium- and
Heavy-Duty Engines and Vehicles (HDGHG)--Phase 2 \83\ and the Safer
Affordable Fuel-Efficient (SAFE) Vehicles Rule.\84\ Finalized rules
incorporated into the onroad mobile source emissions include: Tier 3
Standards (March 2014), the Light-Duty Greenhouse Gas Rule (March
2013), Heavy (and Medium)-Duty Greenhouse Gas Rule (August 2011), the
Renewable Fuel Standard (February 2010), the Light Duty Greenhouse Gas
Rule (April 2010), the Corporate-Average Fuel Economy standards for
2008-2011 (April 2010), the 2007 Onroad Heavy-Duty Rule (February
2009), and the Final Mobile Source Air Toxics Rule (MSAT2) (February
2007). Estimates of the impacts of rules that were in effect in 2016
are included in the 2016 base year
[[Page 23077]]
emissions at a level that corresponds to the extent to which each rule
had penetrated into the fleet and fuel supply by the year 2016. Local
control programs such as the California LEV III program are included in
the onroad mobile source emissions. The future year onroad emissions
reflect projected changes to fuel properties and usage. MOVES was run
for the years 2023 and 2028 to generate the emissions factors relevant
to those years. Future year activity data for onroad mobile sources
were provided by some state and local agencies, and otherwise were
projected to 2023 and 2028 using AEO 2019-based factors. The future
year emissions were computed within SMOKE by multiplying the future
year emission factors developed using MOVES with the year-specific
activity data. Additional information on the approach for generating
the onroad mobile source emissions is available in the Emissions
Modeling TSD.
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\83\ The effect of the HDGHG Phase 2 rule on criteria pollutants
is estimated in Table 5-48 of the Regulatory Impact Analysis,
available from https://nepis.epa.gov/Exe/ZyPDF.cgi/P100P7NS.PDF?Dockey=P100P7NS.PDF.
\84\ Information on the SAFE vehicles rule is available from
https://www.epa.gov/regulations-emissions-vehicles-and-engines/safer-affordable-fuel-efficient-safe-vehicles-final-rule.
Preliminary analysis by the Office of Transportation and Air Quality
of the impact of this rule on criteria pollutants show impacts of
less than 1 percent for VOC and no impact for NOX.
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5. Development of Emission Inventories for Commercial Marine Vessels
The commercial marine vessel (CMV) emissions in the 2016 base case
emission inventory for this rule were based on those in the 2017 NEI.
Factors were then applied to adjust the 2017 NEI emissions backward to
represent emissions for the year 2016. The CMV emissions reflect
reductions associated with the Emissions Control Area proposal to the
International Maritime Organization control strategy (EPA-420-F-10-041,
August 2010); reductions of NOX, VOC, and CO emissions for
new C3 engines that went into effect in 2011; and fuel sulfur limits
that went into effect prior to 2016. The cumulative impacts of these
rules through 2023 and 2028 were incorporated into the projected
emissions for CMV sources. The CMV emissions were split into emissions
inventories from the larger category 3 (C3) engines, and those from the
smaller category 1 and 2 (C1C2) engines. Some minor adjustments to the
CMV emissions were implemented following the October 2019 2016v1
release. These updated CMV inventories were released publicly by
February, 2020.\85\
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\85\ See 2016emissions, 2023 emissions, and 2028 emissions under
ftp://newftp.epa.gov/air/emismod/2016/v1/.
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6. Development of Emission Inventories for Other Nonroad Mobile Sources
Nonroad mobile source emission inventories (other than CMV,
locomotive, and aircraft emissions) were developed from monthly,
county, and process level emissions output from MOVES2014b. MOVES2014b
included important updates to nonroad engine population growth rates.
Types of nonroad equipment include recreational vehicles, pleasure
craft, and construction, agricultural, mining, and lawn and garden
equipment. State-submitted emissions data for nonroad sources were used
for California.
EPA also ran MOVES2014b for 2023 and 2028 to prepare nonroad mobile
emissions inventories for future years. The nonroad mobile emission
control programs include reductions to locomotives, diesel engines, and
recreational marine engines, along with standards for fuel sulfur
content and evaporative emissions. A comprehensive list of control
programs included for mobile sources is available in the Emissions
Modeling TSD.
Line haul locomotives are also considered a type of nonroad mobile
source but the emissions inventories for locomotives were not developed
using MOVES2014b. Year 2016 locomotive emissions were developed through
the Inventory Collaborative and are mostly consistent with those in the
2017 NEI. The projected locomotive emissions for 2023 and 2028 were
developed by applying factors to the base year emissions using activity
data based on 2018 AEO freight rail energy use growth rate projections
and emission rates adjusted to account for recent historical trends.
7. Development of Emission Inventories for Nonpoint Sources
The emissions for stationary nonpoint sources in our 2016 base case
emission inventory are largely consistent with those in the 2014NEIv2,
although some were adjusted to more closely reflect year 2016 using
factors based on changes to human population from 2014 to 2016.
Stationary nonpoint sources include evaporative sources, consumer
products, fuel combustion that is not captured by point sources,
agricultural livestock, agricultural fertilizer, residential wood
combustion, fugitive dust, and oil and gas sources. For more
information on the nonpoint sources in the 2016 base case inventory,
see the Emissions Modeling TSD and the 2014NEIv2 TSD.
Where states provided the Inventory Collaborative information about
projected control measures or changes in nonpoint source emissions,
those inputs were incorporated into the projected inventories for 2023
and 2028. Adjustments for state fuel sulfur content rules for fuel oil
in the Northeast were included. Projected emissions for portable fuel
containers reflect the impact of projection factors required by the
final MSAT2 rule and the EISA, including updates to cellulosic ethanol
plants, ethanol transport working losses, and ethanol distribution
vapor losses.
For 2016, nonpoint oil and gas emissions inventories were developed
based on a run of EPA Oil and Gas Tool for 2016. To develop the future
year inventories, regional projection factors for nonpoint oil and gas
sources were developed by product type based on AEO 2019 projections to
2023 and 2028. Estimates of criteria air pollutant (CAP) co-benefit
reductions resulting from the NESHAP for RICE and NSPS rules and Oil
and Gas NSPS VOC controls for select source categories were included.
Additional details on the application of these rules and projections
for nonpoint sources are available in the Emissions Modeling TSD. EPA
received comments on the emissions inventories used in the proposed
rule. These comments and EPA's responses are provided below and in the
RTC.
Comment: EPA received comments that contend that the Agency did not
include emission reductions from all ``on the books'' control programs
in certain states. These commenters say that monitoring sites that were
identified as nonattainment and/or maintenance receptors might not be
receptors if the Agency had accounted for the impacts of all control
programs.\86\
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\86\ For emissions sectors other than EGUs, EPA received only a
limited set of comments on the base year and projected emissions
inventories. Comments on emission inventories are addressed
elsewhere in this document and in the RTC.
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Response: The emissions inventories used for the step 1 and step 2
air quality modeling of 2023 and 2028 were developed through a
collaborative process through which input from state and local agencies
and multijurisdictional organizations was solicited and accepted. For
point sources, the 2016 inventories were derived from state and local
submissions to the 2016 NEI as required by the Air Emissions Reporting
Rule see 80 FR 8787 (February 19, 2015). Any rules promulgated by 2016
that would have impacted emissions in the year 2016 would be included
in those inventories. EPA then accounted for known changes in those
inventories that would occur by 2023 and 2028 using EPA projection
methods along with stakeholder-developed information. The Midatlantic
Regional Air Management Association (MARAMA) worked with their member
states and Ozone Transport Commission (OTC) states to develop
projection and control factors for the years 2023 and 2028. These
factors were provided to EPA in May
[[Page 23078]]
2019 and reflect rules impacting nonpoint sources that were promulgated
prior to 2019. Through the Inventory Collaborative process, the
inventories used for modeling included the ``on the books'' control
programs that were identified by EPA and the state and
multijurisdictional organization (MJO) partners such as MARAMA that
provided inputs to the collaborative inventories. Rules related to
emissions for sources other than EGUs promulgated in 2019 or later
following the completion of the inventories for those sources are not
included in the modeling for this rule.
The commenter has listed multiple pages of various state-level
NOX and VOC control programs and regulations, promulgated
over multiple decades. The commenter did not provide quantitative
information or data to support their claim that EPA failed to include
the control programs cited by the commenter in the emissions
inventories used to support the proposed rule, what the effect would be
had they been included or characterized differently, and whether the
effect would have changed any of the regulatory outcomes in EPA's
analysis. This comment is further addressed in the RTC.
Comment: EPA received comment suggesting changes to its EGU
emissions inventory used in its step 1 and step 2 evaluations based on
more recent data.
Response: EPA is not changing the emissions inventory derived from
its IPM modeling that incorporated the latest data at the time of
execution in January of 2020 used at step 1 and step 2 of the 4-step
framework. However, both in the proposed rule and at final, EPA
reaffirmed its step 1 and step 2 findings using an updated/alternative
EGU emissions inventory from the engineering analytics tool used in
step 3 and discussed in the Ozone Transport Policy Analysis Final Rule
TSD. This tool reflects known changes (e.g., retirements and new
builds) applied to historical data to estimate future year EGU
emissions. It represents alternative EGU emissions inventory
perspective as it does not factor in model-projected changes. Moreover,
it incorporates the latest available data and commenter input regarding
any fleet changes. EPA, in the proposed and final rule, uses this
alternative inventory in conjunction with its air quality assessment
tool (AQAT) to estimate air quality impacts and upwind state
contributions. Both in the proposed rule and final, this alternative
emissions inventory and subsequent AQAT sensitivity analysis led to the
same step 1 and step 2 findings as the IPM-based EGU emissions
inventory and related CAMx modeling results. That is, EPA has examined
a range of EGU inventories using different future year projections and
incorporating the latest available data and commenter input. Across
this range of EGU emission inventory estimates, EPA reaches the same
conclusion for step 1 and step 2 downwind receptors and upwind
linkages. Therefore, EPA's EGU emission inventories and corresponding
step 1 and step 2 analytic findings have been robustly examined, tested
across a range of assumptions, and are robust to a variety of
assumptions, including the unit updates suggested by the commenter. For
a complete unit-by-unit inventory of all EGUs included in the future
year baseline for the engineering analytic tool, see the Ozone
Transport Policy Analysis Final Rule TSD; Appendix A. The data in this
Appendix reflect future unit level operating status taking into account
retirement and new build announcements from both commenter input and
the latest EIA Form 860 monthly (October 2020) available.
C. Air Quality Modeling and Analyses To Identify Nonattainment and
Maintenance Receptors
In this section the Agency describes the air quality modeling and
analyses performed in Step 1 to identify locations where the Agency
expects there to be nonattainment or maintenance receptors for the 2008
8-hour ozone NAAQS in the 2021 analytic future year. Where EPA's
analysis shows that an area or site does not fall under the definition
of a nonattainment or maintenance receptor in 2021, that site is
excluded from further analysis under EPA's good neighbor framework.
In this final rule, EPA is not reopening the approach used in the
CSAPR Update to identify nonattainment and maintenance receptors.
Wisconsin upheld EPA's approach to identifying nonattainment and
maintenance receptors against specific challenges. See 938 F.3d at 325-
27.\87\ As this action is taken in response to the Wisconsin remand and
to complete the good neighbor obligations that were partially addressed
in the CSAPR Update, it is entirely appropriate to continue to apply
the same approach to identifying receptors to fully address the
outstanding obligations as EPA took in partially addressing them.
Indeed, to do otherwise would be anomalous and could lead to
inconsistent treatment of states under the 4-step framework for
purposes of the 2008 ozone NAAQS. However, as an aid to understanding
EPA's approach to identifying receptors, a summary of this approach
follows.
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\87\ The Court's holding rested in part on the partial nature of
the CSAPR Update, id. at 327, and rejected the remainder of the
challenge to EPA's treatment of maintenance receptors because
petitioners in the case failed to establish actual over-control.
Here, EPA has also conducted a rigorous overcontrol analysis showing
that this action does not result in overcontrol. See Ozone Policy
Analysis Final Rule TSD for details.
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EPA's approach gives independent effect to both the ``contribute
significantly to nonattainment'' and the ``interfere with maintenance''
prongs of section 110(a)(2)(D)(i)(I), consistent with the D.C.
Circuit's direction in North Carolina.\88\ Further, in its decision on
the remand of the CSAPR from the Supreme Court in the EME Homer City
case, the D.C. Circuit confirmed that EPA's approach to identifying
maintenance receptors in the CSAPR comported with the court's prior
instruction to give independent meaning to the ``interfere with
maintenance'' prong in the good neighbor provision. EME Homer City II,
795 F.3d at 136.
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\88\ 531 F.3d at 910-911 (holding that EPA must give
``independent significance'' to each prong of CAA section
110(a)(2)(D)(i)(I)).
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In the CSAPR Update, EPA identified nonattainment receptors as
those monitoring sites that are projected to have average design values
that exceed the NAAQS and that are also measuring nonattainment based
on the most recent monitored design values. This approach is consistent
with prior transport rulemakings, such as the NOX SIP Call
and CAIR, where EPA defined nonattainment receptors as those areas that
both currently monitor nonattainment and that EPA projects will be in
nonattainment in the future compliance year.\89\
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\89\ See 63 FR 57375, 57377 (October 27, 1998); 70 FR
25241(January 14, 2005). See also North Carolina, 531 F.3d at 913-
914 (affirming as reasonable EPA's approach to defining
nonattainment in CAIR).
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The Agency explained in the NOX SIP Call and CAIR and
then reaffirmed in the CSAPR Update that EPA has the most confidence in
our projections of nonattainment for those counties that also measure
nonattainment for the most recent period of available ambient data. EPA
separately identified maintenance receptors as those receptors that
would have difficulty maintaining the relevant NAAQS in a scenario that
takes into account historical variability in air quality at that
receptor. The variability in air quality was determined by evaluating
the ``maximum'' future design value at each receptor based on a
projection of the maximum measured design value
[[Page 23079]]
over the relevant period. EPA interprets the projected maximum future
design value to be a potential future air quality outcome consistent
with the meteorology that yielded maximum measured concentrations in
the ambient data set analyzed for that receptor (i.e., ozone conducive
meteorology). EPA also recognizes that previously experienced
meteorological conditions (e.g., dominant wind direction, temperatures,
air mass patterns) promoting ozone formation that led to maximum
concentrations in the measured data may reoccur in the future. The
maximum design value gives a reasonable projection of future air
quality at the receptor under a scenario in which such conditions do,
in fact, reoccur. The projected maximum design value is used to
identify upwind emissions that, under those circumstances, could
interfere with the downwind area's ability to maintain the NAAQS.
Therefore, applying this methodology in this final rule, EPA
assessed the magnitude of the maximum projected design value for 2021
at each receptor in relation to the 2008 ozone NAAQS and, where such a
value exceeds the NAAQS, EPA determined that receptor to be a
``maintenance'' receptor for purposes of defining interference with
maintenance, consistent with the method used in the CSAPR and upheld by
the DC Circuit in EME Homer City II.\90\ That is, monitoring sites with
a maximum design value that exceeds the NAAQS are projected to have a
maintenance problem in 2021.
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\90\ See 795 F.3d at 136.
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Recognizing that nonattainment receptors are also, by definition,
maintenance receptors, EPA often uses the term ``maintenance-only'' to
refer to receptors that are not also nonattainment receptors.
Consistent with the methodology described above, monitoring sites with
a projected maximum design value that exceeds the NAAQS, but with a
projected average design value that is below the NAAQS, are identified
as maintenance-only receptors. In addition, those sites that are
currently measuring ozone concentrations below the level of the
applicable NAAQS, but are projected to be nonattainment based on the
average design value and that, by definition, are projected to have a
maximum design value above the standard are also identified as
maintenance-only receptors.
As described above in section V.B., EPA is using the 2016 and 2023
base case emissions developed under the EPA/MJO/state collaborative
project as the primary source for base year and 2023 future year
emissions data for this final rule. Because this platform does not
include emissions for 2021, EPA developed an interpolation technique
based on modeling for 2023 and measured ozone data to determine ozone
concentrations for 2021. To estimate average and maximum design values
for 2021, EPA first performed air quality modeling for 2016 and 2023 to
obtain design values in 2023. The 2023 design values were then coupled
with the corresponding 2016 measured design values to estimate design
values in 2021 using the interpolation technique described below.
Consistent with EPA's modeling guidance, the 2016 and 2023 air
quality modeling results were used in a ``relative'' sense to project
design values for 2023. That is, the ratios of future year model
predictions to base year model predictions are used to adjust ambient
ozone design values up or down depending on the relative (percent)
change in model predictions for each location. The modeling guidance
recommends using measured ozone concentrations for the 5-year period
centered on the base year as the air quality data starting point for
future year projections. This average design value is used to dampen
the effects of inter-annual variability in meteorology on ozone
concentrations and to provide a reasonable projection of future air
quality at the receptor under ``average'' conditions. In addition, the
Agency calculated maximum design values from within the 5-year base
period to represent conditions when meteorology is more favorable than
average for ozone formation. Because the base year for the air quality
modeling used in this final rule is 2016, the base period 2014-2018
ambient ozone design value data was used in order to project average
and maximum design values in 2023.
The ozone predictions from the 2016 and 2023 air quality model
simulations were used to project 2014-2018 average and maximum ozone
design values to 2023 using an approach similar to the approach in
EPA's guidance for attainment demonstration modeling. This guidance
recommends using model predictions from the ``3 x 3'' array of grid
cells \91\ surrounding the location of the monitoring site to calculate
a Relative Response Factor (RRF) for that site.\92\ The 2014-2018
average and maximum design values were multiplied by the RRF to project
each of these design values to 2023. In this manner, the projected
design values are grounded in monitored data, and not the absolute
model-predicted 2023 concentrations. In light of comments on the Notice
of Data Availability (82 FR 1733; January 6, 2017) and other analyses,
EPA also projected 2023 design values based on a modified version of
the ``3 x 3'' approach for those monitoring sites located in coastal
areas. In this alternative approach, EPA eliminated from the RRF
calculations the modeling data in those grid cells that are dominated
by water (i.e., more than 50 percent of the area in the grid cell is
water) and that do not contain a monitoring site (i.e., if a grid cell
is more than 50 percent water but contains an air quality monitor, that
cell would remain in the calculation). The choice of more than 50
percent of the grid cell area as water as the criteria for identifying
overwater grid cells is based on the treatment of land use in the
Weather Research and Forecasting model (WRF).\93\ Specifically, in the
WRF meteorological model those grid cells that are greater than 50
percent overwater are treated as being 100 percent overwater. In such
cases the meteorological conditions in the entire grid cell reflect the
vertical mixing and winds over water, even if part of the grid cell
also happens to be over land with land-based emissions, as can often be
the case for coastal areas. Overlaying land-based emissions with
overwater meteorology may be representative of conditions at coastal
monitors during times of on-shore flow associated with synoptic
conditions and/or sea-breeze or lake-breeze wind flows. But there may
be other times, particularly with off-shore wind flow when vertical
mixing of land-based emissions may be too limited due to the presence
of overwater meteorology. Thus, for our modeling EPA calculated 2023
projected average and maximum design values at individual monitoring
sites based on both the ``3 x 3'' approach as well as the alternative
approach that eliminates overwater cells in the RRF calculation
[[Page 23080]]
for near-coastal areas (i.e., ``no water'' approach).
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\91\ As noted above, each model grid cell is 12 x 12 km.
\92\ The RRF represents the change in ozone based on emission
changes at a given site. In order to calculate the RRF, EPA's
modeling guidance recommends selecting the 10 highest ozone days in
an ozone season at any given monitor in the base year, noting which
of the grid cells in the 3x3 array experienced the highest ozone
concentrations in the base year, and averaging those ten highest
concentrations. The model is then run using the projected year
emissions, in this case 2023, with all other model variables held
constant. Ozone concentrations from the same ten days, in the same
ten grid cells, are then averaged. The fractional change between the
base year (2011 model run) averaged ozone concentrations and the
future year (2023 model run) averaged ozone concentrations
represents the relative response factor.
\93\ https://www.mmm.ucar.edu/weather-research-and-forecasting-model.
---------------------------------------------------------------------------
The 2023 average and maximum design values for both the ``3 x 3''
and ``no water'' approaches were then paired with the corresponding
base period measured design values at each ozone monitoring site.
Design values for 2021 for both approaches were calculated by linearly
interpolating between the 2016 base period and 2023 projected
values.\94\ The steps in the interpolation process for estimating 2021
average and maximum design values are as follows:
---------------------------------------------------------------------------
\94\ EPA examined the 2019 design values as a way to support the
set of monitoring sites that were identified as receptors based on
the 2021 interpolated design values. The outcome of this analysis
was that each of the five receptors in 2021 had 2019 measured design
values that exceeded the 2008 NAAQS. In addition, there are four
other monitoring sites in the eastern U.S. that are not projected to
be receptors in 2021, but that have 2019 design values that exceeded
the NAAQS. Because the measured design values at these sites are
only 1 or 2 ppb above the NAAQS, it is reasonable to assume that
these four sites will be clean by 2021--which is consistent with the
projections for these monitoring sites. Thus, the analysis of 2019
measured data and 2021 projections provides confidence in the
approach for identifying nonattainment/maintenance receptors in
2021.
---------------------------------------------------------------------------
(1) Calculate the ppb change in design values between the 2016 base
period and 2023;
(2) Divide the ppb change by 7 to calculate the ppb change per year
over the 7-year period between 2016 and 2023;
(3) Multiply the ppb per year value by 5 to calculate the ppb
change in design values over the 5-year period between 2016 and 2021;
(4) Subtract the ppb change between 2016 to 2021 from the 2016
design values to produce the design values for 2021.
The projected 2021 and 2023 design values using both the ``3 x 3''
and ``no-water'' approaches are provided in the AQM TSD.\95\ For this
final rule, EPA is relying upon design values based on the ``no water''
approach for identifying nonattainment and maintenance receptors.
---------------------------------------------------------------------------
\95\ Based on the 2021 design values, there are 129 monitoring
sites that have different design values based on the ``3 x 3''
approach vs the ``no-water'' approach. For these 129 monitoring
sites, the average difference is 0.41 ppb and the median difference
is 0.28 ppb. The average and median percent differences between the
``3 x 3'' and ``no-water'' design values at these 129 monitoring
sites are 0.65 percent and 0.52 percent, respectively. Thus, there
is not much difference in the design values between these two
approaches.
---------------------------------------------------------------------------
Consistent with the truncation and rounding procedures for the 8-
hour ozone NAAQS, the projected design values are truncated to integers
in units of ppb.\96\ Therefore, projected design values that are
greater than or equal to 76 ppb are considered to be violating the 2008
ozone NAAQS. For those sites that are projected to be violating the
NAAQS based on the average design values in 2021, the Agency examined
the design values for 2019, which are the most recent certified
measured ozone design values at the time of this action. As noted
above, the Agency identified nonattainment receptors in this rulemaking
as those sites that are violating the NAAQS based on current measured
air quality and also have projected average design values of 76 ppb or
greater. Maintenance-only receptors include both (1) those sites with
projected average design values above the NAAQS that are currently
measuring clean data and (2) those sites with projected average design
values below the level of the NAAQS, but with projected maximum design
values of 76 ppb or greater. In addition to the maintenance-only
receptors, the 2021 ozone nonattainment receptors are also maintenance
receptors because the maximum design values for each of these sites is
always greater than or equal to the average design value. The
monitoring sites that the Agency projects to be nonattainment and
maintenance receptors for the ozone NAAQS in the 2021 base case are
used for assessing the contribution of emissions in upwind states to
downwind nonattainment and maintenance of ozone NAAQS as part of this
action.
---------------------------------------------------------------------------
\96\ 40 CFR part 50, Appendix P to Part 50--Interpretation of
the Primary and Secondary National Ambient Air Quality Standards for
Ozone.
---------------------------------------------------------------------------
Table V.C-1 contains the 2014-2018 base period average and maximum
8-hour ozone design values, the 2021 base case average and maximum
design values,\97\ and the 2019 design values for the two sites that
are projected to be nonattainment receptors in 2021 and the two sites
that are projected to be maintenance-only receptors in 2021.\98\ The
design values for all monitoring sites in the U.S. are provided in the
docket for this rule. Additional details on the approach for projecting
average and maximum design values are provided in the AQM TSD.
---------------------------------------------------------------------------
\97\ The design values for 2021 in this table are based on the
``no water'' approach.
\98\ Using design values from the ``3 x 3'' approach does not
change the total number of receptors in 2021. However, with the ``3
x 3'' approach the maintenance-only receptor in New Haven County, CT
has a projected maximum design value of 75.5 ppb and would,
therefore, not be a receptor using this approach. In contrast,
monitoring site 090010017 in Fairfield County, CT has projected
average and maximum design value of 75.7 and 76.3 ppb, respectively,
with the ``3 x 3'' approach and would, therefore, be a maintenance-
only receptor with this approach.
Table V.C-1--Average and Maximum 2014-2018 and 2021 Base Case 8-Hour Ozone Design Values and 2019 Preliminary Design Values (ppb) at Projected
Nonattainment and Maintenance-Only Sites
--------------------------------------------------------------------------------------------------------------------------------------------------------
Average design Maximum design
Monitor ID State Site value 2014- value 2014- Average design Maximum design 2019 Design
2018 2018 value 2021 value 2021 value
--------------------------------------------------------------------------------------------------------------------------------------------------------
Nonattainment Receptors
--------------------------------------------------------------------------------------------------------------------------------------------------------
090013007.......................... CT Stratford............ 82.0 83 76.5 77.4 82
090019003.......................... CT Westport............. 82.7 83 78.5 78.8 82
--------------------------------------------------------------------------------------------------------------------------------------------------------
Maintenance-Only Receptors
--------------------------------------------------------------------------------------------------------------------------------------------------------
090099002.......................... CT Madison.............. 79.7 82 73.9 76.1 82
482010024.......................... TX Houston.............. 79.3 81 75.5 77.1 81
--------------------------------------------------------------------------------------------------------------------------------------------------------
Comment: Some commenters said that EPA's interpolation method for
determining design values in 2021 is flawed because (1) the method
incorrectly assumes that ozone precursor emissions in all source
sectors in all states change at an equal rate between 2016 and 2023,
(2) linearly interpolated EGU emissions for 2021 overstate EPA's IPM-
predicted EGU emissions for 2021, and (3) the method does not account
for the non-linear
[[Page 23081]]
response of ozone to emissions changes. These commenters say that EPA
should have developed a 2021 specific emissions inventory or at a
minimum developed an interpolated 2021 emission inventory and then
rerun the photochemical model to account for the reactivity of ozone
formation from the distribution of ozone precursor emissions. The
commenters contend that failing to take this step, EPA has introduced
significant uncertainty into the air quality projections of the
proposed rule and potentially subjected multiple upwind states to
unnecessary additional control requirements.
Response: As an initial matter, there is no legal obligation for
EPA to directly model the selected analytic year, here 2021, in order
to make regulatory determinations within the 4-step good neighbor
framework. Given the limited amount of time EPA had to complete this
rulemaking in order to meet the court-ordered March 15 deadline, EPA
reasonably chose to use existing air quality modeling and contribution
information to derive an appropriately reliable projection of air
quality conditions and contributions in 2021. The Supreme Court
recognized in EME Homer City that it is not possible to perfectly
account for all factors that will affect downwind air quality problems
in a future year. Regulators, the Court noted, ``must account for the
vagaries of the wind'' and in assigning upwind responsibility face a
``thorny causation problem.'' 572 U.S. 489, 497, 514. EPA's ultimate
task is not to achieve a perfect understanding of atmospheric
conditions in some future year, but ``to quantify the amount of upwind
gases . . . that must be reduced to enable downwind states to keep
their levels of ozone . . . in check. Id. 497. See also EME Homer City
Generation, L.P. v. EPA, 795 F.3d 118, 135-36 (``We will not invalidate
EPA's predictions solely because there might be discrepancies between
those predictions and the real world. . . . [A] model is meant to
simplify reality in order to make it tractable.'').
EPA continues to view the interpolation analysis presented at
proposal as sufficiently reliable for purposes of the regulatory
determinations made in this rulemaking. Commenters assert that it is
possible EPA may have found certain upwind state linkages not to exist
had EPA taken a different approach to developing its projections for
2021. But no commenter has established an actual instance of
overcontrol, which the courts have held must be clearly established
through as-applied challenges. See Wisconsin, 938 F.3d at 325 (``
`[T]he Supreme Court has made clear . . . that the way to contest
instances of over-control is not through generalized claims that EPA's
methodology would lead to over-control, but rather through a
``particularized, as-applied challenge.'' ' '') (quoting EME Homer
City, 795 F.3d at 137).
Nonetheless, in consideration of these comments, EPA has performed
additional analysis, which confirms the regulatory determinations EPA
proposed and is now finalizing. EPA was able to construct an emissions
inventory for 2021, using available data and the same approach as EPA
used to develop projection inventories for 2023 and 2028. Details on
the construct of the 2021 emissions are provided in the Emissions
Modeling TSD. There was, however, insufficient time to perform air
quality modeling using this newly constructed 2021 inventory. Instead
EPA used the Air Quality Assessment Tool (AQAT) to perform a
sensitivity analysis to determine whether there would be any change in
the outcome of this rule if the projection of 2021 air quality were
based on projected 2021 emissions rather than EPA's interpolation
method, as described above. In brief, AQAT uses the results of existing
base year and future year air quality modeling as part of an
interpolation technique to estimate ozone design values and
contributions for analytic years that are not modeled as well as to
analyze the air quality impacts of control scenarios in step 3 of the
4-step transport framework. AQAT is calibrated using model simulations
to account for the non-linearity response of ozone to emissions
changes. As noted by the commenter, EPA's interpolation approach
inherently assumes that the relative change in emissions between 2016
and 2023 is the same across all states. Because this application of
AQAT considered 2021 state level emissions on a state-by-state basis,
the analysis accounted for any state-to-state differences in the change
in emissions between 2016 and 2023. As part of this sensitivity
analysis EPA coupled the 2021 emissions and 2023 model-predicted ozone
design values and contributions to estimate design values and
contributions in 2021. EPA also used the 2021 emissions in AQAT to
create a more-refined interpolated 2022 emission inventory. EPA then
used the AQAT to examine the effects of this refined 2022 emission
inventory on ozone design values and contributions. The results
indicate that any changes in the nonattainment or maintenance status of
individual receptors using 2021 and 2022 projected emissions would not
affect which upwind states significantly contribute to nonattainment
and/or interfere with maintenance of the 2008 NAAQS in another
state.\99\ Details on AQAT and this sensitivity analysis can be found
in the Ozone Policy Analysis Final Rule TSD.
---------------------------------------------------------------------------
\99\ Because EPA directly modeled 2023 and 2028, EPA relied
solely on that modeling, and associated inventories, for its
analysis of 2023 and later years.
---------------------------------------------------------------------------
Comment: Other commenters claim that there is a disconnect between
EPA's projected 2021 design values and current ozone monitoring data.
These commenters said that EPA should give priority to monitored data
over modeled data when evaluating which areas need transport
obligations resolved. Specifically, one commenter performed an analysis
to estimate 2021 design values by first estimating a fourth high
maximum daily average 8-hour (MDA8) ozone concentration in 2021 based
on the four-year average of the measured fourth high values during the
period 2017 through 2020 and second, calculating the 2021 design value
as the average of the measured fourth high value in 2019, the
preliminary fourth high value in 2020 and the estimated fourth high
value in 2021.\100\ Another commenter performed a statistical linear
regression analysis of the fourth highest measured values for each of
three time periods: 2012 through 2020, 2014 through 2020, and 2016
through 2020 to estimate fourth highest values in 2021 that would
result in nonattainment in 2021 at individual monitoring sites. This
commenter said that an assessment of actual ambient monitor data, such
as the analysis performed by this commenter, should be given as much
weight, if not more, in identifying receptors in 2021 as the modeling-
based analysis performed by EPA. Both commenters said that the results
of their analyses support EPA's finding that the four monitoring sites
identified in Table V.C-1, above will be receptors in 2021. However,
both commenters claim that the Madison, Connecticut monitoring site
090099002 will be a nonattainment receptor, whereas EPA projects this
site to be a maintenance-only receptor in 2021. Also, both commenters
claim that there will be an additional 2021 nonattainment receptor at
the Greenwich, Connecticut monitoring site 090010017. One commenter
noted that identifying the Madison monitoring site as nonattainment
instead of maintenance-only and the Greenwich
[[Page 23082]]
monitoring site as a receptor will not alter the outcome of EPA's
determination of which upwind states are linked to downwind receptors
at step 2 of the 4-step transport framework.
---------------------------------------------------------------------------
\100\ Ozone design values and fourth high maximum daily 8-hour
ozone concentrations for 2020 are preliminary and have not yet been
cerified by EPA.
---------------------------------------------------------------------------
In addition to the 2021 receptors in Connecticut, one commenter
said that there will be two additional monitoring sites in the eastern
U.S. that each have a chance of being a nonattainment or maintenance
receptor in 2021. These monitoring sites are Houston-Deer Parksite
492011039 and Dallas-Grapevine site 48439007). The other commenter said
that their analysis shows that there will be up to four additional
nonattainment receptors in 2021 in the eastern U.S. outside of
Connecticut. These monitoring sites include the Chicago-Northbrook,
Illinois monitoring site 170314201, the Michigan City, Indiana
monitoring site 180910005, the El Paso, Texas monitoring site
481410037, and the Dallas-Eagle Mountain Rock monitoring site
484390075.
Response: EPA agrees with these commenters that the four monitoring
sites identified by EPA as receptors in Table V.C-1 will be receptors
in 2021. EPA also agrees that there would be no change in the upwind
states covered by this rule if the Madison, Connecticut maintenance-
only receptor is a nonattainment receptor rather than maintenance-only
receptor. As described above, a maintenance-only receptor is a
monitoring site that is at risk of being in nonattainment under
meteorological conditions that are more conducive than average for
ozone formation. Also, upwind states that are linked to maintenance-
only receptors are evaluated by EPA using the same approach as those
upwind states linked to nonattainment receptors in EPA's analysis of
significant contribution in step 3 of the 4-step transport framework.
Regarding the Greenwich, Connecticut monitoring site, EPA's
contribution data, as provided in the docket for this rule, shows that
there would be no additional upwind states covered by this rule if this
monitoring site was included as a receptor in 2021. That is, all the
upwind states that are linked to this monitoring site, using a 1
percent of the NAAQS threshold, are also linked to one or more of the
other 2021 nonattainment and/or maintenance receptors in Connecticut
that are identified in Table V.C-1.
EPA disagrees with the commenters that the six additional
monitoring sites (i.e., Chicago/Northbrook, Dallas/Eagle Mountain Rock,
Dallas/Grapevine, El Paso, Houston/Deer Park, and Michigan City) will
be nonattainment or maintenance receptors in 2021. First, as explained
in the Air Quality TSD, these sites are not identified in the
methodology EPA uses to identify nonattainment and maintenance
receptors. These conclusions are bolstered by EPA's review of measured
design values for the period 2012 through 2019 at each of these six
monitoring sites (see Table V.C-2). These data show that each of these
sites, except for the site in Michigan City, is not measuring
nonattainment based on their 2019 design value, which are the most
recent official design values based on state-certified data. Moreover,
the monitoring site in El Paso has not measured a violation during this
entire eight-year time period; the Houston/Deer Park site has not
measured a violation in the most recent 6 years; the Dallas/Eagle
Mountain Lake site has not measured a violation in the most recent 4
years; the Chicago/Northbrook site has measured only 1 violation in the
most recent 6 years; and the Dallas/Grapevine site has measured only
one violation in the most recent 4 years. At the Michigan City site,
there are no official measured design values in 2016, 2017, and 2018
because there was no valid fourth high MDA8 ozone concentration in
2016. As a result, the data at this site did not meet the criteria in
EPA's modeling guidance for calculating valid future year design
values. As such, EPA has not calculated projected design values nor any
contributions for this site.
Table V.C-2--Ozone Design Values at Monitoring Sites Identified as Receptors by Commenters
--------------------------------------------------------------------------------------------------------------------------------------------------------
Site ID State County Site name 2012 2013 2014 2015 2016 2017 2018 2019
--------------------------------------------------------------------------------------------------------------------------------------------------------
170314201................ IL Cook.................. Chicago/Northbrook.... 78 77 74 68 71 72 77 74
180910005................ IN LaPorte............... Michigan City......... 83 83 79 68 ...... ...... ...... 76
481410037................ TX El Paso............... El Paso............... 72 72 72 71 70 71 73 75
482011039................ TX Harris................ Houston/Deer Park..... 84 79 72 69 67 68 71 75
484390075................ TX Tarrant............... Dallas/Eagle Mountain 82 81 79 76 72 71 70 73
Lake.
484393009................ TX Tarrant............... Dallas/Grapevine...... 86 86 80 78 75 75 76 75
--------------------------------------------------------------------------------------------------------------------------------------------------------
Comment: In the proposed rule EPA requested comment on applying the
``3 x 3'' approach and the ``no water cell'' approach, described above,
to identify modeled-grid cells for use in projecting ozone design
values to a future year. One commenter said that both the ``3 x 3'' and
``no water cell'' approaches are acceptable, a second commenter
supported the use of the ``no water cell'' approach, while a third
commenter suggested that EPA modify the ``no water cell'' approach to
exclude from the calculation of projected design values any data from
the grid cell containing the monitoring site, if the monitor grid cell
is also dominated by water.
Response: EPA has considered these comments and will continue to
rely upon the ``no water cell'' approach used for the proposed rule to
calculate projected design values at monitoring sites in coastal areas.
The alternative suggested by one commenter to exclude model data from
the grid cell containing the monitoring site, if that grid cells is
classified as a ``water'' grid cell, ignores the modeling data for the
location of the monitoring state which is contrary to EPA's air quality
modeling guidance. This guidance recommends that the calculation of
ozone relative response factors, which are used in projecting future
year design values, include the modeled data in grid cells immediately
surrounding the monitoring site along with the grid cell in which the
monitor is located. For coastal monitoring sites, the grid cell in
which the monitor is located is more likely to be representative of the
monitor locations, than adjacent over-water grid cells. In this regard,
the approach suggested by the commenter is too restrictive in that
modeling data in the grid cell containing the monitoring site would
never be used in projecting design values for that monitor.
D. Pollutant Transport From Upwind States
1. Air Quality Modeling To Quantify Upwind State Contributions
This section documents the procedures EPA used to quantify the
impact of emissions from specific upwind states on 2021 8-hour design
values for the identified downwind nonattainment and maintenance
[[Page 23083]]
receptors. EPA used CAMx photochemical source apportionment modeling to
quantify the impact of emissions in specific upwind states on downwind
nonattainment and maintenance receptors for 8-hour ozone. CAMx employs
enhanced source apportionment techniques that track the formation and
transport of ozone from specific emissions sources and calculates the
contribution of sources and precursors to ozone for individual receptor
locations. The strength of the photochemical model source apportionment
technique is that all modeled ozone at a given receptor location in the
modeling domain is tracked back to specific sources of emissions and
boundary conditions to fully characterize culpable sources.
EPA performed nationwide, state-level ozone source apportionment
modeling using the CAMx Ozone Source Apportionment Technology/
Anthropogenic Precursor Culpability Analysis (OSAT/APCA) technique
\101\ to quantify the contribution of 2023 base case NOX and
VOC emissions from all sources in each state to projected 2023 ozone
design values at air quality monitoring sites. The CAMx OSAT/APCA model
run was performed for the period May 1 through September 30 using the
projected 2023 base case emissions and 2016 meteorology for this time
period. As described below, in the source apportionment modeling the
Agency tracked (i.e., tagged) the amount of ozone formed from
anthropogenic emissions in each state individually as well as the
contributions from other sources (e.g., natural emissions).
---------------------------------------------------------------------------
\101\ As part of this technique, ozone formed from reactions
between biogenic VOC and anthropogenic NOX or biogenic
NOX and anthropogenic VOC are assigned to the
anthropogenic emissions. This approach is designed to fully capture
as part of the anthropogenic contribution the total amount of ozone
formed from photochemical reactions that involve emissions from all
anthropogenic sources. In this manner, ozone is assigned to the
controllable (i.e., anthropogenic) precursors that react with non-
controllable (i.e., biogenic) precursors.
---------------------------------------------------------------------------
To determine upwind contributions in 2021 the Agency applied the
contributions from the 2023 modeling in a relative manner to the 2021
ozone design values. The analytic steps in the process are as follows:
(1) Calculate the 8-hour average contribution from each source tag
to each monitoring site for the time period of the 8-hour daily maximum
modeled concentrations in 2023;
(2) Average the contributions and concentrations for each of the
top 10 modeled ozone concentration days in 2023 \102\ and then divide
the average contribution by the corresponding concentration to obtain a
Relative Contribution Factor (RCF) for each monitoring site; and
---------------------------------------------------------------------------
\102\ The number of days used in calculating the average
contribution metric has historically been determined in a manner
that is generally consistent with EPA's recommendations for
projecting future year ozone design values. Our ozone attainment
demonstration modeling guidance at the time of the CSAPR recommended
using all model-predicted days above the NAAQS to calculate future
year design values (https://www3.epa.gov/ttn/scram/guidance/guide/final-03-pm-rh-guidance.pdf). In 2014 EPA issued draft revised
guidance that changed the recommended number of days to the top-10
model predicted days (https://www3.epa.gov/ttn/scram/guidance/guide/Draft-O3-PM-RH-Modeling_Guidance-2014.pdf). For the CSAPR Update EPA
transitioned to calculating design values based on this draft
revised approach. The revised modeling guidance was finalized in
2019 and, in this regard, EPA is calculating both the ozone design
values and the contributions based on a top-10 day approach (https://www3.epa.gov/ttn/scram/guidance/guide/O3-PM-RH-Modeling_Guidance-2018.pdf).
---------------------------------------------------------------------------
(3) Multiply the 2021 design values by the 2023 RCF at each site to
produce the average contribution metric values in 2021.\103\ The
resulting 2021 contributions from each tag to each monitoring site in
the U.S. along with additional details on the source apportionment
modeling and the procedures for calculating contributions can be found
in the AQM TSD.
---------------------------------------------------------------------------
\103\ The method for calculating the average contribution metric
values in 2021 was also applied to 2023 and 2028 based on the
projected design values and contribution modeling for each of those
years, respectively.
---------------------------------------------------------------------------
In the source apportionment model run, EPA tracked the ozone formed
from each of the following tags:
States--anthropogenic NOX and VOC emissions
from each state tracked individually (emissions from all anthropogenic
sectors in a given state were combined);
Biogenics--biogenic NOX and VOC emissions
domain-wide (i.e., not by state);
Boundary Concentrations--concentrations transported into
the modeling domain;
Tribes--the emissions from those tribal lands for which
the Agency has point source inventory data in the 2016v1 emissions
modeling platform (EPA did not model the contributions from individual
tribes);
Canada and Mexico--anthropogenic emissions from sources in
the portions of Canada and Mexico included in the modeling domain (EPA
did not model the contributions from Canada and Mexico separately);
Fires--combined emissions from wild and prescribed fires
domain-wide (i.e., not by state); and
Offshore--combined emissions from offshore marine vessels
and offshore drilling platforms.
The contribution modeling provided contributions to ozone from
anthropogenic NOX and VOC emissions in each state,
individually. The contributions to ozone from chemical reactions
between biogenic NOX and VOC emissions were modeled and
assigned to the ``biogenic'' category. The contributions from wildfire
and prescribed fire NOX and VOC emissions were modeled and
assigned to the ``fires'' category. That is, the contributions from the
``biogenic'' and ``fires'' categories are not assigned to individual
states nor are they included in the state contributions.
The average contribution metric is intended to provide a reasonable
representation of the contribution from individual states to the
projected 2021 design value, based on modeled transport patterns and
other meteorological conditions generally associated with modeled high
ozone concentrations at the receptor. An average contribution metric
constructed in this manner is beneficial since the magnitude of the
contributions is directly related to the magnitude of the design value
at each site.
The largest contribution from each state that is the subject of
this rule to 8-hour ozone nonattainment and maintenance receptors in
downwind states in 2021 is provided in Table V.D-1.
Table V.D-1--Largest Contribution to Downwind 8-Hour Ozone Nonattainment
and Maintenance Receptors in 2021
------------------------------------------------------------------------
Largest downwind Largest downwind
contribution to contribution to
Upwind state nonattainment maintenance-only
receptors for ozone receptors for ozone
(ppb) (ppb)
------------------------------------------------------------------------
Alabama..................... 0.11 0.27
[[Page 23084]]
Arkansas.................... 0.18 0.15
Illinois.................... 0.81 0.80
Indiana..................... 1.26 1.08
Iowa........................ 0.17 0.22
Kansas...................... 0.13 0.11
Kentucky.................... 0.87 0.79
Louisiana................... 0.27 4.68
Maryland.................... 1.21 1.56
Michigan.................... 1.71 1.62
Mississippi................. 0.10 0.37
Missouri.................... 0.36 0.33
New Jersey.................. 8.62 5.71
New York.................... 14.44 12.54
Ohio........................ 2.55 2.35
Oklahoma.................... 0.20 0.14
Pennsylvania................ 6.86 5.64
Texas....................... 0.59 0.36
Virginia.................... 1.30 1.69
West Virginia............... 1.49 1.55
Wisconsin................... 0.23 0.23
------------------------------------------------------------------------
Comment: One commenter said that the future year average
contribution metric should be calculated using the modeled
contributions on the same days that were used to calculate the RRFs for
projecting future ozone design values.
Response: EPA believes that its approach, as described above, for
calculating the future year average contribution metric provides a more
technically reliable estimate of contributions than the method
suggested by the commenter. In calculating the average contribution
metric, EPA uses modeled contributions on the 10 days in the future
year with the highest model-predicted concentrations.\104\ In part
because the formation of ozone from precursor emissions can be highly
nonlinear and dependent on meteorological conditions, the response of
ozone to emission reductions can vary from day to day. In this regard,
the days with the highest model-predicted ozone concentrations in the
2016 base year that are used for projecting ozone design values may not
be among the highest ozone days in the future analytic year. In this
situation, the calculation of the contribution metric could exclude
days with higher concentrations in the future year in favor of lower
future-concentration days that happened to correspond to the highest
days in 2016. The problems with basing the calculation of future year
average contributions on the days that were used to project design
values are illustrated in Table V.D-2. Table V.D-2 includes the data
for all the days that were either used to project design values and/or
to calculate the average contribution values from each upwind state to
a particular receptor. The data in the ``2016 Modeled'' column are the
2016 base year MDA8 ozone concentrations and the data in the ``2023
Modeled'' column are the MDA8 ozone concentrations in 2023. The data in
the table are ranked based on the magnitude of the 2016 MDA8
concentrations.\105\ Comparing the 2023 MDA8 ozone concentrations to
the corresponding 2016 values shows that the days with the highest MDA8
ozone concentrations in 2016 are not the same days as the highest MDA8
ozone concentrations in 2023. Of importance, the top 10 days based on
2016 model predictions includes five days with 2023 MDA8 ozone
concentrations below 60 ppb. In calculating the average contribution
metric EPA excludes from the calculation all days with future year
modeled MDA8 concentrations below 60 ppb. Thus, using EPA's approach
the average contribution metric in this example would be calculated
based on daily contribution data for the top 6 MDA8 concentration days
in 2023, because the remaining top 10 future year days are below 60 ppb
(i.e., 05/06, 05/13, 06/08, 09/12, and 09/28). Moreover, even though
the concentration on the sixth-highest day in 2023 is 60 ppb, the
contribution data on this day would be excluded from the calculations
because this day is not among the top 10 days used to project design
values.
---------------------------------------------------------------------------
\104\ If there are fewer than 5 days with model-predicted future
year ozone concentrations greater than or equal to 60 ppb, then an
average contribution metric is not calculated because. Using the 60
ppb criteria aligns with the criteria for projecting future year
design values, as recommended in EPA's air quality modeling
guidance.
\105\ Top 10 days that have modeled MDA8 ozone predictions less
than 60 ppb are not included in the RRF calculation.
Table V.D-2--MDA8 Ozone Concentrations in 2016 Used To Project Design Values and the 2023 Modeled MDA8
Concentrations on the Same Days (ppb)
----------------------------------------------------------------------------------------------------------------
Date 2016 Rank 2016 Modeled 2023 Rank 2023 Modeled
----------------------------------------------------------------------------------------------------------------
07/01........................................... 1 79.4 3 69.1
06/27........................................... 2 79.4 1 74.5
05/12........................................... 3 76.4 2 69.7
[[Page 23085]]
06/08........................................... 4 71.9 7 59.5
09/12........................................... 5 69.4 13 51.8
09/28........................................... 6 68.5 10 56.3
08/09........................................... 7 68.5 5 61.0
05/13........................................... 8 67.8 9 57.1
09/19........................................... 9 67.5 4 61.3
05/06........................................... 10 67.1 8 58.1
08/08........................................... 11 65.8 12 54.4
07/21........................................... 12 65.2 11 55.9
06/30........................................... 13 64.8 14 50.0
05/10........................................... 14 63.4 6 60.0
----------------------------------------------------------------------------------------------------------------
It is obviously impossible for EPA, or anyone, to predict which
exact days in a future year will have high ozone levels, nor does it
make sense to analyze contribution on modeled days of low ozone
concentration. EPA's methodology is reasonable in projecting where
ozone problems are likely to recur in a future year and analyzing who
is contributing to those problems under the conditions for high ozone
formation in those locations.
Comment: One commenter said that EPA should base the calculation of
the future year contribution metric on days with measured exceedances
of the NAAQS. Specifically, the comment asked EPA to examine the 2016
measured concentrations at receptors in Connecticut to ensure that the
contribution from Illinois to these receptors was calculated on days
when the monitor measured exceedances.
Response: EPA continues to believe that the future year
contribution metric should be based on the highest ozone concentration
days in the future year. However, as a sensitivity analysis EPA
recalculated the average contribution from Illinois to the three
receptors in Connecticut using the daily contributions on days with
measured exceedances of the NAAQS, after applying the 60 ppb screening
criteria to eliminate from the calculations those days with future year
model-predicted MDA8 ozone concentrations below 60 ppb. The results of
this sensitivity analysis, as provided in Table V.D-3, show that
Illinois would contribute above the 1 percent of the NAAQS screening
threshold to each of the three Connecticut receptors using the approach
suggested by the commenter.
Table V.D-3--Contributions From Illinois (ppb) to Receptors in
Connecticut
------------------------------------------------------------------------
Contribution
Contribution based on
Receptor based on EPA's measured
method exceedance
days
------------------------------------------------------------------------
Stratford............................... 0.69 0.98
Westport................................ 0.81 0.76
Madison................................. 0.80 1.03
------------------------------------------------------------------------
2. Application of Screening Threshold
EPA evaluated the magnitude of the contributions from each upwind
state to downwind nonattainment and maintenance receptors. In step 2 of
the good neighbor framework, EPA uses an air quality screening
threshold to identify upwind states that contribute to downwind ozone
concentrations in amounts sufficient to ``link'' them to these to
downwind nonattainment and maintenance receptors. The contributions
from each of the CSAPR Update states to each downwind nonattainment
and/or maintenance receptor that were used for the step 2 evaluation
can be found in the AQM TSD.
As discussed above in section IV, EPA is not reopening the air
quality screening threshold of 1 percent of the NAAQS used in the CSAPR
Update. Therefore, as in the CSAPR Update, EPA uses an 8-hour ozone
value for this air quality threshold of 0.75 ppb as the quantification
of 1 percent of the 2008 ozone NAAQS.
Comment: Several commenters said that EPA's 1 percent of the NAAQS
threshold is too low and that, instead, a threshold of 1 ppb or 2 ppb
should be used as the contribution screening threshold in step 2.
Response: As noted above, the Agency is not reopening the use of
the 1 percent threshold in this action to address the remand of the
CSAPR Update. This action is taken in response to the Wisconsin remand
and to complete the good neighbor obligations that were partially
addressed in the CSAPR Update. It is entirely appropriate to continue
to apply the same screening threshold to identifying receptors to fully
address the outstanding obligations as EPA took in initially addressing
them. Indeed, to do otherwise would be anomalous and pose a risk of
inconsistent requirements for different states. While the Agency is not
reopening the application of the 1 percent threshold in this action on
remand, explanation for how this value was originally derived is
available in the CSAPR rulemaking in 2011. See 76 FR 48208, 48237-38.
Further, in the CSAPR Update, EPA re-analyzed the threshold for
purposes of the 2008 ozone NAAQS and determined it was appropriate to
continue to apply this threshold. EPA compared the 1 percent threshold
to a 0.5 percent of NAAQS threshold and a 5 percent of NAAQS threshold.
EPA found that the lower threshold did not capture appreciably more
upwind state contribution compared to the 1 percent threshold, while
the 5 percent threshold allowed too much upwind state contribution to
drop out from further analysis.\106\ EPA therefore determined the 1
percent threshold was appropriate for purposes of good neighbor
obligations under the 2008 ozone NAAQS. This determination was not
challenged in the Wisconsin case. Thus, EPA is applying the 1 percent
threshold at step 2, consistent with its initial analysis of
obligations in the CSAPR Update and without reopening its prior
determination on this issue in that rule.
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\106\ See Final CSAPR Update Air Quality Modeling TSD, at 27-30
(EPA-HQ-OAR-2015-0596-0144).
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a. States That Contribute Below the Screening Threshold
Of the 21 states that are the subject of this final rule, EPA has
determined that the contributions from each of the
[[Page 23086]]
following states to nonattainment and/or maintenance-only receptors in
the 2021 analytic year are below the threshold: Alabama, Arkansas,
Iowa, Kansas, Mississippi, Missouri, Oklahoma, Texas, and Wisconsin.
Because these states are considered not to contribute to projected
downwind air quality problems, EPA is determining that the CSAPR Update
FIPs for these states (or, in the case of Alabama and Missouri, the SIP
revisions later approved to replace the states' CSAPR Update FIPs) are
a complete remedy to address their significant contribution under the
good neighbor provision for the 2008 ozone NAAQS. These states remain
subject to the ozone season NOX emission budgets established
in the CSAPR Update, and EPA is not reopening the determinations in the
CSAPR Update regarding these states.\107\
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\107\ EPA notes that the updated modeling establishing that
these states no longer contribute as of 2021 assumes in its baseline
the continued implementation of the CSAPR Update budgets in these
states.
---------------------------------------------------------------------------
b. States That Contribute at or Above the Screening Threshold
In this final rule, states with remanded emission budgets under the
CSAPR Update that contribute to a specific receptor in an amount at or
above the screening threshold in 2021 are considered linked to that
receptor. The ozone contributions and emissions (and available emission
reductions) for these states are analyzed further at step 3, as
described in section VI, to determine whether and to what extent
emission reductions might be required from each state.
Based on the maximum downwind contributions in Table V.D-1, the
step 2 analysis identifies that the following 11 states contribute at
or above the 0.75 ppb threshold to downwind nonattainment receptors:
Illinois, Indiana, Kentucky, Maryland, Michigan, New Jersey, New York,
Ohio, Pennsylvania, Virginia, and West Virginia. Based on the maximum
downwind contributions in Table V.D-1, the following 12 states
contribute at or above the 0.75 ppb threshold to downwind maintenance-
only receptors: Illinois, Indiana, Kentucky, Louisiana, Maryland,
Michigan, New Jersey, New York, Ohio, Pennsylvania, Virginia, and West
Virginia. The levels of contribution between each of these linked
upwind state and downwind nonattainment receptors and maintenance-only
receptors are provided in Table V.D-2 and Table V.D-3, respectively.
Table V.D-2--Contribution (ppb) From Each Linked Upwind State to
Downwind Nonattainment Receptors in 2021
------------------------------------------------------------------------
Nonattainment receptors
---------------------------
Upwind state Stratford,
CT Westport, CT
------------------------------------------------------------------------
Illinois.................................... 0.69 0.81
Indiana..................................... 0.99 1.26
Kentucky.................................... 0.78 0.87
Louisiana................................... 0.27 0.27
Maryland.................................... 1.21 1.20
Michigan.................................... 1.16 1.71
New Jersey.................................. 7.70 8.62
New York.................................... 14.42 14.44
Ohio........................................ 2.34 2.55
Pennsylvania................................ 6.72 6.86
Virginia.................................... 1.29 1.30
West Virginia............................... 1.45 1.49
------------------------------------------------------------------------
Table V.D-3--Contribution (ppb) From Each Linked Upwind State to
Downwind Maintenance-Only Receptors in 2021
------------------------------------------------------------------------
Maintenance-only receptors
Upwind state ---------------------------
Madison, CT Houston, TX
------------------------------------------------------------------------
Illinois.................................... 0.80 0.02
Indiana..................................... 1.08 0.02
Kentucky.................................... 0.79 0.02
Louisiana................................... 0.15 4.68
Maryland.................................... 1.56 0.00
Michigan.................................... 1.62 0.00
New Jersey.................................. 5.71 0.00
New York.................................... 12.54 0.00
Ohio........................................ 2.35 0.00
Pennsylvania................................ 5.64 0.00
Virginia.................................... 1.69 0.00
West Virginia............................... 1.55 0.00
------------------------------------------------------------------------
In conclusion, as described above, states with contributions that
equal or exceed 1 percent of the NAAQS to either nonattainment or
maintenance receptors are identified as ``linked'' at step 2 of the
good neighbor framework and warrant further analysis for significant
contribution to nonattainment or interference with maintenance under
step 3. EPA is determining that the following 12 States are linked at
step 2: Illinois, Indiana, Kentucky, Louisiana, Maryland, Michigan, New
Jersey, New York, Ohio, Pennsylvania, Virginia, and West Virginia.
VI. Quantifying Upwind-State NOX Reduction Potential To
Reduce Interstate Ozone Transport for the 2008 Ozone NAAQS
A. The Multi-Factor Test
This section describes EPA's methodology at step 3 of the 4-step
framework for identifying upwind emissions that constitute
``significant'' contribution for the states subject to this final rule.
This analysis focuses on the 12 states linked at steps 1 and 2 of the
framework, as identified in the sections above. Following the existing
framework as applied in the CSAPR Update, EPA's assessment of linked
upwind state emissions reflects analysis of uniform NOX
emission control stringency. The analysis has been extended to include
assessment of non-EGU sources in addition to EGU sources in the linked
upwind states.
Each level of uniform NOX control stringency is
characterized by a set of pollution control measures. EPA applies a
multi-factor test--the same multi-factor test that was used in the
CSAPR and the CSAPR Update \108\--to evaluate increasing levels of
uniform NOX control stringency. The multi-factor test, which
is central to EPA's step 3 quantification of significant contribution,
considers cost, available emission reductions, and downwind air quality
impacts to determine the appropriate level of uniform NOX
control stringency that addresses the impacts of interstate transport
on downwind nonattainment or maintenance receptors. The uniform
NOX emission control stringency, represented by marginal
cost (or a weighted average cost in the case of EPA's non-EGU
analysis), also serves to apportion the reduction responsibility among
collectively contributing upwind states. This approach to quantifying
upwind state emission-reduction obligations using uniform cost was
reviewed by the Supreme Court in EME Homer City Generation, which held
that using such an approach to apportion emission reduction
responsibilities among upwind states that are collectively responsible
for downwind air quality impacts ``is an efficient and equitable
solution to the allocation problem the Good Neighbor Provision requires
the Agency to address.'' 572 U.S. at 519.
---------------------------------------------------------------------------
\108\ See CSAPR, Final Rule, 76 FR 48208 (Aug. 8, 2011).
---------------------------------------------------------------------------
There are four stages in developing the multi-factor test: (1)
Identify levels of uniform NOX control stringency; (2)
evaluate potential NOX emission reductions associated with
each identified level of uniform control stringency; (3) assess air
quality improvements at downwind receptors for each level of uniform
control stringency; and (4) select a level of control stringency
considering the identified cost, available NOX emission
reductions, and downwind air quality impacts, while also ensuring that
emission reductions do not unnecessarily over-control relative to
[[Page 23087]]
the contribution threshold or downwind air quality.
Comment: Some commenters suggested EPA also consider regulating
volatile organic compounds (VOCs) as it represents another precursor to
ozone formation. They assert EPA's failure to reduce significant
contributions to downwind nonattainment/maintenance by reducing upwind
VOC emissions disproportionately harms communities of color, low-income
communities, and children, perpetuating environmental injustice.
Response: EPA agrees that VOCs are a precursor along with
NOX in forming ground-level ozone and that ozone formation
chemistry can be ``NOX-limited'', where ozone production is
primarily determined by the amount of NOX emissions or
``VOC-limited'', where ozone production is primarily determined by the
amount of VOC emissions.\109\ EPA also acknowledges that VOCs can
contain toxic chemicals that affect public health. EPA's obligation in
this action is to complete the elimination of significant contribution
to nonattainment or interference with maintenance of NAAQS in other
states for 12 states in the East to meet the requirements of section
110(a)(2)(D)(i)(I) of the Act. Provisions for local NAAQS attainment
and exposure to toxic pollutant concentrations are addressed by other
sections of the statute. EPA and others have long regarded
NOX to be the more significant ozone precursor in the
context of interstate ozone transport.\110\ In response to this
comment, EPA examined the results of the contribution modeling
performed for this rule to identify the portion of the ozone
contribution attributable to anthropogenic NOX emissions
versus VOC emissions from each linked upwind state to each downwind
receptor. Table VI.A provides the ozone contribution from each upwind
state linked to the receptors in Connecticut along with the percent (in
parenthesis) of the contribution that is formed under ``NOX-
limited'' photochemistry. The data show that NOX is the
determinative precursor for over 80 percent of the total contribution
from each upwind state to each of these receptors. In addition to the
Connecticut receptors, ozone primarily formed from NOX
emissions is 95 percent of the 4.58 ppb contribution from Louisiana to
the receptor in Harris County, Texas. Therefore, EPA's review of the
data leads to the finding that, as proposed, a focus on NOX
emission reductions is appropriate for the purpose of addressing
interstate ozone transport.
---------------------------------------------------------------------------
\109\ ``Ozone Air Pollution.'' Introduction to Atmospheric
Chemistry, by Daniel J. Jacob, Princeton University Press,
Princeton, New Jersey, 1999, pp. 231-244.
\110\ 81 FR 74514.
Table VI.A.--Contribution (ppb) From Each Linked Upwind State to Receptors in Connecticut and the Percent of the Contribution From NOX
--------------------------------------------------------------------------------------------------------------------------------------------------------
State Receptor IL IN KY MD MI NJ NY OH PA VA WV
--------------------------------------------------------------------------------------------------------------------------------------------------------
CT......... Stratford....... Not 0.96 0.76 1.18 1.13 7.48 14.01 (81%) 2.27 6.53 1.25 1.41
Linked (95%) (96%) (90%) (95%) (83%) (95%) (93%) (93%) (97%)
CT......... Westport........ 0.79 1.23 0.85 1.18 1.67 8.44 14.14 (81%) 2.50 6.72 1.27 1.45
(94%) (95%) (96%) (89%) (94%) (83%) (95%) (92%) (92%) (96%)
CT......... Madison......... 0.78 1.04 0.77 1.51 1.57 5.53 12.15 (86%) 2.27 5.47 1.63 1.51
(95%) (96%) (96%) (91%) (95%) (84%) (95%) (92%) (93%) (96%)
--------------------------------------------------------------------------------------------------------------------------------------------------------
For both EGUs and non-EGUs, section VI.B describes the available
NOX emission controls considered and their associated cost
levels (in 2016$). Section VI.C discusses EPA's application of that
information to assess emission reduction potential of the identified
control stringencies. Finally, section VI.D describes EPA's assessment
of associated air quality impacts and EPA's subsequent identification
of appropriate control stringencies considering the relevant factors
(cost, available emission reductions, and downwind air quality
impacts). As discussed in greater detail in section VI.D, the multi-
factor test informed EPA's determination of appropriate EGU
NOX ozone season emission budgets necessary to reduce
emissions that significantly contribute to nonattainment or interfere
with maintenance of the 2008 ozone NAAQS for the 2021 ozone season and
subsequent control periods.
This multi-factor approach is consistent with EPA's approach in the
prior CSAPR and CSAPR Update actions. In addition, as was done in the
CSAPR Update, EPA evaluated possible over-control by determining if an
upwind state is linked solely to downwind air quality problems that
could have been resolved at a lower representative cost threshold, or
if upwind states could reduce their emissions below the 1 percent air
quality contribution threshold at a lower representative cost
threshold. This analysis is described in section VI.D.
In the proposed rule, EPA identified a control stringency that
reflects the optimization of existing SCR controls and installation of
state-of-the-art NOX combustion controls at EGUs, with an
estimated marginal cost of $1,600 per ton. As explained in greater
detail in section VI.D, EPA is finalizing an EGU control stringency
that also includes optimizing existing SNCR controls. Application of
the multi-factor test to non-EGU sources has led EPA to conclude, as
the Agency proposed, that emission reductions from non-EGU sources are
not necessary to address significant contribution or interference with
maintenance under the 2008 ozone NAAQS.
B. Identifying Levels of Control Stringency
1. EGU NOX Mitigation Strategies
In identifying levels of uniform control stringency for EGUs, EPA
reassessed the same NOX emission controls that it had
analyzed in the CSAPR Update, all of which are considered to be widely
available in this sector: (1) Fully operating existing SCR, including
both optimizing NOX removal by existing operational SCRs and
turning on and optimizing existing idled SCRs; (2) installing state-of-
the-art NOX combustion controls; (3) fully operating
existing SNCRs, including both optimizing NOX removal by
existing operational SNCRs and turning on and optimizing existing idled
SNCRs; (4) installing new SNCRs; and (5) installing new SCRs. For the
reasons explained in the EGU NOX Mitigation Strategies Final
Rule TSD included in the docket for this final rule, EPA determined
that for the regional, multi-state scale of this rulemaking, only EGU
NOX emission controls 1 and 3 are possible for the 2021
ozone season (fully operating existing SCRs and SNCRs). As discussed
[[Page 23088]]
in section VI.B.1.b, EPA finds that it is not possible to install
state-of-the-art NOX combustion controls by the 2021 ozone
season on a regional scale. EPA determined state-of-the-art
NOX combustion controls at EGUs are available by the
beginning of the 2022 ozone season.
a. Optimizing Existing SCRs
Optimizing (i.e., turning on idled or improving operation of
partially operating) existing SCRs can substantially reduce EGU
NOX emissions quickly using investments that have already
been made in pollution control technologies. With the promulgation of
the CSAPR Update, most operators improved their SCR performance and
have continued to maintain that level of improved operation. However,
this SCR performance is not universal and some drop has been observed
as the CSAPR Update ozone-season allowance price has declined steadily
since 2017. For example, recent power sector data from 2019 reveal
that, in some cases, operating units have SCR controls that have been
idled or are operating partially, and therefore suggest that there
remains reduction potential through optimization.\111\ EPA determined
that optimizing all of these remaining SCRs in the 12 linked states is
a readily available approach for EGUs to reduce NOX
emissions.
---------------------------------------------------------------------------
\111\ See ``Ozone Season Data 2018 vs. 2019'' and ``Coal-fired
Characteristics and Controls'' at https://www.epa.gov/airmarkets/power-plant-data-highlights#OzoneSeason.
---------------------------------------------------------------------------
EPA estimates a representative cost of optimizing SCR controls to
be approximately $1,600 per ton. EPA's analysis of this emission
control is informed by comment on the CSAPR Update proposed rule and
updated information on operation and industrial-input costs that have
become available since the CSAPR Update.\112\ While the costs of
optimizing existing, operational SCRs include only variable costs, the
cost of optimizing SCR units that are currently idled back into service
considers both variable and fixed costs. Variable and fixed costs
include labor, maintenance and repair, parasitic load, and ammonia or
urea for use as a NOX reduction reagent in SCR systems. EPA
performed an in-depth cost assessment for all coal-fired units with
SCRs. More information about this analysis is available in the EGU
NOX Mitigation Strategies Final Rule TSD, which is found in
the docket for this rule. The TSD notes that, for the subset of SCRs
that are already partially operating, the cost of optimizing is often
much lower than the $1,600 per ton marginal cost and often under $800
per ton.
---------------------------------------------------------------------------
\112\ The CSAPR Update found $1,400 per ton was a level of
uniform control stringency that represented turning on idled SCR
controls. EPA uses the same costing methodology, but updating for
input cost increases (e.g., urea reagent) to arrive at $1,600 per
ton in this rule (while also updated from 2011 dollars to 2016
dollars).
---------------------------------------------------------------------------
EPA is using the same methodology to identify SCR performance as it
did in the CSAPR Update. To estimate EGU NOX reduction
potential from optimizing, EPA considers the difference between the
non-optimized NOX emission rates and an achievable operating
and optimized SCR NOX emission rate. To determine this rate
in the CSAPR Update, EPA evaluated nationwide coal-fired EGU
NOX ozone season emissions data from 2009 through 2015 and
calculated an average NOX ozone season emission rate across
the fleet of coal-fired EGUs with SCR for each of these seven years.
EPA found it prudent to not consider the lowest or second-lowest ozone
season NOX emission rates, which may reflect new SCR systems
that have all new components (e.g., new layers of catalyst). Data from
these new systems are not representative of ongoing achievable
NOX emission rates considering broken-in components and
routine maintenance schedules. To identify the potential reductions
from SCR optimization in this final action, EPA followed the same
methodology and incorporated the latest reported coal-fired EGU
NOX ozone season emissions data. EPA updated the timeframe
to include the most recent and best available operational data (i.e.,
2009 through 2019). Considering the emissions data over the full time
period of available data results in a third-best rate of 0.08 pounds
per million British thermal units (lb/mmBtu). EPA notes that over half
of the SCR-controlled EGUs achieved a NOX emission rate of
0.068 lbs/mmBtu or less over their third-best entire ozone season.
Moreover, for the SCR-controlled coal units that EPA identified as
having a 2019 emission rate greater than 0.08 lb/mmBtu, EPA verified
that in prior years, the majority (approximately 95 percent) of these
same units had demonstrated and achieved a NOX emission rate
of 0.08 lb/mmBtu or less on a seasonal and/or monthly basis. This
further supports EPA's determination that 0.08 lb/mmBtu reflects a
reasonable emission rate for representing SCR optimization in
quantifying state emission budgets as discussed in section VII.B. This
fleet-level emission rate assumption of 0.08 lb/mmBtu for non-optimized
units reflects, on average, what those units would achieve when
optimized. Some of these units may achieve rates that are lower than
0.08 lb/mmBtu, and some units may operate above that rate based on
unit-specific configuration and dispatch patterns.
EPA evaluated the feasibility of optimizing idled SCRs for the 2021
ozone season. Based on industry past practice, EPA determined that
idled controls can be restored to operation quickly (less than two
months). This timeframe is informed by many electric utilities'
previous long-standing practice of utilizing SCRs to reduce EGU
NOX emission during the ozone season while putting the
systems into protective lay-up during the non-ozone season months. For
example, this was the long-standing practice of many EGUs that used SCR
systems for compliance with the NOX Budget Trading Program.
It was quite typical for SCRs to be turned off following the September
30 end of the ozone season control period. These controls would then be
put into protective lay-up for several months of non-use before being
returned to operation by May 1 of the following ozone season.\113\
Therefore, EPA believes that optimization of existing SCRs is possible
for the portion of the 2021 ozone season covered under this final rule.
---------------------------------------------------------------------------
\113\ In the 22 state CSAPR Update region, 2005 EGU
NOX emissions data suggest that 125 EGUs operated SCR
systems in the summer ozone season while idling these controls for
the remaining 7 non-ozone season months of the year. Units with SCR
were identified as those with 2005 ozone season average
NOX rates that were less than 0.12 lbs/mmBtu and 2005
average non-ozone season NOX emission rates that exceeded
0.12 lbs/mmBtu and where the average non-ozone season NOX
rate was more than double the ozone season rate.
---------------------------------------------------------------------------
The vast majority of SCR controlled units (nationwide and in the 12
linked states) are already partially operating these controls during
the ozone season based on historical 2019 emissions rates. EPA believes
that this widely demonstrated seasonal behavior of turning on idled
SCRs also supports the Agency's determination that optimizing existing
SCR systems currently being operated to some degree within the ozone
season, which would necessitate fewer changes to SCR operation relative
to restarting idled systems, is also feasible for the 2021 ozone
season. Full operation of existing SCRs that are already operating to
some extent involves increasing reagent (i.e., ammonia or urea) flow
rate, and maintaining and replacing catalyst to sustain higher
NOX removal rate operations. Increasing NOX
removal by SCR controls that are already operating can be implemented
by procuring more reagent and catalyst. EGUs with SCR routinely procure
reagent and catalyst as
[[Page 23089]]
part of ongoing operation and maintenance of the SCR system. In many
cases, where EPA has identified EGUs that are operating their SCR at
non-optimized NOX removal efficiencies, EGU data indicate
that these units historically have achieved more efficient
NOX removal rates. Therefore, EPA determined that optimizing
existing SCRs currently being operated could generally be done by
reverting back to previous operation and maintenance plans. Regarding
full operation activities, existing SCRs that are only operating at
partial capacity still provide functioning, maintained systems that may
only require increased chemical reagent feed rate up to their design
potential and catalyst maintenance for mitigating NOX
emissions. Units must have adequate inventory of chemical reagent and
catalyst deliveries to sustain operations. Considering that units have
procurement programs in place for operating SCRs, this may only require
updating the frequency of deliveries. This may be accomplished within a
few weeks.
Comment: EPA received comments supporting the 0.08 lb/mmBtu
emission rate as achievable and, according to some commenters,
conservative. Some of these commenters went on to provide their own
analysis demonstrating that the 0.08 lb/mmBtu was achievable not only
on average for the non-optimized fleet, but also for these individual
units and that the resulting state emission budgets were likewise
achievable. Some commenters suggested that the rate should be lower and
premised on EPA using a longer historical baseline (e.g., extending
baseline back to year 2006) and relying on the first- or second-best
year instead of the third best year of SCR performance. In addition to
supporting the 0.08 lb/mmBtu optimization rate as viable for 2021,
these same commenters noted the 2021 attainment data and suggested
implementation by 2021 was not only achievable, but necessary under
Clean Air Act requirements and the Wisconsin directive.
Response: As explained above, EPA chose 2009 for the start of its
baseline period of SCR performance examination because that is the
first year of annual compliance under the CAIR NOX program.
The analysis focuses on the third best ozone season average rate
because EPA believes that the first or second best rate, as discussed
in the CSAPR Update final rule, could continue to capture
disproportionately new SCR components and/or the onset of new
regulatory programs and does not necessarily reflect achievable ongoing
NOX emission rates. Therefore, EPA is finalizing analysis
using the third best rate starting from 2009--consistent with its
approach in the CSAPR Update.
Comment: Other commenters suggested that EPA should apply a higher
emission rate than 0.08 lb/mmBtu premised on considerations such as: A
generally reduced average capacity factor for coal units in recent
years, the age of the boiler, coal rank (bituminous or subbituminous),
or other unit-specific considerations that make the 0.08 lb/mmBtu rate
unattainable for a specific unit. They also suggested that EPA's
determination of the rate should be premised on EPA using a shorter
historical baseline (e.g., shortening the baseline to year 2013).
Response: EPA did not find sufficient justification to apply a
higher average emission rate than 0.08 lb/mmBtu or for shortening the
baseline to exclude representative operational data starting in 2009.
EPA found that some commenters were misunderstanding or misconstruing
both EPA's assumption and implementation mechanism as a unit-level
requirement for every SCR-controlled unit instead of a reflection of a
fleet-wide average based on a third-best rate. The commenters'
observation--that 0.08 lb/mmBtu may be difficult for some units to
achieve or may not be a preferred compliance strategy for a given unit
given its dispatch levels--does not contradict EPA's assumption, but
rather supports its methodology and assumptions. As EPA pointed out in
the proposed rule, ``this fleet-level emission rate assumption of 0.08
lb/mmBtu for non-optimized units reflects, on average, what those units
would achieve when optimized. Some of these units may achieve rates
that are lower than 0.08 lb/mmBtu, and some units may operate above
that rate based on unit-specific configuration and dispatch patterns.''
\114\ In other words, EPA is using this assumption as the average
performance of a unit that optimizes its SCR, recognizing that
heterogeneity within the fleet will likely lead some units to
overperform and others to underperform this rate. Moreover, a review of
unit-specific historical data indicates that this is a reasonable
assumption: Not only has the group of units with SCR optimization
potential demonstrated they can perform at or better than the 0.08 lb/
mmBtu rate on average, but 95 percent of the individual units in this
group have met this rate on a seasonal and/or monthly basis based on
their reported historical data.\115\ Additionally, EPA's examination of
units with the largest emission reduction potential based on SCR
optimization levels of 0.08 lb/mmBtu indicates the ability of units to
improve emission rate performance. As an example, Miami Fort Unit 7 had
considerably more hours operating at a 70 to 79 percent capacity factor
in 2019 compared to previous years. However, Miami Fort Unit 7's ozone-
season NOX emission rate substantially increased in 2019
compared to previous years. This runs counter to the notion that an
increase in emission rates is purely driven by reduced capacity factor,
as suggested by commenters. This substantial deterioration in the
median emission rate performance is observable even when comparing
specific hours in 2019 to specific hours in prior years when the unit
operated in the same 70 to 79 percent capacity factor range. In fact,
in 2019 the unit experienced notable emission rate increases from prior
years across multiple capacity factor ranges as low as 40 percent to as
high as 80 percent. This type of data indicates instances where the
increase in emission rate (and emissions) is not necessitated by load
changes but is more likely due to the erosion of the existing incentive
to optimize controls (i.e., the ozone-season NOx allowance
price has fallen so low that unit operators find it more economic to
surrender additional allowances instead of continuing to operate
pollution controls at an optimized level). This type of decline in
emission rate performance at some SCR-controlled units is what EPA
disincentivizes with the full remedy nature of this action.
---------------------------------------------------------------------------
\114\ 85 FR 68991.
\115\ See ``Optimizing SCR Units With Best Historical
NOX Rates Final'' file included in the docket for this
rulemaking.
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[[Page 23090]]
[GRAPHIC] [TIFF OMITTED] TR30AP21.000
EPA observed this pattern in other units identified in this
rulemaking as having significant SCR optimization emission reduction
potential. In the accompanying Emissions Data TSD for the supplemental
notice that EPA recently released in a proceeding to address a
recommendation submitted to EPA by the Ozone Transport Commission under
CAA section 184(c), EPA noted, ``In their years with the lowest average
ozone season NOX emission rates in this analysis, these EGUs
had relatively low NOX emission rates at mid- and high-
operating levels; moreover, there was little variability in
NOX emission rates at these operating levels. However,
during the 2019 ozone season, these EGUs had higher NOX
emission rates and greater variability in NOX emission rates
across operating levels than in the past, particularly at mid-operating
levels.'' \116\ That hourly data analysis, included in this docket,
controls for operating level changes and still finds there to be
instances across multiple SCR-controlled units in the 12-state region
where hourly emission rates are increasing even when compared to the
same load levels in previous years.
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\116\ ``Analysis of Ozone Season NOX Emissions Data
for Coal-Fired EGUs in Four Mid-Atlantic States''. EPA Clean Air
Markets Division. December 2020. Available at https://www.epa.gov/sites/production/files/2020-12/documents/184c_emission_data_tsd.pdf.
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To the extent commenters have alleged that in recent years coal-
fired EGUs have declined in capacity factor and that SCR performance
declines at those lower operating levels, EPA notes that this does not
necessarily result in a compliance feasibility challenge. First, as
explained elsewhere in this section, EPA believes the 0.08 rate
assumption is achievable on a fleetwide average basis. Second, the
implementation mechanism of a mass-based emission trading program
eliminates any compliance feasibility concern. Even if reduced
operation of a unit were to affect the rate-based performance of a
unit, it would also lower emissions-producing generation from that
unit, which in turn reduces the number of allowances the unit operator
must hold for compliance under this emission trading program.
Commenters have failed to establish that compliance with the mass-based
implementation mechanism of this rule is actually unachievable.
Further, hourly data indicate that maintaining consistent SCR
performance at lower capacity factors is possible. For example, the
unit-level performance data in the graph below show the emission rate
at a plant staying relatively low (consistent with our optimization
assumption of 0.08 lb/mmBtu) and stable across a wide range of capacity
factors.\117\
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\117\ EPA, Air Markets Program Data. Available at www.epa.gov/ampd.
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[[Page 23091]]
[GRAPHIC] [TIFF OMITTED] TR30AP21.001
Comment: EPA received comment suggesting that EPA subcategorize its
SCR optimization rate assumption by coal rank (i.e., bituminous or
subbituminous) as the difference between the two would imply that the
0.08 lb/mmBtu rate is not appropriate.
Response: EPA reviewed historical data for SCR operation by coal
rank and assessed it against its 0.08 lb/mmBtu fleet-wide average
assumption and did not find any change necessary or appropriate. EPA
found many instances of both SCR-controlled coal units combusting
subbituminous coal and SCR-controlled coal units combusting bituminous
coal (including instances in earlier years where these very same units
that EPA is identifying as having optimization potential relative to
their 2019 levels) operating at emission rate levels at or below the
0.08 lb/mmBtu rate. In other words, although these units may not be
operating at this emission rate in 2019, it is not due to coal rank as
they have--in the vast majority of cases--met that rate in some period
prior to 2019. In this case, the use of the average rate and the third
best year accommodates any heterogeneity in emission rate that may stem
from a unit's coal choice and makes 0.08 lb/mmBtu a reasonable average
performance rate regardless of coal rank. Moreover, EPA notes that the
covered fleet with the identified SCR optimization potential identified
in this rule is composed of sources who have purchased and consumed
both subbituminous and bituminous coal. The presence of both types of
coal burning units within the region coupled with this observation that
some units have utilized both types of coal, further support the use of
a single fleet-wide average for purposes of estimating reduction
potential and implementing state emission budgets--consistent with the
CSAPR Update. This use of an average value, instead of two separate
values is also consistent with EPA's approach in the CSAPR Update. EPA
further examines and addresses this comment in the EGU NOX
Mitigation Strategies Final Rule TSD.
Comment: EPA also received comment suggesting it should deviate
from its approach in the CSAPR Update of using a nationwide set of data
to establish a third best year, and instead use an average from just
the 12 covered states.
Response: EPA reviewed the data and its methodology and evaluated
it against its intention to identify a technology-specific
representative emission rate for SCR optimization. In doing so, EPA did
not identify any need to make the suggested change. EPA is interested
in the performance potential of a technology, and a larger dataset
provides a superior indication of that potential as opposed to a
smaller, state-limited dataset. In both the CSAPR Update and in this
rule, EPA appropriately relied on the largest dataset possible (i.e.,
nationwide) to derive technology performance averages that it then
applied respectively to the CSAPR Update 22-state region and this
rule's 12-state region. Finally, as noted above, in affirming the
reasonableness of this approach, EPA examined the historical reported
data (pre-2019) for the units in the 12 states with SCR optimization
potential and found the nationwide derived average appropriate and
consistent with demonstrated capability and performance of units within
those states. That is, the vast majority of units for which this
resulting emission rate assumption was being applied had demonstrated
the ability to achieve this rate in some prior time period. This
information is discussed further in the EGU NOx Mitigation Strategies
Final Rule TSD in the docket.
In the proposed rule, EPA relied on the same SCR optimization
timing assumptions it utilized in the CSAPR Update. EPA received
comments on the feasibility of implementing SCR optimization mitigation
measures by the start of the 2021 ozone season.
Comment: While many commenters supported the feasibility of 2021
ozone-season implementation by noting the ``immediate availability'' of
SCR optimization, those that did not focused on two concerns: (1) That
the engineering, procurement, and other steps required for SCR
optimization were not feasible given the anticipated 1.5 months between
rule finalization and the start of the 2021 ozone season and (2) that
the short implementation time frame may not allow enough time
[[Page 23092]]
for allowance trading to occur, and thus jeopardize allowance market
liquidity and the overall that the implementation mechanism of a
trading program.
Response: EPA disagrees that these concerns justify a change in
approach, as explained below, and is finalizing the same SCR
optimization timing assumptions it proposed.
As an initial matter, sources will have more than two months
between the date of signature on this final action and the rule's
effective date when the enhanced control stringency being adopted in
this rule will take effect.\118\ Further, EPA has determined that this
implementation schedule is achievable and necessary in order to address
good neighbor obligations by the July 20, 2021 Serious area attainment
date for certain downwind receptors, in accordance with the Wisconsin
decision of the D.C. Circuit.\119\ While EPA observes that
implementation of this control stringency is viable during the 2021
ozone season at the unit level as described below, it also notes that
the flexible implementation mechanism of a trading program, starting
bank, and safety valve (as discussed in VII.C.4) obviate any unit-
specific compliance challenges raised by commenters.
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\118\ As discussed in section VII.C.4.a, EPA is ensuring that
the enhanced control stringency represented by the new budgets will
not take effect until the rule's effective date by issuing
supplemental allowances for the portion of the 2021 ozone season
occurring before the rule's effective date.
\119\ EPA further disagrees with these commenters to the extent
they are suggesting that they could not have prudently taken steps
to prepare for compliance with this control stringency by the 2021
ozone season at least from the date of the proposed rule in October
of 2020. See Americans for Clean Energy v. EPA, 864 F.3d 691, 721-22
(D.C. Cir. 2017) (rejecting industry claims of insufficient time for
compliance when proposed rule provided ``many months'' notice of the
likely obligations established in the final rule). EPA notes that
all reductions finalized in this rule were discussed in those
proposed rule materials, and SCR optimization-driven reductions--
accounting for the vast majority of 2021 reductions--were proposed
in that October notice.
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As indicated in the discussion and graphics above, data in the EGU
NOX Mitigation Strategies Final Rule TSD, and in the CSAPR
Update, there is ample evidence of units restoring their optimal
performance within a two-month timeframe. Not only do units reactivate
SCR performance level at the start of an ozone-season when tighter
emission limits begin, but unit-level data also shows instances where
sources have demonstrated the ability to quickly alter their emission
rate within an ozone-season and even within the same day in some cases.
Moreover, this emission control is familiar to sources and was analyzed
and included in the CSAPR Update emission budgets finalized in 2016.
With this experience, and notice through the October 2020 proposed
rule, as well as over two months from final rule to effective date, the
viability of this emission control for the 2021 ozone season is
entirely consistent with the 2-week to 2-month timeframe that EPA
identified as reasonable in both the CSAPR Update and the proposed
rule. Similar to prior rules, commenters provide some unit-level
examples where it has taken longer. Also similar to those prior rules,
EPA does not find those unit-level examples compelling in the context
of its fleet average assumptions and in the implementation context of a
trading program which provides compliance alternatives in the event a
specific unit prefers more time to implement the control stringency. As
noted in Wisconsin, ``. . . all those anecdotes show is that
installation can drag on when companies are unconstrained by the
ticking clock of the law.'' 938 F.3d at 330. Commenters also provide
logistical details for certain engineering steps (e.g., procuring
catalyst replacement) that will not be necessary in many instances to
improve performance at existing SCRs. The majority of emission
reductions from units with SCRs would be available within hours (from
turning on and fully operating those existing control devices) even in
the absence of catalyst that is not as optimally configured or with
reagent sprayers that have not been recently tuned as commenters
suggest they must be. And as noted previously, a prudent EGU operator
has had since at least the publication date of the proposed rule in
October 2020 to take steps to prepare for compliance, such as planning
for the necessary products to run their controls.
EPA further disagrees with commenters' assertions that the 2021
emission budgets are not feasible. Claiming that ultimate compliance
with the emissions trading program is infeasible ignores the
flexibilities of EPA's trading program implementation mechanism,
including the starting allowance bank and the ``safety valve''
mechanism for accessing even more allowances. EPA uses a fleet-wide
average assumption that non-optimized units with SCR will optimize to
0.08 lb/mmBtu on average by 2021. EPA uses this average assumption in
its derivation of state-emission budgets, but then implements the
reductions through a trading program that provides sources the
flexibility to operate at different emission rates, as they need only
hold allowances adequate to cover their emissions for the relevant
control period. Not every unit need implement this emission control or
meet this rate in order to comply with the state budget under the
trading program. For some units, the timing and rate performance will
likely be easier to meet than estimated by EPA, creating space for
other sources to achieve different rates on different schedules while
collectively complying with the state emission budget. Additionally,
while given the large amount of historical data demonstrating that
units can operate their controls (often within hours of startup), unit
operation (i.e., seasonal capacity factor) is another variable that
operators can utilize to reduce seasonal emissions. In short, because
compliance is based on seasonal emission totals, variation in emission
rates is not on its own a barrier to meeting a seasonal total state
emission target. In short, commenters concerned about 2021
implementation viability largely neglected these critical aspects of
the trading program and did not provide any comprehensive state or
system modeling showing the 2021 implementation of the state budgets
was not achievable when factoring in the program's trading program.
Instead of performing this critical evaluation step, commenters most
often limited their arguments to a hypothetical unit-specific rate
requirement evaluation, ignoring the broader mechanisms of EPA's
quantification and implementation of good neighbor obligations.
EPA notes that historical emission data and program experience
support its assumption regarding timing of these emission controls.
Similar arguments regarding next-season implementation challenges were
made against the CSAPR Update but were not borne out in the data as
both unit-level and state-level emissions adjusted consistent with
EPA's assumptions for that first season of implementation (the emission
rate at SCR controlled units dropped by nearly half in the 2017 ozone
season, the first ozone-season of the CSAPR Update implementation) when
EPA examined this challenge in the context of EPA's Response to CAA
section 126(b) petitions from Maryland and Delaware.\120\ Moreover, the
future modeling data, as well as some commenters' own analysis,
supported the viability of EPA's 2021 implementation. Finally, some
utilities with a significant footprint in this region even have their
own near-term and medium-term emission reduction goals, which, if
realized, reflect even
[[Page 23093]]
more fleet alignment with emission reductions.121 122 For
all of these reasons, EPA determined it was not necessary to change its
emission control implementation timing assumptions from those utilized
in the CSAPR Update.
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\120\ 83 FR 50465.
\121\ https://www.duke-energy.com/Our-Company/Environment/Global-Climate-Change.
\122\ Proctor, Darrell. Indiana Utility Will Close Coal Units,
Transition to Renewable. Power Magazine. November, 2018. Available
at https://www.powermag.com/indiana-utility-will-close-coal-units-transition-to-renewables/.
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With regard to market liquidity concerns, EPA notes that those same
concerns have been voiced in the lead-up to past trading programs but
ultimately did not materialize. For example, a functioning allowance
market formed and resulted in 100 percent compliance with the allowance
holding requirements during the first year of implementation. See more
discussion on this issue in section VII.C.3. EPA notes that the date by
which sources must hold allowances to cover their emissions for the
first control period under this final rule is June 1, 2022--more than
14 months after the date of signature of the rule. Moreover, shortly
after the final rule's effective date and well before the end of the
2021 control period, the allowances allocated to most sources from both
the state emission budgets and from the initial Group 3 bank will be
recorded in sources' accounts and available for trading. Finally, as an
additional measure promoting market liquidity, EPA will allow the use
of Group 2 allowances at an 18:1 trade-in ratio to provide additional
assurance to sources that allowances will be available, but ensuring
that the cost of this compliance option is such that entities will take
it only in the very unlikely event that access to such additional
allowances proves to be necessary. The safety valve is described
further in section VII.C.4.c., The presence of the safety valve,
combined with the recordation of allowances from the state budgets and
the starting bank shortly after the rule's effective date, should
obviate any market liquidity concerns, as the number of allowances
available for trading in the market for the first control period well
in advance of the compliance deadline will accommodate a variety of
compliance pathways and unit operational decisions.
b. Installing State-of-the-Art NOX Combustion Controls
EPA estimates that the representative cost of installing state-of-
the-art combustion controls is comparable to, if not notably less than,
the estimated cost of optimizing existing SCR (represented by $1,600
per ton). State-of-the-art combustion controls such as low-
NOX burners (LNB) and over-fire air (OFA) can be installed
and/or updated quickly and can substantially reduce EGU NOX
emissions. In the 12 states linked to downwind receptors in this final
rule, approximately 99 percent of coal-fired EGU capacity is equipped
with some form of combustion control; however, the control
configuration and/or corresponding emission rates at a few units
indicate they do not currently have state-of-the-art combustion control
technology. As discussed in EPA's response to comments below, the
Agency has updated its NOX emission rates for upgrading
existing combustion controls to state-of-the-art combustion control
from the proposed rule, where EPA estimated a range of 0.139 to 0.155
lbs/mmBtu. In this final rule, EPA is determining that NOX
emission rates of 0.146 to 0.199 lbs/mmBtu can be achieved on average
depending on the unit's boiler configuration,\123\ and, once installed,
reduce NOX emissions at all times of EGU operation.
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\123\ Details of EPA's assessment of state-of-the-art
NOX combustion controls are provided in the EGU
NOX Mitigation Strategies Final Rule TSD.
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The feasibility of installing combustion controls was examined by
EPA in the CSAPR where industry demonstrated the ability to install
state-of-the-art LNB controls on a large unit (800 MW) in under six
months when including the pre-installation phases (design, order
placement, fabrication, and delivery).\124\ In the proposed rule, EPA
discussed comments it had received on the CSAPR Update regarding
installation of combustion controls from the Institute of Clean Air
Companies.\125\ Those comments provided information on the equipment
and typical installation time frame for new combustion controls,
accounting for all steps, and noted it generally takes between 6-8
months on a typical boiler--covering the time through bid evaluation
through start-up of the technology. The deployment schedule was
described as:
\124\ EPA finds that, generally, the installation phase of
state-of-the-art combustion control upgrades--on a single-unit
basis--can be as little as four weeks to install with a scheduled
outage (not including the pre-installation phases such as
permitting, design, order placement, fabrication, and delivery) and
as little as six months considering all implementation phases.
\125\ EPA-HQ-OAR-2015-0500-0093.
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4-8 weeks--bid evaluation and negotiation
4-6 weeks--engineering and completion of engineering drawings
2 weeks--drawing review and approval from user
10-12 weeks--fabrication of equipment and shipping to end user
site
2-3 weeks--installation at end user site
1 week--commissioning and start-up of technology
Given the above timeframe of approximately 6 to 8 months to complete
combustion control installation in the region, EPA is determining that
the installation of state-of-the-art combustion controls is a readily
available approach for EGUs to reduce NOX emissions by the
start of the 2022 ozone season. More details on these analyses can be
found in the EGU NOX Mitigation Strategies Final Rule TSD.
The cost of installing state-of-the-art combustion controls per ton
of NOX reduced is dependent on the combustion control type
and unit type. EPA estimates the cost per ton of state-of-the-art
combustion controls to be $400 per ton to $1,200 per ton of
NOX removed using a representative capacity factor of 70
percent. See the NOX Mitigation Strategies Final Rule TSD
for additional details.
Comment: EPA received comment on the proposed timing, cost, and
performance rate of combustion controls.
Response: EPA is finalizing its proposed assumptions on the cost
and timing for upgrading combustion controls. These assumptions are
consistent with the CSAPR Update. They are described above and further
discussed in the RTC document and in the EGU NOx Mitigation Strategies
Final Rule TSD. EPA is updating its assumed performance rate for state-
of-the-art combustion controls from the proposed rule based on two
factors. First, as commenters pointed out, EPA was in the process of
updating these assumptions based on the latest representative-year data
and an updated inventory of units with like controls. This update and
corresponding emission rates were in the October 2020 NEEDS file placed
in the docket for the proposed rule, but the data were not available in
time to be included in EPA's proposed rule analysis. This adjustment
raised the average emission rate assumption to 0.199 lb/mmBtu for
combustion controls on dry bottom wall fired units and 0.146 lb/mmBtu
for tangentially fired units. Additionally, commenters provided
detailed analysis of how other unit considerations, such as coal rank,
can result in large deviations from what has been historically
demonstrated with this combustion control technology. Based
[[Page 23094]]
on these comments and EPA's review of historical performance data for
tangentially-fired units by coal rank with state-of-the-art combustion
controls, EPA determined it was appropriate to use the 0.199 lb/mmBtu
rate for both tangentially and wall-fired units in this final rule. As
noted by commenters, many of the likely impacted units burn bituminous
coal, and the 0.146 lb/mmBtu nationwide average for tangentially-fired
(inclusive of subbituminous units) appeared to be below the
demonstrated emission rate of state-of-the-art combustion controls for
bituminous coal units of this boiler type. EPA notes that its analysis
of illustrative units indicates the costs are often lower than the
$1,600 per ton level EPA assumes in this rule. Similarly, the
pervasiveness of this technology (i.e., 99 percent of units have some
form of combustion controls) in response to previous EPA actions
indicates the wide spread cost-effectiveness of this control and
therefore its inclusion in the final EGU NOx emission budgets beginning
in the 2022 ozone season (noting that the trading program gives units
flexibility in compliance options to accommodate their specific
circumstances).
c. Optimizing Already Operating SNCRs or Turning on Idled Existing
SNCRs
Optimizing already operating SNCRs or turning on idled existing
SNCRs can also reduce EGU NOX emissions quickly, using
investments in pollution control technologies that have already been
made. Compared to no post-combustion controls on a unit, SNCRs can
achieve a 25 percent reduction on average in EGU NOX
emissions (with sufficient reagent). They are less capital intensive
but less efficient at NOx removal than SCRs. These controls are in use
to some degree across the U.S. power sector. In the 12 states
identified in this final rule, approximately 14 percent of coal-fired
EGU capacity is equipped with SNCR. Recent power sector data suggest
that, in some cases, SNCR controls have been operating less in 2019
relative to performance in prior years.\126\
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\126\ See ``Ozone Season Data 2018 vs. 2019'' and ``Coal-fired
Characteristics and Controls'' at https://www.epa.gov/airmarkets/power-plant-data-highlights#OzoneSeason.
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In the proposed rule, EPA determined that optimizing already
operating SNCRs or turning on idled SNCRs is an available approach for
EGUs to reduce NOX emissions, has similar implementation
timing to restarting idled SCR controls (less than two months for a
given unit), and therefore could be done in time for the 2021 ozone
season. EPA is finalizing its proposed determination that this emission
control technology can be implemented in the 2021 ozone season. As
explained in section VI.D.1 below, EPA is including optimization of
existing SNCRs in its selected EGU control stringency. Thus, EPA
provides further discussion here confirming the implementation timing
of this emission control technology.
First, as noted with respect to SCR optimization, this rule will
have an effective date over two months from the date of signature. In
light of EPA's timing estimates of roughly 0.5 to 2 months for EGU
operators to optimize their controls, this timing provides sufficient
advance notice for operators of SNCR-equipped units to undertake any
preparatory activities that may be needed prior to the effective date
of the rule, and the onset of the increased stringency represented by
the new emission budgets. Furthermore, because the emission reduction
obligation is implemented through a mass-based trading program, these
sources (and all others in the newly established Group 3 trading
program) have abundant flexibility to choose other means of complying
with their emission budget. Finally, as explained in section VII.C.4.d,
EPA is providing a safety valve allowing access to additional
allowances usable in the Group 3 trading program (through exchange of
banked 2017-2020 Group 2 allowances at an 18:1 conversion ratio). As
the amount of additional Group 3 allowances made available through the
safety valve mechanism exceeds the effect on the emission budgets of
including the optimization of existing SNCR controls several times
over, there is no basis to believe that there will be compliance
difficulty for any covered units.
In the proposed rule, EPA estimated a representative cost of
approximately $3,900 per ton for turning on and fully operating idled
SNCRs. For existing SNCRs that have been idled, unit operators may need
to restart payment of some fixed and variable operating costs
associated with these controls. Fixed and variable costs include labor,
maintenance and repair, parasitic load, and ammonia or urea. The
majority of the total fixed and variable operating costs for SNCR is
related to the cost of the reagent used (e.g., ammonia or urea) and the
resulting cost per ton of NOX reduction is sensitive to the
NOX rate of the unit prior to SNCR operation. EPA is
finalizing its adjusted representative cost of $1,800 per ton as
described in the response to comments below, but applies the same
performance, and timing assumptions for SNCRs that are idled as in the
proposed rule.
Comment: Commenters observed that many SNCRs are already operating
over the past several years (in an environment with an allowance price
signal much lower than the $3,900 per ton threshold that EPA proposed
represented turning on and optimizing idled controls). This observation
suggests that the representative cost for this technology to optimize
is likely less than estimated by EPA in the proposed rule when these
operating patterns are accounted for.
Response: First, EPA examined the portion of the fleet with SNCR
optimization potential and determined that the majority of units were
already partially operating their controls. Therefore, EPA revisited
the cost for SNCR optimization for units that are partially operating
their controls. At proposal, EPA had noted a representative cost of
$1,800 per ton for SNCR-controlled unit to optimize their controls if
that control was already on and partially operating reflecting the cost
of adding more reagent. This is similar to its analysis for SCR
optimization that revealed an $800 per ton cost for SCR optimization at
units with partially operating controls (as opposed to $1,600 per ton
at units with idled SCR controls). EPA revisited this assessment of
SNCR optimization cost at units with partially operating controls and
found $1,800 per ton to still be a representative cost.\127\ Therefore,
given the majority of the SNCR-controlled fleet with identified
optimization potential was already partially operating their controls
based on 2019 historical data, EPA determined that $1,800 per ton (as
opposed to the $3,900 per ton cost estimated in the proposed rule for
turning on idled SNCRs) was a more representative cost for the
mitigation strategy in this rulemakng. The representative cost of
optimizing SNCR that is already partially operating excludes the fixed
operating and maintenance (FOM) cost associated with starting up an
idled SNCR control. For more details on this assessment, refer to the
EGU NOX Mitigation Strategies Final Rule TSD in the docket
for this rule. This adjustment in the expected cost of implementing
this emission control has factored into EPA's determination to include
optimization of existing SNCRs in its selected control stringency as
[[Page 23095]]
discussed in more detail in section VI.D.1.
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\127\ See
``EGU_SCR_and_SNCR_costs_Revised_CSAPR_Proposal.xlsx''file, Summary
Page cell E19. Available in the docket for this rulemaking at
proposal at EPA-HQ-OAR-2020-0272-0006.
---------------------------------------------------------------------------
d. Installing New SNCRs
EPA is finalizing its determination not to include installation of
new SNCRs in its selected control stringency in this rule. The amount
of time needed to retrofit an EGU with new SNCR extends beyond the 2021
Serious area attainment date. However, similar to SCR retrofits
discussed in section VI.B.1.e, and consistent with the Wisconsin
decision, EPA evaluated potential emission reductions and associated
costs from this emission control technology, and assessed the impacts
and need for this emission control at the earliest point in time when
post combustion control installation could be achieved. SNCR
installations, while generally having shorter project timeframes (i.e.,
as little as 16 months (including pre-contract award steps) for an
individual power plant installing controls on more than one boiler),
share similar implementation steps with and also need to account for
the same regional factors as SCR installations.\128\ One recent example
of installation timing took over a year--SNCR installation at the
Jeffrey power plant (Kansas) was in the planning phase in 2013 but not
in service until 2015.\129\ Therefore, EPA is determining that at least
16 months would be needed to complete all necessary steps of SNCR
development and installation at the EGUs not currently equipped with
SNCRs in the 12 states linked to downwind receptors in this final rule.
EPA discusses the timing of SNCR and SCR post-combustion retrofits
together and in more detail in section VI.C.1.
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\128\ A month-by-month evaluation of SNCR installation is
discussed in EPA's ``Engineering and Economic Factors Affecting the
Installation of Control Technologies for Multipollutant Strategies''
in EPA's NOX Mitigation Strategies Final Rule TSD. As
noted in the proposed rule, the analysis in this exhibit estimates
the installation period from contract award as within a 10-13-month
timeframe. The exhibit also indicates a 16-month timeframe from
start to finish, inclusive of pre-contract award steps of the
engineering assessment of technologies and bid request development.
The timeframe cited for installation of SNCR at an individual source
in this final action is consistent with this more complete timeframe
estimated by the analysis in the exhibit.
\129\ 2013 EIA Form 860, Schedule 6, Environmental Control
Equipment.
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SNCR technology provides owners a relatively less capital-intensive
option for reducing NOX emissions compared to SCR
technology, albeit at the expense of higher operating costs on a per-
ton basis and less total emission reduction potential. EPA examined the
remaining nationwide coal-fired fleet that lack SNCR or other
NOX post-combustion control to estimate a representative
cost of SNCR installation on a dollar per ton basis. Costs were
estimated using the operating and unit characteristics specific to this
fleet. As described in the EGU NOX Mitigation Strategies
Final Rule TSD, EPA estimated that $5,800 per ton reflects a
representative cost level at which they are available for a majority of
the uncontrolled fleet.
Comment: EPA received some comments on timing and performance
assumptions of this technology that largely focused on the decision to
couple timing considerations for reduction evaluation purposes of SCR
and SNCR retrofits together.
Response: EPA used the same cost, performance, and timing
assumptions for this technology as it used in the proposed rule. EPA
evaluates new retrofit technologies (i.e., SCR and SNCR) timing in
tandem at step 3, and therefore it addresses this timing component in
section VI.C.1. Remaining comments on SNCR performance potential are
addressed in the RTC Document and in the EGU NOx Mitigation Strategies
Final Rule TSD.
e. Installing New SCRs
The amount of time needed to retrofit an EGU with new SCR extends
beyond the 2021 Serious area attainment date. However, similar to SNCR
retrofits discussed above, and consistent with the Wisconsin decision,
EPA evaluated potential emission reductions and associated costs from
this control technology, as well as the impacts and need for this
emissions control strategy, at the earliest point in time when their
installation could be achieved. The amount of time to retrofit EGUs
with new SCR varies between approximately 2 and 4 years depending on
site-specific engineering considerations and on the number of
installations being considered. In prior actions, EPA has noted 39-48
months as appropriate for regionwide actions when EPA is evaluating
multiple installations at multiple locations.\130\
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\130\ Final Report: Engineering and Economic Factors Affecting
the Installation of Control Technologies for Multipollutant
Strategies, EPA- 600/R-02/073 (Oct. 2002), available at https://nepis.epa.gov/Adobe/PDF/P1001G0O.pdf.
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The Agency examined the cost for retrofitting a unit with new SCR
technology, which typically attains controlled NOX rates of
0.07 lbs/mmBtu or less. Based on the characteristics of the remaining
nationwide coal fleet that does not have a post-combustion control
retrofit, EPA estimated that for unit and performance characteristics
representative of that subgroup, $9,600 per ton reflects a
representative cost level at which the SCR retrofit technology was
typically available for the majority of these sources.
Comment: EPA received comments on the cost and performance of this
technology, as well as comment on its timing assumption (as part of the
collective timing assumptions in step 3).
Response: For this final rule's analyses, EPA used the same cost,
performance, and timing assumptions that it used for this technology in
the proposed rule. For more details on this assessment, refer to the
EGU NOX Mitigation Strategies Final Rule TSD in the docket
for this final rule and the RTC Document. Section VI.C.1 presents
comments and EPA responses on the timing assumptions for installation
of new SCRs.
f. Generation Shifting.
Finally, EPA evaluates emission reduction potential from generation
shifting across the representative dollar per ton levels estimated for
the other emission controls considered above. Shifting generation to
lower NOX-emitting or zero-emitting EGUs occurs in response
to economic factors (including regulatory signals such as pollution
control costs). As the cost of emitting NOX increases, it
becomes increasingly cost-effective for units with lower NOX
rates to increase generation, while units with higher NOX
rates reduce generation. Because the cost of generation is unit-
specific, this generation shifting occurs incrementally on a continuum.
Consequently, there is more generation shifting at higher cost
NOX-control levels. It is reasonable for EPA to quantify and
include the emission reduction potential from generation shifting at
cost levels that are representative of the emission control
technologies evaluated in the multi-factor analysis. Including emission
reductions from generation shifting is important, ensuring that other
cost-effective reductions (e.g., fully operating controls) can be
expected to occur in a competitive electricity marketplace where
generation shifting will inevitably occur in response to pollution
control requirements. Generation shifting treatment and results are
discussed in greater detail in the EGU NOX Mitigation
Strategies Final Rule TSD.
In general, when EPA estimates emission reduction potential from
generation shifting, EPA finds small amounts of generation shifting to
existing lower NOX-emitting or zero-emitting units could
occur consistent with the near-term implementation timing for this
final rule. As a proxy for
[[Page 23096]]
limiting the amount of generation shifting that is feasible for the
near-term ozone seasons, EPA limits its assessment to shifting
generation to other EGUs within the same state. EPA believes that
limiting its evaluation of shifting generation (which EPA sometimes
refers to as re-dispatch) to the amount that could occur within the
state represents a conservatively small amount of generation-shifting
because it does not capture further potential emission reductions that
would occur if generation was shifted more broadly among units in
different states within the interconnected electricity grid.
Comment: Commenters suggested that EPA should have included
additional reductions from generation shifting beyond those levels that
are commensurate with the emission controls identified. Commenters note
that the statutory command is to eliminate significant contribution to
downwind nonattainment or maintenance problems, 42 U.S.C.
7410(a)(2)(D)(i)(I), not merely to create a strong enough incentive
that sources will likely install certain control technology. Because
generation shifting is an independent measure that EGUs have widely
deployed to reduce NOX emissions, EPA has no basis for
evaluating only the emission reductions that result from a
NOX price that matches--but goes no further than--the
estimated representative NOX control costs of other emission
control technologies assessed.
Response: EPA is finalizing the same approach to generation
shifting that it proposed and that it included in the CSAPR Update.
This rule's approach to capturing emission reduction potential from
generation shifting in the state's emission budgets focuses on
preserving the incentive for combustion and post-combustion controls to
operate. Factoring generation shifting into the state emissions budgets
helps promote an allowance price that will incentivize these controls
to operate.
EPA recognizes that looking at higher levels of reductions purely
through generation shifting is possible, assuming the availability for
dispatch of lower or zero emitting generation assets that could
substitute for the higher emitting EGUs. Shifting to such generators
that are already in existence and operating at capacity factors that
allow for some increase in their generation is the most economically
efficient form of generation shifting, assuming other considerations
such as availability, cost, reliability, and other factors are
accounted for. Even greater shifting of generation to lower or zero
emitting assets may be considered with the construction of new assets,
although cost, timing, and economic considerations are generally of a
greater magnitude and complexity in this context. Sophisticated power
sector modeling tools, such as EPA's Integrated Planning Model (IPM)
platform, can provide realistic and reliable assessments of the degree
of generation shifting that may be accomplished at different cost
levels. Indeed, in the Regulatory Impact Analysis for the proposed rule
and for this final rule, EPA assessed a less-stringent control
alternative for EGUs at the $500 per ton level, which was based solely
on generation shifting rather than any at-the-source control
technology. In general, EPA continues to stand by its discussion of its
legal authority for and the technical viability of generation shifting
as a method of emission reduction under the good neighbor provision, as
set forth in the final CSAPR Update rule. See especially 81 FR 74504,
74545-47; see also CSAPR Update Response to Comment Document at 546-550
(legal authority); id. 528-533 (technical feasibility). (EPA had no
occasion and did not reopen this portion of the CSAPR Update in this
action on remand.)
Nonetheless, while generation shifting as a stand-alone strategy
for emission reductions is available for both states' and EPA's
consideration in the context of good neighbor SIPs or FIPs, EPA
maintains the position discussed in the proposed rule for this action
that further generation shifting than is captured by the methodology of
the proposed rulemaking is unnecessary in the context of the resolution
of good neighbor obligations for the 2008 ozone NAAQS in this action.
The remaining timeframe for addressing upwind contribution to downwind
nonattainment and maintenance receptors is through the 2024 ozone
season, as downwind air quality problems for the 2008 ozone NAAQS are
projected to be resolved by the 2025 ozone season. In EPA's judgment,
the capital intensive nature of new builds and the likely multi-year
timeframe necessary for the permitting and construction of new units
make generation shifting to new generating resources, beyond those
already planned and included in the baseline, not possible before
downwind receptors are already resolved. With respect to generation
shifting to existing generation resources with excess capacity, again,
this rule already incorporates a certain amount of such generation
shifting at cost levels representative of the other control
technologies selected to quantify the state emission budgets in this
rule. EPA believes that this degree of emission reduction through
generation shifting is appropriate to include under the step 3 multi-
factor analysis for the circumstances and compliance timetable
currently presented by the 2008 ozone NAAQS, particularly the finding
that downwind receptors will be resolved under this NAAQS by the 2025
ozone season.
Comment: Other commenters suggest that EPA should not factor in any
generation shifting based reductions into state emission budgets,
noting that EPA rejected the use of generation shifting in rescinding
the Clean Power Plan and should do the same here in establishing
emission reduction obligations under the good neighbor provision of
section 110 of the Clean Air Act. According to these commenters, the
emission budgets should be based on cost-effective emission reduction
strategies that reflect technologies that can be implemented within the
affected source's fence line.
Response: EPA notes again that its treatment of generation shifting
here is consistent with both the CSAPR Update and the CSAPR, and the
statute. Moreover, this comment incorrectly conflates the question of
statutory authority under section 111 of the Act, the authority at
issue in the Clean Power Plan and its repeal and subsequent litigation,
with the question of statutory authority under section 110. As EPA
explained in the CSAPR Update:
The good neighbor provision requires state and federal plans
implementing its requirements to ``prohibit[ ] . . . any source or
other type of emissions activity within the State from emitting any
air pollutant in amounts which will'' significantly contribute to
nonattainment or interfere with maintenance of the NAAQS in any
other state. CAA section 110(a)(2)(D)(i)(I) (emphasis added). The
EPA's consideration of the potential for generation shifting in
developing state budgets is consistent with this statutory
requirement. First, contrary to the commenters' contention, the
statute does not limit the EPA's authority under the good neighbor
provision to basing regulation only to control strategies for
individual sources. The statute authorizes the state or EPA in
promulgating a plan to prohibit emissions from ``any source or other
type of emissions activity within the State'' that contributes (as
determined by EPA) to the interstate transport problem with respect
to a particular NAAQS. This broad statutory language shows that
Congress was directing the states and the EPA to address a wide
range of entities and activities that may be responsible for
downwind emissions. However, this provision is silent as to the type
of emission reduction measures that the states and the EPA may
consider in establishing emission
[[Page 23097]]
reduction requirements, and it does not limit those measures to
individual source controls. The EPA reasonably interprets this
provision to authorize consideration of a wide range of measures to
reduce emissions from sources, which is consistent with the broad
scope of this provision, as noted immediately above.
81 FR 74545.\131\
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\131\ EPA also noted in the CSAPR Update, ``Interpreting the
Good Neighbor Provision to be sufficiently broad to authorize
reliance on generation shifting is also consistent with the
legislative history for the 1970 CAA Amendments. The Senate Report
stated that to achieve the NAAQS, `[g]reater use of natural gas for
electric power generation may be required,' S. Rep. No. 91-1196 at
2.'' 81 FR 74545 n.141.
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Finally, EPA notes that its interpretation of section 111 of the
Act as unambiguously precluding the use of generation shifting as a
``best system of emission reduction'' under that provision was recently
rejected by the D.C. Circuit. American Lung Association v. EPA, No. 19-
1140 (D.C. Cir. Jan. 19, 2021). The court there also rejected arguments
that generation shifting in the Clean Power Plan runs afoul of the
federalism doctrine, slip op. 92 (``Interstate air pollution is not an
area of traditional state regulation. And federalism concerns do not
bar the United States government from addressing areas of Federal
concern just because its actions have incidental effects on areas of
state power.'') (emphasis in original) (citing FERC v. EPSA, 136 S. Ct.
760, 775-778 (2016)), or conflicts with FERC's authority, id. 95 n.12
(``The effects of environmental regulations on the power grid do not
amount to power regulation statutorily reserved to FERC.''). In this
rule, as in prior transport rules, EPA has established emission budgets
that capture a certain degree of generation shifting that is modeled to
occur as an economical response by the power sector to a particular
cost threshold associated with at-the-plant control technologies. EPA
has not mandated or ordered any particular degree of generation
shifting to occur or that it occurs in a particular way. Further, this
action is related solely to air pollution, in this case NOX
as an ozone-precursor, and does not affect or purport to regulate any
particular type of generation or achieve any type of generation mix,
except as related to those NOX emissions. Cf. id. 88 (``The
Clean Power Plan was aimed not at regulating the grid, but squarely and
solely at controlling air pollution--a task at the heart of the EPA's
mandate.''). The budgets here simply reflect an expectation that the
power sector can and will take advantage of the compliance flexibility
of a mass-based emission trading program to shift generation when it is
economical to do so in response to an environmental mandate.
Finally, EPA solicited comment on whether other ozone-season
NOX mitigation technologies should be considered. EPA
invited comments on the cost and performance of the above listed
technologies and any other potential mitigation technologies. For
example, in January of 2020 the New York Department of Environmental
Conservation adopted a rule to limit emissions from combustion turbines
that operate as peaking units. EPA has not historically considered
NOX mitigation technologies for these sources in its
rulemakings, such as the CSAPR and the CSAPR Update, but invited
comment on their appropriateness for this rulemaking. Separately,
location and high emission rates of grid-connected municipal solid
waste combustors, generally not covered under EPA's transport rules
given their small size and differing purpose, have also led some
stakeholders to suggest mitigation measures be considered for those
sources.
Comment: EPA received comments calling on the Agency to reduce
NOX from peaking units and municipal waste combustors and
claimed that the agency's focus in its proposed rule on the suite of
EGU emission controls above failed to address large sources of
NOX emissions that are relatively close to the Connecticut
receptors. Some of these commenters go one step further and say not
only should EPA regulate these sources, but that EPA should only
require emission reductions from local sources in place of reductions
from larger emitting sources upwind.
Response: EPA is finalizing its evaluation of the same suite of
emission controls as in the proposed rule. EPA notes that several
states close to, or that have, nonattainment or maintenance receptors
are already taking some of these measures. For example, New York
finalized the state regulation mentioned above and New Jersey notes in
their comment that the measures documented in New Jersey's Good
Neighbor SIP include controls for sources such as behind-the-meter
distributed generation/demand response (DG/DR) electric generators and
municipal waste combustors. Even with these local measures,
nonattainment and maintenance receptors persist in the region with
demonstrable upwind state contribution, and thus the presence of these
initiatives does not absolve upwind states and sources from the
responsibility of addressing their significant contribution.\132\ In
the proposed rule, EPA inquired whether these additional emission
controls should be considered in addition to, not in place of, the
other proposed controls. EPA did not receive determinative evidence
that (1) there were meaningful, upwind reductions from these emission
controls that are not already being addressed by state rules, or (2)
that any further reductions could be implemented in a timeframe
consistent with the remaining nonattainment and maintenance receptors
that resolve after 2024. EPA notes the New York rule referenced above
was finalized in early 2020, but its control measures will phase in
during the 2023-2025 period. Therefore, EPA is not finalizing any
additional reductions from new control measures at these sources in
this final rule, but, pending further analysis, doing so may be
appropriate in a future context (e.g., under a different NAAQS).
Finally, EPA notes to the extent that any of the sources meet the
applicability requirements and are covered in the Group 3 trading
program under this rulemaking, they would have an incentive to reduce
emissions consistent with the ozone NOX allowance price.
Moreover, as identified in the discussion the EGU NOX
Mitigation Final Rule TSD, a significant number of units with this
technology are located in states with rules addressing those sources.
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\132\ For instance, despite these measures, EPA does not agree
with comments from New Jersey that there is therefore no basis for
including New Jersey in the Group 3 trading program in this action.
New Jersey is projected to remain linked to the Connecticut
receptors well above the 1 percent threshold.
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2. Non-EGU NOX Mitigation Strategies
EPA has not regulated emissions from non-EGU sources as part of its
regional transport rulemakings since the 1998 NOX SIP Call.
In Wisconsin, the DC Circuit held that EPA must, on remand, implement a
full remedy by the next attainment date (2021 for this final rule), or
as soon as possible thereafter on a showing of impossibility, to
achieve necessary reductions by that date. 938 F.3d at 320. The court
also directed the Agency to address non-EGU sources, unless ``the
scientific uncertainty is so profound that it precludes EPA from making
a reasoned judgment.'' Id. at 318-20 (quoting Massachusetts v. EPA, 549
U.S. 497, 534 (2007)). The DC Circuit found that the practical
obstacles EPA identified with respect to its evaluation of non-EGUs in
the CSAPR Update did not rise to the level of an ``impossibility,'' id.
The court also found that EPA must make a higher
[[Page 23098]]
showing of uncertainty regarding non-EGU point-source NOX
mitigation potential before declining to regulate such sources on the
basis of ``uncertainty.'' Id. Thus, in the proposed rule, EPA extended
its analysis to include all major stationary source sectors in the
linked upwind states, including non-EGU emissions sources in various
industry sectors. As discussed in section V, of the 22 states
originally included in the CSAPR Update, EPA has determined that 12
states warrant analysis at step 3 for significant contribution to
downwind nonattainment and/or maintenance receptors for the 2008 ozone
NAAQS. Therefore, the Agency focused its step 3 assessment on non-EGU
sources in these 12 states. For these sources, EPA retained its focus
on NOX as the most effective precursor pollutant for
addressing interstate ozone transport at a regional scale. See 82 FR
51238, 51248 (Nov. 3, 2017) (citing 76 FR 48222) and 63 FR 57381.
The remainder of this section summarizes the analysis EPA conducted
in the proposed rule. EPA is finalizing this analysis using the best
available current data, largely as proposed, and determines on the
basis of this analysis that emission reductions from non-EGU sources/
units in the 12 states are not needed to eliminate their significant
contribution to nonattainment or interference with maintenance in any
other state. EPA made some minor updates to its analysis of non-EGU
emission reduction potential, and these changes did not affect its
overall conclusion that reductions are not warranted under the step 3
multi-factor test. EPA responds to significant comments on its
assessment of non-EGU emission reduction potential at the end of the
relevant section below, and addresses remaining comments on potential
non-EGU emission reductions in the RTC document located in the docket
for this action.
For non-EGU sources, there are many types of emissions sources or
units that emit NOX and many control technologies or
combinations of control technologies for these sources or units. As
such, there are many approaches to assessing emission reduction
potential from non-EGU emission sources or units. In this final rule,
EPA applied the multi-factor test used for EGUs in an effort to
determine an appropriate stringency level for non-EGU sources/units in
linked upwind states. EPA identified available control technologies and
estimated their costs and potential emission reductions. The Agency
considered the information it has regarding control technology
implementation timeframes, including information on such timeframes
provided by commenters on the proposed rule, to determine potential air
quality impacts in relevant future years.
To identify levels of control for non-EGU sources/units, EPA used
the Control Strategy Tool (CoST),\133\ the Control Measures Database
(CMDb), and the projected 2023 inventory from the 2016v1 modeling
platform. EPA assessed potential emission reductions associated with
applying controls to emissions units with 150 tons per year (tpy) or
more of pre-control NOX emissions in 2023, which is an
emissions threshold that represents a comparable unit size to 25 MW for
EGUs used in prior interstate transport rulemakings. To derive this
emissions threshold, EPA used emissions expected from an average 25 MW
EGU unit operating at a median heat rate, emission rate, and capacity
factor for a coal-fired unit.\134\ In CoST, the Agency used the maximum
emission reduction strategy\135\ to estimate the largest quantity of
potential emission reductions from each emissions source or unit
located in the 12 upwind states linked to downwind receptors in this
final rule. Eleven of the 12 upwind states had sources/units with 150
tpy or more of pre-control NOX emissions in 2023; the
projected 2023 emissions inventory did not include non-EGU point
sources/units in New Jersey with pre-control NOx emissions greater than
150 tpy for which CoST had applicable control measures.\136\
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\133\ Further information on CoST can be found at the following
link: https://www.epa.gov/economic-and-cost-analysis-air-pollution-regulations/cost-analysis-modelstools-air-pollution.
\134\ For additional details on calculating the 150 tpy
emissions threshold, please see the section titled Background for
Determining Source Size/Threshold for Non-EGU Emissions Sources in
the memorandum titled Assessing Non-EGU Emission Reduction
Potential, available in the docket for this rule.
\135\ The maximum emission reduction algorithm assigns to each
source the single measure (if a measure is available for the source)
that provides the maximum reduction to the target pollutant,
regardless of cost. For more information, see the CoST User's Guide
available at the following link: https://www.cmascenter.org/cost/documentation/3.5/CoST%20User's%20Guide/.
\136\ Total NOx emissions at the facility level in this analysis
are likely much larger than NOx emissions at the emissions source/
unit level, and facilities often have several individual emissions
units. In New Jersey there are facilities with total NOx emissions
greater than 150 tpy. EPA did not, however, identify any individual
emissions units at those facilities with pre-control NOx emissions
greater than 150 tpy for which CoST had applicable control measures.
---------------------------------------------------------------------------
For the 12 linked states, EPA categorized the CoST results for
control technologies that comprise approximately 92 percent of the
total estimated potential emission reductions from the non-EGU sources/
units with 150 tpy or more of NOX emissions in these states;
\137\ those technologies and related emissions sources/units are
summarized in Table VI.B.2-1 below. In tranche one before further
refinement and verification, the number of emissions units CoST applied
SCR to was 51 and the number of emissions units CoST applied SNCR to
was 23. The estimated emission reductions from those control
applications were 12,724 ozone season tons. In tranche two, before
further refinement and verification, the number of emissions units to
which CoST applied layered combustion (a type of combustion control
technology) was 49, the number of emissions units to which CoST applied
NSCR \138\ or layered combustion was 65, and the number of emissions
units to which CoST applied ultra-low NOx burner and SCR was 56. The
estimated emission reductions from those control applications were
17,283 ozone season tons. EPA then calculated a weighted average cost
per ton (in 2016$) for estimated potential reductions associated with
each control technology and plotted the weighted average cost per ton
values. From the resulting curve, EPA identified a clear break point
that defined two tranches of potential emission reduction, as shown in
Table VI.B.2-1. For additional details on the curve and the potential
emission reductions in tranches one and two, please see the memorandum
titled Assessing Non-EGU Emission Reduction Potential, available in the
docket for this rule.
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\137\ CoST applied a few additional controls that are not
commonly used and did not result in significant additional emission
reductions. Ten different control technology applications make up
the remaining 8 percent of the control technology applications.
Compared to the five technologies EPA assessed further, these ten
control technology applications do not, individually or
collectively, have the potential to result in significant additional
emission reductions. For additional details, see the technical
memorandum titled Assessing Non-EGU Emission Reduction Potential and
the Excel workbook titled Control Summary--Max Emission Reduction
$10k 150 tpy cutoff 12 States Updated Modeling--No Replace--05-18-
2020.xlsx in the docket for this rule.
\138\ NSCR is non-selective catalytic reduction, a control
technology applicable to rich-burn natural gas-fired internal
combustion (IC) engines.
[[Page 23099]]
Table VI.B.2-1--Details on Tranches One and Two of Potential Emission Reductions
----------------------------------------------------------------------------------------------------------------
Weighted average
Tranche Technologies/industry sectors or cost (2016$ per Cost range (2016$
source groups ton) per ton)
----------------------------------------------------------------------------------------------------------------
Tranche One............................. SCR/Glass Manufacturing, IC 2,000 \139\ 64-5,700
Engines.
SNCR/Cement Manufacturing.......
Tranche Two............................. Layered Combustion/Lean Burn IC 5,000-6,600 1,400-9,700
Engines.
NSCR or Layered Combustion/
Industrial Rich Burn Natural
Gas IC Engines.
Ultra-low NOX Burner and SCR/
Industrial Boilers.
----------------------------------------------------------------------------------------------------------------
Given the large number of emissions units in one or more industry
sectors that could require control installation, EPA does not have
detailed information on the time needed to install all of the control
technologies identified in Table VI.B.2-1. Any installation timing
estimates would need to reflect the time needed to install controls
across a potentially large number of sources, the time needed to have
appropriate NOX monitoring installed, the time needed to
raise the necessary financing, and other steps in the permitting,
construction and procurement processes. EPA previously examined the
time necessary to install some of the controls indicated in Table
VI.B.2-1 for different industries in the 2016 Final Technical Support
Document (TSD) for the Final Cross-State Air Pollution Rule for the
2008 Ozone NAAQS, Assessment of Non-EGU NOX Emission
Controls, Cost of Controls, and Time for Compliance Final TSD (``CSAPR
Update Non-EGU TSD''), which is discussed in section VI.C.2. EPA
expects that the controls for glass furnaces and cement kilns would
take at least 2 years to install on a sector-wide basis across the 12-
state region affected by this final rule. Information available to the
Agency, including information provided by commenters, does not
establish that implementation of NOX control technologies
for non-EGU emission sources/units could take place in less than 2
years. Therefore, EPA has determined that the 2023 ozone season is the
earliest ozone season by which these non-EGU controls could be
installed. EPA thus concludes that no NOX controls for non-
EGUs included in this cost analysis can be installed by the 2021 ozone
season. Additional information on installation times for non-EGU
NOX controls can be found in section VI.C.
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\139\ For the emissions unit estimated to generate emission
reductions at $64 per ton, the emissions and cost estimates were
incorrect. The 2023 projected emissions for the unit were
significantly overestimated as a result of a growth factor EPA
received for these emissions from a multi-jurisdictional partner
organization. Further, the equation used to estimate the cost was
mis-specified in CoST, and the true cost is likely on the order of
$800 per ton. However, these emission reductions were still
assessed, as discussed in section VI.C.2 below.
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3. Mobile Source NOX Mitigation Strategies
Under a variety of CAA programs, EPA has established federal
emissions and fuel quality standards that reduce emissions from cars,
trucks, buses, nonroad engines and equipment, locomotives, marine
vessels, and aircraft (i.e., ``mobile sources''). Because states are
generally preempted from regulating new vehicles and engines with
certain exceptions (see generally CAA sections 209, 177), mobile source
emissions are primarily controlled through EPA's federal programs. EPA
has been regulating mobile source emissions since it was established as
a federal agency in 1970, and all mobile source sectors are currently
subject to NOX emissions standards. EPA factors these
standards and associated emission reductions into its baseline air
quality assessment in good neighbor rulemaking, including in this
action. Such reductions are an important reason for the historical and
long-running trend of improving air quality in the United States. These
trends help explain why the overall number of receptors and severity of
ozone nonattainment problems under the 2008 ozone NAAQS continues to
decline. Such data are factored into EPA's analysis at steps 1 and 2 of
the 4-step framework. As a result of this long history, NOX
emissions from onroad and nonroad mobile sources have substantially
decreased (73 percent and 57 percent since 2002, for onroad and
nonroad, respectively) \140\ and are predicted to continue to decrease
into the future as newer vehicles and engines that are subject to the
most recent, stringent standards replace older vehicles and
engines.\141\
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\140\ U.S. EPA. Our Nation's Air: Status and Trends Through
2019. https://gispub.epa.gov/air/trendsreport/2020/#home.
\141\ National Emissions Inventory Collaborative (2019). 2016v1
Emissions Modeling Platform. Retrieved from http://views.cira.colostate.edu/wiki/wiki/10202.
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For example, in 2014 EPA promulgated new, more stringent emissions
and fuel standards for light-duty passenger cars and trucks.\142\ The
fuel standards took effect in 2017, and the vehicle standards are
phasing in between 2017 and 2025. Other EPA actions that are continuing
to reduce NOX emissions include the Heavy-Duty Engine and
Vehicle Standards and Highway Diesel Fuel Sulfur Control Requirements
(66 FR 5002; January 18, 2001); the Clean Air Nonroad Diesel Rule (69
FR 38957; June 29, 2004); the Locomotive and Marine Rule (73 FR 25098;
May 6, 2008); the Marine Spark-Ignition and Small Spark-Ignition Engine
Rule (73 FR 59034; October 8, 2008); the New Marine Compression-
Ignition Engines at or Above 30 Liters per Cylinder Rule (75 FR 22895;
April 30, 2010); and the Aircraft and Aircraft Engine Emissions
Standards (77 FR 36342; June 18, 2012).
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\142\ Control of Air Pollution from Motor Vehicles: Tier 3 Motor
Vehicle Emission and Fuel Standards, 79 FR 23414 (April 28, 2014).
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EPA is currently developing a new regulatory effort to reduce
NOX and other pollution from heavy-duty trucks (known as the
Cleaner Trucks Initiative), as described in the January 21, 2020,
Advance Notice of Proposed Rulemaking (85 FR 3306). Heavy-duty vehicles
are the largest contributor to mobile source emissions of
NOX and will be one of the largest mobile source
contributors to ozone in 2025.\143\ Reducing heavy-duty vehicle
emissions nationally would improve air quality where the trucks are
operating as well as downwind. As required by CAA section 202(a)(3)(A)
of the Act, EPA will be proposing NOX emission standards
that ``reflect the greatest degree of emission reduction achievable
through the application of technology which the Administrator
determines will be available for the model year to which such standards
apply, giving appropriate consideration to cost, energy, and safety
factors associated with the application of such technology.'' Section
202(a)(3)(C)
[[Page 23100]]
requires that standards apply for no less than 3 model years and apply
no earlier than 4 years after promulgation.
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\143\ Zawacki et al, 2018. Mobile source contributions to
ambient ozone and particulate matter in 2025. Atmospheric
Environment. Vol 188, pg 129-141. Available online: https://doi.org/10.1016/j.atmosenv.2018.04.057.
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Given these requirements, EPA is considering implementation of new
heavy-duty NOX emission standards beginning in model year
2027. In addition, any new rulemaking process for other mobile source
sectors would not achieve actual NOX emission reductions
before 2025, given the lead time necessary for EPA and for
manufacturers.
However, EPA's existing regulatory program will continue to reduce
NOX emissions into the future, and EPA is currently taking
active steps to ensure that these NOX reductions occur. The
CAA prohibits tampering with emissions controls, as well as
manufacturing, selling, and installing aftermarket devices intended to
defeat those controls. EPA currently has a National Compliance
Initiative called ``Stopping Aftermarket Defeat Devices for Vehicles
and Engines,'' which focuses on stopping the manufacture, sale, and
installation of hardware and software specifically designed to defeat
required emissions controls on onroad and nonroad vehicles and engines.
C. Emission Reduction Potential of Control Stringencies
1. EGU Emission Reduction Potential
For EGUs, as discussed in section VI.A, the multi-factor test
considers increasing levels of uniform control stringency in
combination with consideration of total NOX reduction
potential and corresponding air quality improvements. EPA evaluated EGU
NOX emission controls that are widely available (described
previously in section VI.B.1), that were assessed in previous rules to
address ozone transport, and that have been incorporated into state
requirements to address ozone nonattainment.
The tables below summarize the emission reduction potentials (in
absolute ozone season tons) from these emission controls across the 12-
state region. Table VI.C.1-2 focuses on near-term mitigation emission
controls while Table VI.C.1-3 includes emission controls with extended
time frames for implementation.
Table VI.C.1-2--EGU Ozone-Season Emission Reduction Potential--2021
----------------------------------------------------------------------------------------------------------------
Reduction potential (tons) for varying levels of
technology inclusion
Baseline 2021 OS --------------------------------------------------------
State NOX SCR/SNCR
SCR optimization SCR optimization optimization +
+ LNB upgrade LNB upgrade
----------------------------------------------------------------------------------------------------------------
Illinois............................ 9,368 171 171 267
Indiana............................. 15,856 2,771 2,771 2,805
Kentucky............................ 15,588 282 1,531 1,538
Louisiana........................... 15,476 87 87 658
Maryland............................ 1,501 1 1 1
Michigan............................ 13,898 1,166 1,284 1,288
New Jersey.......................... 1,346 92 92 92
New York............................ 3,469 53 53 53
Ohio................................ 15,829 6,140 6,140 6,140
Pennsylvania........................ 11,896 3,517 3,517 3,517
Virginia............................ 4,664 50 320 380
West Virginia....................... 15,165 1,479 1,960 2,281
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Total........................... 124,057 15,809 17,927 19,021
----------------------------------------------------------------------------------------------------------------
* EPA shows reduction potential from state-of-the-art LNB upgrade as a near-term reduction emission control but
explains in sections VI.B and VI.D that this reduction potential would not be implemented until 2022. Sum of
state values may vary slightly from total due to rounding.
Table VI.C.1-3--EGU Ozone-Season Emission Reduction Potential--2025
----------------------------------------------------------------------------------------------------------------
Reduction potential (tons) for varying levels of technology
inclusion*
---------------------------------------------------------------
SCR/SNCR SCR/SNCR
State Baseline 2025 optimization + optimization +
OS NOX SCR SCR/SNCR LNB upgrade + LNB upgrade +
optimization + optimization + SNCR retrofit SCR retrofit +
LNB upgrade LNB upgrade + generation generation
shifting shifting
----------------------------------------------------------------------------------------------------------------
Illinois........................ 8,281 138 233 1,053 1,401
Indiana......................... 12,232 2,648 2,668 3,309 3,802
Kentucky........................ 14,551 1,199 1,205 2,755 5,022
Louisiana....................... 15,476 87 659 1,098 2,854
Maryland........................ 1,350 2 2 181 181
Michigan........................ 11,009 1,205 1,209 2,331 3,656
New Jersey...................... 1,346 92 92 89 89
New York........................ 3,456 53 53 159 159
Ohio............................ 15,927 6,155 6,155 6,284 6,706
Pennsylvania.................... 11,896 3,523 3,523 3,975 4,045
Virginia........................ 4,162 323 367 417 850
West Virginia................... 15,165 1,960 2,281 2,328 4,597
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[[Page 23101]]
Total....................... 114,850 17,384 18,448 23,978 33,363
----------------------------------------------------------------------------------------------------------------
* Both tables VI.C.1-2 and VI.C.1-3 include limited generation shifting (reflecting that which would occur at
the price level consistent with control operation). It does not factor in generation shifting reduction
potential that may be attributable to incremental new builds or incremental retirements. Sum of state values
may vary slightly from total due to rounding.
Comment: Some commenters suggested that the emission reduction
estimates for an identified technology needed to be updated based on
new or updated data.
Response: EPA has updated the total emission reduction potential
for each technology based on information provided by commenters.
Further details are provided in the RTC Document included in the
docket, the EGU NOx Mitigation Strategies Final Rule TSD, and in the
Ozone Transport Policy Analysis Final Rule TSD. In summary, comments
containing new data, information, or analysis that resulted in changes
to the values in the tables above included information on (1) shared
stack emissions apportionment, (2) updated information and data on
retirements and new builds, (3) updated information and data on
combustion control performance, and (4) and updated information on SNCR
optimization cost. In the first three instances, the resulting impact
was a change in the inventory of units with identified emission
reduction potential (and therefore overall emission reduction potential
from that category). For instance, multiple commenters provided EPA
with data on shared stack emissions apportionment not readily available
in unit-level data reported to EPA. In some cases where stack data are
measured and reported, and that stack is shared by two units (one with
an SCR and one without), the apportionment method of those reported
stack emissions for reporting purposes is heat input-based and
therefore may not reflect the unit-level operation of the control at
that unit, even when that control is operating. In other words, it may
have apportioned those stack emissions (e.g., 10 tons) as 5 tons to
each unit, while the actual operation is 9 tons from the uncontrolled
unit and 1 ton from the controlled unit. This can give the appearance
of a controlled unit emitting above the optimized rate, when in fact it
is already operating below the 0.08 lb/mmBtu threshold. Similar to the
CSAPR Update, EPA incorporated the information from this comment and
new data into this final rule, and EPA has adjusted the Agency's
inventory of units that may have SCR reduction potential accordingly.
Likewise, EPA received some updated information on unit-level
retirement status such as changes to the retirement status of the
Colver Power Plant in Pennsylvania and the Pleasants Power Station in
West Virginia. As these units are no longer retiring, their retirement
is not factored into the step 3 baseline or resulting state emission
budgets. Similarly, EPA also incorporated comments and new data
regarding new units expected to come online and retiring units expected
to go offline after 2019 but prior to 2024 ozone season.\144\ Also, as
noted above, EPA updated its performance rate assumption for LNB
controls based on updated data and comments, resulting in less emission
reduction potential from this technology category. Finally, the
emission reduction levels associated with SNCR optimization were
updated to be consistent with the representative cost (and commensurate
generation shifting-based reductions) adjustments discussed above.
---------------------------------------------------------------------------
\144\ EPA relied on unit-level data from the proposal, commenter
data, and the latest EIA Form 860m (October 2020) available at the
time of the final rule analysis.
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Comment: Some commenters asserted that EPA should change its timing
assumptions for post-combustion control retrofits by parsing out
different timing assumptions for SNCR and SCR retrofits. They claim
that doing so would result in more emission reductions available
starting in earlier years (e.g., 2023) given that SNCR retrofit
technology could be installed by that year.
Response: EPA is finalizing the same timing assumptions that it
proposed for the installation of post-combustion controls. As discussed
in section VI.B.1.e and noted in prior actions, EPA generally views 39-
48 months as an appropriate implementation timeframe for regionwide
installation of new post-combustion control technologies when EPA is
evaluating multiple installations at multiple locations. As discussed
further below, this is primarily based on SCR retrofit rather than
SNCR. The period from finalization of this rule until the start of the
2024 ozone-season would allow less than 39 months for post combustion
controls to be regionally installed and operating. The 2025 ozone
season represents a period approximately 48 months after finalization
of this rule and reflects a more demonstrably possible window for
making retrofits on a regional scale. Therefore, EPA finds that 2025 is
the earliest ozone season by which new SNCR or SCR may be installed
across multiple EGUs on a regional basis.
Installing new SCR or SNCR controls for EGUs generally involves the
following steps: Conducting an engineering review of the facility to
determine suitability and project scope; advertising and awarding a
procurement contract; obtaining a construction permit; installing the
control technology; testing the control technology; and obtaining or
modifying an operating permit. These timeframes are intended to
accommodate a plant's need to conduct an engineering assessment of the
possible NOX mitigation technologies necessary to then
develop and send a bid request to potential suppliers. Control
specifications are variable based on individual plant configuration and
operating details (e.g., operating temperatures, location restrictions,
and ash loads). Before making potential large capital investments,
plants need to complete these careful reviews of their system to inform
and develop the control design they request. They then need to solicit
bids, review bid submissions, and award a procurement
[[Page 23102]]
contract--all before construction can begin.
Scheduled curtailment, or planned outage, for pollution control
installation would also be necessary to complete SCR or SNCR projects
on a regional scale. Given that peak demand and rule compliance would
both fall in the ozone season, sources would likely need to schedule
installation projects for the ``shoulder'' seasons (i.e., the spring
and/or fall seasons), when electricity demand is lower than in the
summer, reserves are higher, and ozone season compliance requirements
are not in effect. If multiple units were under the same timeline to
complete the retrofit projects as soon as feasible from an engineering
perspective, this could lead to bottlenecks of scheduled outages as
each unit attempts to start and finish its installation in roughly the
same compressed time period. Thus, any compliance timeframe that would
assume installation of new SCR or SNCR controls should be developed to
reasonably encompass multiple shoulder seasons to accommodate
scheduling of curtailment for control installation purposes and better
accommodate the regional nature of the program.\145\
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\145\ The workforce disruption experienced at the onset of the
COVID-19 pandemic has resulted in a backlog of scheduled outages for
power plant maintenance. According to Genscape, PJM (a regional
transmission organization covering a substantial portion of the EGUs
affected by this rule) observed a shortfall of more than a quarter
of planned outages for power plant maintenance in the spring 2020
shoulder season. Finn, Pat; Szumloz, Zach; Gordon, Elliot. Impacts
of the Coronavirus on the PJM Power Market, Taking a Closer Look at
Demand, Supply, Energy Prices, and Congestion. Genscape, A Wood
Mackenzie Business. April 2020.
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Finally, the time lag observed between the planning phase and in-
service date of SCR operations in certain cases also illustrates that
site-specific conditions can lead to installation times of four years
or longer--even for individual power plants. For instance, SCR projects
for units at the Ottumwa power plant (Iowa), Columbia power plant
(Wisconsin), and Oakley power plant (California) were all in the
planning phase in 2014. By 2016, these projects were under construction
with estimated in-service dates of 2018.\146\ Further, large-scale
projects also illustrate that timelines can extend beyond the general
estimate for a single power plant when the project is part of a larger,
multifaceted air pollution reduction goal. For instance, the Big Bend
power plant in Florida completed a multifaceted project that involved
adding SCRs to all four units as well as converting furnaces, over-fire
air changes, and making windbox modifications, during which a decade
elapsed between the initial planning stages and completion.\147\
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\146\ 2014 EIA Form 860. Schedule 6. Environmental Control
Equipment.
\147\ Big Bend's Multi-Unit SCR Retrofit. Power Magazine. March
1, 2010. Available at http://www.powermag.com/big-bends-multi-unit-scr-retrofit/.
---------------------------------------------------------------------------
EPA notes that differences between these control technologies exist
with respect to the potential viability of achieving cost-effective,
regional NOX reductions from EGUs. SCR controls generally
achieve greater EGU NOX reduction efficiency (up to 90
percent) than SNCR controls (25 percent). EPA observes that for the
remaining uncontrolled coal fleet in the 12 states, SCRs are, on
average, more expensive on a cost per ton basis. However, the analysis
in the EGU NOX Mitigation Strategies Final Rule TSD notes
that the cost range varies widely for units depending on inlet
NOX rate and capacity factor. Therefore, for some units, it
is possible that SCR retrofit costs are lower than SNCR costs on a cost
per ton basis. Moreover, there are a host of other market and policy
drivers that may lead a specific unit to prefer an SCR retrofit over an
SNCR retrofit. As a result, EPA finds it is reasonable to allow
sufficient time for EGU operators to select installation of SCR in
response to a multi-state emission control program whose emission
budgets would reflect emission reductions from new post-combustion
controls. Therefore, EPA is using an SCR-inclusive planning and
installation schedule to represent new post-combustion retrofit
potential on a regional basis (be it SNCR or SCR as determined by
individual EGU owners under our flexible market-based emission trading
program).
Furthermore, SNCR installation at an individual source would render
later installation of an SCR less cost-effective, because such a unit
would have already expended some unrecoverable capital on the less-
effective pollution control technology. As a result, it would be
counterproductive to assume EGUs should install the less effective SNCR
control technology to address a short-run air quality concern under an
older and less stringent NAAQS when it may later prove necessary to
require the more effective SCR control technology to address longer-run
air quality concerns under a more stringent NAAQS for the same
pollutant. Considering these factors, EPA finds it is appropriate to
give particular weight to the timeframe required for implementation of
SCR across the region as compared to SNCR to allow sources the
flexibility to make the most efficient post-combustion control
investment. Historically, units have chosen to retrofit with higher
performing SCR at a much greater rate than they have chosen SNCR. For
SCR, the total time associated with project development is estimated to
be up to 39 months for an individual power plant installing controls on
more than one boiler. However, more time is needed when considering
installation timing for new SCR controls regionally. EPA has previously
determined that a minimum of 48 months (four years) is a reasonable
time period to allow to complete all necessary steps of SCR projects at
EGUs on a regional scale. This timeframe would allow for regional
implementation of these controls (i.e., at multiple power plants with
multiple boilers) considering the necessary stages of post-combustion
control project planning, shepherding of labor and material supply,
installation, coordination of outages, testing, and operation.\148\
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\148\ Final Report: Engineering and Economic Factors Affecting
the Installation of Control Technologies for Multipollutant
Strategies, EPA-- 600/R-02/073 (Oct. 2002), available at https://nepis.epa.gov/Adobe/PDF/P1001G0O.pdf.
---------------------------------------------------------------------------
In addition to its engineering assessment, EPA looked at historical
data to validate this 39-48 month installation timeframe. EPA observed
over 12 GW of uncontrolled coal capacity in the linked states covered
in this rule. For comparison, EPA looked at the last 15 years of data
to see if a similar amount of capacity had come online in a shorter
time frame. It observed that it had not. Most notably, the CAIR was
finalized in March of 2005 covering much of the Eastern U.S. and drove
significant SCR retrofit activity, with incentives for early
installation and reductions. From this date, 39-48 months would have
placed the SCRs online in the mid 2008 to 2009 time frame. The graphic
below illustrates an uptick in coal-fired capacity retrofitted with
SCRs in response to the rule (Figure VI.D.2). Most of this capacity
comes online in 2009 and 2010. Although EPA's data on when sources
started planning these controls and whether it was driven purely by
CAIR or other factors are not perfect, the Agency finds the chart below
consistent with its determination that a 39-48 month time frame is
reasonable for SCR retrofit possibility on a regional level.
[[Page 23103]]
[GRAPHIC] [TIFF OMITTED] TR30AP21.002
Comment: EPA received comment on the timing assumptions regarding
SCR and SNCR retrofit. Commenters noted that EPA should require SNCR
installation as it can be installed in as little as 16 months, and that
EPA's reliance on SCR timing to justify not considering SNCR is not
reasonable given that EPA is not considering SCR installation.
Moreover, the commenter also suggested that if these controls are not
available on a region-wide level by the start of 2024, that EPA should
still include them for a limited number of units (e.g., 30 percent of
the unretrofitted fleet) as the Clean Air Act requires that upwind
states limit emissions ``as expeditiously as practicable.''
Response: EPA believes its proposed collective timing assumptions
for post-combustion control retrofit are practicable given that the
preferable capital-intensive investment retrofit decision would be
highly unit-specific and subject to a unit's compliance strategy
choices with respect to multiple regulatory requirements. For the
reasons described above, EPA believes that separating the post-
combustion retrofit timing consideration would create a framework that
potentially inhibits greater emission reductions from technologies like
SCR that may be both preferable to the unit's operator and beneficial
to overall emission reductions. While the commenter observed that SCR
installation is not included as part of EPA's proposed control
stringency, states and EPA may consider requiring this emission control
technology to address good neighbor obligations or other attainment
planning requirements for the 2015 ozone NAAQS or other CAA programs.
Therefore, while the commenter suggests that the exclusion of new SCR
installations from the control stringency selected for this rule should
result in the decoupling of SNCR and SCR for timing considerations, EPA
observes that the broader regulatory context potentially presents
situations where a better performing emission reduction technology is
the preferred retrofit choice. If EPA were to ignore the observation
that this post-combustion retrofit technology decision is a binary
choice, as these technologies substitute for rather than complement one
another, it would potentially eliminate or make more costly the
eventual decision to implement a better performing SCR technology by
implementing on a schedule that did not allow for that compliance
strategy.
With regard to the suggestion that, if it is not possible to
require all non-retrofitted units to install new controls, EPA should
at least require some units to retrofit with SNCR and SCR, EPA observed
that doing so would result in making selective choices about which
linked upwind states should face more stringent requirements and would
upset the uniform control stringency scheme allowing for ``equitable
and efficient'' implementation of good neighbor obligations. EME Homer
City, 572 U.S. at 519. In addition, it would necessitate far greater
unit-level analysis, which would likely have prevented EPA from
finalizing a rule in time to implement reductions for the 2021 ozone
season.
2. Non-EGU Emission Reduction Potential
EPA performed a similar analysis of reduction potential for the
non-EGU mitigation technologies identified, as discussed in section
VI.B.2 of this notice. EPA's assessment of emission reduction potential
from the controls in the tranches reflects ongoing uncertainty
resulting from the quality of the current information available to the
Agency. This uncertainty has been addressed to some extent through
further research conducted since the proposed rule. Because information
for existing controls on non-EGU emissions sources is missing in the
2016 base year inventory for some states and incomplete for some
sources, EPA went through a process in the proposed rule to further
verify existing control information and refine the NOX
emission reduction potential estimated by CoST, the CMDb, and the 2023
projected inventory. In the proposed rule EPA focused its verification
and refinement efforts on those upwind states with the largest
estimated potential air quality impacts from potential non-EGU emission
reductions. Since the proposed rule, EPA extended its verification and
refinement efforts to several additional linked states.
In the proposed rule, EPA identified two tranches of controls for
non-EGU emissions sources/units associated with two levels of weighted
average cost per ton. EPA assumed that the potential reductions in
tranche one were likely cost-effective because tranche one's weighted
average cost of $2,000 per ton is similar to the identified control
stringency for EGUs represented by
[[Page 23104]]
$1,800 per ton (see section VI.D.1). The additional steps EPA took,
discussed in more detail below, included:
Looked at potential emission reductions in tranche one
that were estimated to cost less than $2,000 per ton; and
For those potential reductions in tranche one that were
estimated to cost less than $2,000 per ton, reviewed online facility
permits and industrial trade literature to verify and determine if the
estimated emission reductions may be actual, achievable emission
reductions or if the estimated emission reductions are associated with
emissions units that are already controlled.
EPA focused its verification and refinement efforts on those upwind
states with the largest estimated potential air quality impacts from
potential non-EGU emission reductions. Specifically, EPA used an
estimate of 0.02 ppb as a threshold for air quality improvement that
may be obtained from reductions from non-EGU emissions sources in each
state to better target its efforts to verify and refine the potential
estimated non-EGU NOX emission reductions. The Agency
explained that it was not applying a 0.02 ppb impact threshold as a
step in the step 3 multi-factor test. Rather, the threshold allowed the
Agency to better target its efforts toward the potentially effective
states for non-EGU NOX emission reductions. Based on this,
the states for which the Agency verified existing control information
and refined the NOX emission reduction estimates in the
proposed rule included: Indiana, New York, Ohio, Pennsylvania, and West
Virginia. For additional discussion on the air quality impacts by
state, see the section titled Air Quality Impacts from Potential Non-
EGU Emissions Reductions in the technical memorandum titled Assessing
Non-EGU Emission Reduction Potential in the docket for this rule. In
this final rule, EPA extended its verification process to additional
linked states, including Maryland, Michigan, and Virginia.\149\
---------------------------------------------------------------------------
\149\ The verification efforts did not include New Jersey,
Illinois, and Kentucky. For New Jersey, the projected 2023 emissions
inventory did not include non-EGU point sources/units with pre-
control NOX emissions greater than 150 tpy for which the
Agency had applicable control measures; as such, there were no
potential NOX emission reductions to verify. For
Illinois, EPA did not review the potential controls for emissions
sources/units because their permits were not available online.
(However, as discussed below, EPA assumed all of the potential
emission reductions estimated by CoST from units in Illinois were
considered available.) For Kentucky EPA did not review the potential
controls because CoST did not identify applicable control measures
for any emissions sources/units in the state; as such, there were no
potential NOX emission reductions to verify. Louisiana
was not assessed because the receptor to which it is linked is
projected to resolve by the 2023 ozone seaon, which is the earliest
ozone season EPA finds non-EGU emission reductions may become
available.
---------------------------------------------------------------------------
As noted above to focus the set of non-EGU emissions sources/units
in the linked upwind states (Indiana, Maryland, Michigan, New York,
Ohio, Pennsylvania, Virginia, and West Virginia) for which EPA could
verify existing control information and refine the NOX
emission reduction estimates, the Agency assumed that the potential
reductions in tranche one were likely cost-effective because tranche
one's weighted average cost of $2,000 per ton is similar to the
identified control stringency for EGUs represented by up to $1,800 per
ton (see section VI.D.1).
In the proposed rule, EPA found in Indiana, New York, Ohio, and
Pennsylvania, that the estimated emission reductions in tranche one
that cost less than $2,000 per ton were 6,346 ozone season tons. Note
that no potential emission reductions at a cost of less than $2,000 per
ton were identified in West Virginia because CoST originally estimated
control costs for two IC engines in West Virginia inappropriately, and
CoST did not identify likely cost-effective controls for any other non-
EGU emissions units in the state. EPA removed the two IC engines in
West Virginia from further consideration because the corrected
potential cost was greater than $2,000 per ton.
In reviewing the potential controls in tranche one that were
estimated to cost less than $2,000 per ton for Indiana, New York,
Pennsylvania, and Ohio, EPA found that these reductions were from SCR
applied to glass furnaces and SNCR applied to cement kilns. In addition
in this final rule, EPA found in Maryland, Michigan, and Virginia the
estimated emission reductions in tranche one that cost less than $2,000
per ton are 664 ozone season tons. These estimated reductions were also
from glass furnaces and cement kilns. The total estimated emission
reductions in tranche one in Indiana, Maryland, Michigan, New York,
Pennsylvania, Ohio, and Virginia that cost less than $2,000 per ton are
7,010 ozone season tons.
Next, to verify the information on the application of these
controls and estimated emission reductions, EPA reviewed facilities'
online title V permits and industrial trade literature for the likely
cost-effective emission reductions associated with SCR applied to glass
furnaces and SNCR applied to cement kilns. In the proposed rule, EPA
determined that of the 20 emissions units in Indiana, New York,
Pennsylvania, and Ohio included in the cost analysis, source permits
identified that 10 units (i) already have controls and monitors
(primarily CEMS), (ii) are installing controls and CEMS or
consolidating operations in the next few years as a result of recent
consent decrees issued as part of EPA's New Source Review Air
Enforcement Initiative, (iii) have shut down, or (iv) are planning to
shut down by 2023. These 10 units account for approximately 34 percent
of estimated potential emissions reductions from Pennsylvania, New
York, Ohio, and Indiana in tranche 1 that cost <$2,000 per ton. The
results of the online permit review and review of industrial trade
literature, summarized in Table VI.C.2-1 below, suggested that
approximately 14 percent of the CoST-estimated potential emission
reductions in these four states may be possible to achieve.
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\150\ In the memorandum titled Assessing Non-EGU Emission
Reduction Potential, the section titled Conclusions of Verification
and Review of Controls on Non-EGU Sources in Four States and
Potential Emissions Reductions includes a discussion related to the
underlying uncertainty in these estimates of emission reductions.
Approximately 51 percent of the estimated emission reductions are
associated with only one emissions unit at a facility in
Pennsylvania. In the 2023 projected inventory, the pre-control
emissions are significantly higher than what appears in the
Pennsylvania Air Emissions Report for this facility and
significantly higher than any other glass furnace in this analysis.
The projected inventory does not show a control on any unit at this
facility, even though a review of the permit indicates that one unit
does have a control.
Table VI.C.2-1--Status of Potential Emission Reductions
----------------------------------------------------------------------------------------------------------------
Number of
emissions OS tons Percent of
units total
----------------------------------------------------------------------------------------------------------------
Shutdowns....................................................... 4 824 13
Lehigh Cement--Kiln Replacements................................ 3 366 6
NEI Discrepancy/Uncertain \150\................................. 1 3,286 51
[[Page 23105]]
Already Controlled/Uncertain.................................... 5 967 15
Possible Emission Reductions.................................... 7 903 14
-----------------------------------------------
Total....................................................... 20 6,346
----------------------------------------------------------------------------------------------------------------
In EPA's analysis for this final rule, the online permit review for
Maryland, Michigan, and Virginia identified approximately 62 ozone
season tons out of the estimated 664 ozone season tons that are from
sources/units already controlled, leaving an estimated 602 ozone season
tons of likely cost-effective emission reductions from these states.
For additional details on the review of online permits and industrial
trade literature, please see the memorandum titled Assessing Non-EGU
Emission Reduction Potential, available in the docket for this rule.
EPA previously examined the time necessary to install the controls
indicated in the table above (with details on the technology tranches)
for different industries. The 2016 CSAPR Update Non-EGU TSD provided
preliminary estimates of installation times for a variety of
NOX control technologies applied to a large number of
sources in non-EGU industry sectors.\151\ For virtually all
NOX controls applied to cement manufacturing and glass
manufacturing, information on installation times was not available to
provide an estimate, and the installation time for these controls was
``uncertain.'' There was an exception for SNCR applied to cement kilns;
however, the installation time estimate of 42-51 weeks listed in the
CSAPR Update Non-EGU TSD does not account for implementation across
multiple sources, the time needed to have NOX monitoring
installed, and other steps in the permitting and construction
processes.
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\151\ The CSAPR Update Non-EGU TSD is available on EPA's website
at the following link: https://www.epa.gov/airmarkets/assessment-non-egu-NOX-emission-controls-cost-controls-and-time-compliance-final-tsd.
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To improve upon information from the CSAPR Update Non-EGU TSD on
installation times for SCR on glass furnaces and SNCR on cement kilns,
EPA reviewed information from permitting actions and a consent decree.
For two glass manufacturing facilities that installed SCR on glass
furnaces, from the time of permit application to the time of SCR
operation was approximately 19 months for one facility and is currently
at least 20 months for another facility.\152\ These installation times
do not reflect time needed for pre-construction design and engineering,
financing, and factors associated with scaling up construction services
for multiple installations at several emissions units. With respect to
cement kilns, an April 2013 consent decree between EPA and CEMEX, Inc.
required installation of SNCR at a kiln within 450 days, or
approximately 15 months, of the effective date of the consent decree.
Similarly, this installation time does not reflect time associated with
scaling up construction services for multiple control installations at
several emissions units.
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\152\ Cardinal FG Company submitted a permit application to the
Wisconsin Department of Natural Resources (WIDNR) to construct an
SCR in December 2017 at a facility in Portage, Wisconsin. The SCR
was expected to be ready for testing in mid-July 2019. In addition,
Cardinal FG Company submitted a permit application to the WIDNR to
construct an SCR in January 2019 at a facility in Menomonie,
Wisconsin. The SCR is currently not operational.
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This information and EPA's general experience indicate that a two-
year installation timeframe for a rule requiring installation of new
control technologies across a variety of emissions sources in several
industry sectors on a regional basis is a relatively fast installation
timeframe. A shorter installation timeframe of approximately one year
(i.e., in time for the 2022 ozone season) would raise significant
challenges for sources, suppliers, contractors, and other economic
actors, potentially including customers relying on the products or
services supplied by the regulated sources.\153\
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\153\ EPA notes that in several places, the CAA itself indicates
a general congressional expectation that the retrofit of emissions
controls onto existing sources across diverse industry sectors and
at a regional or national scale may take at least several years. For
instance, under CAA section 112(i)(3), Congress allowed for up to
three years for compliance with control requirements in national
rules for hazardous air pollutants for existing sources. And under
CAA section 169A(g)(4), Congress established up to five years for
the installation of best available retrofit technology (BART) for
over two-dozen source categories. While these provisions also call
for installation ``as expeditiously as practicable,'' EPA notes that
both of these timeframes are longer than the two-year estimate EPA
uses in this rulemaking.
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Thus, for this rule, EPA estimates that these controls for glass
furnaces and cement kilns would take at least 2 years to install on a
sector-wide basis across the 12-state region. Therefore, based on the
information currently available, EPA in its reasoned judgment finds
that the 2023 ozone season is the earliest ozone season by which these
non-EGU controls could be installed.
D. Assessing Cost, EGU and Non-EGU NOX Reductions, and Air
Quality
To determine the emissions that are significantly contributing to
nonattainment or interfering with maintenance, EPA applied the multi-
factor test to EGUs and non-EGUs separately, considering for each the
relationship of cost, available emission reductions, and downwind air
quality impacts. Specifically, EPA determined the appropriate level of
uniform NOX control stringency that addresses the impacts of
interstate transport on downwind nonattainment or maintenance
receptors. EPA also evaluated possible over-control by determining if
an upwind state is linked solely to downwind air quality problems that
could have been resolved at a lower cost threshold, or if an upwind
state could have reduced its emissions below the 1 percent air quality
contribution threshold at a lower cost threshold.
1. EGU Assessment
For EGUs, EPA examined the emission reduction potential associated
with each EGU emission control technology (presented in section VI.C.1)
and its impact on the air quality at downwind receptors. Specifically,
EPA identified the projected air quality improvement relative to the
base case, as well as whether the air quality improvements are
sufficient to shift the status of receptors from nonattainment to
maintenance or from maintenance to clean. Combining these air quality
factors, cost, and emission reductions, EPA identified a control
stringency for EGUs that maximizes the air quality improvement from
emission controls available in the timeframe for which air quality
problems at downwind receptors
[[Page 23106]]
persist. This control stringency reflects the optimization of existing
SCR controls and installation of state-of-the-art NOX
combustion controls, which are widely available at a representative
marginal cost of $1,600 per ton. It also includes the optimization of
existing SNCR controls at sources that are already partially operating
these controls, which becomes widely available as a mitigation
technology at $1,800 per ton. EPA's evaluation also shows that emission
budgets reflecting the operation of these existing post combustion
controls and combustion control upgrades do not over-control upwind
states' emissions relative to either the downwind air quality problems
to which they are linked at step 1 or the 1 percent contribution
threshold that triggers further evaluation at step 2 of the 4-step
framework for the 2008 ozone NAAQS. To assess downwind air quality
impacts for each nonattainment and maintenance receptor identified in
section V.C, EPA evaluated the air quality change at that receptor
expected from the progressively more stringent upwind EGU control
stringencies that were available for that time period. This assessment
provides the downwind ozone improvements for consideration and provides
air quality data that is used to evaluate potential over-control.
To assess the air quality impacts of the various control
stringencies at downwind receptors, EPA evaluated changes resulting
from the emission reductions associated with the identified emission
controls in each of the upwind states, as well as corresponding
reductions of similar stringency in the downwind state containing the
receptor they are linked to. By applying these emission controls to the
state containing the receptor, EPA assumes that the downwind state will
implement (if it has not already) an emissions control stringency for
its sources that is comparable to the upwind control stringency
identified here. Consequently, EPA explicitly ensures that it is
accounting for the downwind state's share of a nonattainment or
maintenance problem (which is a part of the overcontrol
evaluation).\154\
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\154\ This step is irrelevant in the analysis for the
Connecticut receptors because that state shows no EGU reduction
potential from the EGU control optimization or retrofit technologies
identified given its already low-emitting fleet.
---------------------------------------------------------------------------
For states that were not linked to that receptor, the air quality
change at that receptor was evaluated assuming emissions equal to the
engineering analytics base case emission level. This method holds each
upwind state responsible for its share of the specific downwind
problems to which it is linked. For states that are not linked to that
receptor (even if they are linked to a different receptor), EPA assumes
that they are not making emission reductions beyond those in the base
case to that receptor. In practice, because these states, by
definition, do not impact such receptors above the contribution
threshold, the changes in emissions have little to no effect on the
non-linked receptor. Furthermore, if EPA were to explicitly consider
these reductions within the framework, it would introduce
interdependency into the solution for significant contribution. The
state-and-receptor-specific definition of significant contribution
would devolve into a simultaneous regional action, where particular
states would have to either ``go first'' or where non-linked states
would shoulder burdens to receptors to which they are not linked while
other linked states would do less. In any case, EPA has verified that
even if it were to account for non-linked state reductions under the
selected control stringency, the changes in concentrations at the
receptors are so small that they do not affect the attainment or
maintenance status of any receptor.
For this assessment, EPA used an ozone air quality assessment tool
(ozone AQAT) to estimate downwind changes in ozone concentrations
related to upwind changes in emission levels. EPA used this tool to
analyze the years for which downwind nonattainment and maintenance
problems persist for the 2008 ozone NAAQS. Under the base case, EPA
projects that such air quality problems persist through 2025.
Therefore, EPA focused its assessment on the years 2021 through 2025.
This tool is similar to the AQAT tool used in the CSAPR Update to
evaluate changes in ozone concentrations. The ozone AQAT uses
simplifying assumptions regarding the relationship between each state's
change in NOX emissions and the corresponding change in
ozone concentrations at nonattainment and maintenance receptors to
which that state is linked. This method is calibrated using two CAMx
air quality modeling scenarios that fully account for the non-linear
relationship between emissions and air quality associated with
atmospheric chemistry. The two CAMx modeling scenarios are the 2016fh1
base year and the 2023fh1 future year scenarios for the 2021 time
period. For the 2024 and 2025 AQAT simulations, the two CAMx modeling
scenarios are the 2023fh1 future year and the 2028fh1 scenario. See the
Ozone Transport Policy Analysis Final Rule TSD for additional details.
For each EGU emission control technology, EPA first evaluated the
magnitude of the change in ozone concentrations at the nonattainment
and maintenance receptors for each relevant year. EPA next evaluated
whether the estimated change in concentration would resolve the
receptor's nonattainment or maintenance concern by lowering the average
or maximum design values below 76 ppb, respectively. For a complete set
of estimates, see the Ozone Transport Policy Analysis Final Rule TSD or
the ozone AQAT excel file.
In 2021, there are two nonattainment receptors and two maintenance
receptors (see section V.C for details). Table VI.D.1-1 summarizes the
results of EPA's evaluation of air quality improvements in 2021 at
these receptors using AQAT. EPA evaluated the air quality improvements
at the four receptors for the three EGU emission control technologies
that are available in the near-term. EPA determined that the average
air quality improvement at the four receptors relative to the
engineering analytics base case was 0.16 ppb for optimization of
existing SCRs and LNB upgrades, and 0.17 ppb when also including
optimization of existing SNCRs. EPA determined that the Westport
receptor (090019003) remains nonattainment and the Houston receptor
(482010024) remains maintenance across these control stringencies,
while the Stratford receptor (090013007) switches from nonattainment to
maintenance with the optimization of existing SCRs and LNB upgrades
(i.e., its average DV becomes clean but its maximum DV remains above
the NAAQS). Lastly, the New Haven receptor has all nonattainment and
maintenance resolved in the engineering analytics base case. For more
information about how this assessment was performed and the results of
the analysis for each receptor, refer to the Ozone Transport Policy
Analysis Final Rule TSD and to the Ozone AQAT included in the docket
for this rule.
[[Page 23107]]
Table VI.D.1-1--Air Quality Improvements at the Four Receptors in 2021 From Near-Term Emission Control Technologies
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Baseline SCR SCR/SNCR Baseline SCR SCR/SNCR
---------------- optimization + optimization + ---------------- optimization + optimization +
LNB upgrade LNB upgrade LNB upgrade LNB upgrade
Monitor ID # State County Average DV -------------------------------- -------------------------------
(ppb) Average DV Average DV Max DV (ppb)
(ppb) (ppb) Max DV (ppb) Max DV (ppb)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
90013007................................ Connecticut............... Fairfield................. 76.13 75.93 75.93 77.05 76.85 76.85
90019003................................ Connecticut............... Fairfield................. 78.27 78.12 78.12 78.58 78.43 78.42
90099002................................ Connecticut............... New Haven................. 73.59 73.38 73.37 75.74 75.53 75.52
482010024............................... Texas..................... Harris.................... 75.62 75.51 75.50 77.25 77.15 77.13
-------------------------------------------------------------------------------------------------
Average AQ Improvement Relative to Base (ppb)................................................... 0.00 0.16 0.17
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Figure 1 illustrates the air quality improvement relative to the
estimated representative cost associated with the previously identified
near-term emission control technologies. This graph shows improving air
quality at the downwind receptors as emission control technologies are
assumed to be implemented. In this final rule, EPA has adjusted this
graph to reflect a revised estimated representative cost of $1,800 per
ton for optimization of already operating SNCRs (which, as explained in
section VI.B.1, EPA has adjusted from a value of $3,900 per ton in the
proposed rule, which reflected turning on idled SNCRs). In the proposed
rule, the SNCR cost extended the right terminus of the solid line out
to $3,900 per ton and showed a ``knee-in-the-curve'' pattern. As noted
by commenters, a ``knee-in-the-curve'' is not on its own a
justification for not requiring reductions beyond that point in the
cost curve. Even though EPA did not solely rely on this factor in the
proposed rule, it notes that this inflection point is greatly
diminished and there a less discernable knee when the SNCR optimization
cost is updated to reflect $1,800 per ton. In fact, as explained below,
EPA does not view the now very slight difference in cost thresholds
between $1,600 per ton and $1,800 per ton as significant, and together,
EPA views them as comparable in terms of the relationship of available
emission reductions to air quality improvement.
The graph in Figure 1 to Section VI.D.1 highlights that the
majority of emission reduction potential and air quality improvement
occurs from optimization of existing SCRs, with some additional
reductions from installation of state-of-the-art combustion control at
the same cost threshold. At the slightly higher cost threshold of
$1,800 per ton, there is some additional air quality improvement from
optimization of existing SNCRs. Taken together, this level of control
stringency in emission budgets represents the level at which
incremental EGU NOX reduction potential and corresponding
downwind ozone air quality improvements are maximized with respect to
identified near-term emission control technologies. While the more
stringent emission budget levels (e.g., emission budgets reflecting the
inclusion of optimization of existing SNCRs) yield a relatively small
amount of incremental emission reductions and fewer air quality
improvements, they still demonstrate meaningful air quality
improvement. Further, after consideration of comments and examining
cost data, EPA has identified additional compelling reasons favoring
the inclusion of optimization of SNCR controls in the context of this
full remedy rulemaking, discussed below. This evaluation shows that EGU
NOX reductions for each of the near-term emission control
technologies are available at reasonable cost and that these reductions
can provide improvements in downwind ozone concentrations at the
identified nonattainment and maintenance receptors.
[[Page 23108]]
[GRAPHIC] [TIFF OMITTED] TR30AP21.003
EPA finds that the control stringency that reflects optimization of
existing SCRs and SNCRs, and installation of state-of-the-art
combustion controls results in a substantial number of emission
reductions totaling nearly 19,000 tons (approximately 16 percent of the
baseline level), resulting in all downwind air quality problems for the
2008 ozone NAAQS being resolved after 2024 (one year earlier than the
base case).\155\ There are also projected changes in receptor status
(from projected nonattainment to maintenance-only) for the Stratford
and Westport receptors (the first in 2021, the second in 2024). In
addition, the Houston receptor changes from maintenance to attainment
in 2023. In 2021, the average level of improvement in ozone
concentrations at all four of the receptors is 0.17 ppb.
---------------------------------------------------------------------------
\155\ EPA is not obligated to fully resolve downwind
nonattainment and maintenance issues through the good neighbor
provision, as some commenters assert. EPA considers the changes in
receptor status in this analysis informative in the context of the
step 3 multi-factor test. However, that does not mean EPA agrees
that good neighbor obligations may only be considered fully
addressed when all downwind receptors have reached attainment.
---------------------------------------------------------------------------
Including optimization of existing SNCRs yields incremental
emission reductions of approximately 1,200 tons as there are fewer
sources with this emission control technology. As noted in the proposed
rule, a small portion of the coal fleet had this technology in place
(14 percent), and of that small portion, many units with these SNCR
controls had emission rates of 0.13 lb/mmBtu or less (many operating
less than 0.1 lb/mmBtu), suggesting they were already optimizing their
SNCRs. Analysis using the AQAT tool suggests that optimization of
existing SNCRs has an average air quality improvement of 0.01 ppb.
While having no further impact on receptors' classification status, it
does deliver additional improvement at the problematic receptors.
Given the small portion of the EGU fleet with existing SNCRs in the
12 linked states, the limited number of additional reductions, and the
relatively higher cost for this emission control technology, EPA had
proposed to determine that the potential emission reductions associated
with optimizing existing SNCRs not be required to eliminate significant
contribution from the 12 linked states under the 2008 ozone NAAQS.
Based on comments EPA received and outlined below, along with
subsequent review of cost data and additional considerations, EPA is
including emission reduction potential from this emission control
technology in the state emission budgets for this final rule.
Comment: Commenters suggested that reductions from optimizing
existing SNCRs should be included in the final rule consistent with
Clean Air Act requirements and the full remedy nature of this action.
These commenters noted that EPA's touchstone metric in the step 3
multi-factor analysis of ``maximizing'' air quality improvement
relative to representative marginal cost was not a sufficient reason to
exclude these reductions. They suggest it is eminently ``reasonable''
to require EGUs to operate all existing controls, for which they have
already made significant capital expenditures to purchase and install.
These commenters argued that the reductions, even if small, still
delivered air quality improvement in a meaningful timeframe at downwind
receptors linked to upwind contribution. The same commenters also noted
that these emission control technologies may cost less than EPA
suggested in the proposed rule because most of the SNCRs are already
operating to some degree at a much lower allowance price incentive.
[[Page 23109]]
Response: EPA is including SNCR optimization in its EGU control
stringency in this final rule. EPA examined both its methodology and
its cost assumptions and determined it was appropriate to include SNCR
optimization-driven reductions in identifying significant contribution.
EPA concludes that most of these units are already operating and, in
most cases, would not incur the additional FOM cost associated with
$3,900 per ton estimate included in the proposed rule, and reductions
were likely significantly less expensive, consistent with the
commenters' observation that a broad set of units appeared to be
incentivized to operate these controls under the CSAPR NOX
Ozone Season Group 2 Trading Program (which applied control stringency
levels with a representative cost of $1,400 per ton). This technology
inclusion was further supported by the observation that most SNCR-
controlled units already appear to be operating at lower rates compared
with their higher historical emission rates (indicating partial
operation) even with the current allowance price substantially under
$1,800 per ton.
There are additional considerations unique to EGUs with existing
SNCRs that EPA has determined support including their optimization as
part of EPA's identified control stringency, such as:
These controls are already installed and available for
operation on these units;
they are on average already partially operating, but not
necessarily optimized;
the reductions are available in the near-term (during
ozone seasons when the problematic receptors are projected to persist),
including by the 2021 Serious area attainment date;
these sources are already covered under the existing CSAPR
NOX Ozone Season Group 2 Trading Program and thus have the
monitoring, reporting, recordkeeping, and all other necessary elements
of compliance with the trading program already in place;
the overall compliance burden and total cost is relatively
low, and the incremental cost of operating the technology is not
capital intensive.
Indeed, when comparing units of similar size and operation, the
absolute annual cost of operating SNCR controls in total dollar terms
is often comparable to or less than the cost of operating SCR controls.
However, the significantly lower NOX removal efficiency for
existing SNCRs (20 to 25 percent) compared to existing SCRs (60 to 90
percent) results in a higher cost-per-ton estimate.
Another consideration that weighs heavily in favor of including the
optimization of existing SNCRs as part of EPA's identified control
stringency is that emission budgets are set using historical data as a
starting point, thus capturing the emission reductions achieved by the
EGUs already optimizing their SNCR controls. In other words, state
emission budgets assume these units are to continue optimizing those
controls. At the same time, EPA's proposed approach would have
implicitly allowed EGUs not fully operating their SNCRs to continue to
not do so, avoiding the associated cost, and reaping a competitive
advantage over those EGUs who, in fully operating their controls, are
acting in a more environmentally responsible manner. EPA views this
treatment of higher emitting units to be problematic, when the number
of EGUs already optimizing their SNCR controls underscores the cost-
effectiveness and feasibility of this control measure. Further, as
proposed, EPA is including optimization of existing SCRs in its
identified control stringency. SCRs are more capital-intensive
investments with much better environmental performance. If EPA failed
to include optimization of existing SNCRs in its identified control
stringency in this action, EGUs that chose SNCRs, which is a less
effective form of emission control, would be allowed to continue not
operating that control. Considerations of effective and equitable
environmental policy strongly weigh against allowing such a result and
the perverse incentives it would tend to foster.
These factors, coupled with EPA's final rule cost evaluation, leads
the Agency to include optimization of existing SNCRs as part of its
identified control stringency. As such, EPA is determining that the
full operation of all existing post-combustion controls (both SCRs and
SNCRs) and state-of-the-art combustion control upgrades from units
constitute the Agency's identified control stringency for EGUs and the
associated emision reductions are reflected in the new emission budgets
in this final rule. This determination for EGUs is the result of the
assessment of the multiple factors and considerations listed above
rather than any single factor.
Finally, EPA is determining to not incorporate any additional
generation shifting associated with optimization of existing SNCRs, as
its updated costs are commensurate with levels of generation shifting
already associated with the optimization of existing SCRs reflected in
the new state emission budgets. In the proposed rule, EPA identified
1,700 tons of emission reductions from generation shifting associated
with optimization of existing SNCRs at a representative cost of $3,900
per ton. Because EPA is determining that $3,900 per ton is not the cost
associated with optimizing these partially operating SNCR controls, the
Agency is not including that 1,700 tons of generation shifting
reduction potential in the state emission budgets in this final rule.
Therefore, the emission reductions associated with optimization of
existing SNCRs are approximately 1,200 tons for the 12-state region.
Comment: Some commenters suggest that EPA examine higher cost
thresholds consistent with downwind state RACT requirements.
Response: EPA first notes that it is including all identified EGU
emission controls that are possible to implement during the period
during which the upwind state remains linked to a downwind
nonattainment or maintenance receptor. While EPA believes the
stringency of downwind emission requirements can be useful information
in evaluating which control stringencies should be considered upwind,
it is--on its own--not dispositive of what that upwind stringency
should be. As demonstrated through EPA's air quality modeling, the air
quality impact (generally expressed in ppb of ambient ozone
concentration at a downwind receptor) of a ton of emissions reduced
varies by geography, with areas where the receptor is located generally
having a much higher ppb per ton of emissions impact. Therefore, the
home state where a receptor is located may generate much greater
environmental and public health benefit from a ton of emissions reduced
in that state than in an upwind state. In many cases, that may merit a
different level of stringency for the home state. However, EPA does
view the EGU control stringency it is implementing in this final rule
as largely consistent with those EGU emission controls covered by RACT
requirements in downwind states (e.g., optimize existing controls and
upgrade to state-of-the-art combustion controls). While installation of
new post-combustion controls (SCR or SNCR) may also qualify for RACT,
EPA's analysis is that such controls could not be operational on a
fleetwide scale before all downwind receptors are projected to resolve.
Controls associated with the selected EGU control stringency are
implementable by the 2021 ozone season (or in the case of upgraded or
new combustion controls, by the 2022 ozone season; see the discussion
in section VI.C and in the EGU NOX Mitigation Strategies
Final
[[Page 23110]]
Rule TSD for details). Thus, as to the 2021 and 2022 ozone seasons
these are the only emision controls for EGUs that EPA is assessing for
this timeframe because they are the only ones that are possible. See
Wisconsin, 938 F.3d at 320.
As discussed above in section VI.C, EPA estimates that the time
necessary to install new SNCR or new SCR controls (represented by
$5,800 per ton and $9,600 per ton cost) on a regional basis across
multiple EGUs is approximately 39 to 48 months. While a single new SNCR
may be installed within 16 months, for the reasons explained in section
VI.C.1, a time frame that encompasses the ability for a unit to make a
unit-specific choice of what post-combustion control (SCR or SNCR) is
best for its configuration and future operating plans is appropriate.
Therefore, EPA considers the timing estimates for SNCR and SCR
together, and the 39-48 month time frame for SCR installation (with its
superior NOx control efficiency) is the most appropriate time period to
use for assessing post-combustion controls. Assuming a final rule in
the spring of 2021, this means that these controls could not be
operational by the 2024 ozone season, and therefore the reduction
potential is not available until the 2025 ozone season. According to
EPA's air quality assessment, there are no remaining air quality
receptors in 2025 assuming the control stringency identified in this
final rule for EGUs is already in place in the 12 linked states. It is
not necessary to require emission controls that can only be operational
at a point in time when EPA's projections demonstrate there is no
remaining interstate transport problem for the 2008 Ozone NAAQS.
EPA requested comment on its proposed determination that new post-
combustion controls (SCR or SNCR) are not possible to implement on a
regional basis by the start of the 2024 ozone season), and if evidence
established such controls were possible, how EPA might apply its step 3
multi-factor analysis in that circumstances. EPA received comments on
this topic and addresses the timing assumptions in Section VI.C.1.
Moreover, the Appendix to the Ozone Transport Policy Analysis Final
Rule TSD further discusses how, even if the controls were available on
an earlier time scale, the multi-factor assessment would not
necessarily indicate their inclusion in this rule.
2. Non-EGU Assessment
The Agency used CoST and the 2023 projected emissions inventory to
identify uncontrolled emissions sources or units and applied controls
to emissions units with 150 tpy or more of pre-control NOX
emissions, which is an emissions threshold that represents a comparable
unit size to 25 MW for EGUs. EPA categorized the CoST results by the
control technologies, calculated a weighted average cost per ton (in
2016$) for emission reductions associated with each technology, and
identified two tranches of potential reductions based on estimated cost
effectiveness (for details see section VI.B.2). EPA took a series of
steps to further verify and refine the NOX emission
reduction potential estimated by CoST, the CMDb, and the 2023 projected
inventory and found that the cost-effective emission reductions in
tranche one were from SCR applied to glass furnaces and SNCR applied to
cement kilns. These controls could likely take 2-4 years to install.
Therefore, at the time of this final rule, EPA is concluding that the
2023 ozone season is the earliest ozone season by which these non-EGU
controls could be installed (for details see section VI.C.2).
Using 2023 as the potential earliest date by which controls for
glass furnaces and cement kilns can be installed, EPA assessed whether
these emission controls should be required at step 3 under its multi-
factor test.\156\ EPA estimated that across the 11 states linked to the
remaining receptor in Connecticut in 2023 (Westport), the available
emission reductions from tranche one at less than $2,000 per ton are
1,505 ozone season tons.\157\
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\156\ Louisiana is excluded from this analysis because the
Houston, Texas receptor to which it is linked is projected to be
neither a nonattainment nor a maintenance receptor by the 2023 ozone
season based on the CAMx modeling with IPM emissions. In addition,
New Jersey is not included because there were no potential
NOX emission reductions from New Jersey because the
projected 2023 emissions inventory did not include non-EGU point
sources/units in New Jersey with pre-control NOX
emissions greater than 150 tpy for which the Agency had applicable
control measures.
\157\ The 1,505 ozone season tons is a total of 903 tons from
Table VI.C.2.1 and 602 ozone season tons from the remaining 5 states
(Michigan, Illinois, Kentucky, Virginia, and Maryland). Details on
the 903 ozone season tons are discussed in Section VI.C.2 above. As
noted earlier in this section, for Kentucky EPA did not review the
potential controls because CoST did not identify applicable control
measures for any emissions sources/units in the state. In addition,
EPA did not conduct an online permit review for Illinois non-EGU
sources/units because their permits were not available online. The
602 ozone season tons reflect the review of emissions units in
Michigan, Virginia, and Maryland, as well as all of the tons CoST
estimated for Illinois but that were not verified or reviewed.
---------------------------------------------------------------------------
Using AQAT, EPA assessed whether this level of emission reductions
would have a meaningful effect on the Connecticut receptor. EPA
determined that the improvement in air quality at this receptor from
these emission reductions is 0.03 ppb. This potential air quality
improvement is about an order of magnitude less than the air quality
improvement EPA expects to obtain from the emission controls identified
in its selected control stringency for EGUs in 2023, which, at a
representative cost of $1,800 per ton,\158\ is estimated to improve air
quality at the remaining Connecticut receptor by 0.28 ppb. These air
quality improvements and representative costs support the Agency's
position, consistent with its proposed rule, that requiring these non-
EGU controls is not warranted under EPA's step 3 multi-factor analysis.
---------------------------------------------------------------------------
\158\ EPA notes that the cost per ton value used in the non-EGU
assessment was a weighted average cost per ton, whereas the cost/ton
value used in the EGU SCR optimization assessment was a 90th
percentile cost. In other words, the threshold EPA used for
evaluating non-EGU emissions sources/units represents a relatively
higher, or more stringent, cost/ton threshold value for considering
potential controls compared to EGUs than the dollar value alone
suggests.
---------------------------------------------------------------------------
Based on this assessment, the Agency determines under the multi-
factor test that even the likely most cost-effective reductions from
non-EGU sources (i.e., those below $2,000 per ton in tranche one) do
not rise to the level of ``significance'' that would justify mandating
them under the good neighbor provision for the 2008 ozone NAAQS.\159\
In the proposed rule, EPA encouraged stakeholder comments on the
analysis with respect to the tranche one non-EGU control strategies.
---------------------------------------------------------------------------
\159\ EPA's analysis in this final rule allows the Agency to
reach the conclusion that emission reductions are not required from
these emissions sources in order to resolve good neighbor
obligations for the 2008 ozone NAAQS. EPA's assessment of emission
reduction potential from non-EGU sources for this rulemaking is not
intended to imply that a similar conclusion would be reached in the
context of a different NAAQS.
---------------------------------------------------------------------------
Comment: One commenter suggested that EPA should consider SCR as a
control technology for cement plants. The commenter stated that SCR has
been used at cement kilns across the globe and that a cement plant in
Joppa, Illinois has successfully demonstrated its use with a reported
80 percent removal rate for NOX, while a plant in
Midlothian, Texas, has obtained a permit to install SCR units on its
kilns.
Response: The Agency appreciates the information from the commenter
about SCR controls on cement kilns. However, what the comment does not
consider is the time it has taken to install controls at the two plants
cited. The SCR installation at the Joppa, IL plant took approximately 6
years to install. The SCR at the Midlothian, TX cement plant is
currently not operating, to the best of EPA's knowledge. Cost and
testing
[[Page 23111]]
concerns have led to slow acceptance of SCR at cement kilns in the
United States. The examples provided suggest the time to install these
SCRs is much longer than downwind air quality problems are projected to
persist for the 2008 ozone NAAQS.
EPA estimates that the 2023 ozone season is the earliest ozone
season by which the 111 identified non-EGU emissions units in tranche
two could be retrofitted or have controls installed. In tranche two,
the weighted average cost of the estimated emission reductions from
non-EGU emissions sources ranges from $5,000 to $6,600 per ton. Across
the 11 states linked to the remaining receptor in Connecticut in 2023
(Westport), the Agency identified approximately 11,100 tons of
potential ozone season emission reductions by applying layered
combustion, NSCR (non-selective catalytic reduction) or layered
combustion, and ultra-low NOX burners in combination with
SCR to 111 emissions units in the oil and gas industry and several
manufacturing industries. Since the proposed rule, EPA verified
existing control information and refined the NOX emission
reduction estimates for emissions sources/units in tranche two. Of the
approximately 11,100 tons of potential ozone season emission
reductions, EPA determined that approximately 10 percent of those
estimated reductions are from sources/units already controlled. In the
proposed rule EPA sought comment on the feasibility of further
controlling NOX from IC engines and large ICI boilers,
including optimizing combustion and installing ultra-low NOX
burners.
EPA's assessment is that, with implementation of the new emission
budgets for EGUs reflecting the Agency's selected control stringency
(see section VI.D.1.), there will no longer be any downwind receptors
in 2025 with respect to the 2008 ozone NAAQS. Focusing then on whether
there are any non-EGU NOX emission reductions available to
address significant contribution under the step 3 multi-factor test in
either the 2023 or 2024 ozone seasons, based on its assessment EPA is
concluding that any such potentially available reductions would not be
justified. EPA's assessment determined that there is a relatively
smaller quantity of NOX reductions that may be available
from the non-EGU control strategies in tranches one and two in these
years, across the 11 states linked to the remaining receptor. These
control strategies are estimated to have a limited impact on further
improving air quality at this receptor for this rulemaking. As shown in
the Ozone Policy Analysis Final Rule TSD, the incremental effects of
emission reductions from non-EGUs do not affect the status of any of
the four receptors in any of the relevant years compared with EPA's EGU
control stringency. For more information, refer to the Ozone Transport
Policy Analysis Final Rule TSD. EPA therefore is concluding that no
emission reductions from non-EGU sources are necessary to eliminate
significant contribution under the good neighbor provision for the 2008
ozone NAAQS.
EPA solicited comment on its analysis, and whether, based on
updated or more complete information, there may be grounds to find non-
EGU emission reductions are necessary to address significant
contribution for the 2008 ozone NAAQS.
Comment: EPA received several comments in response to this request.
Some commenters tended to agree that with more complete information,
further analysis would not find it necessary to further control
emissions from non-EGU sources in this rule. A group of industry trade
associations stated that without highly cost-effective options to
reduce emissions from non-EGU emissions sources/units, the estimated
reductions did not rise to the level of significance to mandate
controls. Another commenter stated that the most appropriate mechanisms
to consider whether further limits on NOX emissions from
industry boilers, furnaces and other emission sources are cost-
effective are the existing NSR/PSD, NSPS, and RACT programs. This
commenter stated that there is no need to apply additional programs on
top of existing programs, or to circumvent existing programs, that are
designed to address the issue of cost-effective emissions controls.
Another commenter stated that EPA should direct states to submit
revisions to their SIPs because the SIP planning process is the best
platform for the identification of potential NOX emission
reductions at the local level that may be necessary in non-EGU industry
sectors. State and local air pollution control agencies have access to
the detailed emissions inventory data from sources and emissions units
in non-EGU industry sectors. With this data, states can assess whether
additional emission reductions are necessary at the local level from
non-EGU industry sectors.
Lastly, other commenters disagreed and stated that EPA lacks
statutory authority to exclude non-EGU emissions sources from the
coverage of the good neighbor provision, which extends to ``any source
or other type of emissions activity'' that significantly contributes to
downwind nonattainment or interferes with downwind maintenance.
Response: EPA stated in the proposed rule that it understands the
methodology employed in its assessment was one approach to assessing
emission reduction potential from non-EGU emissions sources or units
and to determining an appropriate control stringency level for non-EGU
sources. EPA also provided details on determining the 150 tpy emissions
threshold in the section titled Background for Determining Source Size/
Threshold for Non-EGU Emissions Sources in the memorandum titled
Assessing Non-EGU Emission Reduction Potential. Based on EPA's analysis
for this final rule and considering comments received, EPA determined
that its analysis presents a credible analytical foundation on which to
conclude that new emission controls on non-EGU sources are not required
from the linked upwind states in order to address significant
contribution or interference with maintenance of the 2008 ozone NAAQS.
Comment: The Agency received a number of comments on its step 3
analysis to determine whether any emission reductions should be
required from non-EGU sources/units to address significant contribution
under the 2008 ozone NAAQS. These comments covered a variety of issues
related to the assessment of emission reduction potential from non-EGU
sources/units. Environmental organizations and downwind states
submitted comments that focused on the Agency's determination that
further emission reductions would not need to be required from non-EGU
sources/units. These comments emphasized that the assessment of non-EGU
emission reductions was improperly limited to (a) Controls that would
cost $2,000 per ton of emission reductions and (b) a narrow set of
potential source types or emissions units. There were also several
comments on EPA's decision to analyze emissions units of 150 tpy and
larger for the non-EGU analysis. Commenters stated that previous
transport rule makings analyzed emission units of 100 tpy and greater.
There were also several comments on the legal requirements to
evaluate and include emission reductions from non-EGU emissions
sources/units in the rule. The comments emphasized both the
impossibility threshold from recent court decisions and data
availability. One commenter said that a refusal to include non-EGU
emission reductions in the rule would represent an abdication of
statutory responsibility. Several comments expressed frustration
[[Page 23112]]
that the Agency has claimed data uncertainty issues in interstate
transport rulemakings for years and that should no longer be a viable
reason to exclude non-EGU emissions sources/units. The commenters
stated that this is backed up by the decision in Wisconsin.
Finally, a number of stakeholders from industry associations and
upwind states submitted comments stating they agreed with the proposed
decision not to include emission reductions from non-EGU emissions
sources/units in this rule. The commenters recognized the data
limitations faced by the Agency, saying that additional emission
reductions from this sector are not necessary to meet obligations under
the good neighbor provisions. All of these groups provided limited
additional information beyond what the Agency possessed and came to the
same conclusions with regard to emission reductions from non-EGU
sources/units. A point made in several comments was that emission
reductions would not be able to be achieved before the 2023 ozone
season due to the timing it would take to install and make operational
the emission control devices.
Response: EPA disagrees that the assessment of non-EGU emission
reduction potential was unnecessarily limited by carving out large
numbers of potential sources, controls, and locations. Using the best
information currently available to the Agency, EPA extended its
emission reduction and air quality analyses beyond EGUs to include many
major stationary source sectors in the linked upwind states, including
non-EGU emissions sources in various industry sectors (see Table 2 in
the September 1, 2020 document titled Assessing Non-EGU Emission
Reduction Potential for a summary). In the analyses, we determined that
emissions reductions from non-EGU sources will have a relatively small
effect on any downwind receptor in the year by which such controls
could likely be installed and do not rise to the level of
``significance'' that would justify mandating them under the good
neighbor provision for the 2008 ozone NAAQS. Further, in the September
1, 2020 memorandum, EPA included a discussion of the assessment for
determining an appropriate emissions size threshold comparable to those
EGUs included in this and previous transport rulemakings.
In addition, EPA disagrees that the use of a $1,600/ton EGU
threshold as a roughly equivalent threshold to assess non-EGU controls
is inappropriate. We note that the $2,000/ton threshold value used for
assessing non-EGU controls provides a rough equivalence with the
threshold value and analysis for EGUs. The $2,000/ton threshold value
is a weighted average of control costs, while EPA's cost threshold for
EGUs is based on a 90th percentile metric. A 90th percentile metric
provides a higher cost threshold for assessing potential controls than
a weighted average cost. In other words, the $2,000/ton threshold EPA
used for evaluating non-EGU emissions sources/units represents a
relatively lower cost/ton threshold value for considering potential
controls.
EPA also believes that its determination with respect to emissions
reductions from non-EGU sources in this action is not premised on
``uncertainty,'' or lack of information, but rather a finding based on
the analysis of tranche 1 and tranche 2 controls that those non-EGU
emission controls that could be potentially available at a cost-
effectiveness comparable to EGU controls do not produce sufficient
total emission reductions or downwind air quality impacts to be
justified under EPA's step 3 multi-factor analysis. The emissions
control strategy EPA assessed for non-EGU emissions sources across all
twelve states did not generate sufficient air quality improvements to
justify requiring.
Additional responses to these comments are provided in the RTC
Document included in the docket.
EPA also requested comment on a number of questions related to
specific control technologies on non-EGU emissions sources the Agency
evaluated, and in particular sought feedback and data from stakeholders
with relevant expertise or knowledge. Recognizing the limitations and
uncertainties in the existing data EPA used in the assessment of non-
EGU emission reductions in the proposed rule, EPA requested comment to
assist in substantiating whether the assessment is fully supportable
based on additional information and analyses not currently available to
the Agency.
Comment: One industry association (National Lime Association)
prepared a cost estimate using publicly available information from the
EPA Control Cost Manual Worksheet and generic public emission factors
from EPA Standard AP-42. The industry-specific report demonstrated: (a)
The industry could not possibly achieve any meaningful reductions in
NOx emissions by the 2021 ozone season to eliminate ``significant''
contribution under the 2008 ozone NAAQS; and (b) even considering the
most favorable application of retrofit SNCR control in the industry,
installation of such controls could not be considered ``cost-
effective'' in the context of this rule. Another trade association
stated that obtaining information on NOx emissions units, much less
sector-specific information on NOx emission units for purposes of the
multi-factor test, would be exceedingly challenging based on available
state and local air authority emission inventories and potentially
proprietary technology and site-specific cost information.
Another commenter provided unit-specific information prepared for
four-factor analyses for recent Regional Haze SIPs for several units in
the iron and steel industry. Lastly, another commenter stated that
developing a more complete non-EGU inventory is an essential task for
EPA. EPA should continue to develop its non-EGU inventory for two
purposes: (i) If the New York metropolitan area does not attain the
2008 ozone NAAQS in 2024, as EPA projects, additional emission
reductions throughout the region may be necessary, and (ii) EPA is
statutorily mandated to act on states' Good Neighbor SIPs for the more
stringent 2015 ozone NAAQS now or in the coming months. The commenter
concluded that EPA may ultimately need to issue FIPs in instances of
SIP disapprovals and emission reductions beyond the EGU sector will
likely be required for the New York metropolitan area to attain the
2015 ozone NAAQS. The commenter concluded that because of the
complexity of non-EGU operations and control options, EPA should engage
with states and affected industries to ensure an accurate inventory and
control analysis.
Response: EPA agrees that securing sufficient, detailed sector- and
unit-specific information for NOx emission units and related costs to
use for the multi-factor test has been difficult.
In the proposed rule, to help inform further technical review and
comments, the following Excel workbooks were available in the docket
and referenced in the memorandum titled Assessing Non-EGU Emission
Reduction Potential: (i) For a summary of the CoST run results CoST
Control Strategy--Max Reduction $10k 150 tpy cutoff 12 States Updated
Modeling--No Replace--07-23-2020, and (ii) for summaries of emission
reductions by control technologies, Control Summary--Max Reduction $10k
150 tpy cutoff 12 States Updated Modeling--No Replace--05-18-2020. Note
that the CoST Control Strategy--Max Reduction $10k 150 tpy cutoff 12
States Updated Modeling--No Replace--07-23-2020 Excel workbook includes
a READ ME worksheet that provides details on the parameters used for
the CoST run.
[[Page 23113]]
To improve the underlying data used in an assessment of emission
reduction potential from non-EGU sources, EPA requested comments on:
(i) The existing assessment of emission reduction potential from glass
furnaces and cement kilns; and (ii) emission reduction potential from
other control strategies or measures on a variety of emissions sources
in several industry sectors.
Comment: EPA received limited comments on the existing assessment
of emission reduction potential from glass furnaces and cement kilns. A
commenter noted that EPA incorrectly identified two cement kilns as
eligible for SNCR installation in its analysis. Through a 2017 consent
decree with EPA and the Department of Justice, SNCR was not feasible
for one of the kilns because of the current configuration of the
equipment. For the second kiln, SNCR was already installed because a
different configuration allowed for the control installation.
Response: EPA appreciates the submittal of this information.
Comment: EPA received several comments regarding emission reduction
potential from other control strategies or measures on a variety of
emissions sources in several industry sectors. A few commenters
indicated that a 2017 OTC paper titled White Paper on Control
Technologies and OTC State Regulations for Nitrogen Oxides (NO)
Emissions from Eight Source Categories reflects appropriate control
strategies, identifies emission limits and regulations for eight source
categories, and details information for four of the 12 states
identified as significantly contributing to downwind areas with
attainment or maintenance issues for the 2008 ozone NAAQS.
Other commenters cited a 2009 OTC paper that analyzed the cost of
installing NOX controls on ICI boilers. The paper concluded
that key variables that impact cost analyses include boiler type,
boiler firing type, type of fuel combusted, type of emission control,
uncontrolled emission rate, controlled emission rate, capital cost of
control equipment, financial costs, unit capacity factor (hours/year),
flue gas flow rates and temperatures, and commodity prices. The
analysis found that NOX control costs for non-EGU emissions
sources are highly variable and site-specific and the cost per ton of
NOX removed from several control technologies reviewed was
significantly above the proposed rule representative cost of the
selected EGU control stringency ($1,600 per ton).
Response: EPA appreciates the references provided regarding the
assessment of non-EGU emissions sources/units. Non-EGU emissions
sources/units are diverse, making them challenging to analyze.
Nonetheless, EPA's determination with respect to emission reductions
from non-EGU sources in this action is not premised on ``uncertainty,''
or lack of information. Rather, EPA's finding is based on the analysis
of tranche one and tranche two controls. EPA determined that those non-
EGU emission controls that could be potentially available at a cost-
effectiveness comparable to EGU controls do not produce sufficient
total emission reductions or downwind air quality impacts that would
justify requiring them under EPA's step 3 multi-factor analysis.
EPA requested comment on the aspects of the assessment presented
above of emission reduction potential from the glass and cement
manufacturing sectors. The Agency did not receive any comments directly
addressing this that were independent of the other comments.
In addition, EPA requested comment on the following:
Other than glass and cement manufacturing, are there other
sectors or sources that could achieve potentially cost-effective
emission reductions? What are those sectors or sources? What control
technologies achieve the reductions? What are cost estimates and
installation times for those control technologies?
Are there other sectors where cost effective emission
reductions could be obtained by, in lieu of installing controls,
replacing older, higher emitting equipment with newer equipment?
Are there sectors or sources where cost effective emission
reductions could be obtained by switching from coal-fired units to
natural gas-fired units?
For non-EGU sources without emissions monitors, what would
CEMS cost to install and operate? How long would CEMS take to program
and install? Are monitoring techniques other than CEMS, such as
predictive emissions monitoring systems (PEMS), sufficient for certain
non-EGU facilities that would not be brought into a trading program? If
so, for what types of non-EGU facilities, and under what circumstances,
would PEMS be sufficient? What would be the cost to install and operate
monitoring techniques other than CEMS?
Comment: EPA received several comments in response to this set of
questions. Two industry association commenters indicated that where
feasible, facilities have already largely replaced or repowered boilers
to comply with several other EPA rules (e.g., boiler MACT, Regional
Haze Rule, and 1-hour SO2 NAAQS). With respect to fuel
switching for boilers, one industry association stated that many of
their members undertook fuel switching as a compliance strategy for the
boiler MACT. Another commenter cautioned that EPA should consider other
factors when evaluating the time necessary to retrofit add-on controls,
including the availability of the specialized trades that are needed to
complete the retrofit installation of low NOx burners and Clean Air Act
permitting obligations, which increase the time needed for a retrofit.
With respect to installation timing and the cost of CEMS, three
trade associations provided the following estimates:
Installation Timing
28 weeks (7 months)--delivery time for a CEMS shelter with
pre-installed analyzers and other equipment is about 24 weeks;
installation time and programming would take about another 4 weeks.
16-24 weeks (4-6 months)--CEMS installation would likely
take 4 to 6 months if a facility was currently ready to start. However,
this timeline does not take into account the time required to obtain
capital approval, issue an RFP, engage a consultant, and make any
necessary structural modifications to the stack if it cannot
accommodate CEMS.
Cost
$500,000-cost will depend on whether the stack is designed
to accommodate a CEMS. If a stack is designed to support a
NOX CEMS, the cost to install, program, and certify the
NOX CEMS could be $500,000. Ongoing operation and
maintenance costs are likely around $150,000 per year.
$300,000--$400,000--capital cost for the equipment
(assuming a single boiler installation) is approximately $300,000 to
$400,000 (2016$). Actual costs at a given facility will vary and will
depend on factors including the availability of space and the location
of the CEMS air-conditioned shelter.
Additionally, one commenter stated that a rigorous PEMS, if a
feasible alternative, would be more expensive than a CEMS. While
another commenter stated that PEMS have proven to be very reliable and
significantly less expensive to operate and maintain than CEMS. The
commenter observed that PEMS minimize the up-front capital costs, as
well as the on-going cost of operation, maintenance, and quality
assurance.
Response: EPA thanks for the commenters for this information.
EPA requested comments on the feasibility of further controlling
NOX
[[Page 23114]]
from large ICI boilers and IC engines, including optimizing combustion
and installing low NOX burners.
Comment: EPA received several comments in response to this request.
One commenter stated that EPA should pursue requiring additional
NOX controls on IC engines and large ICI boilers, including
optimizing combustion and installing ultra-low NOX burners
and offered no specific supporting information. An industry association
stated that most of their members' boilers are already equipped with
low NOX burners. The members' experiences with the retrofit
installation of low NOX burners on existing boilers are that
the reductions achieved vary from boiler to boiler as a function of:
(a) The existing configuration of the boiler, (b) the boiler fuel, and
(c) the day-to-day operation of the boiler to meet the demands for
thermal energy from the end-use processes or customers.
Another industry association noted that recent Regional Haze Rule-
related analyses for forest products industry boilers indicated that
the cost of installing additional controls (LNB/FGR, SNCR, or SCR
retrofits) is generally more than $5,000/ton, based on representative
actual emissions. The commenter stated that if EPA were to determine
that NOX controls on ICI boilers should be required, no new
controls could be implemented by the 2021 ozone season and it would be
difficult to implement controls before 2024. Facilities would need a
minimum of four years to implement controls after promulgation of any
requirement to do so because the process to undertake a retrofitting
project is complex, involving design, engineering, permitting,
procurement, and installation. The commenter stated that since the
start of the COVID-19 pandemic, the time necessary to implement
construction projects has increased considerably.
Additionally, two energy companies offered their experiences with
modifying IC engines. One energy company indicated that after the
modification it took three to five years to get engine performance back
to previous levels. The same energy company stated that as operations
evolve, where feasible, they will install newer engines, or turbines,
at natural gas compressor and storage sites. A second energy company
has already replaced some older uncontrolled IC engines with new,
state-of-the art low NOX compressor engines and/or
combustion turbines within its fleet, intending to operate the newer IC
engines preferentially over the older units. They stated that
regulating IC engines at compressor stations will not result in
significant reductions in actual NOX emissions, and they do
not believe it is cost-effective.
Response: EPA thanks the commenters for this information.
EPA requested comment on whether EPA should require that large non-
EGU boilers and turbines--as defined in the NOX SIP call as
boilers and turbines with heat inputs greater than 250 Million British
Thermal Units (mmBtu) per hour or with NOX emissions greater
than 1 ton per ozone season day \160\--within the 12 states employ
controls that achieve emission reductions greater than or equal to what
can be achieved through the installation of low NOX burners.
---------------------------------------------------------------------------
\160\ Note that the 250 mmBTU/hr for ICI boilers and turbines is
equivalent to 25 MW heat input for an EGU. The tonnage per source
was 1 ton per ozone season day, and because controls on non-EGUs
operate year-round, the emissions would be 365 tons per year.
---------------------------------------------------------------------------
Comment: EPA received a few comments in response to this request.
One industry association stated that there is no justification for a
requirement for large industrial boilers within the 12 states covered
by this rule to employ controls that achieve emission reductions
greater than or equal to what can be achieved through the installation
of low NOX burners. Such a requirement could be infeasible
for certain types of boilers without a significant capital investment
and could increase CO emissions above allowable levels. The commenter
suggested that these types of requirements are better implemented
through the New Source Review (NSR) permitting process where a site-
specific analysis is required. Another commenter stated that such a
requirement could require very significant capital investment for
retrofitting certain types of existing boilers and may not be feasible
for certain types of boilers.
Response: EPA thanks for the commenters for this information.
EPA requested comment on (i) the magnitude of the emission
reductions that could be achieved by requiring that large non-EGU
boilers and turbines install controls that achieve emission reductions
greater than or equal to what could be achieved through the
installation of low NOX burners, (ii) the prevalence of
these or better NOX controls already in place on this
equipment in these 12 states, and (iii) the time it typically takes to
install such controls. EPA did not receive any comments in direct
response to this comment solicitation.
As mentioned in the discussion above on emission reductions from
the EGU sector, EPA understands that it is generally possible to
install LNB on EGU boilers fairly quickly and that these burners can
significantly reduce NOX emissions. EPA notes that in the
original interstate transport rule, the NOX SIP call, the
Agency concluded that controls on large, non-EGU boilers and turbines
were cost effective and allowed states to include those emissions
sources in their budgets as a means of providing additional
opportunities to reduce state-wide NOX emissions in a cost-
effective manner.\161\
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\161\ See 63 FR 57402 (October 27, 1998).
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Also, five of the 12 states that are subject to this rulemaking are
within the Ozone Transport Region (OTR)--Maryland, New Jersey, New
York, Pennsylvania, and Virginia. As member states of the OTR, these
five states are required to implement reasonably available control
technology (RACT) state-wide on major sources of emissions.\162\ It is
likely that NOX controls, such as low NOX
burners, are already in wide-spread use on large non-EGU boilers and
turbines within these five states. However, such controls may not be as
widely used in states outside of the OTR. Therefore, the Agency also
solicited comments on the following:
---------------------------------------------------------------------------
\162\ One exception to the requirement of state-wide RACT within
the OTR is for Virginia. Only the Northeast portion of the state is
included within the OTR and only facilities within that portion of
the state are subject to RACT.
---------------------------------------------------------------------------
How effective are ultra-low NOX burners or low
NOX burners in controlling NOX emissions from ICI
boilers?
Are they generally considered part of the process or add-
on controls? If they are part of a process, how could EPA estimate the
cost associated with changing the process to accommodate ultra-low
NOX burners and low NOX burners?
What are the costs (capital and annual) for these as add-
on control technologies on ICI boilers?
What are the earliest possible installation times for
these control technologies on ICI boilers? EPA believes it is generally
possible to install low NOX burners on EGU boilers
relatively quickly and that low NOX burners can
significantly reduce NOX emissions. EPA solicited comment on
whether this is also true for large non-EGU ICI boilers.
Do some of the emissions units included in the summary
already have either add-on controls or controls that are part of a
process? If so, what control is on the unit and what is the control
device (or removal) efficiency?
Natural gas compressor stations are the largest
NOX-emitting non-EGU
[[Page 23115]]
sector \163\ affecting the 12 states that are the subject of this final
rule, and many of these facilities are powered by decades-old,
uncontrolled IC engines. Should emission reductions be sought from the
IC engines at these stations, either through installing controls,
upgrading equipment, or other means?
---------------------------------------------------------------------------
\163\ Based on data from the 2017 NEI database.
---------------------------------------------------------------------------
How effective is low emission combustion in controlling
NOX from IC engines?
What is the cost (capital and annual) for low emission
combustion on IC engines?
What is the earliest possible installation time for low
emission combustion on IC engines? In lieu of installing controls, is
replacing older, higher emitting equipment with newer equipment a cost-
effective way to reduce emissions from IC engines?
Do some of the emissions units included in the summary
already have either add-on controls or controls that are part of a
process? If so, what control is on the unit and what is the control
device (or removal) efficiency?
The Agency encouraged stakeholders with particular expertise, such
as source owners and operators, state agencies, trade associations, and
knowledgeable non-governmental organizations, to evaluate the
information available in the docket and presented above and provide
updates, corrections, and other information as may assist in improving
EPA's ability to more accurately assess non-EGU emission control
strategies relevant to addressing interstate ozone transport.
Comment: EPA received relatively few comments directly in response
to this request. One NGO cited EPA's 2016 Final Technical Support
Document (TSD) for the Final Cross-State Air Pollution Rule for the
2008 Ozone NAAQS, Assessment of Non-EGU NOX Emission Controls, Cost of
Controls, and Time for Compliance Final TSD with information on
controls and costs for IC engines. Another comment encouraged the
Agency to pursue controlling NOX from ICI boilers and IC
engines, including optimizing combustion and installing low
NOX burners.
Response: EPA notes that the 2016 Final Technical Support Document
(TSD) for the Final Cross-State Air Pollution Rule for the 2008 Ozone
NAAQS, Assessment of Non-EGU NOX Emission Controls, Cost of Controls,
and Time for Compliance Final TSD was prepared for the purpose of
presenting and seeking comment on the then currently available
information on emissions and control measures for sources of
NOX other than EGUs; it was not prepared for use in
conducting a rigorous regulatory analysis under the step 3 multi-factor
test, nor for establishing specific emissions limits.
3. Overcontrol Analysis
As part of the air quality analysis using the Ozone AQAT, EPA
evaluated potential over-control with respect to whether (1) the
expected ozone improvements would be greater than necessary to resolve
the downwind ozone pollution problem (i.e., beyond what is necessary to
resolve all nonattainment and maintenance problems to which an upwind
state is linked) or (2) the expected ozone improvements would reduce
the upwind state's ozone contributions below the screening threshold
(i.e., 1 percent of the NAAQS; 0.75 ppb).
In EME Homer City, the Supreme Court held that EPA cannot
``require[ ] an upwind State to reduce emissions by more than the
amount necessary to achieve attainment in every downwind State to which
it is linked.'' 572 U.S. at 521. On remand from the Supreme Court, the
D.C. Circuit held that this means that EPA might overstep its authority
``when those downwind locations would achieve attainment even if less
stringent emissions limits were imposed on the upwind States linked to
those locations.'' EME Homer City II, 795 F.3d at 127. The D.C. Circuit
qualified this statement by noting that this ``does not mean that every
such upwind State would then be entitled to less stringent emission
limits. Some of those upwind States may still be subject to the more
stringent emissions limits so as not to cause other downwind locations
to which those States are linked to fall into nonattainment.'' Id. at
14-15. As the Supreme Court explained, ``while EPA has a statutory duty
to avoid over-control, the Agency also has a statutory obligation to
avoid `under-control,' i.e., to maximize achievement of attainment
downwind.'' 572 U.S. at 523. The Court noted that ``a degree of
imprecision is inevitable in tackling the problem of interstate air
pollution'' and that incidental over-control may be unavoidable. Id.
``Required to balance the possibilities of under-control and over-
control, EPA must have leeway in fulfilling its statutory mandate.''
Id.\164\
---------------------------------------------------------------------------
\164\ Although the Court described over-control as going beyond
what is needed to address ``nonattainment'' problems, EPA interprets
this holding as not impacting its approach to defining and
addressing both nonattainment and maintenance receptors. In
particular, EPA continues to interpret the Good Neighbor provision
as requiring it to give independent effect to the ``interfere with
maintenance'' prong. Accord Wisconsin, 938 F.3d at 325-27.
---------------------------------------------------------------------------
Consistent with these instructions from the Supreme Court and the
D.C. Circuit, EPA first evaluated whether reductions resulting from the
emission budgets for EGUs in 2021 and 2022 can be anticipated to
resolve any downwind nonattainment or maintenance problems. As
discussed in Section VI.D.1, the proposed control stringency
(represented by a $1,600 per ton cost threshold) was adjusted to a
control stringency that includes optimization of existing SNCRs
(represented by a $1,800 per ton cost threshold) in this final rule.
This assessment shows that the emission budgets reflecting $1,800 per
ton would change the status of one of the two nonattainment receptors
(first shifting the Stratford monitor to a maintenance-only receptor in
2021 and then shifting that monitor to attainment in 2022). However, no
other nonattainment or maintenance problems would be resolved in 2021
or 2022. EPA determined that none of the 11 states are solely linked to
the Stratford receptor that is resolved at the $1,800 per ton level of
control stringency in 2022.
Reductions resulting from the $1,800 per ton emission budgets for
EGUs would shift the Houston receptor in Harris County, Texas, from
maintenance to attainment in 2023. These emission reductions would also
shift the last remaining nonattainment receptor (the Westport receptor
in Fairfield, Connecticut) to a maintenance-only receptor in 2024. No
nonattainment or maintenance receptors would remain after 2024.
Next, EPA evaluated the potential for over-control with respect to
the 1 percent of the NAAQS threshold applied in this final rulemaking
at step 2 of the good neighbor framework for the $1,800 per ton cost
threshold level for each year downwind nonattainment and maintenance
problems persist (i.e., 2021 through 2024). Specifically, EPA evaluated
whether the emission levels would reduce upwind EGU emissions to a
level where the contribution from any of the 12 upwind states would be
below the 1 percent threshold that linked the upwind state to the
downwind receptors. EPA finds that under the $1,800 per ton EGU cost
threshold level for 2021 to 2024 emission levels, all 12 states that
contributed greater than or equal to the 1 percent threshold in the
base case continued to contribute greater than or equal to 1 percent of
the NAAQS to at least one remaining downwind nonattainment or
maintenance receptor for as long as that receptor remained in
nonattainment or maintenance. For more information about this
assessment, refer to the
[[Page 23116]]
Ozone Transport Policy Analysis Final Rule TSD and the Ozone AQAT.
Since emission reductions resulting from the $1,800 per ton
emission budgets for EGUs are not projected to result in the expected
ozone improvements: (1) Being greater than necessary to resolve the
downwind ozone pollution problem (i.e., beyond what is necessary to
resolve all nonattainment and maintenance problems to which an upwind
state is linked) or (2) reducing the upwind state's ozone contributions
below the screening threshold (i.e., 1 percent of the NAAQS; 0.75 ppb),
EPA finds that the $1,800 control strategy does not result in
overcontrol.
Based on the multi-factor test applied to both EGU and non-EGU
sources and subsequent assessment of overcontrol, EPA finds that the
emission reductions associated with the $1,800 per ton control
stringency for EGUs constitute elimination of significant contribution
and interference with maintenance without overcontrol from the 12
linked upwind states. Therefore, as discussed in section VII, EPA is
establishing emission budgets for EGUs in the 12 linked states that
reflect the remaining allowable emissions after the emission reductions
associated with the $1,800 per ton control stringency have been
achieved. For additional comments and responses and details about the
test and the overcontrol analysis, see the RTC and Ozone Transport
Policy Analysis Final Rule TSD.
VII. Implementation of Emission Reductions
A. Regulatory Requirements for EGUs
The CSAPR established a seasonal NOX trading program for
states determined in that rulemaking to have good neighbor obligations
with respect to the 1997 ozone NAAQS. The CSAPR Update established a
new seasonal NOX trading program for 22 states determined to
have good neighbor obligations with respect to the 2008 ozone NAAQS--
the CSAPR NOX Ozone Season Group 2 Trading Program--and
renamed the seasonal NOX trading program established in the
CSAPR, which now covers only Georgia, the CSAPR NOX Ozone
Season Group 1 Trading Program.\165\ Each of these trading programs for
seasonal NOX emissions established state-level budgets for
EGUs and allowed affected sources within each state to use, trade, or
bank allowances within the same trading group for compliance. In the
CSAPR NOX Ozone Season Group 1 and Group 2 trading programs,
sources are required to retire one Group 1 or Group 2 allowance,
respectively, for each ton of NOX emitted during a given
ozone season. EPA is using the same regional trading approach, with
modifications to reflect updated budgets, trading groups, and certain
additional revisions, as the compliance remedy implemented through the
FIPs to address interstate transport for the states having further good
neighbor obligations with respect to the 2008 ozone NAAQS in this rule.
---------------------------------------------------------------------------
\165\ For states that were determined in the CSAPR Update to
still have good neighbor obligations with respect to the 1997 ozone
NAAQS in addition to the 2008 ozone NAAQS, participation in the
Group 2 trading program replaced participation in the Group 1
trading program as the FIP remedy for such states' obligations with
respect to the 1997 NAAQS. See 81 FR 74509.
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Of the 22 states currently covered by the CSAPR NOX
Ozone Season Group 2 Trading Program, EPA is establishing revised
budgets for 12 states, as explained below. Therefore, EPA is creating
an additional geographic group and trading program comprised of these
12 upwind states with remaining linkages to downwind air quality
problems in 2021. This new group, Group 3, will be covered by a new
CSAPR NOX Ozone Season Group 3 Trading Program. Aside from
the removal of the 12 covered states from the current Group 2 trading
program, this rule leaves unchanged the budget stringency and geography
of the existing CSAPR NOX Ozone Season Group 1 and Group 2
trading programs.
EPA is using the existing CSAPR NOX ozone season
allowance trading system framework, established in the CSAPR for Group
1 and used again in the CSAPR Update for Group 2, to implement the
emission reductions identified and quantified in the FIPs for this
rule. The new Group 3 trading program is being codified at 40 CFR part
97, subpart GGGGG. As with the existing CSAPR trading programs,
emissions monitoring and reporting will be performed according to the
provisions of 40 CFR part 75, and decisions of the Administrator under
the program will be subject to the administrative appeal procedures in
40 CFR part 78.
Comment: EPA received several comments suggesting that Louisiana
not be included in the Group 3 trading program. Commenters suggested
that EPA has no basis for including Louisiana in the Group 3 trading
program because its linkage geography (i.e., to a receptor in Texas) is
separate from the 11 remaining Group 3 states which have linkages to
receptors in Connecticut. Several commenters also raised the
possibility of under-control in the 12-state trading program should EPA
allow trading of emission allowances between Louisiana and the
remaining 11 states.
Response: EPA disagrees with comments that Louisiana should not be
included in the Group 3 trading program. All covered states in the
Group 3 trading program, regardless of the downwind monitors to which
they are linked, are subject to emission budgets established based on
the same set of emission control measures applied at the same levels of
stringency. In similar circumstances in earlier rulemakings to address
the good neighbor provision, EPA has routinely included states in a
common trading program based on a uniform level of control stringency,
not based on whether the states were all found to be linked to the same
downwind receptors. For example, the states required to participate in
the Group 2 trading program under the CSAPR Update included one state
linked only to downwind receptors in Connecticut, two states linked
only to downwind receptors in Michigan, and two states linked only to
downwind receptors in Texas, as well as other states linked to downwind
receptors in multiple states. See 81 FR 74538 tbls. V.E-2 and V.E-3.
Moreover, all states subject to the new Group 3 trading program
will be required to comply with the assurance provisions in this final
action. The assurance provisions ensure that emissions within a covered
state do not exceed that state's emission reduction obligations (see
section VII.C.2.). The assurance provisions, and associated variability
limits, impose an additional allowance surrender requirement when a
state's emissions exceed its budget for a given control period by 21
percent. The additional allowance surrender requirement associated with
the assurance provisions provides an incentive for sources within a
state to comply with the emission budgets for a given control period,
while accounting for the inherent variability in operations and
emissions from one year to the next. By limiting the degree to which
any state's emissions exceed that state's emissions budget, the
assurance provisions reduce concerns that a state covered by the new
Group 3 trading program would be able to routinely rely on surplus
allowances purchased from another state in the trading program in a
different geographic region (or in the same geographic region) instead
of reducing emissions within the state. Establishing assurance levels
with compliance penalties responds to and complies with the D.C.
Circuit's holding in North Carolina requiring EPA to ensure that
sources in each state meet their good neighbor obligations while
[[Page 23117]]
still taking advantage of the benefits of an interstate trading
program. See 531 F.3d at 908. See also 81 FR 74566-67.
Comment: Some commenters asserted that implementation of emission
reductions through a state-level, seasonal emissions budget program
with trading flexibilities is not sufficient to ensure that reductions
are realized on high ozone days when they are most needed. These
commenters suggested that EPA replace or supplement its emission
trading program with unit-specific emission rate requirements applied
on a shorter time scale (e.g., daily). Commenters assert that existing
controls must be maintained and operated in accordance with good
pollution control practices whenever feasible. Commenters assert that
shorter-term NOX emission rate limits must ensure that SCRs
are operated in accordance with good pollution control practices at all
times the units are operating. They suggest that short-term limits are
necessary to prevent units from turning controls off intermittently on
days with high ozone in order to harvest additional power that would
otherwise be used for control operation.
Response: EPA is finalizing the implementation of required emission
reductions through the same ozone season trading program structure
successfully used in prior CSAPR rules, CAIR, and the NOX
Budget Trading Program associated with the 1998 NOX SIP
Call. These trading programs have been demonstrated to be highly
effective at achieving emission reductions. For instance, as discussed
in greater detail below, EPA has previously demonstrated that in the
first CSAPR Update compliance period (i.e., the 2017 ozone season), the
budget drove sources, nearly uniformly, to operate their controls for
that control period.\166\ EPA acknowledges that without adjustments in
budget stringency to ensure continued operation of the selected control
strategy (or equivalent reductions), this analysis may not hold in
later years of a trading program should a sufficient bank of allowances
develop that the price signal for continued control operation is
weakened. However, EPA has addressed that concern in this rule by
making downward adjustments in the budgets to account for known fleet
changes. Early in the implementation of the CSAPR Update in 2017, when
emission budgets were binding and allowance prices were higher, EPA
conducted an analysis on how effectively units were operating their
SCRs (1) in response to a trading program implementation measure and
(2) on High Electricity Demand Days (HEDD). This analysis was done in
the context of responding to petitions from Maryland and Delaware under
CAA section 126(b) petition.\167\ With this rule in place as of 2021,
the situation will be comparable and the analysis of 2017 data provides
a good indication of how EPA anticipates sources with post-combustion
controls will respond to a trading program implementation measure
designed to be a full remedy. Moreover, EPA performed the same analysis
using 2019 data and continues to find that units operate their SCRs on
HEDD as described below.
---------------------------------------------------------------------------
\166\ Discussion of Short-term Emission Limits (EPA-HQ-OAR-2018-
0295-0026), available in the docket for this action.
\167\ 83 FR 50444 (October 5, 2018).
---------------------------------------------------------------------------
In the Maryland/Delaware CAA section 126(b) action, EPA examined
the complete set of 2017 ozone-season data and did not find evidence of
sources regularly idling controls on high ozone days when subject to a
sufficiently stringent budget.\168\ EPA found that, based on 2017
emissions data reflecting implementation of the CSAPR Update, 261 of
274 units had ozone-season emission rates below 0.20 lb/mmBtu,
indicating they were likely operating their post-combustion controls
through most of the ozone season. On average, the 274 units were
operating at an average emission rate of approximately 0.088 lb/
mmBtu.\169\ Consequently, EPA found that on average, SCR-controlled
units were operating their SCRs throughout the season and that the
petitioner's assertion of the likelihood of trading programs leading to
widespread idling of controls was not borne out in the most recently
available data. In years following 2017, EPA has seen the seasonal
emission rates of some SCR-controlled units increase, while the vast
majority continue to operate and optimize their controls. As noted
above, this is attributable to the partial nature of the CSAPR Update
and consequently that program not being configured to account for fleet
changes after 2017. Nonetheless, EPA's analysis of 2017 data shows that
the CSAPR Update regional trading program and other EPA regional
trading programs have driven significant reductions and can provide
continued incentive for control operation in a full-remedy context, so
long as the budget is sufficiently stringent.
---------------------------------------------------------------------------
\168\ Discussion of Short-term Emission Limits (EPA-HQ-OAR-2018-
0295-0026).
\169\ 83 FR at 50466.
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EPA has revisited the aforementioned examinations of SCR
performance rates using 2019 hourly NOX emissions data in
place of 2017 data. While there was an increased frequency and number
of units turning off their controls in 2019, EPA again found that this
did not happen during the hours with the highest generation.\170\ As
was shown in the analysis conducted for the Maryland/Delaware action,
and confirmed based on 2019 analysis, SCR-controlled units generally
operated with lower emission rates during high generation hours,
suggesting SCRs generally were in better operating condition--not
worse, let alone idling--during those days/hours. In other words, EPA
compared NOX rates for EGUs for hours with high energy
demand and compared them with seasonal average NOX rates and
found very little difference, just as it had observed in the 2017 data.
Thus, the data do not support the notion of wide-spread reduction of
SCR operation on high demand days. Moreover, the auxiliary power used
for control operation is small--typically less than one percent of the
generation at the facility--and it is, therefore, unlikely that sources
would cease operation of controls for such a limited energy savings.
Instead, the previous analysis indicated that increases in total
emissions on days with high generation are generally the result of
additional units that do not normally operate coming online to satisfy
increased energy demand and units that do regularly operate increasing
hourly utilization, rather than reduced functioning of control
equipment. In this action, the Agency concludes that while short-term
limits and a regional trading budgets are not necessarily mutually
exclusive and could complement each other (and do in fact complement
each other since many states already have established emission rate
requirements for their EGUs through other control programs such as
RACT), in this specific instance, where the Agency is addressing
regional air quality issues with regionally uniform levels of control
through the flexibilities afforded by a mass-based trading program,
specific unit-level control requirements, particularly short-term
emissions limits, are not necessary, so long as the mass-based budget
is sufficiently stringent. This rule addresses the need for
sufficiently stringent budgets through budget adjustments in each year
through 2024
[[Page 23118]]
to ensure that stringency levels account for known future changes in
the fleet.
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\170\ See Units_Cycling_SCR_2017_and_2019.xlsx for a description
of the units cycling in 2017 and 2019 and
NOXRateOfSCRunitsDuringHighRegionalDemand_2017_and_2019.xls for the
analysis of unit rates on HEDD.
---------------------------------------------------------------------------
Further, EPA finds there to be environmental benefits associated
with a mass-based trading program that controls units' total amounts of
emissions. This creates an incentive structure resulting in lower-
emitting sources tending to operate more than dirtier units. Moreover,
EPA's implementation program provides--through an allowance price--an
incentive to optimize emissions performance as much as possible. This
approach not only encourages units to achieve the rates assumed in the
budget-setting process, but to perform at even better rates where
better performance can be achieved at a cost lower than the allowance
price. By contrast, an implementation mechanism that provides a unit-
specific emission rate would not incentivize the unit to perform better
than its rate requirement. Thus, the trading program encourages
controls to not only operate on high electric demand days, but it could
provide a unit additional incentive (through its allowance price) to
outperform an equivalent ermission rate assumption implemented through
a unit-specific rate requirement.
Finally, as other commenters pointed out, unit-specific short-term
emission rates pose significant implementation and rulemaking
challenges, because there are more unit-specific characteristics that
must be taken into account to arrive at unit-specific rate
requirements. In establishing a trading program, EPA is better able to
rely with confidence on fleet averages used for calculating state
budgets. Were EPA to choose to implement a unit-specific emissions rate
regime for implementation, the compliance flexibility afforded by
emissions trading would not be available and it would not be possible
to rely on fleet average information to the same extent for purposes of
establishing appropriate levels of control stringency. EPA would likely
be unable to establish such requirements or mandate them in time to
meet the 2021 Serious area attainment date.
B. Quantifying State Emissions Budgets
EPA is quantifying state emission budgets consistent with the
approach used in the CSAPR Update. However, given Wisconsin's direction
to implement a full remedy, EPA must address upwind emission reduction
potential beyond the initial year for which it is establishing emission
budgets. Whereas in the partial-remedy context of the CSAPR Update, EPA
established budgets based only on its assessment of the 2017 analytic
year and noted it would revisit future years at a later date, in this
action EPA is simultaneously looking at budgets for all relevant future
years to comply with the full-remedy directive. Consequently, for the
Group 3 states EPA is quantifying specific budgets in each year to
ensure that EGUs continue to be incentivized to implement the full
extent of EPA's selected control stringency while linkages to downwind
nonattainment and maintenance receptors remain unresolved. In effect,
by doing this, EPA is accounting for scheduled fleet turnover after the
first-year budget. For instance, if State X's budget was 100 tons in
2021, but there are 10 tons of emissions from a unit scheduled to
retire at the end of the year and 5 tons expected from a new unit
coming online, then the state emission budget for 2022 will reflect
these scheduled changes by establishing a budget of 100 tons--(10 tons
-5 tons) = 95 tons for the subsequent year. This adjustment in
methodology reflects the need to anticipate and respond to scheduled
fleet turnover in the power sector in ensuring that the control
stringency selected to eliminate significant contribution remains
incentivized. Based on the Agency's experience implementing prior good
neighbor trading programs, setting emissions budgets that do not
account for planned retirements in subsequent years can lead to an
erosion in the allowance price signal and hence a reduced incentive to
take the mitigation measures identified in EPA's significant
contribution determination (e.g., optimize SCRs). EPA's air quality
projections demonstrate that even with a $1,800 per ton EGU control
stringency, the Group 3 states continue to contribute above the 1
percent of the NAAQS threshold to at least one receptor whose
nonattainment and maintenance concerns persist through the 2024 ozone
season (with the exception of Louisiana, as discussed in more detail
below). As such, and in order to implement a full remedy as required
under the Wisconsin decision, EPA is determining that it is necessary
to design a step 4 implementation framework that effectively ensures
the continued optimization of existing SCR and SNCR controls and the
incentive to install or upgrade combustion controls for so long as
downwind nonattainment and maintenance concerns persist. Therefore, for
all Group 3 states except Louisiana, the emission budget setting
process described below applies to each year from 2021 through 2024,
with the budgets held constant from 2024 onwards. For Louisiana, the
emission budget setting process applies to 2021 and 2022 only, with the
budget held constant from 2022 onwards, as the Houston receptor to
which Louisiana is linked is projected to be resolved by the 2023 ozone
season.
EPA is not increasing the stringency of the program over these
years in the sense of requiring any further emission reductions than
the control stringency represented by $1,800 per ton achieves. Rather,
these budget adjustments account for pre-existing, on-going changes in
the EGU sector, which if not accounted for, could significantly weaken
the incentive to optimize existing SCR and SNCR controls and install or
upgrade combustion controls. By determining emissions budgets for a
given emissions control across a range of years (e.g., 2021-2024), EPA
is able to best reflect the realization of that technology in any given
year. For instance, a unit may be scheduled to retire (independent of
any environmental regulation) in 2023. Therefore, the same $1,800 per
ton uniform control stringency (i.e., SCR and SNCR optimization, and
combustion control installation or upgrade) will produce a different
state emissions level (i.e., budget) in 2021 and 2024 due to this
change in fleet composition. Having the emissions estimated for each
year allows EPA to best ensure the reductions available from the
identified control stringency continue to be achieved to eliminate that
state's significant contribution. This type of phased implementation
preserves the intended control stringency of the rule and is consistent
with the direction under the Wisconsin decision to promulgate a full-
remedy rule. In prior trading programs, commenters observed that the
program's static emission budgets quickly fell behind the rapid pace of
change in the power sector fleet. As this occurs, a large allowance
bank builds and the price of allowances falls below the price in the
initial years. For example, the price of CSAPR Update Group 2
allowances started out at levels near $800 per ton in 2017 and provided
a strong signal for the mitigation technology identified in the
significant contribution determination. However, in subsequent years as
the fleet of covered EGUs changed, the price of those allowances
declined to less than $70 per ton in July 2020.\171\ Stakeholders have
pointed out that these low prices could allow for some backsliding of
the emission control technologies (e.g., reduced incentive to operate
SCR
[[Page 23119]]
controls) that were initially determined to be cost-effective and
required to eliminate significant contribution. At the same time that
the incentive for EPA's selected control stringency weakens, EPA's data
show that downwind air quality receptors continue to persist at step 1,
and the overall level of anthropogenic emissions from an upwind state
continues to contribute to those receptors above the contribution
threshold at step 2. Under these conditions, a legal basis exists
within EPA's 4-step framework to undertake measures that ensure EGUs
continue to implement EPA's selected control stringency. Stated
differently, EPA is confident that it is well within its statutory
authority under CAA section 110(a)(2)(D)(i)(I) to impose on each
covered EGU in a linked upwind state an emission limit that is
enforceable and permanent, reflective of the control stringency EPA has
determined is needed to eliminate significant contribution from that
state. EPA's approach in this rule better incentivizes the selected
control stringency while retaining the flexible compliance benefits of
an interstate-trading approach to implementation.\172\
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\171\ Data from S&P Global Market Intelligence.
\172\ EPA continues to believe in the value of an interstate
trading program for implementation of good neighbor obligations for
EGUs. Through trading, the ultimate choice of compliance strategy is
left to EGU owners and operators. EPA is not imposing an enforceable
mandate that each EGU with an existing SCR or SNCR, or ability to
install or upgrade combustion controls undertake the control
stringency represented by the $1,800 per ton threshold. Sources have
maximum flexibility to undertake compliance strategies that meet
their specific operational and planning needs.
---------------------------------------------------------------------------
In summary, in order to implement a full remedy, EPA is
implementing ozone season budgets for each year that reflect ongoing
incentivization of the emission reduction measures identified in this
rule, with a final budget being implemented in 2024 (the last year EPA
projects downwind receptors to remain unresolved) and then held
constant for each year thereafter. EPA requested comment on this
approach and is finalizing the same approach that it proposed.
Comment: EPA received comment noting some stakeholders' strong
support for the issuance of NOX emissions budgets that were
updated each ozone season to account for fleet changes. Commenters also
claimed that failing to do so would raise concerns that, as the cost of
allowances falls, units would be incentivized to buy cheaper allowances
rather than optimize controls. They note this dynamic would undercut
the purpose of the trading program, and EPA's efforts to address this
issue by adjusting the NOX emissions budgets each ozone
season in response to fleet changes are necessary to avoid such an
outcome. They conclude it is a fair and equitable practice that ensures
continued optimization of emissions controls. EPA also received comment
opposing this methodology, generally for the stated reasons that (1)
the methodology differs from past EPA methodology, (2) EPA's budget
methodology should allow for other existing sources to replace the
retiring generation by assuming a corresponding replacement or even
increase in emissions, (3) some of the scheduled future retirements are
uncertain, and (4) reducing budgets based on retirements but continuing
to allocate allowances to those retiring units penalizes the non-
retiring units by reducing their allocation in a manner
disproportionate to their needs.
Response: EPA determined that in order to fulfill the Wisconsin
directive to implement a full remedy, these phased budgets are
necessary to ensure an incentive for existing controls to continue to
operate. Not including such a mechanism in a full-remedy approach would
lead to the possibility highlighted in EPA's proposed rule and some
comments, and supported by historical data, where the incentive to
operate controls decreases over time with fleet turnover, even though
upwind states remain linked to downwind receptors. If EPA did not
include such a phase-down mechanism in budgets accounting for fleet
turnover, then the other alternative to ensure a full remedy would be
unit-specific emission rate requirements (as the only alternative to
continue to incentivize existing controls to operate). EPA notes that
the some of the commenters who oppose the phase-down mechanism which
preserves the trading program's effectiveness across time also support
EPA's trading program as the preferred implementation mechanism
relative to unit-specific emission rate requirements and even
explicitly oppose unit-specific emission rate requirements in some
cases. However, the continued reliance on a trading program for full-
remedy policy solutions requires this mechanism to ensure the program's
effectiveness remains robust in the context of scheduled fleet
turnover.
With regard to comments that this approach is different than EPA's
past approaches, EPA notes that this approach is not unprecedented or
inconsistent with past EPA programs. In the first CSAPR rule, EPA
implemented phase 1 and phase 2 NOX budgets for states,
which tightened over time even as the rule stringency remained constant
for that pollutant. In the CSAPR Update, EPA examined only 2017 for its
partial remedy and noted it would revisit future years to see if
additional reductions were necessary when implementing a full remedy.
This rule achieves that full remedy.
Comment: Some commenters suggested that EPA should assume increased
generation from existing units (beyond recent historical data and
beyond baseline levels) as some of these units retire, thus offsetting
some of the emission reductions.
Response: EPA first notes that it does include emissions and
additional generation from additional new sources that are under
construction and/or that have received their permit approvals. This
new-unit generation offsets the amount of retiring generation in EPA's
baseline at the regional level. Second, EPA notes that in both the
proposed and the final rule it evaluated the assumed fossil generation
from covered sources within its future year baseline (after factoring
in retiring fossil generation) relative to historical trends and
continues to find that its assumed future level of fossil fuel-fired
generation is well within the trend observed over the past four years.
In other words, whereas fossil generation from the covered fleet in
these 12 states has been declining at approximately 2 percent on
average over the past four years, EPA's future year baseline contains
fossil generation well within this historical trend (i.e., continued
decline at less than 2 percent). Moreover, EPA's assumption that
existing, higher-emitting sources will, on average, not raise their
generation levels in the future is consistent not only with historical
trends, but also with both modeling outlooks for future generation from
these EGUs as well as announced plans to replace retiring fossil
generation with non-fossil sources. For many of these scheduled
retirements, utilities not only have broad plans stating their
intention to replace higher-emitting fossil sources with lower emitting
sources, but already have those plans for replacement generation, such
as renewable technologies, underway.173 174
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\173\ ``Coal retirements in Indiana could be hastened by 2.6GW
of wind, solar and energy storage''. Available at https://www.energy-storage.news/news/coal-retirements-in-indiana-could-be-hastened-by-2.6gw-of-wind-solar-and-en#.
\174\ ``Duke Vows to Triple Renewable Capacity, Reach Net-Zero
Emissions by 2030''. Utility Dive, October 2020. Available at.
https://www.utilitydive.com/news/duke-vows-to-double-renewables-capacity-reach-net-zero-methane-emissions-b/586791/.
---------------------------------------------------------------------------
Comment: Some stakeholders note the uncertainty of some scheduled
retirements, and the potential for them
[[Page 23120]]
to be possibly altered pending information from regulatory entities.
Response: With regard to commenters noting that some retirements
are uncertain and therefore should not be factored into EPA future
baseline and budget estimates, EPA notes it is using the best available
data at the time of the final rule and that no retirement plans
included in the final rule were contradicted by commenter data
submitted on the proposed rule. EPA relies on a compilation of data
from DOE EIA Form 860 where facilities report their future retirement
plans and on the information included in its NEEDS database. This
information is considered to be highly reliable, real-world information
that provides EPA with the high confidence that such retirements will
in fact occur. Indeed, in response to commenters' suggestions to factor
in yet additional potential retirements, EPA has declined to do so
where the intention to retire a unit is not abundantly supported by
utility-reported information. Despite this conservative approach to
identifying known fleet changes, if a unit's future retirement status
ultimately does not materialize on the scheduled date, EPA observes
that such an unexpected departure from the currently available evidence
would still not contradict its future state-level and region-level
estimates. EPA's approach of using historical data and incorporation
only of announced fleet changes in estimating its future baseline means
that its future year baseline generation and retirement outlook for
higher emitting sources is likely conservative, as EPA does not assume
any retirements beyond those that are announced. In other words, there
are more likely to be additional future EGU retirements that
materialize post-rule signature that impact the 2021-2024 timeframe
than there are to be announced retirement plans that are subsequently
unwound. The analytic tools and information resources used in any
estimation of state and regional future EGU emission totals inherently
have some discrepancies between what is projected for the future and
how the future unfolds--particularly at the unit level. But those
potential unit-level discrepancies, inherent in the enterprise of
prediction, would at most impact emissions both ways and do not, on
their own, undermine EPA's aggregate state and regional estimates.
Additionally, as noted elsewhere, EPA's use of a market-based program,
a starting bank of converted allowances, availability of additional
converted allowances through the ``safety valve'' mechanism, and
variability limits are all features that will readily accommodate
whatever small discrepancies there may be between EPA's projection of
the EGU fleet and actual fleet conditions in any of the relevant future
years. Therefore, EPA's resulting state emission budgets are robust to
the inherent uncertainty in future year baseline conditions.
Finally, with regard to comments concerning the impacts of the
successive year emissions budget changes' on unit-level allocations for
non-retiring units, EPA considers this not to be a budget-setting
issue, but rather a question of how to allocate allowances within the
budget. Thus, this topic is addressed in section VII.C.3.
EPA's emissions budget methodology and formula for establishing
Group 3 budgets are described in detail in the Ozone Transport Policy
Analysis Final Rule TSD and summarized below.
For determining emission budgets, EPA generally used historical
ozone season data from the 2019 ozone season, the most recent data
whose representativeness was not called into question by the unusual
circumstances of the Covid-19 pandemic. This is similar to its approach
in the CSAPR Update where EPA began with 2015 data (the most recent
year at the time). As in the CSAPR Update, EPA combined historical data
with IPM data to determine emission budgets. The budget setting process
has three primary steps:
(1) Determine a future year baseline--Start with the latest
reported historical unit-level data (e.g., 2019), and adjust any unit
data where a retirement or new build is known to occur by the baseline
year. This results in a future year (e.g., 2021) baseline for emissions
budget purposes.\175\
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\175\ EPA used 2019 historical data in the proposed rule because
that was the latest available at that time. EPA took comment on
using 2020 ozone-season data at the final rule as that data became
available in November of 2020, and discusses that topic later in
this section.
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(2) Factor in additional emission controls for the selected control
stringency (e.g., $1,800 per ton)--For the unit-level emission control
technologies identified in this control stringency, adjust the baseline
unit-level emissions and emission rates. For example, if an SCR-
controlled unit had a baseline greater than 0.08 lb/mmBtu, its rate and
corresponding emissions would be adjusted down to levels reflecting its
operation at 0.08 lb/mmBtu.
(3) Incorporate generation shifting--Use IPM in a relative way to
capture the reductions expected from generation shifting at a given $
per ton level that reflects control optimization (constrained to
within-state shifting).
By using historical unit and state-level NOX emission
rates, heat input, and emissions data at step 1 of the budget setting
process, EPA is grounding its budgets in the most recent representative
historical operation for the covered units.\176\ This data set is a
reasonable starting point for the budget setting process as it reflects
the latest data reported by affected facilities under 40 CFR part 75.
The reporting requirements include quality control measures,
verification measures, and instrumentation to best record and report
the data. In addition, the designated representatives of EGU sources
are required to attest to the accuracy and completeness of the data. In
step 1 of the budget setting process, EPA first adjusted the 2019
ozone-season data to reflect committed fleet changes under a baseline
scenario (i.e., announced and confirmed retirements, new builds, and
retrofits that have already occurred). For example, if a unit emitted
in 2019, but retired in 2020, its 2019 emissions would not be included
in the 2021 estimate. For units that had no known changes, the 2021
emissions assumption was the actual reported data from 2019 at this
first step of adjusting the baseline. EPA also included known new units
and scheduled retrofits in this manner. Using this method, EPA arrived
at a baseline emission, heat input, and emission rate estimate for each
unit for a future year (e.g., 2021), and then was able to aggregate
those unit-level estimates to state-level totals. These state-level
totals constituted the state's baseline from an engineering analytics
perspective. The ozone-season state-level emissions, heat input, and
emissions rates for covered sources under a baseline scenario were
determined for each future year examined (2021 through 2024). Because
2024 is the last ozone season for which EPA projects continued
contribution to any downwind receptors, 2024 is the last year for which
EPA is making an adjustment to emission budgets.
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\176\ EPA notes that historical state-level ozone season EGU
NOX emission rates are publicly available and quality
assured data. They are monitored using CEMS or other methodologies
allowed for use by qualifying units under 40 CFR part 75 and are
reported to EPA directly by power sector sources.
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For step 2 of the emissions budget setting process, EPA examined
how the baseline emissions and emission rates would change under
different control stringencies for EGUs. For instance, under the SCR
optimization scenario, if a unit was not operating its SCR at 0.08 lb/
mmBtu or lower in the baseline, EPA
[[Page 23121]]
lowered that unit's assumed emission rate to 0.08 lb/mmBtu and
calculated the impact on the unit's and state's emission rate and
emissions. Note, the heat input is held constant for the unit in the
process, reflecting the same level of unit operation compared to
historical 2019 data. An improved emission rate is then applied to this
heat input, reflecting control optimization. In this manner, the state-
level baseline totals from step 1 reflecting known baseline changes
were adjusted to reflect the additional application of the assumed
control technology at a given control stringency.
Finally, at step 3 of the emissions budget setting process, EPA
used IPM to capture any generation shifting at a given control
stringency necessary for the majority of the respective emission
control technology to operate. EPA explains how it accounts for
generation shifting in more detail in in section VI.B and in the Ozone
Transport Policy Analysis Final Rule TSD. In this rule, as a proxy for
the near-term reductions required by 2021, EPA has constrained
generation shifting to occur only within-state.
EPA requested comment on the approach described above, as well as
alternatives discussed in the budget-setting TSD. Specifically, EPA
requested comment on its consideration of using 2020 data in place of
2019 data as the most recent historical data set to inform final rule
budgets. Although the reduction potential associated with the selected
control stringency described in section VI would likely not change
substantially with that data set, the baseline values calculated in
step 1 of the emissions budget setting process may change significantly
and possibly result in lower or higher state-level emission budgets.
Comment: EPA received comment highlighting the unique impact of the
Covid-19 pandemic on 2020 emissions and generation data due to changes
in market conditions that may not be representative in subsequent years
(e.g., changes in net generation, time-of-day impacts on demand, and
natural gas prices). Commenters cautioned against relying on 2020 data
for informing step 3 analysis in this rule.
Response: EPA is finalizing, as proposed and consistent with these
comments, the continued use of 2019 EGU data as the latest, most
representative historical year for informing the Agency's step 3
analysis. EPA examined the unique Covid-related impacts on the power
sector and energy market data. It observed significant changes for some
variables where the change appeared to be specific to the 2020 dataset
and pandemic-related conditions, and therefore not representative of
future power sector operations or market conditions. These included
changes in natural gas prices, the demand profiles for electricity
(which influence what units generate at different parts of the day),
and overall electricity demand. This was further borne out by comparing
quarterly year-over-year data which revealed that changes in Q4 2020
data relative to Q4 2019 data were not as pronounced as changes in Q2
2020 data relative to Q2 2019 data, indicating the temporary status of
some of changes observed in the 2020 ozone season. For instance, Q2
2020 NOX emissions were down 20 percent year-over-year, but
Q4 2020 NOX emissions were down only 9 percent year-over-
year. EPA provides additional detail in the RTC document on its
consideration of 2019 and 2020 data as the most recent historical
representative year of the power sector. Had EPA utilized 2020 data as
the starting point for its future year baseline in Engineering
Analytics, it likely would have been incorporating some 2020-fleet
operational changes (and corresponding emission levels) unique to the
pandemic year instead of fleet changes expected to endure into post-
2020 years. As also explained in the RTC document, while EPA did
continue to use 2019 as the starting historical data set, it recognized
commenters' observations that New York and Virginia were differently
situated in that their emissions were higher in 2020 than 2019 (whereas
all other states were lower, at least partially attributable to Covid
impacts). Additionally, reflecting the 2020 fleet dynamics in the
future year baseline for New York helps capture some of the dynamics
related to the retirement of one unit at the Indian Point nuclear
facility as pointed out by the commenter. To account for these atypical
circumstances, EPA incorporated upward adjustments to its future year
baseline values for New York and Virginia that reflected the
incremental changes in heat input, generation, and emissions for 2020
relative to 2019.
Comment: Some commenters suggested EPA use a multi-year historical
baseline for its step 3 analysis on the theory that this would provide
a more robust set of historical data and a more representative baseline
for the power sector.
Response: EPA is finalizing use of the same single-year historical
baseline approach it used in the proposed rule. This approach is
similar to the CSAPR Update, where EPA also relied on a single-year
historical baseline to inform its step 3 approach. EPA's interest in a
historical data set to inform this part of the analysis is to capture
the current status of the power sector (i.e., incorporating the latest
new builds, retirements, and unit operation in response to current
regulations and market conditions). Incorporating prior years through a
multi-year historical baseline would dilute, rather than strengthen,
the methodology's ability to capture the most representative
perspective of the current power sector. It would in effect include
units that no longer exist, market conditions that have since evolved,
and a regulatory landscape that has likewise since changed. It would
diminish the effect of newer generation resources that have come online
which reflect the impacts of the latest changes in technology
performance and cost levels. EPA finds that, particularly at the state
and regional level, the most recent year data is a better
representation and basis for future year baselines rather than
incorporating older data. In other applications, where the purpose is
not forward looking, but rather distribution-based and unit-level
focused, lengthier historical baselines have more value. See additional
response to this comment in the State Emission Budgets section of the
RTC document.
C. Elements of New Trading Program
To implement the updated emissions budgets developed according to
the process described in section VII.B, EPA is requiring EGUs in each
of the 12 covered states to participate in a new CSAPR NOX
Ozone Season Group 3 Trading Program. The provisions of the new ``Group
3'' trading program are largely identical to the provisions of the
``Group 2'' trading program in which affected EGUs in the 12 covered
states participated from 2017 through 2020. The principal differences
between the Group 2 and Group 3 trading programs are the differences in
state budgets and geography established in this rule to address the
covered states' remaining obligations under CAA section
110(a)(2)(D)(i)(I) with respect to the 2008 ozone NAAQS. One other
difference, which EPA is adopting in response to comments, concerns the
determination of which units are eligible to receive allocations of
allowances for use in the new Group 3 trading program as ``existing
units'' under EPA's default allocation methodology. Specifically,
certain units with scheduled future retirement dates will not receive
allocations as existing units for use in the Group 3 trading program
starting with the first control period for which the units' scheduled
[[Page 23122]]
retirements are reflected in adjustments to the state emission budgets.
This aspect of implementation of the Group 3 trading program is
discussed in section VII.C.3.b.
The proposed rule included several provisions designed to address
the transition from the Group 2 trading program to the Group 3 trading
program. The provisions for allocation of supplemental allowances to
ensure that the enhanced control stringency established in this action
applies only after the rule's effective date are finalized as proposed.
The provisions concerning creation of an initial bank of Group 3
allowances in exchange for banked 2017-2020 Group 2 allowances at a
formula-based conversion ratio and the provisions concerning the recall
of certain previously recorded 2021-2024 Group 2 allowances are
finalized with certain modifications adopted after consideration of
comments. Also, in response to comments, the final rule includes
transitional provisions establishing a ``safety valve'' mechanism under
which sources may obtain additional Group 3 allowances in exchange for
additional 2017-2020 Group 2 allowances at a higher conversion ratio.
All of these transitional provisions are discussed in section VII.C.4.
The only other differences between the new Group 3 trading program
regulations and the Group 2 trading program regulations that applied
for emissions through the 2020 control periods are a small number of
corrections and administrative simplifications that have no effect on
program stringency; EPA is eliminating these differences by making the
same corrections and simplifications to the regulations for the Group 2
trading program and the other existing CSAPR trading programs starting
with the 2021 control periods.\177\ In this section, the Agency
discusses major elements of the new Group 3 trading program, with
emphasis on the elements that differ from the previous provisions of
the Group 2 trading program as well as the provisions specifically
designed to address the transition from the Group 2 trading program to
the Group 3 trading program.
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\177\ The corrections and simplifications generally apply to
each of the five existing CSAPR trading programs at subparts AAAAA
through EEEEE of 40 CFR part 97, and a subset also apply to the
Texas SO2 Trading Program at subpart FFFFF of 40 CFR part
97. The specific corrections and simplifications are described as
applied to the new Group 3 trading program in sections VII.C.1.
through VII.C.7. The same changes as applied to the existing
programs are discussed in section VII.C.8.
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1. Applicability
In this rule, EPA is using the same EGU applicability provisions in
the new Group 3 trading program as in the existing Group 2 trading
program and the other CSAPR trading programs, without change. Under the
general CSAPR applicability provisions, a covered unit is any
stationary fossil-fuel-fired boiler or combustion turbine serving at
any time on or after January 1, 2005, a generator with nameplate
capacity exceeding 25 MW, which is producing electricity for sale, with
the exception of certain cogeneration units and solid waste
incineration units.
2. State Budgets, Variability Limits, Assurance Levels, and Penalties
EPA is establishing revised state budgets for EGU emissions of
ozone season NOX for the 12 ``Group 3'' states subject to
new or amended FIPs in this final rule in order to fully address these
states' significant contribution with respect to the 2008 ozone NAAQS.
The budgets have been established according to the process described in
section VII.B. As discussed in that section, for each of the covered
states, separate budgets are established for the three individual years
2021, 2022, and 2023, and then for 2024 and beyond.\178\ Portions of
the updated NOX ozone season emission budgets are reserved
as updated new unit set-asides and Indian country new unit set-asides
for the same control periods, as further described in section
VII.C.3.a. The amounts of the state emissions budgets for 2021, 2022,
2023, and 2024 and beyond are shown in tables VII.C.2-1, VII.C.2-2,
VII.C.2-3, and VII.C.2-4.
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\178\ See section VII.C.4.a. for a discussion of transitional
provisions included in this final rule to ensure that the increased
stringency of the new emission budgets being established for the
2021 control period will apply only after the rule's effective date,
even though the new Group 3 trading program will be implemented as
of the start of the 2021 ozone season on May 1, 2021.
---------------------------------------------------------------------------
Similar to the previous requirements to hold Group 2 allowances
sufficient to cover their NOX emissions in each control
period from 2017 through 2020, sources in states covered by the new
Group 3 trading program will be required to hold new Group 3 allowances
sufficient to cover their NOX emissions in each control
period in 2021 and thereafter. For Group 3 states that were found in
the CSAPR Update to still have good neighbor obligations with respect
to the 1997 ozone NAAQS, EPA is determining that participation of the
state's EGUs in the more stringent Group 3 trading program will satisfy
those obligations.\179\
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\179\ Out of the 12 states included in the Group 3 trading
program, Illinois, Indiana, Kentucky, and Louisiana were found in
the CSAPR Update to still have good neighbor obligations with
respect to the 1997 ozone NAAQS. See 81 FR 74509 n.21 (November 21,
2016).
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In the CSAPR and the CSAPR Update, EPA developed assurance
provisions, including variability limits and assurance levels (with
associated compliance penalties), to ensure that each state will meet
its pollution control and emission reduction obligations and to
accommodate inherent year-to-year variability in state-level EGU
operations. Establishing assurance levels with compliance penalties
responds to the D.C. Circuit's holding in North Carolina requiring EPA
to ensure within the context of an interstate trading program that
sources in each state are required to eliminate emissions that
significantly contribute to nonattainment or interfere with maintenance
of the NAAQS in another state.\180\
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\180\ 531 F.3d at 908.
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Like the emission budgets promulgated in the CSAPR and the CSAPR
Update, the revised emission budgets promulgated in this rule reflect
EGU operations in an ``average year.'' However, year-to-year
variability in EGU operations occurs due to the interconnected nature
of the power sector, changing weather patterns, changes in electricity
demand, or disruptions in electricity supply from other units or from
the transmission grid. Recognizing this, the trading program provisions
finalized in the CSAPR and CSAPR Update rulemakings include variability
limits, which define the amount by which an individual state's
emissions may exceed the level of its budget in a given year to account
for variability in EGU operations. A state's budget plus its
variability limit equals the state's assurance level, which acts as a
cap on the state's NOX emissions during a given control
period (in this rulemaking, the relevant control period is the May-
September ozone season). The new CSAPR NOX Ozone Season
Group 3 Trading Program provisions established for affected sources in
the 12 states subject to the new trading program under this final rule
contain equivalent assurance provisions to the prior CSAPR and CSAPR
Update trading programs.
The variability limits ensure that the trading program can
accommodate the inherent variability in the power sector while ensuring
that each state eliminates the amount of emissions within the state, in
a given control period, that must be eliminated to meet
[[Page 23123]]
the statutory mandate of CAA section 110(a)(2)(D)(i)(I). Moreover, the
structure of the trading program, which achieves required emission
reductions through limits on the total numbers of allowances allocated,
assurance provisions, and penalty mechanisms, ensures that the
variability limits only allow the amount of temporal and geographic
shifting of emissions that is likely to result from the inherent
variability in power generation, and not from decisions to avoid or
delay the optimization or installation of necessary controls.
To establish the variability limits in the CSAPR, EPA analyzed
historical state-level heat input variability as a proxy for emissions
variability, assuming constant emission rates. See 76 FR 48265. The
variability limits for ozone season NOX in both the CSAPR
and the CSAPR Update were calculated as 21 percent of each state's
budget, and these variability limits for the NOX ozone
season trading programs were then codified in 40 CFR 97.510 and 40 CFR
97.810, along with the respective state budgets. For this final rule,
EPA is retaining variability limits for the 12 Group 3 states covered
by this rule calculated as 21 percent of each state's revised
budget.\181\
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\181\ See section VII.C.4.a. for a discussion of transitional
provisions included in the final rule to ensure that the increased
stringency of the new budgets will apply only after the rule's
effective date, even though the new Group 3 trading program will be
implemented as of the start of the 2021 ozone season on May 1, 2021.
The supplemental allowances and assurance level adjustments that are
being provided for the 2021 control period in accordance with those
transitional provisions are not reflected in the amounts shown in
Table VII.C.2-1.
Table VII.C.2-1--CSAPR NOX Ozone Season Group 3 State Budgets, Variability Limits, and Assurance Levels for 2021
182
----------------------------------------------------------------------------------------------------------------
Emissions Variability Assurance
State budget (tons) limit (tons) level (tons)
----------------------------------------------------------------------------------------------------------------
Illinois........................................................ 9,102 1,911 11,013
Indiana......................................................... 13,051 2,741 15,792
Kentucky........................................................ 15,300 3,213 18,513
Louisiana....................................................... 14,818 3,112 17,930
Maryland........................................................ 1,499 315 1,814
Michigan........................................................ 12,727 2,673 15,400
New Jersey...................................................... 1,253 263 1,516
New York........................................................ 3,416 717 4,133
Ohio............................................................ 9,690 2,035 11,725
Pennsylvania.................................................... 8,379 1,760 10,139
Virginia........................................................ 4,516 948 5,464
West Virginia................................................... 13,334 2,800 16,134
----------------------------------------------------------------------------------------------------------------
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\182\ The state-level emission budget calculations pertaining to
Tables VII.C.2-1 through VII.C.2-4 are described in section VII.B,
and in greater detail in the Ozone Transport Policy Analysis Final
Rule TSD. Budget calculations and underlying data are also available
in Appendix A of that TSD.
Table VII.C.2-2--CSAPR NOX Ozone Season Group 3 State Budgets, Variability Limits, and Assurance Levels for 2022
----------------------------------------------------------------------------------------------------------------
Emissions Variability Assurance
State budget (tons) limit (tons) level (tons)
----------------------------------------------------------------------------------------------------------------
Illinois........................................................ 9,102 1,911 11,013
Indiana......................................................... 12,582 2,642 15,224
Kentucky........................................................ 14,051 2,951 17,002
Louisiana....................................................... 14,818 3,112 17,930
Maryland........................................................ 1,266 266 1,532
Michigan........................................................ 12,290 2,581 14,871
New Jersey...................................................... 1,253 263 1,516
New York........................................................ 3,416 717 4,133
Ohio............................................................ 9,773 2,052 11,825
Pennsylvania.................................................... 8,373 1,758 10,131
Virginia........................................................ 3,897 818 4,715
West Virginia................................................... 12,884 2,706 15,590
----------------------------------------------------------------------------------------------------------------
Table VII.C.2-3--CSAPR NOX Ozone Season Group 3 State Budgets, Variability Limits, and Assurance Levels for 2023
----------------------------------------------------------------------------------------------------------------
Emissions Variability Assurance
State budget (tons) limit (tons) level (tons)
----------------------------------------------------------------------------------------------------------------
Illinois........................................................ 8,179 1,718 9,897
Indiana......................................................... 12,553 2,636 15,189
Kentucky........................................................ 14,051 2,951 17,002
Louisiana....................................................... 14,818 3,112 17,930
[[Page 23124]]
Maryland........................................................ 1,266 266 1,532
Michigan........................................................ 9,975 2,095 12,070
New Jersey...................................................... 1,253 263 1,516
New York........................................................ 3,421 718 4,139
Ohio............................................................ 9,773 2,052 11,825
Pennsylvania.................................................... 8,373 1,758 10,131
Virginia........................................................ 3,980 836 4,816
West Virginia................................................... 12,884 2,706 15,590
----------------------------------------------------------------------------------------------------------------
Table VII.C.2-4--CSAPR NOX Ozone Season Group 3 State Budgets, Variability Limits, and Assurance Levels for 2024
and Beyond
----------------------------------------------------------------------------------------------------------------
Emissions Variability Assurance
State budget (tons) limit (tons) level (tons)
----------------------------------------------------------------------------------------------------------------
Illinois........................................................ 8,059 1,692 9,751
Indiana......................................................... 9,564 2,008 11,572
Kentucky........................................................ 14,051 2,951 17,002
Louisiana....................................................... 14,818 3,112 17,930
Maryland........................................................ 1,348 283 1,631
Michigan........................................................ 9,786 2,055 11,841
New Jersey...................................................... 1,253 263 1,516
New York........................................................ 3,403 715 4,118
Ohio............................................................ 9,773 2,052 11,825
Pennsylvania.................................................... 8,373 1,758 10,131
Virginia........................................................ 3,663 769 4,432
West Virginia................................................... 12,884 2,706 15,590
----------------------------------------------------------------------------------------------------------------
The assurance provisions include penalties that are triggered in
the event that the covered sources' emissions in a given state, as a
whole, exceed the state's assurance level. The CSAPR and the CSAPR
Update provided that, when the emissions from EGUs in a state exceed
that state's assurance level in a given year, particular sources within
that state will be assessed a 3-to-1 allowance surrender on emissions
exceeding the assurance level. Specifically, each excess ton above a
given state's assurance level must be met with one allowance, per
standard compliance, and two additional allowances to satisfy the
penalty. The penalty was designed to deter state-level emissions from
exceeding assurance levels. In both the CSAPR and the CSAPR Update, the
assurance provisions were designed to account for variability in the
electricity sector while ensuring that the necessary emission
reductions occur within each covered state, consistent with the court's
holding in North Carolina, 531 F.3d at 908. If EGU emissions in a given
state do not exceed that state's assurance level, no penalties are
incurred by any source.
To assess the penalty under the assurance provisions, EPA is
following the same methodology finalized in the CSAPR Update. See 81 FR
74567. In that methodology, EPA evaluates whether any state's total EGU
emissions in a control period exceeded the state's assurance level, and
if so, EPA then determines which groups of units in the state
represented by a ``common designated representative'' emitted in excess
of the common designated representative's share of the state assurance
level and, therefore, will be subject to the allowance surrender
requirement described above. Thus, penalties under the assurance
provisions are triggered for the group of sources represented by a
common designated representative when two conditions are met: (1) The
group of sources and units with a common designated representative are
located in a state where the total state EGU emissions for a control
period exceed the state assurance level; and (2) that group with the
common designated representative had emissions exceeding the respective
common designated representative's share of the state assurance level.
EPA is establishing assurance provisions for the CSAPR NOX
Ozone Season Group 3 Trading Program that are equivalent to the
assurance provisions in the CSAPR NOX Ozone Season Group 2
Trading Program.
In this final rule, EPA is simplifying the procedures for
administering the assurance provisions, as compared to the analogous
provisions included in the existing CSAPR trading programs for control
periods before 2021.\183\ The simplifications are made possible by the
revisions to the process for allocating allowances from the new unit
set-asides that are discussed in section VII.C.3.c. The same
simplifications are also being implemented in the existing CSAPR
trading programs, as discussed in section VII.C.8. These
simplifications concern the procedures for determining the portion of
the state's assurance level to be assigned to each common designated
representative. Specifically, certain provisions of these procedures as
previously implemented in the existing CSAPR trading programs were
designed to address circumstances where a new unit operates but has no
allowance allocation determined for it. Administration of these
provisions
[[Page 23125]]
required EPA to issue a notice to collect information needed solely for
this purpose that is not otherwise required to be reported to EPA.
Because the revised new unit set-aside (``NUSA'') allocation procedures
eliminate the possibility that a new unit would not have an allowance
allocation determined for it, EPA is eliminating the provisions for
issuance of the related extra notice. EPA also is extending the date as
of which a common designated representative is determined under both
the new Group 3 trading program and the existing CSAPR trading programs
from April 1 of the year following the control period to July 1 so as
to preserve the relationship of those dates to the allowance transfer
deadline, which is being extended from March 1 of the year following
the control period to June 1.\184\ Further discussion of these changes
from the current provisions in the existing trading programs is
provided in section VII.C.8.
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\183\ EPA proposed and requested comment on implementing the
simplified assurance provisions as of the 2023 and 2021 control
periods, respectively. No comments were received, and EPA is
clarifying the regulations by implementing the simplified provisions
as of the 2021 control period. For further discussion, see section
VII.C.8.b.
\184\ As discussed in section VII.C.8., in order to minimize
unnecessary differences between the CSAPR trading programs and the
similarly structured Texas SO2 Trading Program, EPA is
also revising the date for determination of a common designated
representative under the Texas SO2 Trading Program.
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Comment: EPA received several comments concerning the achievability
of state emissions budgets in 2021 that highlighted the quick
implementation timeframe and suggesting that such a timeframe would not
allow enough times for a liquid allowance market to form and thus
inhibit sources' ability to obtain the allowances that they need for
compliance.
Response: As an initial matter, EPA observes that in 25 years of
promulgating and administering trading programs for NOX and
SO2 as mechanisms to address acid precipitation or
interstate transport of air pollution, the Agency has never encountered
a single instance where a source was unable to comply with the
requirements of any of these trading programs because of an inability
to find allowances available for purchase. Almost all of the sources
that will participate in the trading program established under this
final rule have previously participated in some of these other trading
programs and therefore are, or should be, fully aware that under every
such trading program, a functioning allowance market has developed.
Nevertheless, some commenters assert that in the trading program
established under this specific final rule--where the emission
reductions required for the first control period are set at levels
designed to be achievable without installation of any new controls by
any source--for the first time ever, either no industry participants
will be willing to take actions that would create surplus allowances or
all industry participants will refuse to sell such surplus allowances
at any price. The comments fly in the face of 25 years of evidence and
common experience, not to mention principles of economics and market
participants' self-interest. EPA views the comments as unsupported and
speculative to the point of irrationality.
EPA first addresses the viability of 2021 implementation for the
emission reductions required under this rule in detail in section VI. B
above. With regard to the specific market liquidity concerns expressed
here, EPA notes that those same concerns have been voiced in the lead-
up to past CSAPR trading programs and have never materialized. Instead,
a functioning allowance market has always formed and resulted in 100
percent compliance with the allowance holding requirements for the
first control period (and subsequent control periods). As described in
this section, under the new trading program sources are not required to
hold (and subsequently surrender) any allowances for compliance
purposes until June 1, 2022--well after the end of the 2021 ozone
season. In the current CSAPR Update ozone season programs, EPA observes
that most trades occur near or after end of the ozone season.
Therefore, the approximately two months between final rule promulgation
and the start of the compliance period is in no way a limit on the time
sources have to buy and sell allowances for that compliance period.
Rather, sources will have eight months after the end of the control
period in which to engage in any necessary or desired allowance market
transactions. The total quantity of allowances usable for the 2021
control periods from state emission budgets and from the initial Group
3 bank (discussed in section VII.C.4.b) will be known before the start
of the 2021 control period, and EPA expects that almost all such
allowances will be recorded in sources' compliance accounts well before
the end of the 2021 control period, ensuring that there will be no
logistical impediments to such transactions. Moreover, in many cases,
units that may have the need to procure allowances will also have
associated units under common ownership elsewhere in the fleet that
hold a surplus of allowances In this case, it is only a matter of
intra-owner allowance movement needed to align allowancing holdings
with allowance surrender obligations, and the need for accessing a
broader allowance market is mooted.
Further, the level of the budgets, in addition to the initial Group
3 bank, should obviate any market liquidity concerns as the number of
allowances on the market for the first year will accommodate a variety
of compliance pathways and unit operational decisions. Moreover, the
experience of the CSAPR programs reveals that the allowance price is
highest in the first compliance period, creating an incentive for all
sources to implement achievable emission reductions and for sources
with surplus of allowances to sell them while allowance prices are
highest, generating the conditions for a robust market to form--further
promoting market liquidity. While EPA strongly disagrees, based on
previous program implementation and forward-looking analysis, that
there is any risk of market illiquidity, the Agency is creating an
additional ``safety valve'' in this final rule due to the near-term
implementation timetable. Consistent with commenters' suggestions, EPA
will allow the one-time conversion of Group 2 allowances at an 18:1
ratio to provide additional assurance to sources that allowances will
be available, but ensuring that the cost of this compliance option is
such that entities will utilize it only in the very unlikely event that
access to such additional allowances proves to be necessary. The safety
valve is described further in section VII.C.4.c.
Comment: EPA received several comments concerning the proposed
variability limits and associated assurance levels for the states in
the Group 3 trading program. Some commenters suggested that EPA should
eliminate or tighten variability limits for the Group 3 trading
program. One commenter justified these changes by observing that the
Group 2 trading program established under the CSAPR Update had excess
availability of allowances and low allowance prices.
One commenter suggested that EPA eliminate variability limits for
the Group 3 trading program on the basis that the variability limits
and associated assurance levels as proposed do not result in the
elimination of downwind non-attainment by the end of 2021. This
commenter stated that EPA failed to provide a full explanation in the
proposed action as to why the 21 percent variability limit used in the
trading programs for ozone season NOX established in the
CSAPR and the CSAPR Update was still applicable in the new Group 3
trading program. The commenter stated there is no justification for EPA
to increase the budget amounts due to variability in
[[Page 23126]]
EGU fleet operation if EPA is correct in its assessment that the
proposed NOX mass emission budget levels are representative
of near-term achievable NOX emission control obligations
based on historical EGU fleet operation. The commenter stated that
increasing budgets by 21 percent to arrive at an assurance level
permits an upwind state's EGU fleet to emit NOX mass
emissions more than the levels necessary to meet the given state's
obligation to downwind areas. The commenter further states a belief
that EPA is misapplying the concept of EGU fleet operational
variability to permit a state's EGU fleet to emit NOX mass
emissions at levels that may negatively impact the health and welfare
of downwind populations.
Response: EPA disagrees with the commenters and is retaining the
variability limits and associated assurance levels as reflected in both
the CSAPR and the CSAPR Update. EPA believes a variability limit of 21
percent continues to be appropriate for states in the Group 3 trading
program. The assertion that state budgets are increased by 21 percent
in response to the variability limit is incorrect. Rather, as described
in the CSAPR, the CSAPR Update, and reiterated in this final action,
the variability limits reflect expected year-to-year or season-to-
season variability in demand for electricity, and therefore,
variability in the use of fuel and in emissions. While a given state
may emit up to the assurance level (i.e., that state's budget plus the
21 percent variability limit) during years with adverse meteorology and
atypical levels of electricity demand, allowances banked from prior
control periods may then be used for compliance obligations. However,
the total number of allowances issued for each control period in the
Group 3 trading program is equal to the sum of the Group 3 states'
emission budgets, not the sum of the Group 3 states' assurance levels.
Although EPA is also creating an initial bank of allowances in an
amount equal to the sum of the states' variability limits for the 2022
control period (see section VII.C.4.b), creation of the bank is a one-
time event and does not represent a 21 percent increase in the state
emission budgets established for each control period.
With regard to the comment that EPA has not sufficiently justified
reusing in the Group 3 trading program the same 21 percent variability
limits used in the trading programs for ozone season NOX
established in the CSAPR and the CSAPR Update, EPA disagrees that
updating these limits is necessary. The original variability analysis
performed in the CSAPR rulemaking considered data for 26 states
(including all 12 Group 3 states) and reflected over a decade of
operational variability (from 2000 through 2010), producing relatively
robust standard deviation estimates. EPA would not necessarily view
changes of a few percent above or below the previously identified
variability level of 21 percent from an updated analysis as significant
enough to require establishment of different variability limits in the
Group 3 trading program. Nevertheless, in response to the comment, EPA
has performed an updated variability analysis for the 12 Group 3 states
reflecting data for all control periods from 2000 to 2019. The updated
analysis again results in a variability estimate of 21 percent. EPA
also considered shorter time periods for the updated analysis and found
that the resulting variability estimates are not especially sensitive
to the particular time period analyzed. Accordingly, EPA concludes that
it is reasonable to finalize the variability limits for the Group 3
trading program at the level of 21 percent as proposed.\185\
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\185\ For details on the original variability analysis for 26
states over the 2000-2010 period, including a description of the
methodology, see the Power Sector Variability Final Rule TSD from
the CSAPR (EPA-HQ-OAR-2009-0491-4454). For the updated variability
analysis for the 12 Group 3 states for the 2000-2019 period, see the
Excel file ``Historical Variability in Heat Input 2000 to
2019.xls.'' Both documents are available in the docket for this
final rule.
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3. Unit-Level Allocations of Emissions Allowances
For states participating in the CSAPR Group 3 trading program, EPA
is issuing CSAPR NOX Ozone Season Group 3 allowances to be
used for compliance beginning with the 2021 ozone season. This section
explains the default process by which EPA is allocating total amounts
of these allowances equal to each state's budget amount existing units
and new units in the state. Section VII.C.3.a describes the
determination of the portions of each state's budget that will be set
aside for potential allocation to new units in the state and in any
Indian country within the state's borders. Section VII.C.3.b discusses
the methodology used to allocate shares of each state's budget not
reserved in a set-aside to the existing units in the state, including
in some cases to units that have ceased operations. Sections VII.C.3.c
and VII.C.3.d discuss the process for allocating the allowances in the
new unit set-asides and Indian country new unit set-asides,
respectively, to individual units.
As under both the CSAPR and the CSAPR Update, states have several
options under this final rulemaking to submit SIP revisions which, if
approved, may result in the replacement of EPA's default allocations
with state-determined allocations for the 2022 control period and
beyond. The provisions described in this section do not prevent any
state from employing an alternative allocation methodology for control
periods after 2021 through a SIP submission. See section VII.D. for
details on the development of approvable SIP submissions.
a. Set-Asides of Portions of State Budgets for New Units
As part of the default allocation process that will apply where a
state does not employ an alternative allocation process pursuant to an
approved SIP revision, EPA is promulgating allocations to a new unit
set-aside for each state equal to a minimum of 2 percent of the total
state budget, plus the projected amount of emissions from planned units
in that state. For example, if planned units in a state are projected
to emit 3 percent of the state's NOX ozone season emission
budget, then the new unit set-aside for the state would be set at 5
percent, which is the sum of the minimum 2 percent set-aside plus an
additional 3 percent for planned units. As further discussed in section
VII.C.3.d., for the three Group 3 states with Indian country within
their borders (Louisiana, Michigan, and New York), EPA is reserving 5
percent of the minimum 2 percent new unit set-aside, or 0.1 percent of
the total state budget, for any new units in Indian country within the
borders of state,\186\ with no additional amount to address planned
units in Indian country.\187\ This is the same approach previously used
to establish the amounts of new unit set-asides and Indian country new
unit set-asides for all the CSAPR and CSAPR Update trading programs.
See, e.g., 76 FR 48292 (August 8, 2011). Note that New York has set its
NUSA percentage within its approved SIP for the existing Group 2
trading program to 5 percent of the state emission budget without
consideration of planned units; therefore, this NUSA percentage is used
[[Page 23127]]
for New York. As described in greater detail in sections VII.C.3.c and
VII.C.3.d, new units are eligible to receive allocations from a new
unit set-aside or Indian country new unit set-aside starting with the
first year they are subject to the allowance-holding requirements of
this rule. If the allowances in the NUSA for a state or the Indian
country NUSA for Indian country within the borders of a state are not
allocated to new units, the allowances are redistributed to existing
units in the state before each compliance deadline.
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\186\ In the CSAPR rulemaking, based on analysis of a set of
states that includes all the proposed Group 3 states in this action,
EPA determined that among the states analyzed, in the state for
which Indian country represented the largest share of the total area
within the state's borders, that share was 5 percent. See 76 FR
48293 (December 27, 2011). EPA adopted the same 5 percent figure in
the CSAPR Update. See 81 FR 74565-66 (May 27, 2016).
\187\ According to the information available to EPA, there are
currently no planned units in Indian country within the borders of
any Group 3 state.
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The process described above for determining the portions of each
state budget that will be set aside for potential allocation to new
units is unchanged from the process described in the proposed rule. EPA
received no comments concerning the portions of the emission budgets
established under the new Group 3 trading program that would be set
aside for this purpose. One commenter suggested that the amounts of the
new unit set-asides should be increased by adding allowances from the
existing Group 2 trading program that would have been allocated to
retired units under that program. EPA is not implementing this
suggestion and responds more fully to the comment in section VII.C.4.b.
Because the budgets under the Group 3 trading program vary across
control periods, the amounts of the default new unit set-asides and
Indian country new unit set-asides also vary. The amounts for each
state for 2021 through 2023 and for 2024 and beyond are set forth in
tables VII.C.3-1 through VII.C.3-4.\188\
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\188\ See section VII.C.4.a. for a discussion of transitional
provisions included in the final rule to ensure that the increased
stringency of the new budgets will apply only after the rule's
effective date, even though the new Group 3 trading program will be
implemented as of the start of the 2021 ozone season on May 1, 2021.
The supplemental allowances that are being provided for the 2021
control period in accordance with those transitional provisions are
not reflected in the emission budget amounts shown in Table VII.C.3-
1.
Table VII.C.3-1--CSAPR NOX Ozone Season Group 3 New Unit Set-Aside (NUSA) Amounts for 2021
----------------------------------------------------------------------------------------------------------------
New unit set-
New unit set- Total new unit aside amount Indian country
State Emission aside amount set-aside for new units new unit set-
budgets (tons) (percent) amount for new not in Indian aside amount
units (tons) country (tons) (tons)
----------------------------------------------------------------------------------------------------------------
Illinois........................ 9,102 3 265 265 ..............
Indiana......................... 13,051 2 262 262 ..............
Kentucky........................ 15,300 2 309 309 ..............
Louisiana....................... 14,818 3 445 430 15
Maryland........................ 1,499 9 135 135 ..............
Michigan........................ 12,727 4 513 500 13
New Jersey...................... 1,253 2 27 27 ..............
New York........................ 3,416 5 171 168 3
Ohio............................ 9,690 3 291 291 ..............
Pennsylvania.................... 8,379 4 335 335 ..............
Virginia........................ 4,516 4 185 185 ..............
West Virginia................... 13,334 2 266 266 ..............
----------------------------------------------------------------------------------------------------------------
Table VII.C.3-2--CSAPR NOX Ozone Season Group 3 New Unit Set-Aside (NUSA) Amounts for 2022
----------------------------------------------------------------------------------------------------------------
New unit set-
New unit set- Total new unit aside amount Indian country
State Emission aside amount set-aside for new units new unit set-
budgets (tons) (percent) amount for new not in Indian aside amount
units (tons) country (tons) (tons)
----------------------------------------------------------------------------------------------------------------
Illinois........................ 9,102 3 265 265 ..............
Indiana......................... 12,582 2 254 254 ..............
Kentucky........................ 14,051 2 283 283 ..............
Louisiana....................... 14,818 3 445 430 15
Maryland........................ 1,266 9 115 115 ..............
Michigan........................ 12,290 4 494 482 12
New Jersey...................... 1,253 2 27 27 ..............
New York........................ 3,416 5 171 168 3
Ohio............................ 9,773 3 290 290 ..............
Pennsylvania.................... 8,373 4 339 339 ..............
Virginia........................ 3,897 4 161 161 ..............
West Virginia................... 12,884 2 261 261 ..............
----------------------------------------------------------------------------------------------------------------
[[Page 23128]]
Table VII.C.3-3--CSAPR NOX Ozone Season Group 3 New Unit Set-Aside (NUSA) Amounts for 2023
----------------------------------------------------------------------------------------------------------------
New unit set-
New unit set- Total new unit aside amount Indian country
State Emission aside amount set-aside for new units new unit set-
budgets (tons) (percent) amount for new not in Indian aside amount
units (tons) country (tons) (tons)
----------------------------------------------------------------------------------------------------------------
Illinois........................ 8,179 3 248 248 ..............
Indiana......................... 12,553 2 249 249 ..............
Kentucky........................ 14,051 2 283 283 ..............
Louisiana....................... 14,818 3 445 430 15
Maryland........................ 1,266 9 115 115 ..............
Michigan........................ 9,975 4 398 388 10
New Jersey...................... 1,253 2 27 27 ..............
New York........................ 3,421 5 171 168 3
Ohio............................ 9,773 3 290 290 ..............
Pennsylvania.................... 8,373 4 339 339 ..............
Virginia........................ 3,980 4 166 166 ..............
West Virginia................... 12,884 2 261 261 ..............
----------------------------------------------------------------------------------------------------------------
Table VII.C.3-4--CSAPR NOX Ozone Season Group 3 New Unit Set-Aside (NUSA) Amounts for 2024 and Beyond
----------------------------------------------------------------------------------------------------------------
New unit set-
New unit set- Total new unit aside amount Indian country
State Emission aside amount set-aside for new units new unit set-
budgets (tons) (percent) amount for new not in Indian aside amount
units (tons) country (tons) (tons)
----------------------------------------------------------------------------------------------------------------
Illinois........................ 8,059 3 244 244 ..............
Indiana......................... 9,564 2 190 190 ..............
Kentucky........................ 14,051 2 283 283 ..............
Louisiana....................... 14,818 3 445 430 15
Maryland........................ 1,348 9 122 122 ..............
Michigan........................ 9,786 4 392 382 10
New Jersey...................... 1,253 2 27 27 ..............
New York........................ 3,403 5 170 167 3
Ohio............................ 9,773 3 290 290 ..............
Pennsylvania.................... 8,373 4 339 339 ..............
Virginia........................ 3,663 4 150 150 ..............
West Virginia................... 12,884 2 261 261 ..............
----------------------------------------------------------------------------------------------------------------
b. Allocations to Existing Units, Including Units That Cease Operation
The portion of a state budget remaining after the portions reserved
for new units have been set aside is allocated among the existing units
in the state. EPA in this action is generally allocating allowances to
existing units in the Group 3 states following the same methodology for
allowance allocation that was used in the CSAPR Update, which relies on
historical heat input data and historical emissions data for each
eligible existing unit in the state. See 81 FR 74564-65. For the new
Group 3 trading program, EPA is applying this methodology using
historical data through 2019. In response to comments, EPA is also
making one change to the approach used to determine which existing
units are eligible to receive allocations for a given control period,
specifically by excluding certain units with scheduled future
retirements from receiving allocations for control periods after the
years in which the scheduled retirements are reflected in adjustments
to the respective states' emission budgets. For the amounts of the
allocations to existing units, see the TSD ``Unit Level Allocations and
Underlying Data for the Revised CSAPR Update for the 2008 Ozone
NAAQS,'' in the docket for this final rule. Note that this final rule
addresses allocations of only the newly created CSAPR NOX
Ozone Season Group 3 allowances issued under and used for compliance in
the Group 3 trading program. EPA is not changing allocations of
allowances used in the CSAPR NOX Ozone Season Group 1 or
Group 2, NOX Annual, or SO2 Group 1 or Group 2
trading programs and is not reopening the previously established
default allocations under these programs.
For the purpose of allocations, the CSAPR considered an ``existing
unit'' to be a unit that commenced commercial operation prior to
January 1, 2010, and the CSAPR Update considered an ``existing unit''
to be a unit that commenced commercial operation prior to January 1,
2015. For the 12 states subject to new or amended FIPs in this
rulemaking, EPA is considering an ``existing unit'' for purposes of the
Group 3 trading program to be a unit that commenced commercial
operation prior to January 1, 2019 (although only existing units that
did not cease operation before January 1, 2021 will be eligible to
receive allocations of Group 3 allowances as existing units). This
change will allow units commencing commercial operation between 2015
and 2019 to be directly allocated allowances from each state's budget
as existing units and will allow the full amounts of the new unit set-
asides and Indian country new unit set-asides to be available for any
future new units
[[Page 23129]]
locating in covered states or Indian country. Using data available at
the time of the proposed rule's development, EPA identified which units
in the proposed Group 3 states that currently submit quarterly
emissions reports to EPA appear to be eligible or ineligible to receive
allowance allocations as existing units; \189\ for this final rule, EPA
has updated the lists of units with the most recent data. EPA is not
reconsidering which units are ``existing units'' for purposes of any
other CSAPR trading program. Sources in most of the Group 3 states also
participate in the CSAPR NOX Annual and SO2 Group
1 trading programs, for which an ``existing unit'' is a unit that
commenced commercial operation before January 1, 2010. Thus, a unit
that is located in one of these states and that commenced commercial
operation between January 1, 2010, and January 1, 2019, would be
considered an ``existing unit'' for purposes of default allowance
allocations under the Group 3 trading program but would continue to be
considered a ``new unit'' for purposes of default allowance allocations
under the CSAPR NOX Annual and SO2 Group 1
trading programs.
---------------------------------------------------------------------------
\189\ See ``CSAPR NOX OS Group 3--Unit Level
Allocations and Underlying Data.xls'', available in the docket.
---------------------------------------------------------------------------
As noted earlier in this section, in response to comments EPA is
finalizing a change from the allocation methodology used in the
existing CSAPR trading programs with respect to which existing units
are eligible to receive allocations from the budget for a given control
period following retirement. Specifically, in cases where, before
finalization of this rule, a unit was scheduled to retire with
sufficient certainty for the retirement to be taken into account in
EPA's process in this rule for setting the emission budgets for the
state where the unit is located, EPA is not providing allocations of
allowances to the unit as an existing unit from the budget for any
control period starting with the first control period for which the
state's emission budget has been adjusted to reflect the unit's
scheduled retirement. This approach to determining eligibility to
receive allocations as an existing unit does not apply to other units
that may cease operations but whose upcoming retirements were not
scheduled as of finalization of this action with sufficient certainty
to be reflected in the process for setting the emission budgets. These
other units would continue to receive allowance allocations as existing
units for five control periods of non-operation, consistent with the
allocation methodology used in the existing CSAPR trading programs. EPA
provides additional discussion of these aspects of the allocation
methodology in the responses to comments at the end of this section.
The criteria that EPA has applied to determine whether a unit's
scheduled retirement is sufficiently certain to serve as a basis for
adjusting emission budgets and unit-level allocations are discussed in
section VII.B and in the Ozone Transport Policy Analysis Final Rule
TSD.
EPA is applying the default methodology finalized in the CSAPR
Update for allocating emission allowances to existing units, updated to
use more recent historical data. This methodology allocates allowances
to each unit based on the unit's share of the state's heat input,
limited by the unit's maximum historical emissions. As discussed in the
CSAPR Update, see 81 FR 74563-65, EPA finds this allowance allocation
approach to be fuel-neutral, control-neutral, transparent, based on
reliable data, and similar to allocation methodologies previously used
in the CSAPR, the NOX SIP Call, and the Acid Rain
Program.\190\ EPA is therefore continuing the application of this
default methodology for allocating allowances to existing sources in
this final rule.
---------------------------------------------------------------------------
\190\ See 40 CFR parts 72-78.
---------------------------------------------------------------------------
This final rule uses the average of the three highest years of heat
input data out of the most recent five-year period that is considered
representative to establish the heat input baseline for each unit.\191\
These heat input data are used to calculate each unit's proportion of
state-level heat input (the average of the unit's three highest non-
zero years of heat input divided by the total of such averages for all
eligible units within the given state). In general, EPA applies this
proportion to the total amount of existing unit allowances to be
allocated to quantify unit-level allocations. However, EPA also
constrains each unit's allocation so as not to exceed the unit's
maximum historical baseline emissions, calculated as the highest year
of emissions out of the most recent eight-year period that is
considered representative.\192\ In other words, if the allocation that
a unit would receive from the emission budget for its state based
solely on consideration of the unit's share of the state-level heat
input exceeds that unit's maximum historical baseline emissions, the
unit's allocation is capped at its maximum historical baseline
emissions and the excess allowances are instead allocated to other
units in the state whose allocations do not exceed their respective
maximum historical baseline emissions, again in proportion to those
other units' shares of the state-level heat input. Like the proposed
rule, this final rulemaking uses 2015-2019 heat input data and 2012-
2019 emissions data for purposes of computing unit-level allocations.
Although EPA proposed to update the data used in this action to include
2016-2020 heat input data and 2013-2020 emission data, most comments
received on this topic opposed the use of 2020 data as potentially
unrepresentative because of changes in economic conditions related to
the COVID-19 pandemic. EPA is persuaded that in the unusual
circumstance of the pandemic, 2020 data have the potential to be less
representative for at least some units than data from earlier control
periods, and accordingly EPA is not updating the periods of the data
used in the allocation calculations for the final rule to include 2020
data.
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\191\ As described in the Unit Level Allowance Allocations TSD
and done in prior CSAPR actions, the allocation method uses a five-
year baseline in order to improve representation of a unit's normal
operating conditions. Using the three highest, non-zero ozone season
heat input values within the five-year baseline reduces the
likelihood that any particular single year's operations (which might
not be representative due to outages or other unusual events)
determine a unit's allocation.
\192\ EPA's allocation methodology also considers whether unit-
level allocations should be limited because they would otherwise
exceed emission levels that are permissible under the terms of
consent decrees. However, in this instance EPA's analysis indicates
that consideration of consent decree limits does not alter the unit-
level allocations.
---------------------------------------------------------------------------
Under the CSAPR Update, if, at the time the rule was finalized, a
state had already submitted a SIP revision addressing the allocation of
CSAPR NOX ozone season allowances among the units in the
state, and if the SIP submission's allocation provisions could be
applied to an updated budget, EPA applied the state's preferred
allocation methodology to determine the allocation of allowances among
that state's units under the final CSAPR Update. Two of the Group 3
states (Indiana and New York) have such methodologies for allocating
CSAPR NOX Ozone Season Group 2 allowances among their units.
As under the CSAPR Update, in this final rule EPA is carrying out the
intent of these SIPs by establishing initial allowance allocations to
existing units under the FIPs for these two states using the allocation
methodologies already adopted by the states. EPA received no comments
opposing this approach to establishing the default allocation
methodologies for these states. EPA
[[Page 23130]]
notes that, consistent with the approach taken for other states, when
applying these states' allocation methodologies, the set of units
deemed eligible to receive allocations for each control period as
existing units is updated to eliminate any units whose scheduled
retirements were considered sufficiently certain to be reflected in the
budget-setting process with respect to that control period.
Comment: EPA received a comment suggesting modifications to the
proposed methodology for calculating allowance allocations in the event
that a unit has fewer than three years of operating history for use in
calculating allocations. The commenter suggests that EPA either revise
the allocation methodology for existing units so as to recompute
existing unit-level allocations for each ozone season through 2024 to
take account of additional years of heat input data for units in this
situation or else allow units in this situation to receive allocations
from new unit set-asides to the extent that their allocations as
existing units are less than their actual emissions.
Response: EPA disagrees that the revisions to the allocation
approach suggested by the commenter are needed in order to effectuate a
reasonable allocation of allowances among all of the units in a given
state. The suggested revisions would require promulgating new
allocation methodologies for either all existing units or all new units
that would differ from the allocation methodologies used in all of the
existing CSAPR trading programs and that would change the allocation to
the commenter's unit by at most one allowance for the 2021 control
period. EPA notes that any state may submit SIP revisions to replace
EPA's default allocations with state-determined allocations if the
state would prefer that allowances be allocated differently among the
state's units.
Comment: Commenters expressed diverse views on questions concerning
allocations of allowances to units with unscheduled future retirements,
ranging from recommendations that EPA end such allocations immediately
upon a unit's retirement to recommendations that EPA continue
allocations to retired units indefinitely.
Response: With respect to units with unscheduled future
retirements, EPA proposed to provide allocations of allowances
according to the methodology used in the existing CSAPR trading
programs. Under this methodology, when a unit ceases operation for two
consecutive control periods, it continues to receive allocations for
five control periods starting with the first control period of non-
operation. After the fifth control period, allowances that would
otherwise have been allocated to the unit for future control periods
are instead directed to the state's new unit set-aside for each control
period, and if the unit happens to resume operation in a future control
period, it is eligible to receive allocations only as a ``new'' unit
from the new unit set-aside for that control period. The rationale for
continuing to make allocations to sources that have ceased operations
for five control periods, rather than ending allocations immediately or
extending the allocations indefinitely, is to balance two concerns. The
first concern, which tends to suggest reallocating allowances more
quickly, is to ensure that allowances are available for new units as
the generating fleet evolves. The second concern, which tends to
suggest reallocating allowances less quickly, is to ensure that the
program's allowance allocation provisions do not distort a unit owner's
incentives to pursue what would otherwise be the most economic
compliance strategy. Such distortion could occur if a predicted
immediate loss of allowance allocations upon closure would give the
owner of an otherwise uneconomic unit an incentive to keep the unit in
operation just to receive allowance allocations.
None of the comments recommending a change to the approach for
allocating allowances to units with unscheduled future retirements
advocate allocating the allowances to other units instead. Rather, all
of these comments appear to either explicitly or implicitly incorporate
an assumption that the recommended change in allocations to the units
with unscheduled future retirements would be accompanied by a
corresponding change in the total number of allowances made available
collectively to all units in the state under the Group 3 trading
program. In other words, the comments recommending earlier
discontinuation of allocations to retired units are actually advocating
for reduced emission budgets implemented through the mechanism of
reduced allocations to retired units, while the comments recommending
more extended allocations to retired units are actually advocating for
increased emission budgets implemented through the mechanism of
increased allocations to retired units. EPA was unable to identify any
comments advocating for changes in the methodology establishing the
allocations to units with unscheduled retirements that were not
effectively comments advocating for changes in the amounts of the
emission budgets, which EPA considers a different issue. Comments on
the amounts of the emission budgets are addressed elsewhere.
Comment: EPA received several comments regarding the question of
when to treat a unit with an unscheduled future retirement as retired
for purposes of triggering the count of the five control periods for
which the unit would continue to receive allocations. One comment
suggested that EPA begin counting the five control periods following
the unit's announced retirement date rather than when the unit has
ceased operating for two consecutive control periods. Other comments
suggested that EPA evaluate non-operation on the basis of full calendar
years rather than on the basis of control periods (i.e., the ozone
season portions of calendar years).
Response: EPA disagrees with these comments. With respect to the
suggestion to wait for a retirement announcement even if a unit has
ceased operation for two control periods, EPA sees no reason to also
wait for a retirement announcement before taking observed information
about a unit's actual non-operation into account for purposes of
determining allowance allocations. With respect to the suggestion that
EPA evaluate non-operation over full calendar years instead of control
periods, EPA has followed the approach of considering a unit's non-
operation during the relevant control period for each trading program--
in other words, the calendar year for annual programs and the ozone
season for seasonal NOX programs--in all of the existing
CSAPR trading programs since 2015 without encountering any problems.
Commenters have not identified any new issues with the existing
procedures that would justify establishing different procedures for the
new Group 3 trading program. The example cited by commenters where a
unit might operate during the non-ozone season portion but not the
ozone season portion of two consecutive calendar years is neither a new
issue nor a significant problem. If such a unit loses its allocation as
an existing unit but then operates in a subsequent ozone season, under
the Group 3 trading program (as under the other seasonal NOX
trading programs) the unit becomes eligible to receive allocations from
the new unit set-aside.
Comment: EPA received several comments concerning units that have
already retired. Some commenters recommended that these units should
receive allocations under the Group 3 trading program at least until
the units
[[Page 23131]]
had received allocations for a total of five years of operation under
the current Group 2 trading program and the new Group 3 trading
program, generally citing the rationale described above for why EPA
continues to provide allocations for a limited amount of time in the
case of units with unscheduled future retirements.
Response: EPA disagrees with these comments. With respect to units
that permanently retired before January 1, 2021, EPA will not provide
allocations of Group 3 allowances. As noted above, the reason that the
existing CSAPR trading programs have provided allowances to units for a
period of time following their retirement is to avoid a distortion that
immediate discontinuation of allocations otherwise could cause to the
owner's incentives in making decisions about the unit's future. Where a
unit's owners have already retired a unit, this reason for continuing
allowance allocations for some period after retirement no longer
applies. Thus, including a provision in the new Group 3 trading program
that would allocate allowances to past retirements would simply
redistribute allowances from operating units to retired units for no
useful purpose. EPA again notes that any state may submit SIP revisions
to replace EPA's default allocations with state-determined allocations
if the state would prefer that allowances be allocated differently
among the state's units.
Comment: Another commenter on units that have already retired
recommended not only that the units continue to receive allocations for
a combined five-year period under the Group 2 and Group 3 trading
programs but also that after the end of the five-year period EPA should
add an equivalent quantity of allowances to the states' new unit set-
asides to ensure that sufficient allowances are available for new
units.
Response: EPA disagrees with this additional recommendation. As
discussed above with respect to the comments received on the
methodology for allocating allowances to units with unscheduled future
retirements, the recommendation to add allowances to the new unit set-
asides is effectively a comment on the amounts of the emission budgets
rather than on the allocation methodology, and comments on the amounts
of the emission budgets are addressed elsewhere. EPA notes that the
process for setting the emission budgets already includes a procedure
to ensure that the emission budgets account for estimated emissions
from planned new units.
Comment: With respect to units with scheduled future retirements,
in the proposed rule EPA proposed to treat the units identically to
units with unscheduled future retirements, allocating allowances to
these units for five years starting with their first year of non-
operation. Commenters observed that EPA was proposing to account for
units with scheduled future retirements by reducing emission budgets in
the control periods immediately following the retirements and suggested
that it would be inconsistent for EPA to treat these units differently
for purposes of the budget-setting process and the unit-level
allocation process. The commenters implied that allowance markets might
not be sufficiently liquid to facilitate the transfer of allowances
from retired units to units that continue to operate, and suggested
that the reductions in allocations to the operating units caused by the
reductions in the overall emission budgets would constitute an increase
in program stringency for the operating units.
Response: EPA disagrees with commenters' implicit assumption that
allowance markets will be illiquid and with the suggestion that changes
in how allowances are allocated among operating and retired units, as
opposed to changes in state emission budgets, represent changes in
overall program stringency. However, EPA agrees that it is reasonable
to treat the units with scheduled future retirements more consistently
across the budget-setting and unit-level allocation processes.
Accordingly, in the final action, EPA is accounting for units with
scheduled future retirements not only by reducing emission budgets in
the control periods immediately following the retirements but also by
ending allocations to those retired units in the control periods
immediately following the retirements. Just as units that have already
retired before 2021 are not included in the set of existing units to
which allowances are allocated for 2021 under EPA's default
methodology, in the final rule units with scheduled retirements before
2022, 2023, and 2024 are not included in the sets of existing units to
which allowances are allocated for 2022, 2023, and 2024, respectively.
As with EPA's rationale for not allocating allowances to units that
have already retired, allocating allowances to a unit for control
periods after the control period in which the unit is already scheduled
to retire serves no useful purpose, because in such circumstances there
is no potential distortion of economic incentives that needs to be
considered. The effect of this change in the final rule is to ensure
that allocations to a state's units that continue to operate do not
change from control period to control period based solely on the
retirements of other units in the state, where those retirements are
known and already factored into the budgets. EPA notes that in the
unlikely event that one of these retiring units operates in a control
period after the control period in which it was scheduled to retire, it
would be eligible to receive an allocation of allowances as a ``new''
unit from the state's new unit set-aside for the control period.
Finally, EPA notes that because this change addresses scheduled
future retirements occurring in 2021, 2022, and 2023 that are first
reflected in the state emission budgets for the 2022, 2023, and 2024
control periods, respectively, the change first affects unit-level
allocations as of the 2022 control period. Under this final rule, every
Group 3 state has the ability to establish state-determined unit-level
allocations to replace EPA's default unit-level allocations through SIP
revisions for any control period after 2021. Thus, any state that that
would prefer to allocate allowances for control periods after 2021 to
units with scheduled future retirements has the ability to do so
through SIP revisions.
c. Allocations to New Units
Consistent with the updates to which units are considered to be
``existing units'' described in section VII.C.3.b, for purposes of this
final rule a ``new unit'' that is eligible to receive allocations from
the new unit set-aside (NUSA) for a state includes any covered unit
that commences commercial operation on or after January 1, 2019, as
well as a unit that becomes covered by meeting applicability criteria
subsequent to January 1, 2019; a unit that relocates to a different
state covered by a FIP promulgated by this rule; and an ``existing''
covered unit that loses its allocation as an existing unit due to a
scheduled retirement or by otherwise ceasing operation but that resumes
operation at some point thereafter. The amounts of allowances initially
placed in each new unit set-aside for potential allocation to new units
are determined as described in section VII.C.3.a. In addition, any
allowances that would otherwise have been allocated to a unit with an
unscheduled future retirement that is no longer eligible to receive
allocations as an existing unit are redirected to the new unit set-
aside for the state in which the unit is located. Units qualifying to
receive allocations from a new unit set-aside may receive such
allocations starting with the first
[[Page 23132]]
year they are subject to the allowance-holding requirements of the
rule. If the allowances in the NUSA for a given state are not allocated
to new units, the allowances are redistributed to the existing units in
the state before each compliance deadline.
In the final rule, under the new Group 3 trading program EPA will
allocate allowances from each new unit set-aside using a one-round
approach that will be carried out after the end of the control period
at issue. Under the one-round approach, any eligible units in the state
that operated during the control period will be allocated allowances in
proportion to their respective emissions during the control period, up
to the amounts of those emissions if the NUSA contains sufficient
allowances, and not exceeding those emissions. Any allowances remaining
in a new unit set-aside after the allocations to new units will be
reallocated to the existing units in the state. EPA will issue a notice
of data availability concerning the proposed allocations by March 1
following the control period, provide an opportunity for submission of
objections, and issue a final notice of data availability and record
the allocations by May 1 following the control period, one month before
the June 1 compliance deadline. EPA believes this one-round approach
for allocating allowances from each state's NUSA to eligible units is
both simpler and more equitable that the two-round approach that EPA
historically used in all the previous CSAPR trading programs. The
existing CSAPR trading programs are being amended to also adopt the
one-round approach starting with the 2021 control periods. The
differences between the two-round and one-round procedures and reasons
for adopting the revisions are discussed in section VII.C.8.b.\193\
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\193\ EPA proposed and requested comment on implementing the
simplified NUSA allocation procedure as of the 2023 and 2021 control
periods, respectively. No comments were received, and EPA is
clarifying the regulations by implementing the simplified procedure
as of the 2021 control period. For further discussion, see section
VII.C.8.b.
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Comment: EPA received comments concerning allocation of the
portions of new unit set-asides composed of allowances redirected to
the new unit set-asides from existing units that have retired and lost
their allocations. Some commenters suggested that while EPA should make
these allowances available to new units, EPA should not reallocate
these allowances to existing units after the completion of allocations
to eligible new units, or should reallocate allowances only where the
existing units demonstrated emission rates at or below the levels EPA
used in setting the state budgets. Other commenters supported the
proposed approach of reallocating the allowances to existing units, as
provided under the existing CSAPR trading programs.
Response: After consideration of the comments, EPA is finalizing
the provisions that allow all allowances in the new unit set-asides,
including allowances redirected from retired units, to be reallocated
to existing units. As with many of the comments received concerning
allocations to existing units, these comments are effectively
advocating for reductions in the overall emission budgets through the
mechanism of reduced allocations to certain units. In the final rule,
this issue applies only the allowances no longer allocated to units
with unscheduled future retirements, because the allowances formerly
allocated to units with scheduled future retirements will be removed
from the budgets for control periods after the scheduled retirements
instead of being added to the new unit set-asides for the future
control periods. EPA has not included a mechanism in this rule to
adjust the emission budgets over time to account for either units with
unscheduled future retirements or the construction of unplanned new
units and is not prepared at this time to reduce the budgets for units
with unscheduled future retirements without consideration of whether
and how to increase the budgets for the construction of unplanned new
units. Although EPA has determined that it is reasonable in this rule
to reduce the emission budgets over time to account for units with
scheduled future retirements, this is in part because EPA's budget-
setting process also accounts for the construction of planned new units
over time.
d. Allocations to New Units in Indian Country
Clean Air Act programs in Indian reservations and other areas of
Indian country over which a tribe or EPA has demonstrated that a tribe
has jurisdiction generally may be implemented either by a tribe through
an EPA-approved tribal implementation plan (TIP) or by EPA through a
FIP. Tribes may, but are not required to, submit TIPs. Under EPA's
Tribal Authority Rule (TAR), 40 CFR 49.1-49.11, EPA is authorized to
promulgate FIPs for sources in Indian country as necessary or
appropriate to protect air quality if a tribe does not submit and
receive EPA approval of a TIP. See 40 CFR 49.11(a); see also 42 U.S.C.
7601(d)(4). To date, no tribes have sought approval of a TIP
implementing the good neighbor provision at CAA section
110(a)(2)(D)(i)(I) with respect to the 2008 ozone NAAQS. EPA has
therefore determined that it is necessary and appropriate for EPA to
implement the FIPs in any affected Indian reservations or other areas
of Indian country over which a tribe has jurisdiction. However, there
are no existing units that would qualify as ``covered units'' in Indian
country located in the Group 3 states under this final rule.
EPA is generally applying the CSAPR Update approach for allocating
allowances to any new units located in Indian country, with parallel
modifications to those described above with respect to unit-level
allocations from the new unit set-asides for units not in Indian
country. Under this approach, allowances to possible future new units
located in Indian Country will be allocated by EPA from an Indian
country new unit set-aside established for the Indian country (if any)
within each state's borders. The amounts of allowances initially placed
in each Indian country new unit set-aside for potential allocation to
new units are determined as described in section VII.C.3.a. Because
states generally have no SIP authority in these areas, EPA will
continue to administer the allocation of allowances to any sources that
locate in such areas of Indian country within a state's borders over
which a tribe or EPA has demonstrated that a tribe has jurisdiction,
even if the state submits a SIP to replace the applicable FIP for the
sources in the state.
EPA will allocate allowances from each Indian country new unit set-
aside using a one-round approach that will be carried out after the end
of the control period at issue. Under the one-round approach, any
eligible units in the area of Indian country that operated during the
control period will be allocated allowances in proportion to their
respective emissions during the control period, up to the amounts of
those emissions if the Indian country NUSA contains sufficient
allowances, and not exceeding those emissions. Unallocated allowances
from the Indian country new unit set-aside for Indian country within a
particular state's borders will be returned to the state's new unit
set-aside and allocated according to the methodology for that new unit
set-aside. EPA believes this one-round approach for allocating
allowances from each Indian country NUSA to eligible units is both
simpler and more equitable than the two-round approach that EPA
historically used in all the previous CSAPR trading programs. The
existing CSAPR trading programs are being
[[Page 23133]]
amended to also adopt the one-round approach starting with the 2021
control periods. The differences between the two-round and one-round
procedures and reasons for adopting the revisions are discussed in
section VII.C.8.b.\194\
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\194\ EPA proposed and requested comment on implementing the
simplified NUSA allocation procedure as of the 2023 and 2021 control
periods, respectively. No comments were received, and EPA is
clarifying the regulations by implementing the simplified procedure
as of the 2021 control period. For further discussion, see section
VII.C.8.b.
---------------------------------------------------------------------------
Comment: Some commenters suggested alternatives to the provisions
concerning the Indian country new unit set-asides. These commenters
suggested that EPA should consolidate all allowances held back from all
state budgets for potential new sources in Indian country into a single
newly-created new unit set-aside for all Indian country within the
borders of all states covered by the new Group 3 trading program in
order to provide a clearer separation between state and tribal
jurisdictions. The commenters further suggested that if any allowances
in the consolidated Indian country set-aside are not allocated to new
units, the allowances either should be retired or should be sold, with
the sale proceeds dedicated to tribes through grant programs.
Response: EPA disagrees with these comments. There are no existing
EGUs in Indian country within the borders of any state covered by the
Group 3 trading program. All of the allowances being held back for
potential allocation to new units in Indian country are being held back
from state emission budgets. These budgets were determined based on the
projected emissions of the existing units in the states after
accounting for emission reductions achievable through implementation of
the selected control strategy (with adjustments for known changes to
the fleet of units such as scheduled future retirements of existing
units and construction of planned new units). Because the allowances
added to the Indian country new unit set-asides are being held back
from the overall state budget amounts that would otherwise be allocated
among each state's existing units, EPA believes the most reasonable
disposition for these allowances if they are not allocated to potential
new units in Indian country is to return them to the states from whose
emission budgets the allowances were held back, after which the
allowances can be redistributed in accordance with the procedures used
to allocate the remainder of those states' budgets.
With respect to maintaining separation between state and tribal
jurisdictions, EPA believes that the regulations for the new Group 3
trading program already maintain a clear separation between the new
unit set-asides for each state and the Indian country new unit set-
asides for Indian country within the borders of certain states, with
the consequence that no greater clarity of separation would be achieved
by consolidating the various Indian country new unit set-asides
established under the new trading program into a single new unit set-
aside for all Indian country within the borders of all states covered
by the Group 3 trading program. Further, EPA believes such an approach
would be likely to cause confusion because it would differ from the
established approach already being implemented in all the existing
CSAPR trading programs, where a separate Indian country new unit set-
aside is established for any Indian country within the borders of any
individual state covered by the trading program.
4. Transitioning From Existing CSAPR NOX Ozone Season Group
2 Trading Program
This section discusses four sets of provisions that EPA is
implementing in order to address the transition of sources from the
Group 2 trading program to the Group 3 trading program. First, to
address the fact that the effective date for the final action in this
rulemaking will fall after the start of the ozone season on May 1,
2021, and to ensure that under these circumstances the Group 3 trading
program can be implemented for the full May-September ozone season in
2021 without imposing retroactive emission reduction requirements, EPA
will allocate additional allowances, and make corresponding adjustments
to states' 2021 assurance levels, so as to offset the otherwise
applicable emission reduction requirements under this rulemaking for
the portion of the 2021 ozone season occurring before the final rule's
effective date. Second, in order to facilitate the continued use of
market-based trading programs as the compliance mechanism for sources
covered by this action while ensuring an appropriate level of
stringency in the Group 3 trading program, EPA is implementing a
process by which an initial bank of CSAPR NOX Ozone Season
Group 3 allowances will be created through the conversion of certain
banked CSAPR NOX Ozone Season Group 2 allowances allocated
for the control periods in 2017 through 2020. Third, to provide
additional compliance flexibility in extreme circumstances, EPA is
creating a safety valve mechanism that would allow Group 3 sources to
exchange additional 2017-2020 Group 2 allowances for Group 3 allowances
at a higher conversion ratio. Finally, to maintain the previously
established levels of stringency of the Group 2 trading program for the
states and sources that remain subject to that program, CSAPR
NOX Ozone Season Group 2 allowances equivalent in amount and
usability to the vintage year 2021-2024 CSAPR NOX Ozone
Season Group 2 allowances previously recorded in the compliance
accounts for sources in the new Group 3 region are being recalled.
a. Supplemental Allowance Allocations To Avoid Retroactive Emission
Reduction Requirements
Although EPA anticipates that this final rule will be published in
the Federal Register by early April 2021, before the start of the 2021
ozone season on May 1, 2021, the effective date of the rule will fall
after May 1, 2021 because of the requirements of the Congressional
Review Act (CRA), 5 U.S.C. 801-808. Under CRA section 801(a)(3), a
``major rule,'' as defined under the CRA, generally may not take effect
sooner than 60 days after the date of publication in the Federal
Register (or, if later, 60 days after the date on which Congress
receives a report on the final rule from EPA). Under CRA section
804(2), a ``major rule'' includes any rule that the Office of
Management and Budget (OMB) finds is ``economically significant'' under
Executive Order 12866, that is, a rule likely to result in an annual
effect on the economy of $100 million or more. Because this rule is
projected to result in annualized benefits greater than $100 million
per year, as discussed in section VIII of the preamble, OMB has found
that the rule is ``economically significant.'' It is thus a ``major
rule'' for CRA purposes, with the result that the rule's effective date
will occur after the start of the 2021 ozone season.
EPA finds that, notwithstanding that the final rule's effective
date will be after May 1, 2021, it will nevertheless serve the public
interest and greatly aid in administrative efficiency for most elements
of the Group 3 trading program--specifically, all elements of the
trading program other than the elements designed to establish more
stringent emissions limitations for the sources in Group 3 states--to
start on May 1, 2021. This will facilitate implementation of the Group
3 trading program in an orderly manner for the entire 2021 ozone season
and reduce compliance burdens and potential confusion. Each of the
CSAPR trading programs for ozone season NOX is
[[Page 23134]]
designed to be implemented over an entire ozone season. Implementing
the transition from the Group 2 trading program to the Group 3 trading
program in a manner that required the covered sources to participate in
the Group 2 trading program for part of the 2021 ozone season and the
Group 3 trading program for the remainder of that ozone season would be
complex and burdensome for sources. Attempting to address the issue by
splitting the Group 2 and Group 3 requirements into separate years is
not a viable approach, because EPA has no legal basis for releasing the
Group 3 sources from the emission reduction requirements found to be
necessary in the CSAPR Update for a portion of the 2021 ozone season,
and EPA similarly has no legal basis for deferring implementation of
the 2021 emission reduction requirements found to be necessary under
this rule until 2022. Moreover, the requirements of the Group 2 trading
program and the Group 3 trading program are substantively identical as
to almost all provisions, such that with respect to those provisions, a
source will not need to alter its operations in any manner or face
different compliance obligations as a consequence of a transition from
the Group 2 trading program to the Group 3 trading program. Thus, EPA
believes that no substantive concerns regarding retroactivity arise
from implementing the Group 3 trading program starting on May 1, 2021,
so long as those aspects of the Group 3 trading program that do
meaningfully differ from the analogous aspects of the Group 2 trading
program--that is, the relative stringencies of the two trading
programs, as reflected in the emissions budgets and associated
assurance levels--are applied only as of the effective date of the
final rule.
Thus, with respect to two aspects of the final rule, EPA is making
the following adjustments in 2021 ozone season obligations in order to
ensure that no new requirements are imposed on any regulated parties
prior to the effective date of the final rule.
To cause the more stringent budgets of the Group 3 trading program
to apply only after the effective date of the final rule, EPA will make
supplemental allocations of Group 3 allowances to Group 3 sources for
the portion of the 2021 ozone season occurring before the effective
date of the final rule. The total amounts of the supplemental
allowances available for allocation to the sources in each state will
be calculated by multiplying the difference between the state's Group 2
and Group 3 budgets by the fraction of the 2021 ozone season, measured
in days, occurring before the final rule's effective date. The state's
total amount of supplemental allowances will then be allocated among
the state's existing units as if the supplemental allowances had been
included in the state's 2021 emissions budget for the Group 3 trading
program. The allocations of supplemental allowances will be recorded at
the same time as the allocations from the budget.
To cause the more stringent assurance levels of the Group 3 trading
program to apply only after the effective date of the final rule, EPA
will include an increment in each state's assurance level for 2021 in
addition to the state's emissions budget and variability limit for
2021. The amount of the increment will be computed as 1.21 times the
total amount of supplemental allowances determined for the state as
described above, where 1.21 is the ratio of the Group 2 state assurance
levels to the Group 2 state budgets and is also the ratio of the Group
3 state assurance levels to the Group 3 state budgets. In the event of
an exceedance of a state's assurance level, the allocations of
supplemental allowances and the increment to the state's variability
limit will also be taken into account for purposes of the calculations
used to apportion responsibility for any exceedance of a state's
assurance level among the owners and operators of the state's sources.
In all respects other than the allocation of supplemental Group 3
allowances and the addition of an increment to the states' assurance
levels, EPA is implementing the Group 3 trading program for the 2021
control period exactly as the program would be implemented for any
other control period. Thus, allocations of Group 3 allowances from each
state's emissions budget to existing and new units are being made for
the entire 2021 ozone season (i.e., May 1, 2021, through September 30,
2021), emissions will be monitored and reported for the entire 2021
ozone season, and as of the allowance transfer deadline for the 2021
control period (i.e., June 1, 2022) each source will be required to
hold in its compliance account vintage-year 2021 Group 3 allowances not
less than the source's emissions of NOX during the entire
2021 ozone season. Because of the supplemental allowances allocated for
the portion of the 2021 ozone season before the rule's effective date,
EPA finds that implementing the program in this manner will
substantively apply the final rule's emission reduction requirements
only from the rule's effective date. Similarly, because of the
increment to the states' assurance levels for 2021, EPA finds that
implementing the trading program in this manner will substantively
apply the final rule's more stringent assurance levels only from the
rule's effective date. Moreover, any efforts undertaken by a source to
reduce its emissions during the portion of the 2021 ozone season before
the effective date of the rule will aid the source's compliance by
reducing the amount of Group 3 allowances that the source will need to
hold in its compliance account as of the allowance transfer deadline,
increasing the range of options available to the source for meeting its
compliance obligations under the Group 3 trading program.
EPA requested comment on this approach for implementing the Group 3
trading program in a manner that would apply the substantive increases
in stringency established under the final rule on and after, but not
before, the final rule's effective date. No commenters opposed this
approach.
b. Creation of Initial Group 3 Allowance Bank
For this rulemaking, EPA is creating a limited initial bank of
allowances that can be used for compliance in the CSAPR NOX
Ozone Season Group 3 Trading Program by converting certain allowances
banked in 2017-2020 under the CSAPR NOX Ozone Season Group 2
Trading Program at a conversion ratio determined by a formula. Any such
conversion of banked allowances from the Group 2 trading program for
use in the Group 3 trading program must ensure that implementation of
the Group 3 trading program will result in NOX emission
reductions sufficient to address significant contribution in the 12
linked Group 3 states, while also providing industry certainty (and
obtaining an environmental benefit) through continued recognition of
the value of saving allowances through early reductions in emissions.
EPA's approach to balancing these concerns in the CSAPR Update through
the conversion of banked allowances from the CSAPR trading program for
ozone season NOX emissions was upheld in Wisconsin v. EPA,
see 938 F.3d at 321.
Similar to the approach taken in the CSAPR update, EPA is creating
the initial bank of allowances for the Group 3 trading program through
a one-time conversion of banked Group 2 allowances. The allowances in
the initial Group 3 bank will be allocated for the 2021 control period
and will therefore be useable in that control period or any subsequent
control period. Because the purpose of an initial bank is to assist in
compliance flexibility without relaxing the program
[[Page 23135]]
stringency identified as appropriate to address states' obligations
under the good neighbor provision, EPA's objective is to set the target
amount for the initial bank at a level high enough to accommodate year-
to-year variability in operations and emissions, as reflected in
states' variability limits, but not high enough to allow sources
collectively to plan to emit in excess of the collective state budgets.
For this rulemaking, as proposed, EPA is determining that an initial
bank amount approximately equal to the sum of the states' variability
limits is a reasonable level to accomplish this objective, given the
expectation that sources would generally seek to carry a bank of
roughly that amount forward from year to year in order to retain a
comparable degree of compliance flexibility in subsequent control
periods.\195\ Further, because emission reductions from some of the
emission controls that EPA has identified as appropriate to use in
setting budgets are first reflected in the 2022 state budgets rather
than the 2021 state budgets, EPA is basing the initial bank target
amount on the sum of the states' 2022 variability limits rather than
the 2021 variability limits. This approach results in an initial bank
target amount of 21,777 allowances, computed on the basis of a full
ozone season.
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\195\ When establishing a similar initial bank under the CSAPR
Update, EPA set the target bank amount at 1.5 times the sum of the
states' variability limits. See 81 FR at 74557-60. Experience under
that trading program indicates that a smaller initial bank would
have provided sufficient flexibility, as the bank grew in each
control period of the trading program and the prices of allowances
remained well below the estimated control costs EPA used to
establish the budgets under that rule. Additionally, allowance
prices under that trading program were $500-$600 per allowance when
initially recorded (roughly one-third of the $1,600/ton cost
threshold used in developing the Group 2 budgets), indicating that
the initial bank created by the conversion may have been too large
to ensure incentives for continuing implementation of the control
strategies contemplated under that rulemaking.
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As discussed in section VII.C.4.a, the effective date of this rule
will occur after the start of the 2021 ozone season, and adjustments
are being made to ensure that the increased stringency of this rule's
state budgets and state assurance levels (i.e., the sums of the budgets
and variability limits) takes effect only after the rule's effective
date. Consistent with these other adjustments, and as proposed, the
initial bank target amount will be similarly prorated. For example, if
the effective date of the final rule is June 1, 2021, which would be
after the first 31 days of the 153-day ozone season have passed, the
full-season initial bank target amount of 21,777 allowances would be
prorated to an initial bank target amount of 17,365 allowances.\196\
EPA notes that prorating the bank amount in this manner will not reduce
sources' compliance flexibility for the 2021 ozone season, because the
amounts of Group 3 allowances that sources will receive for the portion
of the 2021 ozone season before the rule's effective date will be based
on the existing Group 2 trading program budgets. The Group 2 budgets
exceed the sources' collective 2019 emissions by over 38,000 tons (and
exceed the sources' 2020 emissions by almost 60,000 tons), indicating
potentially surplus allowances well above the full-season initial bank
target amount of 21,777 allowances. Thus, although the prorating
procedure will reduce the amount of Group 3 allowances that sources
will receive in the form of an initial bank, the reduction in the
quantity of these allowances will be more than offset by the
supplemental Group 3 allowances that will be allocated in excess of
sources' recent historical emission levels for the portion of the ozone
season before this final rule's effective date.
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\196\ The portion of the ozone season from June 1 through
September 30 has 122 days (153-31 = 122), which is 79.74 percent of
all the days in the ozone season (122 / 153 = 0.7974). Multiplying
the full-season initial bank target amount of 21,777 allowances by
79.74 percent yields a prorated target amount for the initial bank
of 17,365 allowances.
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Taking the same approach as was followed in the CSAPR Update, EPA
will allocate the new Group 3 allowances constituting the initial bank
through a conversion process in which Group 2 allowances allocated for
the 2017 through 2020 control periods and banked under the existing
Group 2 trading program will be exchanged for Group 3 allowances
allocated for the 2021 control period at a uniform conversion ratio
determined by a formula. The conversions will be carried out at the
level of individual sources and general accounts, in each case using
the same uniform conversion ratio. By creating the new Group 3
allowances through the conversion of previously banked Group 2
allowances, the bank creation mechanism rewards holders of banked Group
2 allowances for conducting emission reduction activities that
contributed to the creation of those banked allowances as well as for
financially supporting emission reductions activities at other sources
through allowance purchases. Creating the new Group 3 allowances
through conversion of previously banked Group 2 allowances also helps
preserve the stringency of the Group 2 trading program for the states
that remain covered by that trading program at levels consistent with
the stringency found to be appropriate to address those states' good
neighbor obligations with respect to the 2008 ozone NAAQS in the CSAPR
Update.
Under EPA's proposed approach for creation of the bank, the
conversion formula would have used the total quantity of 2017-2020
Group 2 allowances being converted as the numerator and the total
quantity of 2021 Group 3 allowances being created as the denominator.
EPA also proposed to give holders of 2017-2020 Group 2 allowances
complete flexibility to choose how many of those allowances they wanted
to include in the conversion process, making the formula numerator
entirely dependent on those choices. An unavoidable consequence of this
proposed flexibility was that EPA would have been unable to predict the
conversion ratio until holders finalized their choices shortly before
the conversion date. In the proposed rule, the formula denominator was
also uncertain to a lesser degree because of the then-unknown magnitude
of the prorating adjustment affecting the quantity of 2021 Group 3
allowances being created, although this uncertainty will be resolved as
of publication of the final rule in the Federal Register. Commenters
requested that EPA provide greater certainty concerning the conversion
process, as discussed later in this section; further, commenters
submitted no comments asking EPA to finalize the proposed flexibility
for Group 2 allowance holders.
After consideration of comments, EPA is not finalizing the proposed
flexibility for Group 2 allowance holders to decide how many Group 2
allowances to include in the conversion process and is instead
finalizing a formula for the conversion ratio based on an alternative
offered for comment that provides greater certainty. Under the
alternative being finalized, the formula numerator is the portion of
the total existing bank of 2017-2020 Group 2 allowances attributable to
the Group 3 states, which is more specifically defined as: (1) The sum
of the budgets of the Group 3 states under the Group 2 trading program
for the 2017-2020 control periods, plus (2) the portion of the initial
Group 2 bank target amount attributable to the Group 3 states, minus
(3) the emissions of sources in the Group 3 states for the 2017-2020
control periods.\197\ The formula denominator in the final rule
continues to be based on the initial
[[Page 23136]]
Group 3 bank target amount, but reflects the full-season target amount
instead of the target amount after the prorating adjustment. The final
rule also provides for the value computed from the formula to be
rounded down to the nearest whole number. Using data as of January
2021, the formula numerator will be 186,014 allowances \198\ and the
formula denominator will be 21,777 allowances, yielding a rounded
conversion ratio of 8:1. In other words, the result of applying the
formula in the final rule is that eight 2017-2020 Group 2 allowances
will be exchanged for each 2021 Group 3 allowance created in the
initial bank.\199\ Continuing the previous example, if the rule's
effective date is June 1, 2021 and the initial Group 3 bank target
amount after prorating is therefore 17,365 allowances, then 138,920
Group 2 allowances \200\ would be removed from the accounts where those
allowances are held and 17,365 Group 3 allowances would be recorded in
the same accounts.
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\197\ As stated in the proposed rule, the rationale for defining
the formula numerator in this particular way is to preserve the
intended stringency of the Group 2 trading program for the states
and sources that will continue to participate in that program. See
85 FR at 69018.
\198\ Under the Group 2 trading program, the sum of the 2017-
2020 state budgets for the 12 Group 3 states is 680,872 tons (the
sum of the budgets for the Group 3 states for 2017 is 170,218, and
170,218 x 4 = 680,872). The portion of the initial Group 2 bank
target amount attributable to the Group 3 states is 53,619 tons (the
sum of the variability limits for the Group 3 states for 2017 is
35,746, and 35,746 x 1.5 = 53,619). The sum of the Group 3 states'
reported ozone season NOX emissions for 2017 through 2020
is approximately 548,477 tons. Based on these data, the formula
numerator would be 680,782 + 53,619-548,477 = 186,014 allowances.
\199\ 186,014 / 21,777 = 8.54, which rounds down to 8.
\200\ 17,365 x 8 = 138,920. EPA notes that under this example,
the deducted Group 2 allowances would constitute roughly half of all
banked 2017-2020 Group 2 allowances projected to remain in all
accounts (including the compliance accounts for sources that will
continue to be covered under the Group 2 trading program in control
periods after 2020) after deductions for compliance with the Group 2
trading program for the 2020 control period.
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In addition to requesting greater certainty about the conversion
process, commenters also indicated an interest in receiving the
allowances in the initial Group 3 bank more quickly than would have
occurred under the proposed rule. In response to these comments, EPA
has advanced the conversion process schedule such that the conversions
will be completed more than two months earlier than proposed and
shortly after recordation of Group 3 allowance allocations from the
state budgets for the 2021 control period for most sources.
Approximately 45 days after the rule's effective date, EPA will
temporarily suspend acceptance of transfers of Group 2 allowances.
Before resuming acceptance of such transfers, EPA will allocate Group 3
allowances up to the initial Group 3 bank target amount to Group 3
sources at the 8:1 conversion ratio in proportion to the amounts of
2017-2020 Group 2 allowances held in each such source's compliance
account immediately before the conversion.\201\ If the Group 3 sources'
compliance accounts do not collectively hold enough Group 2 allowances
to exchange for the full target amount of the initial Group 3 bank at
the 8:1 conversion ratio, EPA will allocate Group 3 allowances up to
the remainder of the initial Group 3 bank target amount to general
accounts at the same 8:1 conversion ratio in proportion to each such
general account's holdings of 2017-2020 Group 2 allowances immediately
before the conversion.\202\ For each Group 3 allowance allocated ard
recorded in a given account, EPA will deduct from the same account
eight 2017-2020 Group 2 allowances on a first-in, first-out basis.
After recording the Group 3 allowance allocations and the 2017-2020
Group 2 allowance deductions, EPA will resume acceptance of transfers
of Group 2 allowances.
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\201\ Group 2 allowances held in Group 2 sources' compliance
accounts will not be affected by the conversion process.
\202\ If the Group 3 sources' compliance accounts and the
general accounts combined do not collectively hold enough Group 2
allowances to exchange for the full target amount of the initial
Group 3 bank at the 8:1 conversion ratio, the total quantity of
Group 3 allowances created would be less than the initial Group 3
bank target amount. However, the outcome would be reasonable because
it would occur only if owners of Group 3 sources in fact were not
sufficiently interested in receiving banked Group 3 allowances to
hold the required quantity of 2017-2020 Group 2 allowances in the
appropriate accounts.
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Comment: Some commenters stated that EPA should not create an
initial bank of Group 3 allowances because of a consequent reduction in
stringency of the rule.
Response: EPA disagrees with the comment that it should not create
an initial bank of Group 3 allowances under the new trading program.
EPA believes creating an initial bank of Group 3 allowances will
provide Group 3 sources flexibility to comply with the stringency of
the new trading program in light of year-to-year variability in unit
operations and emissions. Creating the initial bank of Group 3
allowances through the conversion of banked 2017-2020 Group 2
allowances also provides sources within the Group 3 states with an
opportunity to benefit under the Group 3 trading program from their
efforts to bank allowances under the Group 2 trading program. Failure
to establish an initial bank could reduce the incentive to achieve
early reductions and bank allowances in the future by signaling to
market participants that banked allowances accrued under existing
trading programs will hold no value in any future new or modified
trading program. EPA's approach of establishing an initial Group 3 bank
in an amount equal to the sum of the new trading program's aggregate
variability limits is similar to the methodology followed in the CSAPR
Update that was upheld against challenge in the Wisconsin decision.
Comment: Some commenters stated that EPA should create a larger
bank, possibly by allowing some or all banked Group 2 allowances to be
used for compliance in the Group 3 trading program on a 1-for-1 basis
instead of being converted to Group 3 allowances at a conversion ratio
greater than 1:1.
Response: EPA disagrees with these comments. Creating an overly
large initial bank of Group 3 allowances, regardless of the conversion
ratio used, would dilute the intended control stringency and emission
budgets established in this rule to address Group 3 states' obligations
under the good neighbor provision with respect to the 2008 ozone NAAQS.
Certainly, given the large existing bank of 2017-2020 Group 2
allowances, allowing these Group 2 allowances to be used for compliance
in the Group 3 trading program at a 1:1 ratio would unacceptably dilute
the control stringency and emission budgets established by EPA in this
rulemaking. As explained earlier in this section, EPA believes that
creating an initial bank of Group 3 allowances in an amount not
exceeding the sum of the Group 3 state's variability limits, and doing
so through conversion of Group 2 allowances at an 8:1 ratio, is
consistent with both achieving the requisite level of stringency and
encouraging continued use of banking.
Comment: A commenter suggested that EPA should base the initial
Group 3 bank target amount not on the sum of Group 3 states'
variability limits for 2022, but instead on the sum of Group 3 states'
variability limits for 2021.
Response: EPA disagrees with this comment. The initial Group 3
allowance bank is intended to accommodate year-to-year variability in
operations and emissions, and EPA expects that on average, sources
collectively will aim to carry forward the bank from year to year so
that in each subsequent control period, sources will continue to have
the flexibility needed to accommodate year-to-year variability in
operations and emissions. Unlike the 2022 state emission budgets, the
2021 state emission budgets do not reflect emission reductions
achievable from application of the full control stringency
[[Page 23137]]
that EPA is finding necessary to resolve the Group 3 states'
obligations under the good neighbor provision with regard to the 2008
ozone NAAQS. Because the Group 3 bank is intended to be an element of
the Group 3 trading program on an ongoing basis, not just in 2021, as a
matter of program design EPA considers it appropriate for the amount of
the initial Group 3 bank to represent the full control stringency found
to be necessary under this rule. For this reason, it is appropriate to
base the initial Group 3 bank target amount on the sum of states'
variability limits for the 2022 control period rather than the 2021
control period.
EPA also views creation of the larger initial Group 3 bank
suggested by the commenter as unnecessary to ensure compliance is
achievable. After consideration of the prorating adjustment discussed
earlier in this section, using the 2021 variability limits instead of
the 2022 variability limits as the basis for determining the size of
the initial Group 3 bank would increase the size of the bank by less
than 600 allowances. In the very unlikely event that Group 3 sources
are unable to reduce their emissions in the 2021 control period
sufficiently to meet their compliance obligations by holding the Group
3 allowances allocated from the state emission budgets and from the
initial Group 3 bank, sources would be able to obtain well over 600
additional Group 3 allowances for 2021 compliance by electing to use
the safety valve mechanism discussed in section VII.C.4.c.
Comment: Some commenters stated that under the proposed conversion
procedures, sources would not know the quantities of Group 3 allowances
they would receive in sufficient time to rely on that information for
purposes of planning their compliance activities.
Response: EPA acknowledges that the large degree of flexibility
offered to holders of Group 2 allowances under the proposed rule
created uncertainty regarding one aspect of the process for creating
the initial Group 3 bank--specifically, the conversion ratio that would
be used to create the initial Group 3 bank. As discussed above, the
final rule modifies the formula for the conversion ratio so that the
value of the ratio (i.e., 8:1 based on 2017-2020 data) is knowable as
of the date of this final rule. In the final rule EPA has also advanced
the schedule for carrying out the conversion process so that the
allowances in the initial Group 3 bank will be recorded in accounts by
120 days after publication of the final rule in the Federal Register,
or roughly two months before the end of the 2021 ozone season.
However, EPA disagrees that uncertainty regarding either the
conversion ratio or the amount of Group 3 allowances received by any
individual source from the initial bank has any meaningful effect on
sources' ability to plan their compliance activities. As an initial
matter, under a trading program, the most cost-effective compliance
strategy for a source is generally to reduce its emissions if it
believes it can do so for less than the market price of an allowance
and then to purchase allowances as needed to cover its remaining
emissions or to sell surplus allowances to other sources that cannot
reduce emissions as cheaply. Because allowance prices under any trading
program are uncertain, sources must always make these compliance
planning decisions based on their best allowance price projections
while recognizing the existence of price uncertainty. For purposes of
forecasting future allowance prices under the Group 3 trading program,
the only relevant question concerning the initial Group 3 bank is the
total quantity of allowances that will be created in that bank, because
that total amount will factor into the market balance between the
overall supply of allowances and the overall demand for allowances.
EPA's proposed rule provided essentially complete information about the
total quantity of allowances that would be created in the initial Group
3 bank, and the final rule closely follows the proposed rule on this
point. In short, nothing about EPA's proposed or final approach to
creation of the initial Group 3 bank increased the uncertainty about
future Group 3 allowance prices beyond the degree of uncertainty that
is inherent in trading program-based approaches to environmental
regulation.
Further, even if a particular source decides to not to avail itself
of the flexibility provided by a trading program and instead chooses to
plan its compliance strategy based on the number of allowances it
expects to receive as zero-cost allocations, the quantity of allowances
that a source might receive from the initial Group 3 bank would
necessarily play a relatively modest role in such a strategy. Of the
total allowances available for 2021 compliance that will be allocated
to sources from the state emission budgets and from the initial Group 3
bank, more than 80 percent will come from the state emission budgets,
and for subsequent control periods the proportion that will come from
the state emission budgets will be 100 percent. In the proposed rule,
EPA included extensive information on the proposed unit-level
allocations from the proposed state emission budgets, including both a
complete description of the allocation methodology and spreadsheets
showing the allocations to each individual unit that would result from
applying that methodology to the proposed state emission budgets. In
the final rule, the only change to the allocation methodology is that,
because certain units with scheduled future retirements will no longer
receive allocations starting with the 2022, 2023, or 2024 control
period when their scheduled retirements are taken into account for
budget-setting purposes, the remaining units in those states that
continue to operate will receive larger shares of the respective state
budgets in those later control periods. It was clear from the proposed
rule that any allocations of allowances from the initial Group 3 bank
would be considerably smaller and therefore less relevant for an
allocation-based compliance planning process than the allocations of
allowances from the state emission budgets. This is consistent with the
intended purpose of the initial Group 3 bank, which is to accommodate
year-to-year variability in operations and emissions but not to allow
for collective planned emissions to exceed the state emission budgets.
c. Opportunity To Obtain Additional Group 3 Allowances Through Further
Conversion of Group 2 Allowances (``Safety Valve'' Mechanism)
As discussed in section VI.B.1, in order to further ensure
allowance market liquidity and compliance flexibility, in this final
rule EPA is creating a ``safety valve'' mechanism that will allow Group
3 sources to access additional Group 3 allowances for the 2021 control
period. The new Group 3 allowances would be created in exchange for
banked 2017-2020 Group 2 allowances that have not already been
exchanged for Group 3 allowances as part of the process of creating the
initial Group 3 allowance bank described in section VII.C.4.b. The
safety valve mechanism will be available for the month of February
2022, which falls approximately midway between October 30, 2021 (the
deadline for reporting of emissions for the last three months of the
2021 control period under the Group 3 trading program) and June 1, 2022
(the deadline by which Group 3 sources must hold Group 3 allowances in
their compliance accounts sufficient to cover their emissions during
the 2021 control period). The conversion ratio used in the safety valve
mechanism will be 18:1--in other words, 18 banked 2017-2020 Group 2
allowances would have to
[[Page 23138]]
be surrendered in exchange for each Group 3 allowance issued through
this mechanism. No Group 2 allowances will be exchanged for Group 3
allowances under the safety valve mechanism except as specifically
requested by the designated representative for a Group 3 source.
EPA is establishing the safety valve mechanism and has designed its
features to be responsive to comments on the proposed rule. Even
without the safety valve mechanism, EPA considers it extremely unlikely
that any source would be unable to achieve compliance with the Group 3
trading program's requirements. Sources have a flexible combination of
options to achieve compliance, including reducing emission at the
source, using the allowances allocated to the source from the
applicable state's emissions budget and from the initial Group 3 bank,
and purchasing allowances from other sources that have made emission
reductions. However, given the short time-frame before implementation
of the Group 3 trading program in the 2021 ozone season, inclusion of a
safety valve mechanism will increase sources' confidence in their
ability to comply. EPA views this as an enhancement to the trading
program consistent with mechanisms included in other emissions trading
programs, as long as the mechanism is implemented in a manner that does
not weaken the ability of the trading program to address Group 3
states' obligations under the good neighbor provision with respect to
the 2008 ozone NAAQS. The assurance that the safety valve mechanism
does not undermine the purpose of the trading program is provided by
the use of the 18:1 conversion ratio.
As discussed in section VII.C.4.b., EPA received comments
expressing widely varying perspectives concerning whether and, if so,
what quantities of Group 3 allowances should be made available for
compliance flexibility beyond the allowances allocated from state
budgets. Some industry commenters advocated for a mechanism that would
allow them to purchase additional allowances at a price of $1,600 per
allowance, consistent with EPA's estimate of the cost per ton of
emission reductions achievable through optimization of installed SCR
controls. In contrast, some commenters from downwind states advocated
for no issuance of any Group 3 allowances beyond the state emission
budgets, but one of these commenters also suggested that if any such
Group 3 allowances were issued through the exchange of banked Group 2
allowances, the conversion ratio should reflect the relation of the
estimated cost of the control strategy reflected in the Group 3 budgets
to the market price of Group 2 allowances. The commenter suggested a
conversion ratio of 11:1 based on the ratio of the same estimated
$1,600 cost per ton of emission reductions available from SCR
optimization to an estimated average market price for Group 2
allowances of $137 per Group 2 allowance during 2019 and 2020.\203\
After consideration of these comments, EPA is setting the conversion
ratio for the safety valve mechanism at 18:1, consistent with the
principles underlying the recommendations of the commenters but using
updated data. For the numerator of the conversion ratio, EPA is using
$1,800 per ton, based on the estimated cost of the emission reductions
available from SNCR optimization that are reflected in the final state
emissions budgets. For the denominator of the updated ratio, EPA is
using $100 per ton, reflecting an estimated average market price over
the period from March 2020 through January 2021 for Group 2 allowances
allocated for the 2020 control period.\204\ EPA finds, first, that this
conversion ratio is high enough to avoid interfering with incentives
for sources to reduce emissions through the use of the control
technologies identified as appropriate for establishing states'
emissions budgets in this action, and second, that it is low enough to
provide additional flexibility that, in extreme circumstances, could
facilitate compliance by some sources. Based on the total quantity of
banked 2017-2020 Group 2 allowances expected to remain after completion
of the deductions necessary for Group 2 trading program compliance for
the 2020 control period and the deductions made in the process of
creating the initial Group 3 bank, EPA estimates that the maximum
quantity of Group 3 allowances that could be created through the safety
valve mechanism will be in the range of 7,000 to 9,000 Group 3
allowances. This degree of conversion of Group 2 allowances would be
highly unlikely to occur, and indeed, EPA considers it more likely that
no source will need to make use of the safety valve mechanism.
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\203\ See Comments of Delaware Department of Natural Resources
and Environmental Control (EPA-HQ-OAR-2020-0272-0122) at 14-15.
\204\ According to price index values developed by SNL Energy
and reported by S&P Global Market Intelligence, prices for 2020
Group 2 allowances ranged between $58 and $75 from March 2020 until
mid-November 2020. The reported price index values then rose to $200
by year-end 2020 and to $475 for part of January 2021. The average
of the reported daily price index values from March 2, 2020 (the
first day of the price index series for Group 2 allowances allocated
for the 2020 control period) through January 30, 2021 is $105, which
EPA has rounded to $100 for purposes of computing the safety valve
mechanism conversion ratio.
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Under the final regulations, any use of the safety valve mechanism
will be at the initiative of the designated representatives of Group 3
sources. Throughout the month of February 2022, EPA will accept
requests from designated representatives for allocations of additional
Group 3 allowances under the safety valve mechanism. It will be the
responsibility of the Group 3 designated representatives to obtain any
Group 2 allowances needed for this purpose, either by using any 2017-
2020 Group 2 allowances remaining in the Group 3 source's compliance
account after the initial Group 3 bank conversion process, transferring
2017-2020 Group 2 allowances held in the account of a Group 2 source
under the control of the same owners and operators, or purchasing 2017-
2020 Group 2 allowances from third parties. Holders of Group 2
allowances are not obligated to sell or transfer their allowances to
effectuate such conversions if they prefer to retain such allowances
for use in the Group 2 trading program.\205\ As soon as practicable on
or after March 1, 2022, if a request was received from the designated
representative for a particular Group 3 source, EPA will deduct 2017-
2020 Group 2 allowances in sets of 18 from the source's compliance
account on a first-in, first-out basis up to the maximum number of sets
of 2017-2020 Group 2 allowances available in the account. For each set
of 2017-2020 Group 2 allowances deducted from a Group 3 source's
compliance account, EPA will record one Group 3 allowance in the
account.
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\205\ EPA sees no reason for concern that the creation of the
safety valve mechanism for the Group 3 trading program, based on
conversion of Group 2 allowances to Group 3 allowances, would
adversely impact sources that will continue to participate in the
Group 2 trading program. In both the 2019 and 2020 control periods,
NOX emissions from the set of states that will continue
to participate in the Group 2 trading program were at least 15
percent below the sum of the emission budgets for those states,
indicating that continued compliance with the Group 2 trading
program's requirements is readily achievable even before
consideration of the existing bank of Group 2 allowances. In
addition, EPA expects that few if any banked Group 2 allowances will
be removed from the Group 2 trading program in order to create
additional Group 3 allowances through the safety valve mechanism
because it is extremely likely that Group 3 sources will be able to
fully comply with the Group 3 trading program's requirements by
reducing emissions, using allowances allocated from the Group 3
state emission budgets and from the initial Group 3 allowance bank,
and trading with other Group 3 sources.
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[[Page 23139]]
d. Recall of Group 2 Allowances Allocated for Control Periods After
2020
To maintain the previously established levels of stringency of the
Group 2 trading program for the states and sources that remain subject
to that program under this action, EPA is recalling CSAPR
NOX Ozone Season Group 2 allowances equivalent in amount and
usability to all vintage year 2021-2024 CSAPR NOX Ozone
Season Group 2 allowances previously allocated to sources in Group 3
states and recorded in the sources' compliance accounts. Consistent
with the proposed rule, the recall provisions established in this final
rule apply to all sources in Group 3 states in whose compliance
accounts CSAPR NOX Ozone Season Group 2 allowances for a
control period from 2021 through 2024 were recorded, including sources
where some or all units have permanently retired or where the
previously recorded 2021-2024 allowances have been transferred out of
the compliance account.\206\ However, in response to comments discussed
at the end of this section, and as further detailed below, the final
rule provides a more flexible compliance schedule intended to
accommodate any sources that have already transferred the previously
recorded 2021-2024 allowances out of their compliance accounts and
provides greater flexibility as to the vintage years of Group 2
allowances that sources may surrender to achieve compliance. As
requested in comments, the final rule also clarifies how the recall
provisions apply in instances where a source and its allowances have
been transferred to different parties and adds more specificity
regarding the procedures that EPA will follow to implement the recall.
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\206\ EPA also proposed to recall Group 2 allowances equivalent
to all 2021-2024 Group 2 allowances that were allocated to non-
source entities in Group 3 states and recorded in the entities'
general accounts. This portion of the proposed rule is not being
finalized because EPA has determined that no such allocations of
2021-2024 Group 2 allowances to any non-source entity in a Group 3
state have been recorded.
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Under the Group 2 trading program regulations, each Group 2
allowance is a ``limited authorization to emit one ton of
NOX during the control period in one year,'' where the
relevant limitations include the EPA Administrator's authority ``to
terminate or limit the use and duration of such authorization to the
extent the Administrator determines is necessary or appropriate to
implement any provision of the Clean Air Act.'' 40 CFR
97.806(c)(6)(ii). In this action, the Administrator is determining
that, in order to effectively implement the Group 2 trading program as
a compliance mechanism through which states not subject to the Group 3
trading program may continue to meet their obligations under CAA
section 110(a)(2)(D)(i)(I) with regard to the 2008 ozone NAAQS, it is
necessary to limit the use of Group 2 allowances equivalent in quantity
and usability to all Group 2 allowances previously allocated for the
2021-2024 control periods and recorded in the compliance accounts of
sources in Group 3 states. The Group 2 allowances that have already
been allocated to sources in Group 3 states for the 2021-2024 control
periods and recorded in the sources' compliance accounts represent more
than half of the total quantity of Group 2 allowances that have been
allocated and recorded for the 2021-2024 control periods. Because
allowances can be freely traded, if the use of the 2021-2024 Group 2
allowances previously recorded in Group 3 sources' compliance accounts
(or equivalent Group 2 allowances) were not limited, the effect would
be the same as if EPA had issued to sources in the states that will
remain covered by the Group 2 trading program a quantity of allowances
available for compliance under the 2021-2024 control periods more than
double the levels that EPA determined to be appropriate emissions
budgets for these states in the CSAPR Update. Through the use of banked
allowances, the excess Group 2 allowances would affect compliance under
the Group 2 trading program in control periods after 2024 as well.
Continued implementation of the Group 2 trading program at levels of
stringency consistent with the levels contemplated under the CSAPR
Update therefore requires that EPA limit the use of the excess
allowances, as EPA is doing in this final rule.
In the recall provisions finalized in this action, limitations on
the use of the excess 2021-2024 Group 2 allowances are being
implemented through requirements to surrender, for each 2021-2024 Group
2 allowance recorded in a Group 3 source's compliance account, one
Group 2 allowance of equivalent usability under the Group 2 trading
program. The surrender requirements apply to the owners and operators
of the Group 3 sources in whose compliance account the excess 2021-2024
Group 2 allowances were initially recorded. In general, each source's
current owners and operators will be required to comply with the
surrender requirements for the source by ensuring that sufficient
allowances to complete the deductions are available in the source's
compliance account by one of two possible deadlines discussed below.
However, an exception is provided if it is demonstrated to EPA's
satisfaction that a source's current owners and operators obtained
ownership and operational control of the source in a transaction that
did not include rights to direct the use and transfer of some or all of
the 2021-2024 Group 2 allowances allocated and recorded (either before
or after that transaction) in the source's compliance account. The
final rule provides that in such a circumstance, with respect to the
2021-2024 Group 2 allowances for which rights were not included in the
transaction, the surrender requirements apply to the most recent former
owners and operators of the source for which such a demonstration is
not made. Because in this situation a source's former owners and
operators might lack the ability to access the source's compliance
account for purposes of complying with the surrender requirements, the
former owners and operators will instead be allowed to meet the
surrender requirements with Group 2 allowances held in a general
account.\207\
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\207\ EPA is currently unaware of any source that would need to
use this flexibility but, in response to comments, has included the
option in the final rule to address the theoretical possibility of
such a situation.
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To provide as much flexibility as possible consistent with the need
to limit the use of the excess Group 2 allowances, for each 2021-2024
Group 2 allowance recorded in a Group 3 source's compliance account,
EPA will accept the surrender of either the same specific 2021-2024
Group 2 allowance or any other Group 2 allowance with equivalent (or
greater) usability under the Group 2 trading program. Thus, a surrender
requirement with regard to a Group 2 allowance allocated for the 2021
control period may be met through the surrender of any Group 2
allowance allocated for the 2021 control period or the control period
in any earlier year--in other words, any 2017-2021 Group 2
allowance.\208\ Similarly, the surrender requirement with regard to a
2022 Group 2 allowance, a 2023 Group 2 allowance, or a 2024 Group 2
allowance may be met through the surrender of any 2017-2022 Group 2
allowance, any 2017-2023 Group 2 allowance, or any 2017-2024 Group 2
allowance, respectively.
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\208\ The first control period for the Group 2 trading program
was in 2017.
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Owners and operators subject to the surrender requirements can
choose from two possible deadlines for meeting the requirements. The
first deadline will be July 14, 2021. As soon as practicable or
[[Page 23140]]
after this date, EPA will make a first attempt to complete the
deductions of Group 2 allowances required for each Group 3 source from
the source's compliance account. EPA will deduct Group 2 allowances
first to address any surrender requirements for the 2021 control
period, then to address any surrender requirements for the 2022, 2023,
and 2024 control periods in turn. When deducting Group 2 allowances to
address the surrender requirements for each control period, EPA will
first deduct allowances allocated for that control period and then will
deduct allowances allocated for each successively earlier control
period. This order of deductions is intended to ensure that whatever
Group 2 allowances are available in the account are applied to the
surrender requirements in a manner that both maximizes the extent to
which all of the source's surrender requirements will be met and also
ensures that any Group 2 allowances left in the source's compliance
account after completion of all required deductions will be the
earliest allocated, and therefore most useful, Group 2 allowances
possible. Among the Group 2 allowances allocated for a given control
period, EPA will first deduct allowances that were initially recorded
in that account, in the order of recordation, and will then deduct
allowances that were transferred into that account after having been
initially recorded in some other account, in the order of recordation.
Following the first attempt to deduct Group 2 allowances to address
Group 3 sources' surrender requirements, EPA will send a notification
to the designated representative for each such source (as well as any
alternate designated representative) indicating whether all required
deductions were completed and, if not, the additional amounts of Group
2 allowances usable in the 2021, 2022, 2023, and/or 2024 control
periods that must be held in the appropriate account by the second
surrender deadline of September 15, 2021. Each notification will be
sent to the email addresses most recently provided to EPA for the
recipients and will include information on how to contact EPA with any
questions. Consistent with the proposed rule, the final rule provides
that no allocations of Group 3 allowances will be recorded in a
source's compliance account until all the source's surrender
requirements with regard to 2021-2024 Group 2 allowances have been met.
For this reason, the principal consequence to a source of failure to
fully comply with the surrender requirements by the July 14, 2021
surrender deadline is that any Group 3 allowances allocated to the
units at the source for the 2021 and 2022 control periods that would
otherwise have been recorded in the source's compliance account by July
29, 2021 will not be recorded as of that recordation date.
If all surrender requirements of 2021-2024 Group 2 allowances for a
source have not been met in EPA's first attempt, EPA will make a second
attempt to complete the required deductions from the source's
compliance account (or from a specified general account, in the limited
circumstance noted above) as soon as practicable on or after September
15, 2021. The order in which Group 2 allowances will be deducted will
be the same as described above for the first attempt.
If the second attempt to deduct Group 2 allowances to meet the
surrender requirements through deductions from the source's compliance
account (or from a specified general account) is unsuccessful for a
given source, the final regulations provide that as soon as practicable
on or after November 15, 2021, to the extent necessary to address the
unsatisfied surrender requirements for the source, EPA will deduct the
2021-2024 Group 2 allowances that were initially recorded in the
source's compliance account from whatever accounts the allowances are
held in as of the date of the deduction, except for any allowances
where, as of January 31, 2021, no person with an ownership interest in
the allowances was an owner or operator of the source, was a direct or
indirect parent or subsidiary of an owner or operator of the source, or
was directly or indirectly under common ownership with an owner or
operator of the source. Although this consequence of a source's failure
to hold the allowances necessary to comply with the surrender
requirements in the source's compliance account (or a specified general
account) by the surrender deadline was not expressly stated in the
recall provisions in the proposed rule, the provision merely makes
explicit a remedy for a source's noncompliance that is inherent in
EPA's existing authority under 40 CFR 97.806(c)(6)(ii) to limit the use
of any Group 2 allowance as necessary or appropriate to address the
requirements of CAA section 110(a)(2)(d)(i)(I). Before making any
deduction under this provision, EPA will send a notification to the
authorized account representative for the account in which the
allowance is held and will provide an opportunity for submission of
objections concerning the data upon which EPA is relying. In EPA's
view, this provision does not unduly interfere with the legitimate
expectations of participants in the allowance markets because the
provision would not be invoked in the case of any allowance that was
transferred to an independent party in an arms-length transaction
before EPA's intent to recall 2021-2024 Group 2 allowances became
widely known. The provision would apply only to a Group 2 allowance
that, as of January 31, 2021, was still controlled either by the owners
and operators of the source in whose compliance account it was
initially recorded or by an entity affiliated with such an owner or
operator. EPA believes that by January 31, 2021, which was three months
after publication of the proposed rule for this rulemaking in the
Federal Register, all market participants had ample opportunity to
become informed of the proposed rule provisions to recall 2021-2024
Group 2 allowances recorded in Group 3 sources' compliance
accounts.\209\
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\209\ Even before publication of the proposed rule, EPA posted
information on its websites to notify market participants that a
pending rulemaking could have consequences for the value and
usability of Group 2 allowances. The posted locations included the
electronic portal that authorized account representatives use to
enter allowance transfers for recordation by EPA in the Allowance
Management System. Additionally, EPA emailed a notice identifying
the possibility of such consequences to the representatives for all
Allowance Management System accounts.
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The final rule includes the proposed provision under which failure
of a source's owners and operators to comply with the surrender
requirements is subject to enforcement as a violation of the Clean Air
Act, with each allowance and each day of the control period
constituting a separate violation.
To eliminate any possible uncertainty regarding the amounts of
Group 2 allowances allocated for the 2021-2024 control periods (or
earlier control periods) that the owners and operators of each Group 3
source must surrender under the final rule's recall provisions, EPA has
prepared a list of the sources in Group 3 states in whose compliance
accounts allocations of 2021-2024 Group 2 allowances were recorded with
the amounts of the allocations recorded in each such compliance account
for each control period from 2021 through 2024. An additional list
shows, for each Group 3 source, the specific Group 2 allowances
(batched by serial number) allocated for each control period and
recorded in the source's compliance account and indicates whether, as
of January 31, 2021, that batch of allowances was held in the source's
compliance account, in an account believed to be partially or fully
[[Page 23141]]
controlled by a related party (i.e., an owner or operator of the source
or an affiliate of an owner or operator of the source), or in an
account believed to be fully controlled by independent parties. The
lists are in a spreadsheet entitled ``Recall of CSAPR NOX
Ozone Season Group 2 Allowances'', available in the docket for this
action. After the first and second surrender deadlines, EPA intends to
update the lists to indicate for each Group 3 source whether or not the
surrender requirements for the source under the recall provisions have
been fully satisfied. EPA will post the updated lists on a publicly
accessible website to ensure that all market participants have the
ability to determine which specific 2021-2024 Group 2 allowances
initially recorded in any given Group 3 source's compliance account do
or do not remain subject to potential deduction to address the source's
surrender requirements under the recall provisions.
Comment: One commenter requested that EPA provide greater
flexibility for complying with the recall provisions in the case of
sources that may have already sold the 2021-2024 Group 2 allowances
previously recorded in the sources' compliance accounts. The commenter
suggested that such sources might have difficulty acquiring the Group 2
allowances needed to comply with the surrender requirements by the
proposed surrender date, which would have been 60 days after
publication of the final rule in the Federal Register.
Response: In the final regulations, EPA has modified the recall
provisions to provide two deadlines for compliance with the surrender
requirements: July 14, 2021 and September 15, 2021. The final
provisions also provide greater flexibility than the proposed rule by
allowing the surrender requirements to be satisfied not only with Group
2 allowances allocated for the same control periods as the excess 2021-
2024 Group 2 allowances, but also with Group 2 allowances allocated for
earlier control periods. Any source may miss the first surrender
deadline with no consequence except that any Group 3 allowances
allocated to the units at the source will not be recorded in the
source's compliance account by the otherwise applicable recordation
date of July 29, 2021, but instead will be recorded after the source
has fully complied with the surrender requirements. The second
surrender deadline is expected to be more than five months after the
publication date--and six months after the signature date--of this
final rule. EPA believes that the second deadline provides sufficient
time for any source that has sold the 2021-2024 Group 2 allowances
initially recorded in the source's compliance account to acquire
replacement Group 2 allowances for purposes of complying with the
recall provisions. Further, because at the time of the proposed rule in
this action, the large majority of Group 3 sources subject to the
recall provisions still held all 2021-2024 Group 2 allowances initially
recorded in their compliance accounts, EPA expects that most sources
will be able to easily comply with the first deadline simply by not
transferring those Group 2 allowances to another account before that
deadline. Inclusion of the first deadline thus ensures that EPA will be
able to record most Group 3 allowances within 30 days after the
effective date of this final rule.
Comment: One commenter suggested that retired sources that have
already sold the 2021-2024 Group 2 allowances recorded in their
compliance accounts should not be subject to the recall provisions on
the grounds that ``requiring already-retired units to purchase
allowances would be antithetical to the goal of a trading program, in
which allowances can be freely traded.'' The commenter also suggested
that there might be no willing sellers of Group 2 allowances from whom
the retired sources could purchase replacement Group 2 allowances to
comply with the recall provisions. The commenter further asserted that
the proposed rule did not provide adequate notice that the recall
provisions would apply to retired sources because the proposed
regulatory text included a cross-reference to an existing rule section
that addresses retired units.
Response: EPA disagrees with this comment. As explained earlier in
this section, recall of Group 2 allowances equivalent in quantity and
usability to the 2021-2024 Group 2 allowances allocated to Group 3
sources is necessary to maintain the previously established levels of
stringency of the Group 2 trading program for the states and sources
that remain subject to that program, because not recalling the excess
allowances would be equivalent to increasing the budgets for the
remaining Group 2 states, contrary to the stringency of the
requirements established for those states in the CSAPR Update. The
necessity of recalling the excess Group 2 allowances exists regardless
of whether the sources in whose compliance accounts the excess
allowances were initially recorded continue to operate or have retired.
The commenter provides no support for the assertion that requiring
retired sources to comply with the recall provisions is somehow
inconsistent with a trading program, and EPA sees no basis for the
assertion. EPA has made clear that the recall provisions apply to the
owners and operators of the sources in whose compliance accounts the
excess Group 2 allowances were initially recorded (and who paid nothing
for those Group 2 allowances), not to persons who may have purchased
the excess Group 2 allowances in arms-length transactions before EPA
provided general notice of the proposed recall. By honoring arms-length
market transactions for Group 2 allowances, EPA is executing the recall
in a manner that is entirely consistent with the normal freedom to
trade allowances under EPA's trading programs.
The commenter's suggestion that there might be no willing sellers
of Group 2 allowances is speculative and contrary to EPA's experience
in administering every trading program implemented by the Agency over
the course of the last 25 years, starting with the Acid Rain Program.
The commenter's statement that ``some Group members are already finding
that Group 2 allowances are not readily available because companies are
holding onto them'' is vague and insufficient to counter EPA's
reasonable expectation, supported by decades of experience, that Group
2 allowances will be available for purchase in the six-month period
following finalization of this action. To the extent that public notice
of proposed changes to regulatory requirements may have temporarily
affected activity in the market for Group 2 allowances, any such
temporary effects would indicate only that, as intended, public notice
made market participants aware of the possibility of changed regulatory
requirements. The fact that some market participants may view waiting
for the additional information contained in the final regulatory
requirements as sensible does not serve as a reasonable basis for
assertions that allowance markets will be illiquid when those final
regulatory requirements are made public.
The commenter's assertion that the proposed rule did not provide
adequate notice that the recall provisions would apply to retired
sources is belied by the fact that the commenter, as well as other
commenters, understood that the recall provisions were proposed to
apply to retired sources and submitted comments on that aspect of the
proposed rule. Moreover, the commenter offers no basis to support the
notion that any person reviewing the proposed rule would reasonably
have believed that the proposed recall did not apply to retired
[[Page 23142]]
sources. The section of the preamble to the proposed rule that
discusses the recall provisions states that the recall was proposed to
apply with respect to ``all'' 2021-2024 Group 2 allowances allocated
not only to sources in Group 3 states but also to non-source entities
in Group 3 states. There is no language indicating that any source,
retired or not, would be treated differently under the provisions than
any other source, and the inclusion of non-source entities left no room
for an interpretation that continued production of electricity and
emissions was a prerequisite for applicability of the recall. The fact
that, in order to be as clear as possible that the recall applied to
sources with retired units, the proposed regulatory text included a
cross-reference to an existing regulatory text provision identifying
permanently retired units, but did not use the exact words
``permanently retired units,'' does not somehow manufacture a lack of
notice. The use of cross-references is common and appropriate in
regulatory text. Further, the proposed regulatory text would have
encompassed 2021-2024 Group 2 allowances allocated to retired units
even without the clarifying cross-reference.
Comment: One commenter requested that the regulations lay out in
greater detail the specific procedures EPA would follow to administer
the recall. The commenter sought clarification specifically as to how
the recall provisions would apply in instances where a source or its
allowances had been sold, potentially to different purchasers.
Response: As described earlier in this section, the final
regulations include more detailed provisions concerning the procedures
EPA will follow to deduct Group 2 allowances to implement the surrender
requirements. Consistent with the proposed rule, the final surrender
requirements apply with respect to all Group 3 sources in whose
compliance accounts 2021-2024 Group 2 allowances were recorded,
regardless of whether some or all units at the source may have retired
or whether the source or its allowances may have been sold. However, in
response to the comment, the final regulations provide that if it is
demonstrated to EPA's satisfaction that the current owners and
operators of a source obtained ownership and operational control of the
source in a transaction that did not include rights to direct the use
and transfer of some or all of the 2021-2024 Group 2 allowances
allocated and recorded (either before or after that transaction) in the
source's compliance account, then with regard to the 2021-2024 Group 2
allowances for which such rights were not included in the transaction,
the surrender requirements apply to the most recent former owners and
operators of the source for which such a demonstration is not made. EPA
believes that this provision identifies the appropriate parties to whom
the surrender requirements should apply in the situation identified by
the commenter, consistent with EPA's intent expressed in the proposed
rule for the requirements to apply to the owners and operators of the
Group 3 source in whose compliance account the excess 2021-2024 Group 2
allowances were initially recorded.
Comment: One commenter requested that where a Group 3 source has
purchased additional 2021-2024 Group 2 allowances beyond those
initially recorded in the source's compliance account, the additional
2021-2024 Group 2 allowances should not be subject to the recall
provisions but should remain available for transfer to a Group 2 source
for future use in the Group 2 trading program. Alternatively, the
commenter requested that EPA convert the additional 2021-2024 Group 2
allowances to Group 3 allowances that could be used in the Group 3
trading program.
Response: Under the final procedures for implementing the recall
provisions, where a Group 3 source continues to hold the 2021-2024
Group 2 allowances initially recorded in the source's compliance
account and also holds additional 2021-2024 Group 2 allowances
purchased in an arms-length transaction before January 31, 2021,
surrender of the initially recorded 2021-2024 Group 2 allowances would
satisfy the recall provisions and the purchased 2021-2024 Group 2
allowances would remain available for transfer to a Group 2 source for
future use in the Group 2 trading program. The purchased 2021-2024
Group 2 allowances would not be available for use in the Group 3
trading program, either through conversion to Group 3 allowances or
otherwise.
5. Compliance Deadlines
As discussed in section IV.C. of this preamble, the final rule
requires sources to comply with the revised respective NOX
emission budgets for the ozone seasons (May 1 through September 30 of
each year) in 2021 and subsequent years in order to ensure that these
necessary NOX emission reductions are implemented to assist
in downwind states' attainment and maintenance of the 2008 ozone NAAQS.
The increased stringency of Group 3 budgets for the 2021 ozone season
will take effect on the effective date of this action, which will be
part of the way into the 2021 ozone season, but before the July 20,
2021 Serious area attainment date. Thus, under the new CSAPR
NOX Ozone Season Group 3 Trading Program established in this
rulemaking, the first affected control period is the 2021 ozone season
(i.e. May 1, 2021, through September 30, 2021).
Under all CSAPR trading programs, compliance at the source level is
achieved by each source surrendering by a compliance deadline--defined
in the new Group 3 trading program regulations at 40 CFR 97.1002 as the
``allowance transfer deadline''--a number of allowances equal to the
source's total emissions for the preceding ozone-season control period.
For previous control periods under the existing CSAPR trading
programs, the allowance transfer deadline was March 1 of the year
following the control period. In this action, EPA is establishing the
allowance transfer deadline for the Group 3 trading program--and for
all the other CSAPR trading programs starting with the 2021 control
periods \210\--to be June 1 of the year after the control period.\211\
For example, under this coordinated deadline, June 1, 2022, is the date
by which Group 3 sources will be required to hold Group 3 allowances
for the 2021 control period. The reason for the change from earlier
practice is to accommodate the change in the methodology and schedule
for allocating allowances to units from the new unit set-asides that
will start with the 2021 control periods. Under that revised
methodology, allowances from the new unit set-asides will be recorded
in sources' compliance accounts by May 1 of the year following the
control period, and some additional period after that date is needed to
allow for allowance purchases in case a source receives fewer
allowances from the new unit set-aside than anticipated. Under the
previous regulations at 40 CFR 97.812, the deadline for recording
second-round allocations from the new unit set-asides was February 15,
two weeks before the March 1 allowance
[[Page 23143]]
transfer deadline. EPA believes sources will have greater trading
flexibility if this interval is extended to a full month, resulting in
the allowance transfer deadline of June 1. Extension of the allowance
transfer deadline is not expected to have any impact on the achievement
of the CSAPR trading programs' environmental objectives because it will
not affect the quantities of allowances that sources will be required
to hold as of the deadline or the total quantities of allowances that
will be made available for compliance in advance of the deadline.
Further discussion is provided in sections VII.C.3.c and VII.C.8.b.
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\210\ As discussed in section VII.C.8.b., in order to minimize
unnecessary differences between the CSAPR trading programs and the
similarly structured Texas SO2 Trading Program, EPA is
revising the allowance transfer deadline under the Texas
SO2 Trading Program. However, EPA did not propose to
revise the allowance transfer deadline under the Acid Rain Program
for SO2 emissions (which is February 29 in leap years and
March 1 in other years).
\211\ EPA proposed and requested comment on implementing the
revisions as of the 2023 and 2021 control periods, respectively. No
comments were received, and EPA is simplifying the regulations by
implementing the revisions as of the 2021 control period. For
further discussion, see section VII.C.8.b.
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EPA received no comments on the Group 3 trading program compliance
deadlines for holding allowances after the end of each control period.
Comments concerning the implementation of emission budgets that require
emission reductions as of the 2021 ozone season instead of a later
ozone season are addressed in sections VI.B.1 and VI.C.1.
6. Monitoring and Reporting
Monitoring and reporting in accordance with the provisions of 40
CFR part 75 are required for all units subject to all the CSAPR trading
programs, which includes all units covered under this final rule.
Consistent with these existing requirements, the monitoring system
certification deadline by which monitors are installed and certified
for compliance use under the CSAPR NOX Ozone Season Group 3
Trading Program generally will be May 1, 2021, the beginning of the
first control period in this final rule, with potentially later
deadlines for units that commence commercial operation less than 180
days before that date. Units already in compliance with monitoring
system certification requirements for the Group 2 trading program will
not have to undertake any additional activities to certify their
monitoring systems for the Group 3 trading program. Similarly, Group 3
units will not have to undertake additional activities to update any
facility account demographic information. All account demographic
information of current Group 2 facility accounts will be transitioned
to the Group 3 trading program, including an account's designated
representative, alternate designated representative, and any agents.
The first period in which emission reporting is required under the new
Group 3 trading program will be the quarter that includes May 1, 2021,
(i.e., the second quarter of the year that covers April, May, and
June). These monitoring and reporting requirements and deadlines are
analogous to the current deadlines under the CSAPR NOX Ozone
Season Group 2 Trading Program.
Under 40 CFR part 75, a unit has several options for monitoring and
reporting, including the use of a CEMS; an excepted monitoring
methodology based in part on fuel-flow metering for certain gas- or
oil-fired peaking units; low-mass emissions monitoring for certain non-
coal-fired, low emitting units; or an alternative monitoring system
approved by the Administrator through a petition process. In addition,
sources can submit petitions to the Administrator for alternatives to
individual monitoring, recordkeeping, and reporting requirements
specified in 40 CFR part 75. Each CEMS must undergo rigorous initial
certification testing and periodic quality assurance testing
thereafter, including the use of relative accuracy test audits and 24-
hour calibrations. In addition, when a monitoring system is not
operating properly, standard substitute data procedures are applied and
result in a conservative estimate of emissions for the period involved.
Further, 40 CFR part 75 requires electronic submission of quarterly
emissions reports to the Administrator, in a format prescribed by the
Administrator. The reports will contain all of the data required
concerning ozone season NOX emissions.
Units currently subject to the CSAPR NOX Ozone Season
Group 2 Trading Program are required to monitor and report
NOX emissions in accordance with 40 CFR part 75, so covered
sources in the Group 3 trading program will simply continue the same
monitoring and reporting practices as required by 40 CFR part 75 under
the Group 2 trading program.
7. Recordation of Allowances
EPA is establishing a schedule for recording allocations of
vintage-year 2021 CSAPR NOX Ozone Season Group 3 allowances
to ensure that affected sources are allocated vintage year 2021
allowances as soon as practicable and well before the 2021 ozone season
compliance deadline (June 1, 2022). EPA is also establishing a schedule
for recording allocations of vintage-year 2022 CSAPR NOX
Ozone Season Group 3 allowances that accommodates sources' expectation
to receive these allowance allocations soon after the publication of
this final rule while also ensuring that states have the opportunity to
develop and submit to EPA SIP revisions concerning allocations of
allowances for vintage year 2022 and later.
Specifically, allocations to existing units for the first control
period outlined in this final rule (i.e. the 2021 ozone season) will be
recorded by July 29, 2021. EPA will also record allocation of vintage
year 2022 allowances by this deadline for all units except those in
states that provided to EPA, by June 29, 2021, a letter indicating an
intent to submit a SIP revision that, if approved, would substitute
state-determined allocations for the default allocations determined by
EPA for the 2022 control period. The deadline for states to submit to
EPA such SIP revisions will be September 1, 2021. If a state that
notified EPA of its intent to submit a SIP revision fails to submit
such a SIP by the SIP submission deadline, EPA will record vintage year
2022 FIP allocations to the sources in the state no later than
September 15, 2021. No later than March 1, 2022, EPA will record the
SIP allocations of vintage year 2022 Group 3 allowances for states with
approved SIP revisions. By this same deadline, EPA will record the FIP
allocations of vintage year 2022 Group 3 allowances for states whose
SIP revisions are not approved by EPA.
The recordation deadline for vintage year 2021 allowances to
existing units is anticipated to be approximately 11 months before the
date by which sources are required to hold allowances sufficient to
cover their emissions for that first control period (June 1, 2022, as
discussed above). This schedule allows sources ample time to engage in
allowance trading activities consistent with their preferred compliance
strategies. EPA will record vintage year 2023 and 2024 Group 3
allowance allocations to existing units by July 1, 2022, and vintage
year 2025 and 2026 Group 3 allowance allocations by July 1, 2023. By
July 1 of each year after 2023, EPA will record Group 3 allowance
allocations to existing units for the control period in the third year
after the year of recordation. The recordation deadlines will apply to
recordation of both allocations based on the default allocation
provisions and allocations provided by states pursuant to approved SIP
revisions.
As an exception to all of the recordation deadlines that would
otherwise apply, EPA will not record any allocations of Group 3
allowances in a source's compliance account unless that source has
complied with the requirements to surrender previously allocated 2021-
2024 Group 2 allowances. The surrender requirements are necessary to
maintain the previously established levels of stringency of the Group 2
trading program for the states and sources that remain subject to that
[[Page 23144]]
program under this final rule. EPA finds that it is reasonable to
condition the recordation of Group 3 allowances on compliance with the
surrender requirements because the condition will spur compliance and
will not impose an inappropriate burden on sources. EPA considers
establishment of this condition, which will facilitate the continued
functioning of the Group 2 trading program, to be an appropriate
exercise of the Agency's authority under CAA section 301 (42 U.S.C.
7601) to prescribe such regulations as are necessary to carry out its
functions under the Act.
EPA notes that recording allocations to existing units generally
three years in advance under the new Group 3 trading program represents
a change from the historical recordation schedules for allocations to
existing units under the other CSAPR trading programs, which have
generally provided for such allocations to be recorded four years in
advance. In this action, EPA is revising the recordation schedules
under the other CSAPR trading programs, as well as the similarly
structured Texas SO2 Trading Program, so as to generally
record allocations to existing units three years in advance. This
change will take effect with allocations for the 2025 control periods,
which will be recorded by July 1, 2022, instead of by July 1, 2021. The
reason for the change is the discovery of a timing conflict in all the
CSAPR trading programs between the requirement to record four years in
advance and the separate provisions governing allocations to existing
units that have ceased operations. Under those separate provisions, EPA
is unable to determine whether some existing units are entitled to
continue to receive their allowance allocations more than three years
in advance, and thus EPA does not have the information necessary to
record all the allocations four years in advance. Further discussion of
this revision to the schedule for recording allocations to existing
units is provided in section VII.C.8.a.
With respect to allocations of allowances from the new unit set-
asides and Indian country new unit set-asides, in previous control
periods under the existing CSAPR trading programs, EPA has recorded
these allocations in two rounds, by August 1 of the control period and
by February 15 of the year following the control period. In this
action, EPA is adopting a new one-round process for determining
allocations from the new unit set-asides and Indian country new unit
set-asides, and consistent with that revised allocation process,
starting with allocations for the 2021 control periods,\212\ EPA will
record all allocations from these set-asides as of May 1 in the year
following the control period, in both the Group 3 trading program and
the existing CSAPR trading programs, and both where the allocations are
determined by EPA and where the allocations are provided by states
pursuant to approved SIP revisions. Further discussion is provided in
sections VII.C.3.c and VII.C.8.b.
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\212\ EPA proposed and requested comment on implementing the
revisions as of the 2023 and 2021 control periods, respectively. No
comments were received, and EPA is simplifying the regulations by
implementing the revisions as of the 2021 control period. For
further discussion, see section VII.C.8.b.
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8. Conforming Revisions to Regulations for Existing Trading Programs
As discussed elsewhere in this preamble, in most respects, but not
in every respect, the provisions of the CSAPR NOX Ozone
Season Group 3 Trading Program at subpart GGGGG of 40 CFR part 97
parallel the provisions that have applied for control periods through
2020 under the other CSAPR trading programs \213\ at subparts AAAAA
through EEEEE of part 97 established in the CSAPR rulemaking and the
CSAPR Update and, to a somewhat lesser extent, the provisions of the
similarly structured Texas SO2 Trading Program established
at subpart FFFFF of part 97. This section discusses the provisions of
the new Group 3 trading program that differ from the provisions that
have applied under the existing CSAPR trading programs, beyond the
provisions discussed in section VII.C.4. addressing the transition to
the new Group 3 trading program. This section also discusses various
minor corrections and clarifications to the regulations.
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\213\ The existing CSAPR trading programs and their respective
subparts of 40 CFR part 97 are: CSAPR NOX Annual Trading
Program (subpart AAAAA), CSAPR NOX Ozone Season Group 1
Trading Program (subpart BBBBB), CSAPR SO2 Group 1
Trading Program (subpart CCCCC), CSAPR SO2 Group 2
Trading Program (subpart DDDDD), and CSAPR NOX Ozone
Season Group 2 Trading Program (subpart EEEEE).
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To clarify and facilitate administration of the regulations for all
of EPA's trading programs in 40 CFR part 97, and to maintain their
parallel nature to the extent possible, EPA is amending the regulations
for the existing trading programs to reflect certain revisions as noted
in the sections of this preamble describing the new Group 3 trading
program. Section VII.C.8.a. addresses the revisions discussed in
section VII.C.7. to address a timing conflict in the current
regulations for all of the existing programs. Section VII.C.8.b.
addresses the revisions discussed in sections VII.C.3.c and VII.C.3.d
to simplify and improve the process for allocating allowances from the
new unit set-asides and Indian country new unit set-asides under the
existing CSAPR programs. Section VII.C.8.c. addresses additional minor
revisions and corrections. EPA received no adverse comment regarding
any of these conforming revisions or corrections.
In this action, EPA did not reopen or request comment on the
regulations for any of the existing trading programs in 40 CFR part 97,
subparts AAAAA through FFFFF, except with respect to specific revisions
to these subparts identified in this section, as well as the revisions
to the regulations for the Group 2 trading program discussed in section
VII.C.4. that address the transition from the Group 2 trading program
to the Group 3 trading program.
a. Resolution of Timing Conflict Between Certain Existing Provisions
Consistent with the provisions of the new CSAPR trading program
finalized in this action, EPA is amending the regulations for the
existing CSAPR trading programs and the Texas SO2 Trading
Program to resolve a timing conflict between the provisions that set
deadlines for recordation of allowances allocated to existing units and
the provisions that govern allocations of allowances to units that have
ceased operation for the control periods in at least two consecutive
years. The recordation provisions in all of the trading programs
generally have required EPA to record allocations of allowances to
existing units four years in advance of the control periods for which
the allowances are being allocated. For example, on July 1, 2020, EPA
recorded allocations to most existing units of allowances for use in
the 2024 control periods for all the existing trading programs.
However, other provisions of all the trading programs require EPA not
to record allocations to existing units that do not operate for two
consecutive control periods, starting with the fifth control period
after the first control period in which the unit did not operate. For
example, if a unit that would otherwise receive allocations as an
existing unit does not operate in the 2019 and 2020 control periods,
the unit will continue to receive allocations for the control periods
in 2019 through 2023 but will no longer be entitled to receive
allocations for control periods in 2024 and thereafter. These two sets
of timing requirements are in conflict, as demonstrated by the examples
just presented: as of the July 1, 2020,
[[Page 23145]]
deadline to record allocations for the 2024 control periods, EPA could
not yet know whether any units that did not operate in 2019 might
resume operation later in 2020, and EPA therefore could not yet know
whether all such units would lose their eligibility to receive
allocations for the 2024 control periods or not.\214\
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\214\ Because the 4-years-in-advance recordation schedule was
phased in, the conflict with the provision addressing units that
have ceased operation did not affect recordation activities under
any CSAPR program until 2018. To date, EPA has addressed the
conflict by deferring recordation of allocations to certain units
past the applicable recordation deadlines until all information
needed to determine whether the units are entitled to receive the
allocations becomes available.
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To address the timing conflict described above, EPA is amending the
regulations for each of the CSAPR trading programs and the Texas
SO2 Trading Program to generally require recordation of
allowances allocated to existing units to take place three years rather
than four years in advance of the control period for which allowances
are being allocated. Returning to the examples above, if these
amendments had been in effect with respect to allocations for the
control periods in 2024, EPA would not have been required to record
allocations for the 2024 control period until July 1, 2021, by which
time complete information on all units' operations in 2019 and 2020
will be available. Relatedly, for states that determine allocations of
allowances to their sources under approved SIP revisions, EPA is
amending the deadlines by which the states must submit the allocations
to EPA for recordation. Under the amended deadlines, the states'
submissions are due three years instead of four years before the
applicable control period.\215\
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\215\ Because states' deadlines for submission of SIP revisions
under the CSAPR regulations are based on the deadlines by which they
must submit their subsequent state-determined allowance allocations,
in some circumstances the revision to the deadline for submitting
allowance allocations will also effectively extend the deadline for
such a SIP revision. See, e.g., 40 CFR 52.38(a)(4)(ii), (a)(5)(vi).
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The amended recordation and submission schedules will be effective
beginning with recordation of allocations for control periods in 2025
and will apply to EPA's schedule for recording not only the allocations
determined by EPA under the federal CSAPR trading programs but also the
allocations determined by states or EPA under state CSAPR trading
programs that are similarly recorded by EPA. EPA believes these
amendments address the timing conflict in the existing trading program
regulations in a manner that is as consistent as possible with the
other provisions of the regulations, because while the amendments alter
the point in time at which trading program participants receive
allowances, the amendments will not alter the quantities of allowances
received by any participant in any of the existing trading programs. In
contrast, the only two other simple options for resolving the timing
conflict--either shortening the period of non-operation that would
cause a unit to lose its allocation from two years to one year or
lengthening the period for which non-operating units would retain their
allowance allocations from five years to six years--would cause changes
in the amounts of allowances received by some trading program
participants, and some stakeholders might view those changes as
inequitable or undesirable for other policy reasons.
Further details on the specific regulatory provisions that are
affected by the revisions are provided in section IX.D. of the
preamble.
b. Modifications to NUSA Provisions
Consistent with the provisions of the new CSAPR trading program in
this action for ozone season emissions of NOX from sources
in Group 3 states, EPA is amending the regulations for the existing
CSAPR trading programs governing allocations of allowances to units
from NUSAs and Indian country NUSAs to reduce the potential for
inequitable outcomes and to clarify and simplify the regulations. In
order to ensure maximum consistency across all participants in the
trading programs, the amendments will govern EPA's administration of
the integrated trading programs not only under FIPs but also under
approved SIPs where the NUSA allocation procedures are specified in
provisions of the federal CSAPR trading programs in 40 CFR part 97 that
have been incorporated into the SIP by reference.
The regulations applicable to control periods through 2020 under
the existing CSAPR trading programs have provided for a two-round
allocation process. For purposes of the first round, a unit was
generally eligible to receive allocations from the NUSA for its state
regardless of when it commenced commercial operation, as long as either
no allocation of allowances to the unit as an existing unit was
previously determined \216\ or the unit was no longer entitled to
receive its previously determined allocation as an existing unit. The
first-round allocations were calculated during the control period at
issue and were proportional to the eligible units' emissions during the
preceding control period, up to the amount of allowances available in
the NUSA. EPA performed preliminary calculations and published a notice
by June 1, provided an opportunity for objections, and then adjusted
the calculations as necessary, issued a final notice, and recorded the
allocations by August 1 of the control period.
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\216\ A determination that a unit should be allocated zero
allowances is considered an allocation. See, e.g., 40 CFR 97.402
(definition of ``allocate or allocation'').
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If any allowances remained in the NUSA for a given state after the
first round, EPA carried out a second round, for which eligibility was
limited to units that commenced commercial operation in the year of the
control period at issue or the preceding year. The second-round
allocations were calculated early in the year after the year of the
control period at issue (very shortly after the January 30 deadline for
submission of emissions data for October through December) and were
proportional to the positive differences, if any, between the eligible
units' emissions during the control period at issue and the amounts of
any allocations the units received in the first round, up to the
remaining amount of allowances available in the NUSA. Any allowances
remaining after the second round were allocated to existing units in
the state in proportion to their previous allocations. EPA made a
preliminary identification of eligible units and published a notice by
December 15, provided an opportunity for objections, and then performed
the calculations, issued a final notice, and recorded the allocations
by February 15 following the year of the control period, two weeks
before the then-applicable March 1 allowance transfer deadline.
As indicated in the description above, the previous procedures had
the potential to produce inequitable results, where some units could
receive allowances in the first round (based on their emissions in the
preceding control period) that exceeded the amounts needed to cover
their emissions during the control period at issue, while other units
that commenced operation more recently might not receive any allowances
in either the first round (because the units had no covered emissions
in the preceding control period) or the second round (because the NUSA
may have been exhausted in the first round). Further, based on the
experience of administering the two-round NUSA allocation process since
2015, EPA believes the previous procedures were unnecessarily complex
and caused confusion for some market participants.
[[Page 23146]]
To simplify the NUSA allocation process and eliminate the potential
inequities noted, EPA is amending the regulations for the existing
CSAPR programs to replace the previous two-round NUSA allocation
process with a one-round process that will allocate allowances to all
eligible units in proportion to their emissions in the control period
at issue. The amended provisions will be effective beginning with NUSA
allocations for the control periods in 2021. Under the procedures,
which apply to both NUSAs and Indian country NUSAs, EPA will perform
preliminary calculations and issue a notice by March 1 of the year
after the control period at issue, one month after the January 30
deadline for submission of the required emission data. After providing
an opportunity for objections, EPA will make any necessary adjustments,
issue a final notice, and record the allowances by May 1. To
accommodate this process, the amendments also extend the allowance
transfer deadline (i.e., the date by which all covered sources must
hold allowances in their compliance accounts sufficient to cover their
emissions during the preceding control period) by three months, from
March 1 of the year following the control period to June 1. In
coordination with the revised recordation deadlines, EPA is also
extending the deadline for states to submit to EPA their state-
determined allocations for new units from July 1 in the year of the
control period to April 1 in the year following the control period.
Finally, although the Texas SO2 Trading Program does not
have NUSA provisions, in order to minimize unnecessary differences
between the deadlines for analogous provisions in that program and the
CSAPR programs, EPA is also revising the Supplemental Allowance Pool
recordation deadline and the allowance transfer deadline under the
Texas SO2 Trading Program to May 1 and June 1, respectively,
of the year after the control period. Like the amendments to the NUSA
provisions, the amendments to the deadlines described in this paragraph
would apply for purposes of EPA's administration of the integrated
trading programs under both FIPs and approved SIPs.
The revisions to the NUSA allocation procedures also allow for
related simplification of the CSAPR trading programs' assurance
provisions. Under the assurance provisions that have applied for
control periods through 2020, when emissions in a state for a given
control period exceed the state's assurance level, if there are any
units in the state that operated during the control period but that did
not receive an actual allowance allocation either as an existing unit
or from the NUSA, the regulations require EPA to publish a notice
calling for the owners and operators of such units to submit certain
information which EPA would use to determine imputed allowance
allocations for the units. EPA then would use the imputed allowance
allocations for these units, together with the actual allowance
allocations for other units, to apportion responsibility for the
assurance level exceedance among the owners and operators of all the
state's units. Under the amendments to the NUSA allocation process, all
units that have covered emissions during any control period will
receive allocations either as an existing unit or from the NUSA, making
the procedures for determining imputed allocations unnecessary.
Accordingly, EPA is simplifying the assurance provisions for all of the
existing CSAPR trading programs by removing the requirement for EPA to
issue the additional notice just discussed, starting with the 2021
control periods.\217\ EPA is also revising the date as of which the
``common designated representative'' for a group of sources is
determined for purposes of the assurance provisions from April 1 to
July 1 of the year following the control period, preserving that date's
current position of being one month after the allowance transfer
deadline. This revision maintains the existing coordination between
these two regulatory deadlines and applies to all the existing CSAPR
trading programs, whether administered under FIPs or approved SIPs, as
well as the Texas SO2 Trading Program.
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\217\ There are currently no analogous provisions in the Texas
SO2 Trading Program.
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EPA is making the changes to the NUSA allocation provisions,
assurance provisions, and related deadlines effective as of the 2021
control period. EPA proposed to make the changes effective as of the
2023 control period, which is the first control period by which it
would have been possible for states to fully replace the FIP
requirements established in this action with a SIP revision. However,
EPA also specifically requested comment on implementing the changes as
of the 2021 control period. Having received no comment opposing the
substance of the proposed revisions and no comment favoring
implementation as of the 2023 control period, EPA is finalizing the
amendments as of the 2021 control period in order to simplify the
programs and clarify the regulations to the greatest extent possible.
Further details on the specific regulatory provisions that are
affected by the revisions are provided in section IX.D. of the
preamble.
c. Minor Corrections and Clarifications to Existing Regulations
EPA is implementing a small number of additional minor corrections
and clarifications to the NUSA provisions in the existing CSAPR trading
programs. First, EPA is amending the provisions that address the
disposition of allowances that are determined to have been allocated
incorrectly and that consequently are recalled and added to the NUSA
for reallocation. The regulations that have applied through the 2020
control periods provided for the recalled allowances to be reallocated
through the NUSA allocation process for the same control period for
which the allowances were originally allocated incorrectly. Because
some corrections may occur after the NUSA allocation process for a
control period has already been completed, EPA is revising these
provisions to also allow the recalled allowances to be reallocated as
part of the NUSA allocation process for a subsequent control period.
Second, EPA is correcting the specific numbers of allowances
identified as the NUSA amounts for several states under the existing
CSAPR programs established in the CSAPR rulemaking.\218\ Following the
promulgation of the CSAPR regulations in August 2011, EPA issued two
rules revising the amounts of the emissions budgets, NUSAs, and Indian
country NUSAs for several states.\219\ Subsequent to these rule
revisions, EPA recalculated the allocations to individual existing
units and published a notice of data availability establishing the new
allocations.\220\ However, because of rounding differences, in certain
instances the sum of the recalculated allocations to the individual
units in a state plus the amounts identified in the regulations for the
NUSA and Indian country NUSA for the state does not exactly equal the
state budget.\221\ In this
[[Page 23147]]
final action, EPA is adjusting the amounts of the NUSAs identified in
the regulations for control periods in future years up or down by the
amount needed to eliminate the rounding differences. The sizes of the
NUSA adjustments range from 1 to 17 allowances. These revisions do not
affect the amounts of any state emissions budgets.
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\218\ This revision affects the CSAPR NOX Annual,
NOX Ozone Season Group 1, SO2 Group 1, and
SO2 Group 2 trading programs established in the CSAPR
rulemaking but does not affect the CSAPR NOX Ozone Season
Group 2 trading program established in the CSAPR Update rulemaking.
\219\ See 77 FR 10324 (February 21, 2012); 77 FR 34830 (June 12,
2012).
\220\ See 79 FR 71674 (December 3, 2014).
\221\ To date, EPA has addressed the rounding differences
through the NUSA administration process by allocating whatever
amounts of allowances remain in the states' budgets after
allocations to existing units instead of allocating the specific
amounts of allowances stated as the amounts of the states' NUSAs in
the regulations. Thus, the amendments simply clarify the regulations
and bring them into conformance with current practice.
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Third, EPA is adding provisions to the regulations for each of the
existing CSAPR trading programs addressing the disposition of
allowances held in the compliance accounts of sources in states that
are no longer covered by those programs. Under the added provisions,
EPA would identify or, if necessary, establish a general account
controlled by each such source's owners and operators and would
transfer any such allowances to that general account. The added
provisions parallel analogous provisions that were proposed and are
being finalized in this action to address the disposition of any CSAPR
NOX Ozone Season Group 2 allowances that may remain in the
compliance accounts of sources in states covered by the new CSAPR
NOX Ozone Season Group 3 trading program after the various
procedures governing conversion or recall of such allowances have been
carried out.
Finally, EPA is making non-substantive revisions to the sections of
the existing CSAPR trading program regulations that set forth the
amounts of the budgets, new unit set-asides, and variability limits.
The revisions clarify the regulations by indicating the specific
control periods when such amounts no longer apply to the sources in a
given state because the state's sources are no longer required to
participate in that trading program.
Further details on the specific regulatory provisions that would be
affected by the revisions are provided in section IX.D. of the
preamble.
D. Submitting a SIP
States may replace a FIP with a SIP under the Clean Air Act at any
time if the SIP is approved by EPA, see CAA section 110(c)(1)(B). EPA
has established certain specialized provisions for replacing FIPs with
SIPs within all of the CSAPR trading programs, including the use of so-
called ``abbreviated SIPs'' and ``full SIPs,'' see 40 CFR 52.38(a)(4)
and (5) and (b)(4), (5), (8), and (9); 40 CFR 52.39(e), (f), (h), and
(i). Under the new or amended FIPs for the 12 states whose sources are
required to participate in the new CSAPR NOX Ozone Season
Group 3 Trading Program, ``abbreviated'' and ``full'' SIP options
continue to be available. An ``abbreviated SIP'' allows a state to
submit a SIP revision that would establish state-determined allowance
allocation provisions replacing the default FIP allocation provisions
but leaves the remaining FIP provisions in place. A ``full SIP'' allows
a state to adopt a trading program meeting certain requirements that
would allow sources in the state to continue to use the EPA-
administered trading program through an approved SIP revision, rather
than a FIP. In addition, as under the CSAPR and the CSAPR Update, EPA
is providing states with an opportunity to adopt state-determined
allowance allocations for existing units for the second control period
under this rule--in this case, the 2022 control period--through
streamlined SIP revisions. See 76 FR 48326-48332 for additional
discussion on full and abbreviated SIP options and 40 CFR 52.38(b).
1. SIP Option To Modify 2022 Allocations
As under the CSAPR and the CSAPR Update, EPA is allowing a state to
submit a SIP revision establishing allowance allocations for existing
units in the state for the second control period of the new
requirements, in 2022, to replace the EPA-determined default
allocations. This process is the same as the process used at the start
of other CSAPR trading programs but with updated deadlines, i.e., a
state must submit a letter to EPA by June 29, 2021 indicating its
intent to submit a complete SIP revision by September 1, 2021. The SIP
would provide in an EPA-prescribed format a list of existing units and
their allocations for the 2022 control period. If a state does not
submit a letter of intent to submit a SIP revision, the EPA-determined
default allocations will be recorded by July 29, 2021. If a state
submits a timely letter of intent but fails to submit a SIP revision,
the EPA-determined default allocations will be recorded by September
15, 2021. If a state submits a timely letter of intent followed by a
timely SIP revision that is approved, the approved SIP allocations will
be recorded by March 1, 2022.
2. SIP Option To Modify Allocations in 2023 and Beyond
For the 2023 control period and later, states in the CSAPR
NOX Ozone Season Group 3 Trading Program can modify the EPA-
determined default allocations with an approved SIP revision. The SIP
submittal deadline is December 1, 2021. The deadline for states to
submit state-determined allocations beginning with the 2023 and 2024
control periods under an approved SIP would be June 1, 2022, and the
deadline for EPA to record those allocations would be July 1, 2022.
Similarly, a state can submit a SIP revision beginning with control
periods in 2025 and beyond by December 1, 2022, with state allocations
for the 2025 and 2026 control periods due June 1, 2023, and EPA
recordation of the allocations by July 1, 2023. For the 2023 control
period and later, SIPs can be full or abbreviated SIPs. As discussed in
section VII.F.3. below, states will also have the option to expand
applicability to include EGUs between 15 MWe and 25 MWe or, in the case
of states subject to the NOX SIP Call, large non-EGU boilers
and combustion turbines. Inclusion of the large non-EGUs would serve as
a mechanism to address the state's outstanding regulatory obligations
under the NOX SIP Call with respect to those sources, and
the state would be allowed to allocate a defined quantity of additional
Group 3 allowances because of the expanded set of sources. See above
and 76 FR 48326-48332 for additional discussion on full and abbreviated
SIP options and 40 CFR 52.38(b).
3. SIP Revisions That Do Not Use the New Group 3 Trading Program
States can submit SIP revisions to replace the FIP that achieve the
necessary emission reductions but do not use the CSAPR NOX
Ozone Season Group 3 Trading Program. For a transport SIP revision that
does not use the CSAPR NOX Ozone Season Group 3 Trading
Program, EPA would evaluate the transport SIP based on the particular
control strategies selected and whether the strategies as a whole
provide adequate and enforceable provisions ensuring that the necessary
emission reductions (i.e., reductions equal to or greater than what the
Group 3 trading program will achieve) will be achieved. In order to
best ensure its approvability, the SIP revision should include the
following general elements: (1) A comprehensive baseline 2021 statewide
NOX emission inventory (which includes existing control
requirements), which should be consistent with the 2021 emission
inventory that EPA used to calculate the required state budget in this
final action (unless the state can explain the discrepancy); (2) a list
and description of control measures to satisfy the state emission
reduction obligation and a demonstration showing when each measure
would be in place to meet the 2021 and successive control periods; (3)
fully-adopted state rules providing for such NOX controls
during
[[Page 23148]]
the ozone season; (4) for EGUs greater than 25 MWe, monitoring and
reporting under 40 CFR part 75, and for other units, monitoring and
reporting procedures sufficient to demonstrate that sources are
complying with the SIP (see 40 CFR part 51 subpart K (``source
surveillance'' requirements)); and (5) a projected inventory
demonstrating that state measures along with federal measures will
achieve the necessary emission reductions in time to meet the 2021
compliance deadline. The SIPs must meet procedural requirements under
the Act, such as the requirements for public hearing, be adopted by the
appropriate state board or authority, and establish by a practically
enforceable regulation or permit a schedule and date for each affected
source or source category to achieve compliance. Once the state has
made a SIP submission, EPA will evaluate the submission(s) for
completeness. EPA's criteria for determining completeness of a SIP
submission are codified at 40 CFR part 51 appendix V.
For further information on replacing a FIP with a SIP, see the
discussion in the final CSAPR rulemaking (76 FR 48326).
4. No SIP Option for Additional States To Participate in the New
Trading Program
EPA is not finalizing the proposed option that would have allowed
EPA to approve a SIP submitted by a state whose sources are required to
participate in the CSAPR NOX Ozone Season Group 1 Trading
Program (i.e., Georgia) or a state whose sources are required to
continue to participate in the CSAPR NOX Ozone Season Group
2 Trading Program (Alabama, Arkansas, Iowa, Kansas, Mississippi,
Missouri, Oklahoma, Tennessee, Texas, and Wisconsin) requiring its
sources to participate instead in the new Group 3 trading program. No
comments were received indicating interest in such an option, and
elimination of the option facilitates simplification and clarification
of several areas of the regulations. A similar option was made
available to Georgia in the CSAPR Update (with respect to the Group 2
trading program) to address possible concerns expressed by some
commenters in the CSAPR Update rulemaking that if sources in Georgia
were not allowed to trade with sources in other states, the allowances
issued to the sources in Georgia would otherwise be of limited use. See
81 FR 74504, 74588 (former 40 CFR 52.38(b)(6)). Because EPA has already
approved a SIP revision under which Georgia adopted a state program
requiring its sources to participate in the Group 1 trading program,
EPA in this action is simplifying and clarifying the regulations by
removing the option for Georgia to instead adopt a SIP instead
requiring its sources to participate in the Group 2 trading program.
Relatedly, EPA is removing the provisions in the Group 2 trading
program regulations setting forth the amounts of the emissions budget,
new unit set-aside, and variability limit that would have applied if
EPA had approved a SIP revision from Georgia's requiring the state's
sources to participate in that program as well as the provisions in the
Group 1 trading program regulations that would have converted all
remaining Group 1 allowances into amounts of Group 2 allowances.
E. Title V Permitting
This final rule, like the CSAPR and the CSAPR Update, does not
establish any permitting requirements independent of those under Title
V of the CAA and the regulations implementing Title V, 40 CFR parts 70
and 71.\222\ All major stationary sources of air pollution and certain
other sources are required to apply for title V operating permits that
include emission limitations and other conditions as necessary to
ensure compliance with the applicable requirements of the CAA,
including the requirements of the applicable SIP. CAA sections 502(a)
and 504(a), 42 U.S.C. 7661a(a) and 7661c(a). The ``applicable
requirements'' that must be addressed in title V permits are defined in
the title V regulations (40 CFR 70.2 and 71.2 (definition of
``applicable requirement'')).
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\222\ Part 70 addresses requirements for state title V programs,
and Part 71 governs the federal title V program.
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EPA anticipates that, given the nature of the units subject to this
final rule and given that all of the units covered here are already
subject to the CSAPR Update, most if not all of the sources at which
the units are located are already subject to title V permitting
requirements. For sources subject to title V, the interstate transport
requirements for the 2008 ozone NAAQS that are applicable to them under
the new or amended FIPs would be ``applicable requirements'' under
title V and therefore must be addressed in the title V permits. For
example, requirements concerning designated representatives,
monitoring, reporting, and recordkeeping, the requirement to hold
allowances covering emissions, the assurance provisions, and liability
are ``applicable requirements'' that must be addressed in the permits.
Title V of the CAA establishes the basic requirements for state
title V permitting programs, including, among other things, provisions
governing permit applications, permit content, and permit revisions
that address applicable requirements under final FIPs in a manner that
provides the flexibility necessary to implement market-based programs
such as the trading programs established by the CSAPR and the CSAPR
Update and this final rule. 42 U.S.C. 7661a(b); 40 CFR 70.6(a)(8) &
(10); 40 CFR 71.6(a)(8) & (10).
In the CSAPR and the CSAPR Update, EPA established standard
requirements governing how sources covered by that rule would comply
with title V and its regulations.\223\ 40 CFR 97.506(d) and 97.806(d).
For any new or existing sources under this final rule establishing the
Group 3 trading program, identical title V compliance provisions would
apply, just as they would have in the CSAPR NOX Ozone Season
Group 2 Trading Program. For example, the title V regulations provide
that a permit issued under title V must include ``[a] provision stating
that no permit revision shall be required under any approved . . .
emissions trading and other similar programs or processes for changes
that are provided for in the permit.'' 40 CFR 70.6(a)(8) and
71.6(a)(8). Consistent with these provisions in the title V
regulations, in the CSAPR and the CSAPR Update, EPA included a
provision stating that no permit revision is necessary for the
allocation, holding, deduction, or transfer of allowances. 40 CFR
97.506(d)(1) and 97.806(d)(1). This provision is also included in each
title V permit for an affected source. This final rule maintains the
approach taken under the CSAPR and the CSAPR Update that allows
allowances to be traded (or allocated, held, or deducted) without a
revision to the title V permit of any of the sources involved.
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\223\ EPA has also issued a guidance document and template that
includes instructions describing how to incorporate the applicable
requirements into a source's Title V permit. https://www3.epa.gov/airtransport/CSAPR/pdfs/CSAPR_Title_V_Permit_Guidance.pdf.
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Similarly, this final rule would also continue to support the means
by which a source in a CSAPR trading program can use the title V minor
modification procedure to change its approach for monitoring and
reporting emissions, in certain circumstances. Specifically, sources
may use the minor modification procedure so long as the new monitoring
and reporting approach is one of the prior-approved approaches under
the CSAPR and the CSAPR Update (i.e., approaches using a
[[Page 23149]]
continuous emission monitoring system under subparts B and H of Part
75, an excepted monitoring system under appendices D and E to Part 75,
a low mass emissions excepted monitoring methodology under 40 CFR
75.19, or an alternative monitoring system under subpart E of part 75),
and the permit already includes a description of the new monitoring and
reporting approach to be used. See 40 CFR 97.506(d)(2) and
97.806(d)(2); 40 CFR 70.7(e)(2)(i)(B) and 40 CFR 71.7(e)(1)(i)(B). As
described in EPA's 2015 guidance, the Agency suggests in its template
that sources may comply with this requirement by including a table of
all of the approved monitoring and reporting approaches under the CSAPR
and the CSAPR Update trading programs in which the source is required
to participate, and the applicable requirements governing each of those
approaches. Inclusion of the table in a source's title V permit
therefore allows a covered unit that seeks to change or add to its
chosen monitoring and recordkeeping approach to easily comply with the
regulations governing the use of the title V minor modification
procedure.
Under the CSAPR and the CSAPR Update, in order to employ a
monitoring or reporting approach different from the prior-approved
approaches discussed previously, unit owners and operators must submit
monitoring system certification applications to EPA establishing the
monitoring and reporting approach actually to be used by the unit, or,
if the owners and operators choose to employ an alternative monitoring
system, to submit petitions for that alternative to EPA. These
applications and petitions are subject to EPA review and approval to
ensure consistency in monitoring and reporting among all trading
program participants. EPA's responses to any petitions for alternative
monitoring systems or for alternatives to specific monitoring or
reporting requirements are posted on EPA's website.\224\ EPA maintains
the same approach in this final rule.
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\224\ https://www.epa.gov/airmarkets/part-75-petition-responses.
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Consistent with EPA's approach under the CSAPR and the CSAPR
Update, the applicable requirements resulting from the new and amended
FIPs generally will have to be incorporated into affected sources'
existing title V permits either pursuant to the provisions for
reopening for cause (40 CFR 70.7(f) and 71.7(f)) or the standard permit
renewal provisions (40 CFR 70.7(c) and 71.7(c)).\225\ For sources newly
subject to title V that are affected sources under the FIPs, the
initial title V permit issued pursuant to 40 CFR 70.7(a) should address
the final FIP requirements.
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\225\ A permit is reopened for cause if any new applicable
requirements (such as those under a FIP) become applicable to an
affected source with a remaining permit term of 3 or more years. If
the remaining permit term is less than 3 years, such new applicable
requirements will be added to the permit during permit renewal. See
40 CFR 70.7(f)(1)(I) and 71.7(f)(1)(I).
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As was the case in the CSAPR and the CSAPR Update, the new and
amended FIPs impose no independent permitting requirements and the
title V permitting process will impose no additional burden on sources
already required to be permitted under title V and on permitting
authorities.
F. Relationship to Other Emission Trading and Ozone Transport Programs
1. Existing Trading Programs
This final rule ends the requirements for sources in certain states
to participate in the existing CSAPR NOX Ozone Season Group
2 Trading Program with respect to emissions occurring after 2020 and
requires those same sources instead to participate in a new CSAPR
NOX Ozone Season Group 3 Trading Program with more stringent
emissions budgets with respect to those emissions.\226\ As discussed in
section VII.C.4. above, the final rule lays out certain requirements
associated with this transition, including provisions to accommodate an
effective date sometime after the start of the 2021 ozone season, two
mechanisms for the creation of limited quantities of Group 3 allowances
available for use in the new Group 3 trading program in exchange for
certain banked 2017-2020 Group 2 allowances, and the recall of 2021-
2024 Group 2 allowances previously allocated to the sources in Group 3
states. In addition, in section VII.C.8. of this document, EPA
describes certain features of the new Group 3 trading program that
differ from the current features of the other CSAPR trading programs
and that EPA is adopting as revisions to the other CSAPR trading
programs, as well as a subset of those new features adopted as
revisions to the similarly structured Texas SO2 Trading
Program. Beyond these items, nothing else in this rule affects any
requirements for any source under the CSAPR NOX Annual,
SO2 Group 1 or Group 2, or NOX Ozone Season Group
1 or Group 2 trading programs or the Texas SO2 Trading
Program. These trading programs all remain in place and will continue
to be administered by EPA.
---------------------------------------------------------------------------
\226\ The sources would remain subject to the Group 2 trading
program with respect to emissions occurring in 2020 and earlier
years and would also remain subject to various transitional
provisions in the Group 2 trading program regulations, including
both the provisions at 40 CFR 97.826(c) governing the conversion of
certain banked 2017-2020 Group 2 allowances to a limited quantity of
Group 3 allowances and the provisions at 40 CFR 97.811(d) governing
the recall of certain previously recorded 2021-2024 Group 2
allowances. See section VII.C.4.
---------------------------------------------------------------------------
2. Title IV Interactions
This final rule does not affect any Acid Rain Program requirements.
Acid Rain Program SO2 and NOX requirements are
established independently in Title IV of the Clean Air Act and will
continue to apply independently of this final rule's provisions. Acid
Rain sources will still be required to comply with Title IV
requirements, including the requirement to hold Title IV allowances to
cover SO2 emissions after the end of each annual control
period. EPA notes that the deadline by which sources affected under the
Acid Rain Program must hold Title IV allowances is not affected by this
final action and will continue to be 60 days after the end of the
control period (i.e., February 29 or March 1 of the following year).
Thus, starting with the compliance deadlines in 2022 for the control
periods in 2021, the Acid Rain Program deadline will be approximately
three months earlier than the corresponding deadline by which sources
affected under all the CSAPR trading programs and the Texas
SO2 Trading Program must hold allowances available for
compliance under those programs, which will be June 1 of the year
following the year of the control period, as discussed in sections
VII.C.5 and VII.C.8.b.
3. NOX SIP Call Interactions
States affected by both the NOX SIP Call and this action
will be required to comply with the requirements of both rules. This
final rule requires NOX ozone season emission reductions
from EGUs larger than 25 MWe in many NOX SIP Call states and
at greater stringency than required by the NOX SIP Call.
Therefore, this final rule will achieve emission reductions sufficient
to address the emission reduction requirements of the NOX
SIP Call for these large EGUs.
The NOX SIP Call states used the NOX Budget
Trading Program to comply with the NOX SIP Call requirements
both for EGUs serving generators with a nameplate capacity greater than
25 MWe and for large non-EGU boilers and combustion turbines with a
maximum design heat input greater than 250 mmBtu/hr. (In some states,
EGUs
[[Page 23150]]
serving a generator with a nameplate capacity equal to or smaller than
25 MWe were also part of the NOX Budget Trading Program as a
carryover from the Ozone Transport Commission NOX Budget
Program.) However, EPA discontinued the NOX Budget Trading
Program after 2008 when implementation of the CAIR NOX Ozone
Season Trading Program began. Since that time, states have had to find
appropriate alternative ways to continue to show compliance with the
NOX SIP Call, particularly for large non-EGUs. As one
option, EPA has allowed states to modify the applicability provisions
of the NOX ozone season trading programs established under
CAIR and later the CSAPR Update (although not the CSAPR) to include all
NOX Budget Trading Program units as a way to continue to
meet the requirements of the NOX SIP Call for these sources.
In this action, as under CAIR and the CSAPR Update, EPA is again
allowing any NOX SIP Call state affected by this final rule
to voluntarily submit a SIP revision to expand the applicability of the
CSAPR NOX Ozone Season Group 3 Trading Program to include
all NOX Budget Trading Program units. As part of such a SIP
revision, the state would be allowed to issue additional emission
allowances capped at a level intended to preserve the stringency of the
Group 3 trading program. Analysis shows that the NOX Budget
Trading Program units (mainly large non-EGU boilers, combustion
turbines, and combined cycle units with a maximum design heat input
greater than 250 mmBtu/hr) continue to emit well below their portions
of the NOX SIP Call state budgets. In order to ensure that
the necessary amounts of EGU emission reductions occur for this final
rule, the corresponding state ozone-season emissions budget amount can
be increased by the lesser of: (1) The relevant non-EGU budget under
the NOX SIP Call or (2) the highest emissions of the
relevant set of non-EGUs in the most recent 3 years. EPA believes that
the environmental impact would be neutral using this approach, and
hourly reporting of emissions under 40 CFR part 75 would continue. This
option will address requests by states for help in determining an
appropriate way to address the continuing NOX SIP Call
requirement for large boilers and turbines. If a state elects to bring
its NOX SIP Call non-EGUs into the Group 3 trading program,
the program's assurance provisions continue to apply only to the EGUs
covered by the program, and the amounts of the variability limits and
assurance levels established for EGUs will remain unchanged.
The NOX SIP Call generally requires that states choosing
to rely on large EGUs and large non-EGU boilers and turbines for
meeting NOX SIP Call emission reduction requirements must
establish a NOX mass emissions cap on each source and
require 40 CFR part 75, subpart H monitoring or alternative monitoring.
As an alternative to source-by-source NOX mass emission
caps, a state may impose NOX emission rate limits on each
source and use maximum operating capacity for estimating NOX
mass emissions or may rely on other requirements that the state
demonstrates to be equivalent to either the NOX mass
emission caps or the NOX emission rate limits that assume
maximum operating capacity. Collectively, the caps or their
alternatives cannot exceed the portion of the state budget for those
sources. See 40 CFR 51.121(f)(2) and (i)(1). If a state submits and EPA
approves a SIP expanding the applicability to include all of the
state's NOX Budget Trading Program units in the CSAPR
NOX Ozone Season Group 3 Trading Program, the cap
requirement would be met through the new budget and the monitoring
requirement would be met through the trading program provisions, which
require part 75 monitoring. Whether states choose to include
NOX Budget Trading Program units in the CSAPR NOX
Ozone Season Group 3 Trading Program through SIPs or not, EPA will work
with states to ensure that NOX SIP Call obligations continue
to be met.
Comment: One commenter questioned the need to allow states to
include large non-EGUs of the types that participated in the
NOX Budget Trading Program in the Group 3 trading program
since current ozone season NOX emissions from the large non-
EGUs are a small fraction of historical emissions because many units
have retired and the remaining ones have moved away from coal as the
main fuel and are now largely natural gas-fired.
Response: EPA is not requiring states to include non-EGUs of the
types that participated in the NOX Budget Trading program in
the Group 3 trading program. EPA continues to believe that allowing
states to include these sources in the Group 3 trading program (or for
some states, the Group 2 trading program) provides states a potentially
useful option for continued compliance with ongoing NOX SIP
Call requirements.
Comment: A commenter questioned the methodology EPA would use to
ensure that including these sources in the Group 3 trading program
could be done in an environmentally neutral way. The commenter did not
feel EPA had explained how that would work in practice.
Response: EPA has allowed the voluntary inclusion of these sources
in the CSAPR programs for a number of years. The methodology for
determining the amount of allowances to provide for the additional
sources is capped at the lesser of recent historical actual emissions
and the allocations from the original NOX SIP Call program.
This methodology accounts for the kinds of overall emission reductions
that have occurred as cited by the commenter and holds emissions at
actual levels, thus not allowing emissions increases from a decision by
a state to voluntarily include these sources in the new CSAPR trading
program.
VIII. Costs, Benefits, and Other Impacts of the Final Rule
In the Regulatory Impact Analysis for the Final Revised Cross-State
Air Pollution Rule Update for the 2008 Ozone NAAQS (RIA), EPA estimated
the health and climate benefits, compliance costs, and emissions
changes that may result from the final rule for the analysis period
2021 to 2040. The estimated health and climate benefits and compliance
costs are presented in detail in the RIA accompanying this final
action. EPA notes that the estimated health and climate benefits and
compliance costs are directly associated with optimizing NOX
removal by turning on and optimizing existing idled SCRs; optimizing
existing idled selective non-catalytic reduction (SNCRs); and
installing state-of-the-art combustion controls. The estimated health
and climate benefits and compliance costs also result from a small
amount of generation shifting as the power system adjusts to the
regulatory requirements.
EPA analyzed this final action's emission budgets, using a uniform
control stringency represented by $1,800 per ton of NOX
(2016$), as well as a more and a less stringent alternative. The more
and less stringent alternatives differ in that they set different
NOX ozone season emission budgets for the affected EGUs. The
less stringent alternative uses emission budgets that were developed
using uniform control stringency represented by $500 per ton of
NOX (2016$). The more stringent alternative uses emission
budgets that were developed using uniform control stringency
represented by $9,600 per ton of NOX (2016$). Table VIII.1
provides the projected 2021, 2025, 2030, 2035, and 2040 EGU emission
reductions for the evaluated regulatory
[[Page 23151]]
control alternatives.\227\ For additional information on emissions
changes, see Table 4.5 in Chapter 4 of the RIA.
---------------------------------------------------------------------------
\227\ EPA relied on Engineering Analysis to account for changes
in NOX (annual and ozone season), SO2, and
direct PM. While this approach captures the impact of generation
shifting for NOX emissions, it does not fully capture the
impact of generation shifting for SO2 and PM in complying
with the budgets established in this final rule. In order to meet
the court-ordered timeline for this rulemaking EPA prioritized fully
capturing the impact of reductions from generation shifting on
NOX and CO2, but did not account for the
relatively small amount of SO2 and primary PM emissions
reductions that would likely occur due to generation shifting. Hence
total benefits could be higher than those reported in this RIA. EPA
relied on IPM estimates to capture changes in CO2
emissions, which fully account for the impact of generation
shifting.
Table VIII.1--Estimated 2021, 2025, 2030, 2035, and 2040 a EGU Emissions Reductions in the 12 States of NOX,
SO2, and CO2 and More and Less Stringent Alternatives
[Tons] b c
----------------------------------------------------------------------------------------------------------------
More stringent Less stringent
Final rule alternative alternative
----------------------------------------------------------------------------------------------------------------
2021:
NOX (annual)................................................ 16,000 16,000 2,000
NOX (ozone season).......................................... 16,000 16,000 2,000
SO2 (annual) *.............................................. (*) (*) (*)
CO2 (annual, thousand metric)............................... .............. .............. ..............
2025:
NOX (annual)................................................ 21,000 37,000 2,000
NOX (ozone season).......................................... 19,000 34,000 2,000
SO2 (annual) *.............................................. (*) (*) (*)
CO2 (annual, thousand metric)............................... 5,000 14,000 4,000
2030:
NOX (annual)................................................ 16,000 27,000 2,000
NOX (ozone season).......................................... 13,000 25,000 2,000
SO2 (annual) *.............................................. (*) (*) (*)
CO2 (annual, thousand metric)............................... 8,000 19,000 6,000
2035:
NOX (annual)................................................ 15,000 26,000 2,000
NOX (ozone season).......................................... 13,000 25,000 2,000
SO2 (annual) *.............................................. (*) (*) (*)
CO2 (annual, thousand metric)............................... 8,000 19,000 6,000
2040:
NOX (annual)................................................ 14,000 25,000 2,000
NOX (ozone season).......................................... 13,000 24,000 2,000
SO2 (annual) *.............................................. (*) (*) (*)
CO2 (annual, thousand metric)............................... 4,000 13,000 3,000
----------------------------------------------------------------------------------------------------------------
a The 2021-2040 emissions reductions estimates are based on IPM projections for CO2 and engineering analysis for
annual and ozone season NOX. SO2 and PM2.5 emissions were only partially analyzed. IPM was run for the
following years: 2021, 2023, 2025, 2030, 2035, 2040, 2045 and 2050. For more information, see Chapter 4 and
the Ozone Transport Policy Analysis Final Rule TSD.
b NOX emissions are reported in English (short) tons; CO2 is reported in metric tons.
c In addition to no annual SO2 emissions reductions as shown in the table above, there are no annual direct
PM2.5 emissions changes.
* There are no annual SO2 and PM2.5 emissions reductions that come from turning on SCRs and SNCRs assuming that
nothing else changes, but EPA did not analyze the effects on SO2 and direct PM that may come from shifting
power generation, for example from coal-fired power plants to gas-fired or other types of power plants. EPA
does expect some changes in SO2 and PM2.5 emissions due to shifting of power generation.
EPA analyzed ozone-season NOX emission reductions and
the associated costs to the power sector of implementing the EGU
NOX ozone-season emissions budgets in each of the 12 states
using the Integrated Planning Model (IPM) and its underlying data and
inputs. The estimates of the changes in the cost of supplying
electricity for the regulatory control alternatives are presented in
Table VIII.2. Total costs continue to change in later IPM run years as
the modeled system responds to projected demand growth and shifts in
the power sector under the illustrative scenarios. For a detailed
description of these cost trends, please see Chapter 4, Section 4.4.3
of the RIA.
Table VIII.2--National Compliance Cost Estimates (Millions of 2016$) for the Regulatory Control Alternatives
----------------------------------------------------------------------------------------------------------------
More-stringent Less-stringent
Final rule alternative alternative
----------------------------------------------------------------------------------------------------------------
2021-2025 (Annualized).......................................... $10.0 $41.4 $(2.9)
2021-2040 (Annualized).......................................... 24.8 28.5 19.6
2021 (Annual)................................................... 5.1 5.2 1.6
2022 (Annual)................................................... 19.2 61.5 5.9
2023 (Annual)................................................... 19.2 61.5 5.9
2024 (Annual)................................................... 2.1 4.5 (14.9)
2025 (Annual)................................................... 1.6 4.0 (14.9)
2030 (Annual)................................................... 63.6 32.3 67.0
[[Page 23152]]
2035 (Annual)................................................... 18.2 41.2 14.3
2040 (Annual)................................................... 8.8 134.0 18.9
----------------------------------------------------------------------------------------------------------------
``2021-2025 (Annualized)'' reflects total estimated annual compliance costs levelized over the period 2021
through 2025 and discounted using a 4.25 real discount rate.\228\ This does not include compliance costs
beyond 2025. ``2021-2040 (Annualized)'' reflects total estimated annual compliance costs levelized over the
period 2021 through 2040 and discounted using a 4.25 real discount rate. This does not include compliance
costs beyond 2040. ``2021 (Annual)'' through ``2040 (Annual)'' costs reflect annual estimates in each of those
years.
Tables VIII.3 and VIII.4 report the estimated economic value of
avoided premature deaths and illness in each year relative to the
baseline along with the 95% confidence interval. In each of these
tables, for each discount rate and regulatory control alternative,
multiple benefits estimates are presented reflecting alternative ozone
and PM2.5 mortality risk estimates. For additional
information on health benefits, see Chapter 5 of the RIA.
---------------------------------------------------------------------------
\228\ This table reports compliance costs consistent with
expected electricity sector economic conditions. An NPV of costs was
calculated using a 4.25% real discount rate consistent with the rate
used in IPM's objective function for cost-minimization. The NPV of
costs was then used to calculate the levelized annual value over a
5-year period (2021-2025) and a 20-year period (2021-2040) using the
4.25% rate as well. Table VIII.7 reports the NPV of the annual
stream of costs from 2021-2040 using 3% and 7% consistent with OMB
guidance.
Table VIII.3--Table VIII.3. Estimated Discounted Economic Value of Ozone-Attributable Premature Mortality and
Illnesses for the Final Policy Scenarios in 2021
[95% Confidence Interval; millions of 2016$] a b
----------------------------------------------------------------------------------------------------------------
More stringent Less stringent
Final rule alternative alternative
----------------------------------------------------------------------------------------------------------------
3% Discount Rate..................... $230 ($58 to $480) \c\ $260 ($88 to $520) \c\ $22 ($6 to $47) \c\ and
and $1,900 ($210 to and $1,900 ($210 to $190 ($20 to $490) \d\
$5,000) \d\. $5,000) \d\.
7% Discount Rate..................... $200 ($38 to $460) \c\ $200 ($38 to $460) \c\ $20 ($4 to $45) \c\ and
and $1,700 ($170 to and $1,700 ($170 to $170 ($17 to $440) \d\
$4,500) \d\. $4,500) \d\.
----------------------------------------------------------------------------------------------------------------
\a\ Values rounded to two significant figures. The two benefits estimates are separated by the word ``and'' to
signify that they are two separate estimates. The estimates do not represent lower- and upper-bound estimates
and should not be summed.
\b\ We estimated changes in annual mean PM2.5 and PM2.5 -related benefits in 2024, but not 2021. As discussed in
Chapter 4, in 2021, the only control measure expected to be adopted for compliance in the regulatory control
alternatives is optimization of existing SCRs, and this measure will operate only during the ozone season. As
discussed in Chapter 3, NOX reductions in the ozone season provide minimal PM2.5 benefits since PM2.5 nitrate
concentrations, which result from conversion of NOX emissions to nitrate, are minimal during the warmer
temperatures during the ozone season. Conversely, the conversion of nitrates to PM2.5 is much greater in
cooler (non-ozone season) months, and thus it becomes worthwhile to estimate PM2.5 benefits from NOX
reductions in those months. In 2024, the presence of additional control measures that operate year-round and
other changes in market conditions as a result of the rule lead to notable NOX reductions in the winter
months.
\c\ Sum of ozone mortality estimated using the pooled Katsouyanni et al. (2009) and Zanobetti and Schwartz
(2008) short-term risk estimate and the Di et al. (2017) long-term mortality risk estimate. As PM-related
mortality quantified using risk estimates from the Di et al. (2017) and Turner et al. (2016) are within 5% of
one another, in the interest of clarity and simplicity, we present the results estimated using the risk
estimate from Di et al. (2017) alone.
\d\ Sum of ozone mortality estimated using the long-term risk estimate and the Di et al. (2017) long-term
mortality risk estimate. As PM-related mortality quantified using risk estimates from the Di et al. (2017) and
Turner et al. (2016) are within 5% of one another, in the interest of clarity and simplicity, we present the
results estimated using the risk estimate from Di et al. (2017) alone.
Table VIII.4--Estimated Discounted Economic Value of Avoided Ozone and PM2.5-Attributable Premature Mortality
and Illnesses for the Final Policy Scenario in 2024
[95% Confidence Interval; millions of 2016$] a b
----------------------------------------------------------------------------------------------------------------
More stringent Less stringent
Final rule alternative alternative \b\
----------------------------------------------------------------------------------------------------------------
3% Discount Rate................. $310 ($72 to $680) \c\ $530 ($130 to $1,100) $22 ($6 to $47) \c\ and
and $2,400 ($250 to \c\ and $4,200 ($450 to $190 ($20 to $490). \d\
$6,200) \d\. $11,000) \d\.
7% Discount Rate................. $280 ($48 to $640) \c\ $470 ($84 to $1,100) \c\ $20 ($4 to $45) \c\ and
and $2,100 ($210 to and $3,800 ($370 to $170 ($17 to $440). \d\
$5,600) \d\. $9,900) \d\.
----------------------------------------------------------------------------------------------------------------
\a\ Values rounded to two significant figures. The two benefits estimates are separated by the word ``and'' to
signify that they are two separate estimates. The estimates do not represent lower- and upper-bound estimates
and should not be summed.
\b\ No PM-attributable benefits accrue for this scenario.
\c\ Sum of ozone mortality estimated using the pooled Katsouyanni et al. (2009) and Zanobetti and Schwartz
(2008) short-term risk estimate and the Di et al. (2017) long-term mortality risk estimate. As PM-related
mortality quantified using risk estimates from the Di et al. (2017) and Turner et al. (2016) are within 5% of
one another, in the interest of clarity and simplicity, we present the results estimated using the risk
estimate from Di et al. (2017).
\d\ Sum of ozone mortality estimated using the long-term risk estimate and the Di et al. (2017) long-term
mortality risk estimate. PM-related mortality quantified using risk estimates from the Di et al. (2017) and
Turner et al. (2016) are within 5% of one another. In the interest of clarity and simplicity, we present the
results estimated using the risk estimate from Di et al. (2017) alone.
[[Page 23153]]
Table VIII.5 shows the estimated monetary value of the estimated
changes in CO2 emissions expected to occur over 2021-2040
for the final rule, the more-stringent alternative, and the less-
stringent alternative. EPA estimated the dollar value of the
CO2-related effects for each analysis year between 2021 and
2040 by applying the SC-CO2 estimates to the estimated
changes in CO2 emissions in the corresponding year under the
regulatory options.\229\ For additional information on climate
benefits, see Chapter 5 of the RIA.
---------------------------------------------------------------------------
\229\ Under the baseline, CO2 emissions are projected
to rise through 2025 and then taper off through 2035 and rise during
the rest of the period, reflecting increasing demand growth,
changing generation mix patterns and the impact of retiring
capacity. CO2 emissions reductions as a result of the
modeled policies follow a similar trend, which causes total climate
benefit estimates to oscillate over time.
Table VIII.5--Estimated Total Annual Global Climate Benefits (2021-40) from Changes in CO2 Emissions
[Millions of 2016$]
----------------------------------------------------------------------------------------------------------------
3% discount
Regulatory alternative Year 5% discount 3% discount 2.5% discount rate (95th
rate rate rate percentile)
----------------------------------------------------------------------------------------------------------------
Final........................... 2021 0 1 1 2
2022 46 143 206 434
2023 94 290 417 882
2024 102 311 444 946
2025 109 331 473 1,011
2030 128 373 525 1,146
2035 98 273 380 838
2040 127 340 467 1,043
More-Stringent Alternative...... 2021 1 2 3 7
2022 76 237 341 720
2023 156 480 689 1,460
2024 204 623 892 1,898
2025 254 771 1,100 2,350
2030 323 939 1,322 2,885
2035 316 878 1,222 2,698
2040 383 1,025 1,410 3,146
Less-Stringent Alternative...... 2021 0 1 1 3
2022 39 122 176 371
2023 80 248 356 754
2024 81 248 355 755
2025 82 248 353 755
2030 93 271 381 831
2035 73 203 282 623
2040 91 242 333 743
----------------------------------------------------------------------------------------------------------------
Note: We emphasize the importance and value of considering the benefits calculated using all four SC-CO2
estimates. As discussed in Chapter 5 of the RIA and in the Technical Support Document: Social Cost of Carbon,
Methane, and Nitrous Oxide Interim Estimates under Executive Order 13990 (IWG 2021), a consideration of
climate benefits calculated using discount rates below 3 percent, including 2 percent and lower, are also
warranted when discounting intergenerational impacts.
In Table VIII.6, EPA presents a summary of the benefits, costs, and
net benefits of this final action and the more and less stringent
alternatives for 2021. Table VIII.7 presents a summary of these impacts
for this final action and the more and less stringent alternatives for
2025. Table VIII.8 presents a summary of these impacts for this final
action and the more and less stringent alternatives for 2030.
Discussion of the non-monetized health and welfare benefits from these
pollutants is found in Chapter 5 of the RIA.
Table VIII.6--Benefits, Costs, and Net Benefits of the Final and More and Less Stringent Alternatives for 2021
for the U.S.
[Millions of 2016$] \a\ \b\ \c\
----------------------------------------------------------------------------------------------------------------
More stringent Less stringent
Final rule alternative alternative
----------------------------------------------------------------------------------------------------------------
Health Benefits (3%)........ $230 and $1,900........... $260 and $1,900........... $20 and $190.
Climate Benefits (3%)....... $1........................ $2........................ $1.
Total Benefits.............. $230 and $1,900........... $260 and $1,900........... $20 and $190.
Costs....................... $5........................ $5........................ $2
-----------------------------------------------------------------------------------
Net Benefits................ $230 and $1,900........... $260 and $1,900........... $20 and $190.
----------------------------------------------------------------------------------------------------------------
Health Benefits (7%)........ $200 and $1,700........... $200 and $1,700........... $20 and $170.
Climate Benefits (3%)....... $1........................ $2........................ $1.
Total Benefits.............. $200 and $1,700........... $200 and $1,700........... $20 and $170.
Costs....................... $5........................ $5........................ $2.
-----------------------------------------------------------------------------------
[[Page 23154]]
Net Benefits................ $200 and $1,700........... $200 and $1,700........... $20 and $170.
----------------------------------------------------------------------------------------------------------------
\a\ We focus results to provide a snapshot of costs and benefits in 2021, using the best available information
to approximate social costs and social benefits recognizing uncertainties and limitations in those estimates.
The two benefits estimates are separated by the word ``and'' to signify that they are two separate estimates.
The estimates do not represent lower- and upper-bound estimates and should not be summed.
\b\ Benefits include those related to public health and climate. The health benefits are associated with several
point estimates and are presented at real discount rates of 3 and 7 percent. Climate benefits are based on
changes (reductions) in CO2 emissions and are calculated using four different estimates of the social cost of
carbon (SC-CO2) (model average at 2.5 percent, 3 percent, and 5 percent discount rates; 95th percentile at 3
percent discount rate). For the presentational purposes of this table, we show the benefits associated with
the average SC-CO2 at a 3 percent discount rate, but the Agency does not have a single central SC-CO2 point
estimate. We emphasize the importance and value of considering the benefits calculated using all four SC-CO2
estimates; the additional benefit estimates range from $0.24 million to $2.31 million in 2021 for the
finalized option and are presented above in Table VIII.5. As discussed in Chapter 5, a consideration of
climate benefits calculated using discount rates below 3 percent, including 2 percent and lower, are also
warranted when discounting intergenerational impacts. The costs presented in this table are 2021 annual
estimates for each alternative analyzed.
\c\ Rows may not appear to add correctly due to rounding.
Table VIII.7--Benefits, Costs, and Net Benefits of the Final and More and Less Stringent Alternatives for 2025
for the U.S.
[Millions of 2016$] \a\ \b\ \c\
----------------------------------------------------------------------------------------------------------------
More stringent Less stringent
Final Rule alternative alternative
----------------------------------------------------------------------------------------------------------------
Health Benefits (3%)........ $320 and $2,400........... $540 and $4,200........... $20 and $200.
Climate Benefits (3%)....... $330...................... $770...................... $250.
Total Benefits.............. $650 and $2,700........... $1,300 and $5,000......... $270 and $450.
-----------------------------------------------------------------------------------
Costs....................... $2........................ $4........................ -$15.
----------------------------------------------------------------------------------------------------------------
Net Benefits................ $650 and $2,700........... $1,300 and $5,000......... $280 and $460.
Health Benefits (7%)........ $290 and $2,200........... $490 and $3,800........... $20 and $170.
Climate Benefits (3%)....... $330...................... $770...................... $250.
Total Benefits.............. $620 and $2,500........... $1,300 and $4,600......... $270 and $420.
-----------------------------------------------------------------------------------
Costs....................... $2........................ $4........................ -$15.
-----------------------------------------------------------------------------------
Net Benefits................ $620 and $2,500........... $1,300 and $4,500......... $280 and $430.
----------------------------------------------------------------------------------------------------------------
\a\ We focus results to provide a snapshot of costs and benefits in 2025, using the best available information
to approximate social costs and social benefits recognizing uncertainties and limitations in those estimates.
The two benefits estimates are separated by the word ``and'' to signify that they are two separate estimates.
The estimates do not represent lower- and upper-bound estimates and should not be summed.
\b\ Benefits include those related to public health and climate. The health benefits are associated with several
point estimates and are presented at real discount rates of 3 and 7 percent. Climate benefits are based on
changes (reductions) in CO2 emissions and are calculated using four different estimates of the social cost of
carbon (SC-CO2) (model average at 2.5 percent, 3 percent, and 5 percent discount rates; 95th percentile at 3
percent discount rate). For the presentational purposes of this table, we show the benefits associated with
the average SC-CO2 at a 3 percent discount rate, but the Agency does not have a single central SC-CO2 point
estimate. We emphasize the importance and value of considering the benefits calculated using all four SC-CO2
estimates; the additional benefit estimates range from $109 million to $1,011 million in 2025 for the
finalized option and are presented above in Table VIII.5. As discussed in Chapter 5, a consideration of
climate benefits calculated using discount rates below 3 percent, including 2 percent and lower, are also
warranted when discounting intergenerational impacts. The costs presented in this table are 2025 annual
estimates for each alternative analyzed.
\c\ Rows may not appear to add correctly due to rounding.
Table VIII.8--Benefits, Costs, and Net Benefits of the Final and More and Less Stringent Alternatives for 2030
for the U.S.
[Millions of 2016$] \a\ \b\ \c\
----------------------------------------------------------------------------------------------------------------
More stringent Less stringent
Final rule alternative alternative
----------------------------------------------------------------------------------------------------------------
Health Benefits (3%)............. $340 and $2,600.......... $590 and $4,600......... $30 and $210.
Climate Benefits (3%)............ $370..................... $940.................... $270.
Total Benefits................... $710 and $3,000.......... $1,500 and $5,500....... $300 and $480.
Costs............................ $64...................... $32..................... $67.
------------------------------------------------------------------------------
Net Benefits..................... $650 and $2,900.......... $1,500 and $5,500....... $230 and $410.
----------------------------------------------------------------------------------------------------------------
Health Benefits (7%)............. $330 and $2,500.......... $560 and $3,900......... $20 and $180.
Climate Benefits (3%)............ $370..................... $940.................... $270.
Total Benefits................... $700 and $2,900.......... $1500 and $4,800........ $290 and $450.
[[Page 23155]]
Costs............................ $64...................... $32..................... $67.
------------------------------------------------------------------------------
Net Benefits..................... $640 and $2,800.......... $1,500 and $4,800....... $220 and $380.
----------------------------------------------------------------------------------------------------------------
\a\ We focus results to provide a snapshot of costs and benefits in 2030, using the best available information
to approximate social costs and social benefits recognizing uncertainties and limitations in those estimates.
The two benefits estimates are separated by the word ``and'' to signify that they are two separate estimates.
The estimates do not represent lower- and upper-bound estimates and should not be summed.
\b\ Benefits include those related to public health and climate. The health benefits are associated with several
point estimates and are presented at real discount rates of 3 and 7 percent. Climate benefits are based on
changes (reductions) in CO2 emissions and are calculated using four different estimates of the social cost of
carbon (SC-CO2) (model average at 2.5 percent, 3 percent, and 5 percent discount rates; 95th percentile at 3
percent discount rate). For the presentational purposes of this table, we show the benefits associated with
the average SC-CO2 at a 3 percent discount rate, but the Agency does not have a single central SC-CO2 point
estimate. We emphasize the importance and value of considering the benefits calculated using all four SC-CO2
estimates; the additional benefit estimates range from $128 million to $1,146 million in 2030 for the
finalized option and are presented above in Table VIII.5. As discussed in Chapter 5, a consideration of
climate benefits calculated using discount rates below 3 percent, including 2 percent and lower, are also
warranted when discounting intergenerational impacts. The costs presented in this table are 2030 annual
estimates for each alternative analyzed.
\c\ Rows may not appear to add correctly due to rounding.
In addition, Table VIII.9 presents estimates of the present value
(PV) of the benefits and costs and the equivalent annualized value
(EAV), an estimate of the annualized value of the net benefits
consistent with the present value, over the twenty-year period of 2021
to 2040. The estimates of the PV and EAV are calculated using discount
rates of 3 and 7 percent as directed by OMB's Circular A-4 and are
presented in 2016 dollars discounted to 2021.
Table VIII.9--Estimated Health Benefits, Climate Benefits, Compliance Costs, and Net Benefits of the Final Rule,
2021 Through 2040
[Millions 2016$, discounted to 2021]
----------------------------------------------------------------------------------------------------------------
3% Discount rate 7% Discount rate
----------------------------------------------------------------------------------------------------------------
Present Value:
Health Benefits b................. $4,800 and $37,000................. $3,200 and $25,000.
Climate Benefits b................ $4,400............................. $4,400.
Compliance Costs c................ $370............................... $260.
-------------------------------------------------------------------------
Net Benefits...................... $8,800 and $41,000................. $7,300 and $29,000.
----------------------------------------------------------------------------------------------------------------
Equivalent Annualized Value:
Health Benefits................... $320 and $2,500.................... $300 and $2,400.
Climate Benefits.................. $290............................... $290.
Compliance Costs.................. $25................................ $25.
-------------------------------------------------------------------------
Net Benefits...................... $590 and $2,800.................... $570 and $2,700.
----------------------------------------------------------------------------------------------------------------
a Numbers may not sum due to independent rounding. The two benefits estimates are separated by the word ``and''
to signify that they are two separate estimates. The estimates do not represent lower- and upper-bound
estimates and should not be summed.
b The health benefits are associated with several point estimates and are presented at real discount rates of 3
and 7 percent. Climate benefits are based on changes (reductions) in CO2 emissions and are calculated using
four different estimates of the social cost of carbon (SC-CO2) (model average at 2.5 percent, 3 percent, and 5
percent discount rates; 95th percentile at 3 percent discount rate). For the presentational purposes of this
table, we show the climate benefits associated with the average SC-CO2 at a 3 percent discount rate, but the
Agency does not have a single central SC-CO2 point estimate. We emphasize the importance and value of
considering the benefits calculated using all four SC-CO2 estimates; the additional benefit estimates are
presented above in Table VIII.5. As discussed in Chapter 5 of the Regulatory Impact Analysis for the Final
Revised Cross-State Air Pollution Rule Update for the 2008 Ozone NAAQS, a consideration of climate benefits
calculated using discount rates below 3 percent, including 2 percent and lower, are also warranted when
discounting intergenerational impacts.
c To estimate these annualized costs, EPA uses a conventional and widely accepted approach that applies a
capital recovery factor (CRF) multiplier to capital investments and adds that to the annual incremental
operating expenses. Annual costs were calculated using a 4.25% real discount rate consistent with the rate
used in IPM's objective function for cost-minimization.
As shown in Table VIII.9, the PV of the health benefits of this
final rule, discounted at a 3-percent discount rate, is estimated to be
about $4,800 million and $37,000 million, with an EAV of about $320
million and $2,500 million. At a 7-percent discount rate, the PV of the
health benefits is estimated to be $3,200 million and $25,000 million,
with an EAV of about $300 million and $2,400 million. The two health
benefits estimates for each discount rate reflect alternative ozone and
PM2.5 mortality risk estimates. The PV of the climate
benefits of this final rule, discounted at a 3-percent rate, is
estimated to be about $4,400 million, with an EAV of about $290
million. The PV of the compliance costs, discounted at a 3-percent
rate, is estimated to be about $370 million, with an EAV of about $25
million. At a 7-percent discount rate, the PV of the compliance costs
is estimated to be about $260 million, with an EAV of about $25
million. See the RIA for additional discussion on costs, benefits, and
impacts.
[[Page 23156]]
IX. Summary of Changes to the Regulatory Text for the Federal
Implementation Plans and Trading Programs
This section describes the amendments to the regulatory text for
the federal implementation plans and the trading program regulations
related to the findings and remedy discussed elsewhere in this
document. The primary amendments to the CFR are revisions to the CSAPR
Update FIP provisions in 40 CFR part 52 and the creation of a new CSAPR
NOX Ozone Season Group 3 Trading Program in 40 CFR part 97,
subpart GGGGG. In addition, amendments are being made to the
regulations for the existing CSAPR NOX Ozone Season Group 2
Trading Program to address the transition of the sources in certain
states from the existing Group 2 trading program to the new Group 3
trading program. The existing regulations for the administrative appeal
procedures in 40 CFR part 78 are also being revised to reflect the
applicability of those procedures to decisions of the EPA Administrator
under the new Group 3 trading program.
In addition to these primary amendments, certain revisions are
being made to the regulations for the existing CSAPR trading programs
and the Texas SO2 Trading Program for conformity with the
proposed provisions of the new Group 3 trading program, as discussed in
section VII.C.8, and a cross-reference in the NOX SIP Call
regulations at 40 CFR 51.121 to the CSAPR Update FIP provisions is
being updated. This section also describes a small number of minor
additional proposed corrections and clarifications to the existing CFR
text for the CSAPR trading programs, the Texas SO2 Trading
Program, and the appeal procedures. EPA has included documents in the
docket for this final action showing all of the proposed revisions to
part 52, part 78, and subparts AAAAA through FFFFF of part 97 in
redline-strikeout format.
A. Amended CSAPR Update FIP Provisions
The CSAPR and CSAPR Update FIP provisions related to ozone season
NOX emissions are set forth in Sec. 52.38(b) as well as
sections of part 52 specific to each covered state. Amendments to Sec.
52.38(b)(1) expand the overall set of CSAPR trading programs addressing
ozone season NOX emissions to include the new Group 3
trading program in subpart GGGGG of part 97 in addition to the current
Group 1 and Group 2 trading programs in subparts BBBBB and EEEEE of
part 97, respectively, while amendments to Sec. 52.38(b)(2) identify
the states whose sources are required under the new or amended FIPs to
participate in each of the respective trading programs with regard to
their emissions occurring in particular years. More specifically, for
sources in the states that EPA finds have further good neighbor
obligations with respect to the 2008 ozone NAAQS under this rule, new
Sec. 52.38(b)(2)(iv) ends the requirement to participate in the Group
2 trading program after the 2020 control period and new Sec.
52.38(b)(2)(v) establishes the requirement to participate in the new
Group 3 trading program starting with the 2021 control period.
The changes in FIP requirements set forth in Sec. 52.38(b)(1) and
(2) are substantively replicated in the state-specific CFR sections for
each of the Group 3 states.\230\ In each such CFR section, the current
provision indicating that sources in the state are required to
participate in the CSAPR NOX Ozone Season Group 2 Trading
Program is revised to end that requirement with respect to emissions
after 2020 and to restore previously removed language indicating that
participation by those sources in the Group 2 trading program was only
a partial remedy for the state's underlying good neighbor
obligation.\231\ A further provision is added in each section
indicating that sources in the state are required to participate in the
CSAPR NOX Ozone Season Group 3 Trading Program with respect
to emissions starting in 2021. These added provisions do not contain
the partial-remedy language, consistent with EPA's determinations in
this rule that participation in the Group 3 trading program by a
state's EGUs constitutes a full remedy for each such state's underlying
good neighbor obligation. No changes are being made to the CFR sections
for the remaining states whose sources currently participate in the
Group 2 trading program. For these states, EPA's findings in this
action are consistent with and therefore affirm the previous removal of
language indicating that participation by the states' sources in the
Group 2 trading program was only a partial remedy for the states'
underlying good neighbor obligations.\232\
---------------------------------------------------------------------------
\230\ See Sec. Sec. 52.731(b) (Illinois), 52.789(b) (Indiana),
52.940(b) (Kentucky), 52.984(d) (Louisiana), 52.1084(b) (Maryland),
52.1186(e) (Michigan), 52.1584(e) (New Jersey), 52.1684(b) (New
York), 52.1882(b) (Ohio), 52.2040(b) (Pennsylvania), 52.2440(b)
(Virginia), and 52.2540(b) (West Virginia).
\231\ As discussed elsewhere in this document, EPA is correcting
the approval of Kentucky's SIP revision that previously led to
removal of the partial-remedy language for that state and instead
issuing a disapproval. For the remaining states, the partial-remedy
language was removed in the CSAPR Close-Out, which has been vacated.
\232\ See Sec. Sec. 52.54(b) (Alabama), 52.184 (Arkansas),
52.840(b) (Iowa), 52.882(b) (Kansas), 52.1284 (Mississippi),
52.1326(b) (Missouri), 52.1930 (Oklahoma), 52.2283(d) (Texas), and
52.2587(e) (Wisconsin).
---------------------------------------------------------------------------
As under the CSAPR and the CSAPR Update, states subject to the FIPs
under this rule have several options to revise their SIPs to modify or
replace those FIPs while continuing to use the Group 3 trading program
as the mechanism for meeting the states' good neighbor obligations. New
Sec. 52.38(b)(10), (11), and (12) establish options to replace
allowance allocations for the 2022 control period, to adopt an
abbreviated SIP revision for control periods in 2023 or later years,
and to adopt a full SIP revision for control periods in later years,
respectively. The first two options would modify certain provisions of
the trading program as applied to a state's sources but leave the FIP
in place, while the third option would replace the FIP with largely
identical SIP requirements for sources to participate in a state Group
3 trading program integrated with the federal Group 3 trading program.
These options closely replicate the analogous current options in Sec.
52.38(b)(7), (8), and (9) with regard to the Group 2 trading program.
Like the analogous options under the Group 2 trading program, the
abbreviated and full SIP options under the Group 3 trading program in
new Sec. 52.38(b)(11)(i) and (ii) and (b)(12)(i) and (ii) include
options for a state to expand applicability to include certain non-EGU
boilers and combustion turbines or smaller EGUs in the state that were
previously subject to the NOX Budget Trading Program. As
discussed in section VII.F.3 of this document, in conjunction with an
expansion to include the non-EGUs, the state would be able to also
issue an additional amount of allowances. Revised Sec.
52.38(b)(13)(ii) \233\ clarifies that a SIP revision requiring a
state's sources--EGUs or non-EGUs--to participate in the Group 3
trading program would satisfy the state's obligations to adopt control
measures for such sources under the NOX SIP Call.
---------------------------------------------------------------------------
\233\ Redesignated from Sec. 52.38(b)(10)(ii). The
corresponding cross-reference in the NOX SIP Call
regulations at Sec. 51.121(r)(2) is being updated to reflect the
redesignation.
---------------------------------------------------------------------------
The proposed option discussed in section VII.D.4 of this preamble
for a state whose EGUs currently are required to participate the Group
1 or Group 2 trading program to submit a full SIP revision requiring
its sources to instead participate in the Group 3 trading
[[Page 23157]]
program is not being finalized. The similar option at existing Sec.
52.38(b)(6) for Georgia to submit a full SIP revision requiring its
sources to participate in the Group 2 trading program is being removed,
along with the provisions governing the associated conversions of Group
1 allowances to Group 2 allowances at existing Sec. 97.526(c)(2) and
(3). Language addressing treatment of the converted Group 2 allowances
under the Group 2 trading program's assurance provisions is removed
from the definition of ``common designated representative's share'' at
Sec. 97.802.
The principal consequences of EPA's approval of a full SIP revision
under Sec. 52.38(b) are set forth in Sec. 52.38(13) and (14). Revised
Sec. 52.38(b)(13)(i) \234\ provides that--with exceptions indicated in
other provisions of Sec. 52.38(b)--full and unconditional approval of
a state's full SIP revision under new Sec. 52.38(b)(13) as correcting
the SIP's deficiency that was the basis for a given FIP would cause the
automatic withdrawal of the corresponding FIP requirements with regard
to the sources in the state (except sources in Indian country with the
borders of the state). New Sec. 52.38(b)(14)(i), which addresses the
Group 1 and Group 2 trading programs rather than the Group 3 trading
program, identifies specific amended provisions of the federal Group 1
and Group 2 trading programs that will continue to apply to sources in
a state Group 1 or Group 2 trading program implemented under a SIP
provision in order to provide programmatic consistency across sources
participating in the federal trading program and sources participating
in integrated state trading programs. Revised Sec.
52.38(b)(14)(ii),\235\ which addresses the Group 3 trading program as
well as the Group 1 and Group 2 trading programs, preserves EPA's
ability to complete allowance allocations for any control period where
such allocations were already underway when the SIP revision was
approved. Provisions indicating these consequences of approval of a
full SIP revision are also being added to the state-specific CFR
sections.
---------------------------------------------------------------------------
\234\ Redesignated from Sec. 52.38(b)(10)(i).
\235\ Redesignated from Sec. 52.38(b)(11)(i).
---------------------------------------------------------------------------
The transition between the Group 2 trading program and the Group 3
trading program, as well as the transition between the Group 1 trading
program and the Group 2 trading program or Group 3 trading program, is
addressed in Sec. 52.38(b)(14)(iii), which identifies several
allowance-related provisions of the federal trading program regulations
that continue to apply when the sources in a state transition to a
different federal trading program (and also continue to apply under an
integrated state trading program). New Sec. 52.38(b)(14)(iii)(A) and
revised Sec. 52.38(b)(14)(iii)(B),\236\ respectively, preserve EPA's
authority under new Sec. 97.526(c) to transfer Group 1 allowances
among accounts under common control and EPA's authority under revised
Sec. 97.526(d) \237\ to carry out conversions of Group 1 allowances to
Group 3 allowances in all compliance accounts (as well as all general
accounts) following the transition of a state's sources from the Group
2 trading program to the Group 3 trading program or following any SIP
revision, adding to the regulations' existing coverage with respect to
conversions of Group 1 allowances to Group 2 allowances. New Sec.
52.38(b)(14)(iii)(C) and (D), respectively, preserve EPA's analogous
authority under new Sec. 97.826(c) and (d) with respect to transfers
of Group 3 allowances among accounts and conversions of Group 2
allowances to Group 3 allowances in analogous circumstances. New Sec.
52.38(b)(14)(iii)(E) similarly preserves EPA's authority under new
Sec. 97.811(d), concerning the recall of Group 2 allowances allocated
to sources in Group 3 states for control periods after 2020. For
clarity, revisions to the state-specific CFR sections substantively
replicate the provisions of Sec. 52.38(b)(14)(iii) indicating that the
provisions of Sec. Sec. 97.826(c) and (d) and 97.811(d) continue to
apply following the transition of a state's sources from one trading
program to another and following approval of any SIP revision under
Sec. 52.38(b).
---------------------------------------------------------------------------
\236\ Redesignated from Sec. 52.38(b)(11)(ii).
\237\ Redesignated from Sec. 97.526(c).
---------------------------------------------------------------------------
New Sec. 52.38(b)(16)(ii) provides that, after the control period
in 2020, EPA will stop administering all Group 2 trading program
provisions established under SIP revisions previously approved for
Group 2 states whose sources are required to participate in the Group 3
trading program starting with the 2021 control period.\238\
---------------------------------------------------------------------------
\238\ The states with approved SIP revisions that are affected
under this provision are Indiana and New York.
---------------------------------------------------------------------------
Finally, new Sec. 52.38(b)(17) contains updatable lists of states
with approved SIP revisions to modify or replace the FIP requirements
for the Group 3 trading program, supplementing the analogous lists at
Sec. 52.38(b)(15) and (b)(16)(i) \239\ for the Group 1 and Group 2
trading programs.
---------------------------------------------------------------------------
\239\ Redesignated from Sec. 52.38(b)(12) and (13).
---------------------------------------------------------------------------
B. New CSAPR NOX Ozone Season Group 3 Trading Program Provisions
The Group 3 trading program regulations are being promulgated in a
new subpart GGGGG of part 97 (40 CFR 97.1001 through 97.1035).
Definitions, applicability, standard requirements, and other general
provisions are set forth in Sec. Sec. 97.1001 through 97.1008. State
budgets and allocations of allowances to individual units are addressed
in Sec. Sec. 97.1010 through 97.1012, and provisions concerning
designated representatives are covered in Sec. Sec. 97.1013 through
97.1018. Management and use of allowances, including accounts,
recordation, transfers, compliance, and banking, are addressed in
Sec. Sec. 97.1020 through 97.1028. Provisions for monitoring,
recordkeeping, and reporting are set forth in Sec. Sec. 97.1030
through 97.1035.
In general, the Group 3 trading program provisions parallel the
existing Group 2 trading program regulations in subpart EEEEE of part
97 but reflect the amounts of the budgets, new unit set-asides, Indian
country new unit set-asides, and variability limits established in this
proposed rulemaking, all of which are set forth in new Sec. 97.1010.
Under Sec. 97.1006(c)(3)(i) and (ii), the obligations to hold one
Group 3 allowance for each ton of emissions during the control period
and to comply with the Group 3 trading program's assurance provisions
begins with the 2021 control period, four years later than the
analogous start dates for the Group 2 trading program. The deadlines
for certifying monitoring systems under Sec. 97.1030(b) and for
beginning quarterly reporting under Sec. 97.1034(d)(1) similarly are
four years later than the analogous Group 2 trading program deadlines.
The allowance recordation deadlines under Sec. 97.1021 begin generally
four years later than the comparable recordation deadlines under the
Group 2 trading program but will reach the same schedule by July 1,
2023, which is the deadline for recordation of allowances for the
control period in 2026 under both trading programs. However, under new
Sec. 97.1021(m), EPA will not record any allocations of Group 3
allowances to any unit at a source until all deductions of Group 2
allowances previously allocated to the units at the source for control
periods after 2020 have been completed in accordance with new Sec.
97.811(d).
Like the analogous Group 2 regulations, the Group 3 regulations
allow a Group 3 allowance that was allocated to any account as a
replacement for deducted Group 1 or Group 2 allowances to be used for
all of
[[Page 23158]]
the purposes for which any other Group 3 allowance may be used. This is
accomplished by adding references to Sec. Sec. 97.526(d) \240\ and
97.826(d)--the sections under which the conversions are carried out--to
the definitions of ``allocate'' and ``CSAPR NOX Ozone Season
Group 3 allowance'' in Sec. 97.1002 as well as the default order for
deducting allowances for compliance purposes under Sec. 97.1024(c)(2).
---------------------------------------------------------------------------
\240\ Redesignated from Sec. 97.526(c).
---------------------------------------------------------------------------
As is currently allowed under the Group 2 trading program, in order
to facilitate NOX SIP Call compliance, a state is allowed to
expand applicability of the Group 3 trading program to include any
sources that previously participated in the NOX Budget
Trading Program, and the state can also issue an amount of allowances
beyond the state's Group 3 trading program budget if applicability is
expanded to include large non-EGU boilers and turbines. Again, like the
Group 2 trading program, the assurance provisions apply only to
emissions from the sources subject to the Group 3 trading program
before any such expansion. Accordingly, the assurance provisions in the
proposed Group 3 trading program regulations exclude any additional
units and allowances brought into the program through such a SIP
revision. Specifically, the definitions of ``base CSAPR NOX
Ozone Season Group 3 unit'' and ``base CSAPR NOX Ozone
Season Group 3 source'' in Sec. 97.1002 exclude units and sources that
would not have been included in the program under Sec. 97.1004, and
all provisions related to the Group 3 assurance provisions reference
only such ``base'' units and sources.
Sections 97.1016, 97.1018, and 97.1020(c)(1) and (5) reduce the
administrative compliance burden for sources in the transition from the
Group 2 trading program to the Group 3 trading program by providing
that certain one-time or periodic submissions made for purposes of
compliance with the Group 1 or Group 2 trading program will be
considered valid for purposes of the Group 3 trading program as well.
The submissions treated in this manner are a certificate of
representation or notice of delegation submitted by a designated
representative and an application for a general account or notice of
delegation submitted by an authorized account representative.
Finally, in conjunction with promulgation of the new Group 3
trading program, EPA is amending the administrative appeal provisions
in part 78 to make the procedures of that part applicable to
determinations of the EPA Administrator under the new Group 3 trading
program in the same manner as the procedures are applicable to similar
determinations under the other CSAPR trading programs and previous EPA
trading programs. These amendments add provisions for the Group 3
trading program to: The list in Sec. 78.1(a)(1) of CFR sections (and
analogous SIP revisions) generally giving rise to determinations
subject to the part 78 procedures; the list in Sec. 78.1(b) of certain
determinations that are expressly subject to those procedures; the list
in Sec. 78.3(a) of the types of persons who may seek review under the
procedures; the list in Sec. 78.3(b) of persons who must be served
regarding an appeal; the list in Sec. 78.3(c) of the required contents
of petitions for review; the list in Sec. 78.3(d) of matters for which
a right of review under part 78 is not provided; and the requirements
in Sec. 78.4(a)(1) as to who must sign a filing.
C. Transitional Provisions
As discussed in section VII.C.4., EPA is establishing four sets of
transitional provisions to address the transition of sources that
currently participate in the CSAPR NOX Ozone Season Group 2
Trading Program but that, starting with the 2021 control period, will
instead participate in the CSAPR NOX Ozone Season Group 3
Trading Program.
The first set of transitional provisions addresses the practical
issues associated with transitioning to a new trading program for the
2021 ozone season given that the effective date for the final action in
this rulemaking will fall after the start of the ozone season on May 1,
2021. In order to avoid application of the more stringent emission
reduction requirements proposed in this action retroactively before the
final rule's effective date, this set of provisions makes supplemental
allocations of Group 3 allowances to Group 3 sources in amounts
collectively equal to the differences in the respective states' budgets
under the Group 2 and Group 3 trading programs for the portion of the
2021 ozone season occurring before that date. The total amounts of
supplemental allowances for each state will be determined under new
Sec. 97.1010(d). The amount of the allocation to each Group 3 unit
will be the incremental amount that each unit would have received if
the supplemental allowances had been allocated as part of the
respective state's emissions budget for 2021, using the same allocation
methodology EPA applies to compute the allocations to existing units
from the emissions budget, as set forth in new Sec. 97.1011(a)(3). In
addition, to avoid retroactive application of the more stringent Group
3 assurance levels associated with the more stringent Group 3 budgets
before the final rule's effective date, the assurance levels for each
Group 3 state for the 2021 control period are increased by the product
of 1.21 times the total amount of the supplemental allocations to the
units in that state. The language implementing this provision is
included in new Sec. 97.1006(c)(2)(iii). New paragraph (2)(ii) of the
definition of ``common designated representative's assurance level'' in
Sec. 97.1002 includes language that accounts for the allocations of
supplemental allowances and the increment to the variability limit when
apportioning responsibility for any exceedance of a state's assurance
level among the owners and operators of the state's sources.
The second and third sets of transitional provisions under this
final rule address conversions of Group 2 allowances (and in some
instances Group 1 allowances) to Group 3 allowances for use in the new
Group 3 trading program. These provisions are implemented largely
through the addition of new Sec. 97.826(d) to the Group 2 trading
program regulations and revisions to the analogous conversion
provisions in the Group 1 trading program regulations. Most notably,
the one-time conversion of some banked 2017-2020 Group 2 allowances to
an initial bank of Group 3 allowances is implemented through the
provisions in new Sec. 97.826(d)(1). These provisions set forth the
schedule and mechanics for a one-time conversion of Group 2 allowances
that were allocated for the control periods in 2017 through 2020 and
that that remain banked following the completion of deductions for
compliance for the 2020 control period. The conversion will be applied
to all banked Group 2 allowances that as of the scheduled conversion
date are held in any compliance account for a source located in a Group
3 state and, if necessary, to allowances held in general accounts, but
will not be applied to allowances held in a compliance account for a
source located in a Group 2 state.
The provisions setting forth the procedures for conversion of
additional 2017-2020 Group 2 allowances to Group 3 allowances as a
safety valve mechanism are in Sec. 97.826(d)(2). Also, there is a
possibility under the Group 2 trading program that some new Group 2
allowances may be issued to a Group 3 source after the conversions to
Group 3 allowances have already taken place. Under Sec. 97.826(d)(3),
EPA may convert these allowances to Group 3 allowances as if they had
been issued and recorded
[[Page 23159]]
before the general conversion to create an initial Group 3 bank.
Owners and operators of Group 3 sources generally may not retain
banked Group 2 allowances in the compliance accounts for those sources
after the date when the various transitional provisions have been
carried out. If any such Group 2 allowances allocated for a control
period before 2021 remain in the compliance account for a Group 3
source after April 1, 2022, new Sec. 97.826(c) allows EPA to identify
or, if necessary, establish a general account controlled by the
source's owners and operators and to relocate the Group 3 allowances to
that account. If obligations to hold Group 2 allowances arise later,
such as an obligation to hold additional allowances because of excess
emissions, new Sec. 97.826(e) authorizes the use of Group 3 allowances
to satisfy such obligations. When held for this purpose, a single Group
3 allowance could satisfy the obligation to hold more than one Group 2
allowance, as though the conversion were reversed. (As an alternative
to using these provisions, the owners and operators of a Group 3 source
could use Group 2 allowances held in a general account.)
Parallel amendments are being made to the provisions addressing
conversions of Group 1 allowances to Group 2 allowances in Sec.
97.526. Specifically, amendments to Sec. 97.526(d)(1)(iv) \241\ allow
EPA to identify or, if necessary, establish a general account
controlled by the source's owners and operators and to relocate to that
new account any unclaimed Group 2 allowances resulting from the
creation of an initial bank of Group 2 allowances during the first
control period under the Group 2 trading program. In addition, there is
a possibility under the Group 1 trading program that some new Group 1
allowances may be issued to a Group 3 source after the conversions of
Group 1 to Group 2 allowances and then Group 2 to Group 3 allowances
have already taken place. Under new Sec. 97.526(d)(2)(ii), EPA may
convert these Group 1 allowances to Group 3 allowances as if they had
been issued and recorded before the general conversions. New Sec.
97.526(e)(2) authorizes the use of Group 3 allowances to satisfy
obligations to hold Group 1 allowances that may arise later, such as an
obligation to hold additional allowances because of excess emissions.
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\241\ Redesignated from Sec. 97.526(c)(4).
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The fourth set of transitional provisions under this final rule,
which address the recall of Group 2 allowances previously allocated for
control periods after 2020 to Group 3 sources, is implemented at new
Sec. 97.811(d). The scope of the allowance surrender requirements and
assignment of responsibility for compliance are addressed in Sec.
97.811(d)(1) and (2). The procedures EPA will follow to deduct
allowances from sources' compliance accounts (or in exceptional
circumstances, from general accounts) are set forth in Sec.
97.811(d)(3) and (4). Clean Air Act violations for noncompliance with
the surrender requirements are addressed at Sec. 97.811(d)(5).
Provisions addressing recordation and notifications are included at
Sec. 97.811(d)(6) and (7).
Finally, in Sec. 78.1(b)(14) and (17), determinations of the EPA
Administrator under Sec. Sec. 97.526(d) and 97.826(d) regarding
conversions of Group 1 and Group 2 allowances to Group 3 allowances and
determinations of the EPA Administrator under Sec. 97.811(d) regarding
the recall of Group 2 allowances previously allocated to Group 3 units
for control periods after 2020 are added to the list of determinations
expressly subject to the part 78 procedures.
D. Conforming Revisions, Corrections, and Clarifications to Existing
Regulations
As discussed in section VII.C.8, EPA is finalizing several
amendments to the existing CSAPR trading programs and the Texas
SO2 Trading Program for conformity with the analogous
provisions of the new Group 3 trading program.
The amendments providing for EPA to record allocations to existing
units three instead of four years in advance of the control period at
issue, starting with allocations for the 2025 control periods, are
implemented in the existing CSAPR trading programs through revisions to
Sec. Sec. 97.421(f), 97.521(f), 97.621(f), 97.721(f), and 97.821(f).
The amendments switching from a two-round process to a one-round
process for allocating allowances from new unit set-asides and Indian
country new unit set-asides starting with the 2021 control periods are
implemented in the existing CSAPR trading programs through revisions to
Sec. Sec. 97.411(b), 97.511(b), 97.611(b), 97.711(b), and 97.811(b)
and 97.412, 97.512, 97.612, 97.712, and 97.812. The changes to the
deadlines for EPA to record the allocations determined through the
proposed one-round process are implemented through revisions to
Sec. Sec. 97.421(g) through (j), 97.521(g) through (j), 97.621(g)
through (j), 97.721(g) through (j), and 97.821(g) through (j). The
necessary coordinating revisions to dates included in the definitions
of ``allowance transfer deadline'' and ``common designated
representative'' are made in Sec. Sec. 97.402, 97.502, 97.602, 97.702,
and 97.802. The simplifications of the assurance provisions made
possible by the changes in the new unit set-aside provisions are
implemented through revisions to Sec. Sec. 97.425(b), 97.525(b),
97.625(b), 97.725(b), and 97.825(b) as well as simplification of
related definitions (``common designated representative's assurance
level'') and removal of disused definitions (``allowable NOX
emission rate'', ``allowable SO2 emission rate'', ``coal-
derived fuel'', and ``heat rate'') in Sec. Sec. 97.402, 97.502,
97.602, 97.702, and 97.802. The related extensions to the deadlines for
states with approved SIP revisions to submit to EPA any state-
determined allowance allocations are implemented through revisions to
Sec. 52.38(a)(4) and (5) and (b)(4), (5), (8) and (9) and Sec.
52.39(e), (f), (h), and (i).
As discussed in section VII.C.8., EPA is replicating several of the
deadline revisions proposed for the existing CSAPR trading programs in
the similarly structured Texas SO2 Trading Program in order
to minimize unnecessary differences between the regulations for the
programs. These revisions to the Texas SO2 Trading Program
regulations are implemented at Sec. 97.902 (definitions of ``allowance
transfer deadline'' and ``common designated representative''),
97.921(b) and (c), and 97.925(b).
The amendments authorizing EPA to reallocate any incorrectly
allocated allowances through the new unit set-aside procedures for a
control period after the correction is identified, instead of the new
unit set-aside procedures for the control period for which the
incorrect allocations were originally made, are implemented in
Sec. Sec. 97.411(c)(5), 97.511(c)(5), 97.611(c)(5), 97.711(c)(5), and
97.811(c)(5).
The amendments correcting the amounts of allowances in the new unit
set-asides to address rounding differences from earlier amendments and
removing the amounts of budgets, new unit set-asides, and variability
limits that no longer apply or that would have applied only in the
event of an optional SIP revision are implemented in Sec. Sec. 97.410,
97.510, 97.610, 97.710, and 97.810.
The amendments addressing the transfer of allowances from
compliance accounts to general accounts in instances where the sources
in a state are no longer covered by a particular CSAPR trading program
are
[[Page 23160]]
implemented in new Sec. Sec. 97.426(c), 97.526(c), 97.626(c),
97.726(c), and 97.826(c).
New Sec. 52.38(a)(7)(i) and (b)(14)(i) and Sec. 52.39(k)(1)
identify the amended federal trading program provisions that EPA will
implement in the existing state CSAPR trading programs to ensure
consistent program implementation across all sources, whether the
sources participate in the integrated trading programs under FIPs or
approved SIP revisions.
EPA is making additional, non-substantive corrections and
clarifications in various provisions of the existing CSAPR trading
programs in subparts AAAAA through EEEEE of part 97, the Texas
SO2 Trading Program in subpart FFFFF of part 97, and the
appeal procedures in part 78. The corrections and clarifications
address minor typographical, wording, and formatting errors or update
existing cross-references to reflect the new and redesignated
provisions in Sec. Sec. 52.38 and 52.39. In the NOX SIP
Call regulations at 40 CFR 51.121, a cross-reference to the CSAPR
Update FIP provisions is being updated. In addition, the proposed
corrections and clarifications include the following items:
Reorganization of the definitions of ``common designated
representative's assurance level'' and ``common designated
representative's share'' in Sec. Sec. 97.402, 97.502, 97.602, 97.702,
and 97.802. The revisions clarify the definitions by relocating certain
language between them and eliminating provisions that are no longer
necessary because of the revisions to the new unit set-aside allocation
procedures and the assurance provisions.
Addition of a definition of ``CSAPR NOX Ozone Season Group
3 allowance'' in Sec. Sec. 97.502 and 97.802 and addition of
definitions of ``CSAPR NOX Ozone Season Group 3 Trading Program'' and/
or ``nitrogen oxides'' in Sec. Sec. 97.402, 97.502, 97.602, 97.702,
97.802, and 97.902. The new definitions of terms for the Group 3
allowances and trading program are needed for other provisions that
reference the Group 3 allowances or trading program, while the
definition of nitrogen oxides corrects a current omission. Nitrogen
oxides are defined as ``all oxides of nitrogen except nitrous oxide
(N2O), expressed on an equivalent molecular weight basis as
nitrogen dioxide (NO2)'', which is consistent both with the
definitions used in other EPA programs (see, e.g., 40 CFR 51.50,
51.121(a), and 51.122(a)) and with historical practice in the existing
CSAPR programs.
Revisions to the descriptions of units and control periods
eligible for allocations of allowances from the new unit set-asides and
Indian country new unit set-asides in Sec. Sec. 97.412, 97.512,
97.612, 97.712, and 97.812. The revisions do not substantively alter
which units may receive allocations or the amounts of those
allocations. Rather, the revisions more clearly express the existing
requirements of the allocation procedures, under which EPA calculates a
given unit's allocations considering only the unit's emissions that
occur after its deadline for monitor certification (because any earlier
emissions would not have occurred in a ``control period'' for that
unit).
Revisions to the provisions for identification of specific
allowances to be deducted for compliance in Sec. Sec. 97.424(c),
97.524(c), 97.624(c), 97.724(c), 97.824(c), and 97.924(c). The
revisions clarify by referencing designated representatives instead of
authorized account representatives, consistent with the existing
requirement that the authorized account representative for a source's
compliance account must be the designated representative for the
source.
Addition of references in part 78 to the Texas SO2 Trading
Program. The added references are analogous to the references that are
being added to part 78 for the new Group 3 trading program. The
applicability of the appeal procedures in part 78 to decisions of the
EPA Administrator under the Texas SO2 Trading Program has
already been established in the provisions for that trading program at
Sec. 97.908, but the addition of references in part 78 clarifies the
regulations.
X. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
(``E.O.'') can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This final action is an economically significant regulatory action
and was submitted to the Office of Management and Budget (OMB) for
review. Any changes made in response to OMB recommendations have been
documented in the docket. EPA prepared an analysis of the potential
costs and benefits associated with this final action. This analysis,
which is contained in the ``Regulatory Impact Analysis for the Final
Revised Cross-State Air Pollution Rule Update for the 2008 Ozone
NAAQS'' [EPA-452-R-21-002], is available in the docket and is briefly
summarized in section VIII of this preamble.
B. Paperwork Reduction Act (PRA)
This final action will not impose any new information collection
burden under the PRA. This final action relocates certain existing
information collection requirements for certain sources from subpart
EEEEE of 40 CFR part 97 to a new subpart GGGGG of 40 CFR part 97, but
neither changes the inventory of sources subject to information
collection requirements nor changes any existing information collection
requirements for any source. OMB has previously approved the
information collection activities contained in the existing regulations
and has assigned OMB control number 2060-0667.
C. Regulatory Flexibility Act (RFA)
I certify that this final action will not have a significant
economic impact on a substantial number of small entities under the
RFA. The small entities subject to the requirements of this final
action are small businesses, small organizations, and small
governmental jurisdictions.
EPA has lessened the impacts for small entities by excluding all
units serving generators with capacities equal to or smaller than 25
MWe. This exclusion, in addition to the exemptions for cogeneration
units and solid waste incineration units, eliminates the burden of
higher costs for a substantial number of small entities located in the
12 states for which EPA is issuing FIPs. Within these states, EPA
identified seven potentially affected EGUs that are owned by two
entities that met the Small Business Administration's criteria for
identifying small entities. Neither of these entities is projected to
experience compliance costs that exceed 1 percent of generation
revenues in 2021. EPA estimated the total net compliance cost to these
two small entities to be approximately $0.04 million (in $2016).
EPA has concluded that there will be no significant economic impact
on a substantial number of small entities (no SISNOSE) for this final
rule. Details of this analysis are presented in the RIA, which is in
the public docket.
D. Unfunded Mandates Reform Act (UMRA)
This final action does not contain an unfunded mandate of $100
million or more as described in UMRA, 2 U.S.C. 1531-1538, and will not
significantly or uniquely affect small governments. Note that EPA
expects the final rule to potentially have an impact on only one
[[Page 23161]]
category of government-owned entities (municipality-owned entities).
This analysis does not examine potential indirect economic impacts
associated with the final rule, such as employment effects in
industries providing fuel and pollution control equipment, or the
potential effects of electricity price increases on government
entities. For more information on the estimated impact on government
entities, refer to the RIA, which is in the public docket.
E. Executive Order 13132: Federalism
This final action does not have federalism implications. As
finalized, this final action will not have substantial direct effects
on the states, on the relationship between the national government and
the states, or on the distribution of power and responsibilities among
the various levels of government.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action has tribal implications. However, it will neither
impose substantial direct compliance costs on federally recognized
tribal governments, nor preempt tribal law.
This final action implements EGU NOX ozone season
emission reductions in 12 eastern states (Illinois, Indiana, Kentucky,
Louisiana, Maryland, Michigan, New Jersey, New York, Ohio,
Pennsylvania, Virginia, and West Virginia.). However, at this time,
none of the existing or planned EGUs affected by this rule are owned by
tribes or located in Indian country. This action may have tribal
implications if a new affected EGU is built in Indian country.
Additionally, tribes have a vested interest in how this rule affects
air quality.
In developing the CSAPR, which was promulgated on July 6, 2011, to
address interstate transport of ozone pollution under the 1997 ozone
NAAQS, EPA consulted with tribal officials under the EPA Policy on
Consultation and Coordination with Indian Tribes early in the process
of developing that regulation to allow for meaningful and timely tribal
input into its development. A summary of that consultation is provided
at 76 FR 48346.
In that rulemaking, EPA received comments from several tribal
commenters regarding the availability of the CSAPR allowance
allocations to new units in Indian country. EPA responded to these
comments by instituting Indian country new unit set-asides in the final
CSAPR. In order to protect tribal sovereignty, these set-asides are
managed and distributed by the federal government regardless of whether
the CSAPR in the adjoining or surrounding state is implemented through
a FIP or SIP. While there are no existing affected EGUs in Indian
country covered by this action, the Indian country set-asides will
ensure that any future new units built in Indian country will be able
to obtain the necessary allowances. This rule maintains the Indian
country new unit set-aside and adjusts the amounts of allowances in
each set-aside according to the same methodology of the CSAPR and the
CSAPR Update.
EPA consulted with tribal officials early in the process of
developing this rule in accordance with the EPA Policy on Consultation
and Coordination with Indian Tribes (May 2011). Before proposing this
rule, EPA informed tribes of the rule's development on a National
Tribal Air Association (NTAA) monthly air policy conference call that
took place on June 25, 2020. In a separate NTAA call on October 20,
2020, EPA gave an overview of the proposed rule. In order to permit
tribes to have meaningful and timely input into the development of the
final rule, EPA offered consultation to tribal leaders. On October 30,
2020, EPA sent out letters via electronic mail to all 574 federally
recognized tribes informing them of this action, offering consultation
and requesting comment on this rulemaking. Courtesy copies of the
letters were also sent via email to tribal air staff and tribal
environmental professionals. EPA also sent courtesy copies to EPA's
Regional Tribal Air Coordinators for notification to their tribes. To
further provide tribes with the resources that they might require to
engage in effective consultation, EPA also held an informational
webinar on the rule on November 9, 2020. EPA did not receive any
requests for consultation on this rule.
Comment: As part of the public comment process, EPA received
comments from the National Tribal Air Association (NTAA), the Keweenaw
Bay Indian Community, the Leech Lake Band of Ojibwe, and the Ute
Mountain Ute Tribe Environmental Programs Department. Commenters felt
that EPA has not complied with its tribal consultation obligations.
Response: EPA recognizes the critical importance of engagement with
tribes and believes that it has provided tribes appropriate opportunity
to provide input on this rule through NTAA calls, an informational
webinar, and requests for consultation. EPA will continue to engage
with tribes as part of the outreach strategy for this final rule.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it implements a previously promulgated
health-based federal standard. This action's health and risk
assessments are contained in Chapter 5 of the accompanying RIA. EPA
believes that the ozone reductions, PM2.5 reductions, and
CO2 reductions from this final rule will further improve
children's health.
Comment: EPA received comment contending that EPA has failed to
identify and assess the health risks to children from its decision to
authorize continued interstate ozone pollution that contributes to
violations of the 2008 and 2015 ozone air quality standards in downwind
states. The commenter states that EPA has consistently recognized that
children are disproportionately vulnerable to the environmental health
risks of ozone and asserts that by authorizing continued pollution that
will harm children, EPA has failed to ensure that its policies,
programs, activities, and standards address these risks. The commenter
claims that this rule is subject to section 2-202 of the Executive
Order, which provides that ``covered regulatory action'' means ``any
substantive action in a rulemaking'' that is ``likely to result in a
rule that may'' (1) ``adversely affect in a material way . . . the
environment, public health or safety, or State, local, or tribal
governments or communities'' and (2) ``concern an environmental health
risk or safety risk that an agency has reason to believe may
disproportionately affect children.'' The commenter asserts that ozone
pollution above the air quality standards EPA has adopted indisputably
is a health risk that disproportionately affects children.
Response: According to section 2-202, a rulemaking is a ``covered
regulatory action'' and thus subject to the Executive Order if the
action is economically significant under Executive Order 12866 and
involves an environmental health risk or safety risk that the agency
has reason to believe may disproportionately affect children. While OMB
has determined that this rulemaking is economically significant for
purposes of Executive Order 12866,
[[Page 23162]]
the rulemaking does not meet the second criterion. The health-based
standard at issue in this action has already been set in a prior
rulemaking to promulgate the 2008 ozone NAAQS, wherein EPA did consider
the effects of the standard under the Executive Order. See 73 FR 16436,
16506-07. Therefore, this action does not concern an environmental
health or safety risk because EPA is simply evaluating how to implement
an existing health standard.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution, or use of energy. EPA has prepared a Statement of Energy
Effects for the regulatory control alternative as follows. The Agency
estimates a much less than 1 percent change in retail electricity
prices on average across the contiguous U.S. in 2021, and a much less
than 1 percent reduction in coal-fired electricity generation in 2021
as a result of this rule. EPA projects that utility power sector
delivered natural gas prices will change by less than 1 percent in
2021. For more information on the estimated energy effects, refer to
the RIA, which is in the public docket.
I. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Because of the need to meet the court-ordered signature deadline on
this action, EPA did not have sufficient time to undertake a definitive
assessment of the impacts of this final rule on minority populations,
low-income populations and/or indigenous peoples, as specified in
Executive Order 12898 (59 FR 7629, February 16, 1994). EPA does not
have information at this time that would suggest that this rule has the
potential to result in disproportionately high and adverse human health
or environmental impacts on vulnerable populations or overburdened
communities; however, EPA is also not currently in a position to make a
determination to this effect. In this section, EPA outlines the
potential impacts of this rule and describes the analytical framework
the agency intends to use to evaluate potential environmental justice
concerns in future rulemakings.
Ozone pollution from power plants has both local and regional
components: Part of the pollution in a given location--even in
locations near emission sources--is due to emissions from nearby
sources and part is due to emissions that are transported in the
atmosphere over large distances and mix with emissions from other
sources. Undertaken to implement CAA section 110(a)(2)(D), this action
addresses that ``significant'' portion of contribution from upwind
states to a nonattainment or maintenance receptor. As a result, the
rule will reduce exposures to ozone in areas that are struggling to
attain or maintain the 2008 ozone NAAQS. By addressing maintenance
receptors, this rule reduces the likelihood that areas close to the
level of the standard will exceed the current health-based standards in
the future. The rule will result in incidental reductions in ozone in
other areas, as well as reducing emissions of PM and other pollutants
from EGUs that have both localized and distant impacts.
At the same time, this action alone cannot fully resolve any
disproportionate impacts of ozone levels in downwind areas. Rather, it
eliminates upwind state ``significant contribution,'' thus ameliorating
those conditions and improving downwind air quality. While this rule is
expected to reduce interstate ozone transport and thus to yield overall
health and environmental benefits, further analysis would be required
to assess potential environmental justice concerns--including, for
example, whether the downwind air quality benefits are equitably
distributed.\242\
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\242\ A potential environmental justice concern is ``the actual
or potential lack of fair treatment or meaningful involvement of
minority populations, low-income populations, tribes, and indigenous
peoples in the development, implementation and enforcement of
environmental laws, regulations and policies.'' EPA, Guidance on
Considering Environmental Justice During the Development of
Regulatory Actions (May 2015).
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It is important to note that nothing in this final rule allows
sources to violate their title V permit or any other federal, state, or
local emissions or air quality requirements. Moreover, CAA section
110(a)(2)(D) addresses transport of criteria pollutants between states
and is only one of many provisions of the CAA that provide EPA, states,
and local governments with authorities to reduce exposure to ozone in
communities. These legal authorities work together to reduce exposure
to these pollutants in communities, including for minority, low-income,
and tribal populations, and provide substantial health benefits to both
the general public and sensitive sub-populations.
EPA informed tribal communities of its development of this rule on
a National Tribal Air Association--EPA air policy conference call on
June 25, 2020. EPA also held two informational webinars for tribes and
environmental justice communities on November 9, 2020 and November 10,
2020, respectively, where EPA presented an overview of the rule and
provided tribes and communities with resources that they might require
to engage in the public comment process.
While a court-ordered deadline precludes a fulsome environmental
justice analysis for this rulemaking, this section describes a
framework for assessing potential environmental justice concerns for
future rulemakings based on EPA's Technical Guidance for Assessing
Environmental Justice in Regulatory Analysis (2016). Going forward, EPA
is committed to conducting environmental justice analysis for
rulemakings based on a framework similar to what is outlined here, in
addition to investigating ways to further weave environmental justice
into the fabric of the rulemaking process including through enhanced
meaningful engagement with environmental justice communities.\243\
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\243\ While not the focus of this discussion, meaningful
involvement intersects with analytic considerations in several
important respects. The use of plain language to explain the
regulatory analysis can make it easier for the public to understand
what was done and submit comments. Requests for information on
unique exposure pathways or end points of concern, as well as data
sources, early in the regulatory process can improve the analysis of
potential EJ concerns. Specific aspects of the regulatory design may
also make it easier to monitor and share information with the public
once the rulemaking is in place.
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When assessing the potential for disproportionately high and
adverse health or environmental impacts of regulatory actions on
minority populations, low-income populations, tribes, and/or indigenous
peoples, EPA strives to answer three broad questions: (1) Is there
evidence of potential environmental justice concerns in the baseline
(the state of the world absent the regulatory action)? Assessing the
baseline will allow EPA to determine whether pre-existing disparities
are associated with the pollutant(s) under consideration (e.g., if the
effects of the pollutant(s) are more concentrated in some population
groups). (2) Is there evidence of potential environmental justice
concerns for the regulatory option(s) under consideration?
Specifically, how are the pollutant(s) and its effects distributed for
the regulatory options under consideration?
[[Page 23163]]
And, (3) do the regulatory option(s) under consideration exacerbate or
mitigate environmental justice concerns relative to the baseline? \244\
It is not always possible to quantitatively assess all three questions.
For instance, in some regulatory contexts it may only be possible to
quantitatively characterize the baseline due to data and modeling
limitations.
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\244\ Differential impacts on population groups of concern can
only be identified in relation to a comparison group. A comparison
group can be defined in multiple ways, for instance in terms of
individuals with similar socioeconomic characteristics located at a
broader geographic level or with different socioeconomic
characteristics within an affected area. The goal is to select a
comparison group that allows one to identify how the effects of the
regulation vary by race, ethnicity, and income separate from other
systematic differences across groups or geographic areas.
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A good starting point for assessing the need for a more detailed
environmental justice analysis is to review the available evidence from
the published literature and from community input on what factors may
make population groups of concern more vulnerable to adverse effects
(e.g., unique pathways; cumulative exposure from multiple stressors;
behavioral, biological, or environmental factors that increase
susceptibility). It is also important to evaluate the data and methods
available for conducting an environmental justice analysis. A
screening-level analysis is recommended to help characterize population
groups of concern in the context of a specific rulemaking, as well as
identify potential comparison groups, data, methods and analytical
needs.
Current EPA guidance does not prescribe or recommend a specific
approach or methodology for conducting screening-level analysis,\245\
though a key consideration is consistency with the assumptions
underlying other parts of the regulatory analysis when evaluating the
baseline and regulatory option(s). Even without a more in-depth
analysis of potential environmental justice concerns, the screening-
level analysis can be useful for describing the proximity of regulated
sources to minority populations, low-income populations, and/or
indigenous peoples; the number of sources that may be impacting
population groups of concern; the nature and amounts of pollutant(s)
that may impact population groups of concern; unique exposure pathways
associated with the regulated pollutant(s); stakeholder concern(s)
about the potential regulatory action; and any history of environmental
justice concerns associated with the pollutant(s) being regulated.
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\245\ See EPA, Guidelines for Preparing Economic Analyses (Dec.
2010, rev. May 2014), available at https://www.epa.gov/sites/production/files/2017-08/documents/ee-0568-50.pdf; EPA, Guidance on
Considering Environmental Justice During the Development of
Regulatory Actions (May 2015), available at https://www.epa.gov/sites/production/files/2015-06/documents/considering-ej-in-rulemaking-guide-final.pdf; EPA, Technical Guidance for Assessing
Environmental Justice in Regulatory Analysis (June 2016) available
at https://www.epa.gov/sites/production/files/2016-06/documents/ejtg_5_6_16_v5.1.pdf.
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In cases where further investigation of potential environmental
justice concerns is warranted, a variety of techniques are available.
These techniques are briefly described below, and EPA refers the reader
to EPA's Technical Guidance for Assessing Environmental Justice in
Regulatory Analysis (2016) for more detailed discussion of each
approach including their advantages and limitations. The approach taken
to conduct environmental justice analysis is informed by the
quantitative information generated for the risk and benefits analysis
conducted in support of the rulemaking and the analytic opportunities
that provides. Building in consideration of environmental justice at
the early stages of the analysis--for instance, to ensure that unique
exposure pathways are adequately characterized--thus is of paramount
importance. When data allow, it is also informative to characterize the
distribution of risks, exposures, or outcomes within each population
group, not just average impacts, with particular attention paid to the
characteristics of populations at the high end of the distribution.
Qualitative approaches may also prove a useful complement to
quantitative assessment in cases where either data are not available at
a sufficiently disaggregated level to conduct distributional analysis
or when they offer insight into considerations omitted from
quantitative assessment (e.g., how environmental quality interacts with
people's values, behaviors, motivations, or cultures).
Two of the most straightforward analytic approaches to
environmental justice analysis are summary statistics and visual
displays. Summary statistics can be used to characterize the
distribution of health and environmental impacts (e.g., county- or
census-tract level average) for population groups of concern relative
to an appropriate comparison group (e.g., national or state average).
Visual displays such as maps can communicate how the geographic
distribution of pollution overlaps with that of population groups of
concern and therefore can identify potential areas where additional
outreach, data collection, or monitoring may be warranted.
More sophisticated analytic approaches may also be possible when
data allow. Proximity-based analysis uses the distance to polluting
source(s) as a proxy for risk or exposure. Specifically, it compares
the demographic and socioeconomic characteristics of population groups
relatively close (e.g., within a certain distance or census tract) to
the source of pollution to those living further away. Simple
statistical tests are then used identify whether, on average, there are
statistically discernible differences between those living close to
versus further away from the polluting sources. The validity of the
proximity-based approach rests on the appropriateness of several
assumptions, such as that the effects of the pollutant(s) occur only
within the designated area and that all individuals residing close by
are equivalently exposed. When data are available, it may also be
possible to conduct risk or exposure analysis to evaluate potential
environmental justice concerns. Emissions or other ambient
concentration data can be combined with fate and transport modeling. In
cases where disaggregated information is available on the types of
activities that result in differences in exposure across population
groups of concern, it may be possible to characterize differences in
health effects due to the regulatory action. It also may be possible to
combine exposure data with information on differences in risk across
population groups.
K. Congressional Review Act
This action is subject to the CRA, and EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is a ``major rule'' as defined by 5
U.S.C. 804(2), because OMB has determined that this rule is
``economically significant.''
L. Determinations Under CAA Section 307(b)(1) and (d)
Section 307(b)(1) of the CAA indicates which federal courts of
appeals are the proper forum for petitions for review of final actions
by EPA under the CAA. This section provides, in part, that petitions
for review must be filed in the Court of Appeals for the District of
Columbia Circuit for: (i) ``Any nationally applicable regulations
promulgated, or final action taken, by the Administrator,'' or (ii)
locally or regionally applicable final action if ``such action is based
on a determination of nationwide scope or effect and if in taking such
action the Administrator finds and publishes that such action is based
on such a
[[Page 23164]]
determination.'' For locally or regionally applicable final actions,
the CAA reserves to EPA complete discretion whether to invoke the
exception in (ii).
This final action is ``nationally applicable'' within the meaning
of CAA section 307(b)(1). In the alternative, the Administrator is
exercising the complete discretion afforded to her under the CAA to
make and publish a finding that this action is based on a determination
of ``nationwide scope or effect'' within the meaning of CAA section
307(b)(1).\246\ This final action implements the good neighbor
provision in 21 states, 6 EPA regions, and 6 federal appellate court
circuits. The final action applies a uniform, nationwide analytical
method and interpretation of CAA section 110(a)(2)(D)(i)(I) across
these states in a single final action, and the final action is based on
a common core of legal, technical, and policy determinations.\247\ The
rule is based on a common core of statutory and case law analysis,
factual findings, and policy determinations concerning the transport of
ozone-precursor pollutants from the different states subject to it, as
well as the impacts of those pollutants and the impacts of options to
address those pollutants in yet other states. In particular, in this
action, EPA is applying its 4-step analytic framework to implement the
good neighbor provision across these states, using a consistent set of
policy and analytical determinations. These determinations include
findings identifying downwind nonattainment and maintenance receptors
and upwind states linked to those receptors; the use of a common multi-
factor test to determine which upwind-state contributions to
nonattainment and maintenance receptors are ``significant'' and must be
eliminated; and the promulgation of emissions budgets, an integrated
interstate emissions trading program, and a regionally consistent set
of other compliance requirements for EGUs across twelve states to
implement the necessary emission reductions.
---------------------------------------------------------------------------
\246\ In deciding whether to invoke the exception by making and
publishing a finding that this final action is based on a
determination of nationwide scope or effect, the Administrator has
also taken into account a number of policy considerations, including
her judgment balancing the benefit of obtaining the D.C. Circuit's
authoritative centralized review versus allowing development of the
issue in other contexts and the best use of agency resources.
\247\ In the report on the 1977 Amendments that revised section
307(b)(1) of the CAA, Congress noted that the Administrator's
determination that the ``nationwide scope or effect'' exception
applies would be appropriate for any action that has a scope or
effect beyond a single judicial circuit. See H.R. Rep. No. 95-294 at
323, 324, reprinted in 1977 U.S.C.C.A.N. 1402-03.
---------------------------------------------------------------------------
For these reasons, this final action is nationally applicable.
Alternatively, the Administrator is exercising the complete discretion
afforded to her by the CAA and hereby finds that this final action is
based on a determination of nationwide scope or effect for purposes of
CAA section 307(b)(1). Pursuant to CAA section 307(b), any petitions
for review of this final action must be filed in the D.C. Circuit
within 60 days from the date this final action is published in the
Federal Register.
This final action is subject to the provisions of section 307(d).
CAA section 307(d)(1)(B) provides that section 307(d) applies to, among
other things, ``the promulgation or revision of an implementation plan
by the Administrator under [CAA section 110(c)].'' 42 U.S.C.
7407(d)(1)(B). This final action promulgates new and revised federal
implementation plans pursuant to the authority of section 110(c). To
the extent any portion of this rulemaking is not expressly identified
under section 307(d)(1)(B), the Administrator has determined that the
provisions of section 307(d) apply to this action. See CAA section
307(d)(1)(V) (the provisions of section 307(d) apply to ``such other
actions as the Administrator may determine'').
List of Subjects
40 CFR Part 51
Environmental protection, Administrative practice and procedure,
Air pollution control, Incorporation by reference, Intergovernmental
relations, Nitrogen oxides, Ozone.
40 CFR Part 52
Environmental protection, Administrative practice and procedure,
Air pollution control, Incorporation by reference, Intergovernmental
relations, Nitrogen oxides, Ozone, Particulate matter, Sulfur dioxide.
40 CFR Part 78
Environmental protection, Administrative practice and procedure,
Air pollution control, Electric power plants, Nitrogen oxides, Ozone,
Particulate matter, Sulfur dioxide.
40 CFR Part 97
Environmental protection, Administrative practice and procedure,
Air pollution control, Electric power plants, Nitrogen oxides, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Sulfur
dioxide.
Dated: March 15, 2021.
Michael Regan,
Administrator.
For the reasons stated in the preamble, EPA amends parts 51, 52,
78, and 97 of title 40 of the Code of Federal Regulations as follows:
PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF
IMPLEMENTATION PLANS
0
1. The authority citation for part 51 continues to read as follows:
Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q.
Subpart G--Control Strategy
Sec. 51.121 [Amended]
0
2. In Sec. 51.121, amend paragraph (r)(2) by removing ``40 CFR
52.38(b)(10)(ii),'' and adding in its place ``40 CFR
52.38(b)(13)(ii),''.
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
3. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart A--General Provisions
0
4. Amend Sec. 52.38 by:
0
a. Amending paragraph (a) by revising the paragraph heading;;
0
b. Adding a paragraph heading to paragraph (a)(1) and removing
``(NOX).'' and adding in its place ``(NOX),
except as otherwise provided in this section.'';
0
c. Adding a paragraph heading to paragraph (a)(2);
0
d. Adding a paragraph heading to paragraph (a)(3) introductory text and
removing ``Notwithstanding the provisions of paragraph (a)(1) of this
section, a State'' and adding in its place ``A State'';
0
e. Revising paragraph (a)(4) introductory text;
0
f. In paragraph (a)(4)(i)(A), removing the period at the end of the
paragraph and adding in its place a semicolon;
0
g. In paragraph (a)(4)(i)(B), removing ``the following dates:'' and
adding in its place ``the dates in Table 1 to this paragraph;'', adding
a heading to the table, removing the table entry for ``2023 and any
year thereafter'', and adding table entries for ``2023 and 2024'' and
``2025 and any year thereafter'';
0
h. In paragraph (a)(4)(i)(C), removing ``year of such control period.''
and adding in its place ``year of such control period, for a control
period before 2021, or by April 1 of the year following the
[[Page 23165]]
control period, for a control period in 2021 or thereafter; and'';
0
i. Adding a paragraph heading to paragraph (a)(5) introductory text and
removing ``Notwithstanding the provisions of paragraph (a)(1) of this
section, a State'' and adding in its place ``A State'';
0
j. In paragraph (a)(5)(i)(A), removing the period at the end of the
paragraph and adding in its place a semicolon;
0
k. In paragraph (a)(5)(i)(B), removing ``the following dates:'' and
adding in its place ``the dates in Table 2 to this paragraph;'', adding
a heading to the table, removing the table entry for ``2023 and any
year thereafter'', and adding table entries for ``2023 and 2024'' and
``2025 and any year thereafter'';
0
l. In paragraph (a)(5)(i)(C), removing ``year of such control period.''
and adding in its place ``year of such control period, for a control
period before 2021, or by April 1 of the year following the control
period, for a control period in 2021 or thereafter; and'';
0
m. In paragraph (a)(5)(v), adding ``and'' after the semicolon at the
end of the paragraph;
0
n. Adding a paragraph heading to paragraph (a)(6) and removing
``Following promulgation'' and adding in its place ``Except as provided
in paragraph (a)(7) of this section, following promulgation'';
0
o. Revising paragraph (a)(7);
0
p. Adding a paragraph heading to paragraph (a)(8) introductory text;
0
q. Revising the paragraph heading to paragraph (b);
0
r. Revising paragraph (b)(1);
0
s. Adding a paragraph heading to paragraph (b)(2);
0
t. In paragraph (b)(2)(ii), removing ``2016 only:'' and adding in its
place ``2016 only, except as provided in paragraph (b)(14)(iii) of this
section:'';
0
u. Revising paragraph (b)(2)(iii);
0
v. Adding paragraphs (b)(2)(iv) and (v);
0
w. Adding a paragraph heading to paragraph (b)(3) introductory text and
removing ``Notwithstanding the provisions of paragraph (b)(1) of this
section, a State'' and adding in its place ``A State'';
0
x. Revising paragraph (b)(4) introductory text;
0
y. In paragraph (b)(4)(ii)(A), removing the period at the end of the
paragraph and adding in its place a semicolon;
0
z. In paragraph (b)(4)(ii)(B), removing ``the following dates:'' and
adding in its place ``the dates in Table 3 to this paragraph;'', adding
a heading to the table, removing the table entry for ``2023 and any
year thereafter'', and adding table entries for ``2023 and 2024'' and
``2025 and any year thereafter'';
0
aa. In paragraph (b)(4)(ii)(C), removing ``year of such control
period.'' and adding in its place ``year of such control period, for a
control period before 2021, or by April 1 of the year following the
control period, for a control period in 2021 or thereafter; and'';
0
bb. Adding a paragraph heading to paragraph (b)(5) introductory text
and removing ``Notwithstanding the provisions of paragraph (b)(1) of
this section, a State'' and adding in its place ``A State'';
0
cc. In paragraph (b)(5)(ii)(A), removing the period at the end of the
paragraph and adding in its place a semicolon;
0
dd. In paragraph (b)(5)(ii)(B), removing ``the following dates:'' and
adding in its place ``the dates in Table 4 to this paragraph;'', adding
a heading to the table, removing the table entry for ``2023 and any
year thereafter'', and adding table entries for ``2023 and 2024'' and
``2025 and any year thereafter'';
0
ee. In paragraph (b)(5)(ii)(C), removing ``year of such control
period.'' and adding in its place ``year of such control period, for a
control period before 2021, or by April 1 of the year following the
control period, for a control period in 2021 or thereafter; and'';
0
ff. In paragraph (b)(5)(vi), adding ``and'' after the semicolon at the
end of the paragraph;
0
gg. Removing and reserving paragraph (b)(6);
0
hh. Adding a paragraph heading to paragraph (b)(7) introductory text,
removing ``Notwithstanding the provisions of paragraph (b)(1) of this
section, a State'' and adding in its place ``A State'', and adding ``or
(iv)'' after ``(b)(2)(iii)'';
0
ii. Revising paragraphs (b)(8) introductory text and (b)(8)(ii);
0
jj. In paragraph (b)(8)(iii)(A)(2), removing the period at the end of
the paragraph and adding in its place a semicolon;
0
kk. In paragraph (b)(8)(iii)(B), removing ``the following dates:'' and
adding in its place ``the dates in Table 5 to this paragraph;'', adding
a heading to the table, and revising the table entry for ``2025 and any
year thereafter'';
0
ll. In paragraph (b)(8)(iii)(C), removing ``year of such control
period.'' and adding in its place ``year of such control period, for a
control period before 2021, or by April 1 of the year following the
control period, for a control period in 2021 or thereafter; and'';
0
mm. In paragraph (b)(8)(iii)(D), removing ``Sec. 97.526(c)'' and
adding in its place ``Sec. 97.526(d)'';
0
nn. Adding a paragraph heading to paragraph (b)(9) introductory text,
removing ``Notwithstanding the provisions of paragraph (b)(1) of this
section, a State'' and adding in its place ``A State'', and adding ``or
(iv)'' after ``(b)(2)(iii)'' each time ``(b)(2)(iii)'' appears;
0
oo. Revising paragraph (b)(9)(ii);
0
pp. In paragraph (b)(9)(iii)(A)(2), removing the period at the end of
the paragraph and adding in its place a semicolon;
0
qq. In paragraph (b)(9)(iii)(B), removing ``the following dates:'' and
adding in its place ``the dates in Table 6 to this paragraph;'', adding
a heading to the table, and revising the table entry for ``2025 and any
year thereafter'';
0
rr. In paragraph (b)(9)(iii)(C), removing ``year of such control
period.'' and adding in its place ``year of such control period, for a
control period before 2021, or by April 1 of the year following the
control period, for a control period in 2021 or thereafter; and'';
0
ss. In paragraph (b)(9)(iii)(D), removing ``Sec. 97.526(c)'' and
adding in its place ``Sec. 97.526(d)'';
0
tt. In paragraph (b)(9)(vii), adding ``and'' after the semicolon at the
end of the paragraph;
0
uu. Redesignating paragraphs (b)(10) through (13) as paragraphs (b)(13)
through (16), respectively, and adding new paragraphs (b)(10) through
(12), and further redesignating newly redesignated paragraphs
(b)(16)(ii) through (iv) as paragraphs (b)(16)(i)(A) through (C),
respectively;
0
vv. Revising newly redesignated paragraph (b)(13) introductory text;
0
ww. In newly redesignated paragraph (b)(13)(i), removing ``The
provisions of paragraph (b)(2)(i) or (iii)'' and adding in its place
``Except as provided in paragraph (b)(14) of this section, the
provisions of paragraph (b)(2)(i), (iii), (iv), or (v)'';
0
xx. In newly redesignated paragraph (b)(13)(ii), adding ``or
(b)(12)(ii)'' after ``(b)(9)(ii)'' and removing ``such sources.'' and
adding in its place ``such sources, provided that the Administrator and
the State continue to carry out their respective functions under such
regulations.'';
0
yy. Revising newly redesignated paragraph (b)(14);
0
zz. Adding a paragraph heading to newly redesignated paragraph (b)(15)
introductory text;
0
aaa. Revising newly redesignated paragraphs (b)(16) introductory text
and (b)(16)(i);
0
bbb. In newly redesignated paragraph (b)(16)(i)(C), removing
``(b)(2)(iii),'' and adding in its place ``(b)(2)(iii) or (iv),''; and
[[Page 23166]]
0
ccc. Adding paragraphs (b)(16)(ii) and (b)(17).
The additions and revisions read as follows:
Sec. 52.38 What are the requirements of the Federal Implementation
Plans (FIPs) for the Cross-State Air Pollution Rule (CSAPR) relating to
emissions of nitrogen oxides?
(a) NOX annual emissions--(1) General requirements. * * *
(2) Applicability of CSAPR NOX Annual Trading Program provisions. *
* *
* * * * *
(3) State-determined allocations of CSAPR NOX Annual allowances for
2016. * * *
* * * * *
(4) Abbreviated SIP revisions replacing certain provisions of the
federal CSAPR NOX Annual Trading Program. A State listed in paragraph
(a)(2)(i) of this section may adopt and include in a SIP revision, and
the Administrator will approve, regulations replacing specified
provisions of subpart AAAAA of part 97 of this chapter for the State's
sources, and not substantively replacing any other provisions, as
follows:
(i) * * *
(B) * * *
Table 1 to Paragraph (a)(4)(i)(B)
------------------------------------------------------------------------
Year of the control period for which Deadline for submission of
CSAPR NOX Annual allowances are allocations or auction results
allocated or auctioned to the administrator
------------------------------------------------------------------------
* * * * * * *
2023 and 2024.......................... June 1 of the fourth year
before the year of the control
period.
2025 and any year thereafter........... June 1 of the third year before
the year of the control
period.
------------------------------------------------------------------------
* * * * *
(5) Full SIP revisions adopting State CSAPR NOX Annual Trading
Programs. * * *
(i) * * *
(B) * * *
Table 2 to Paragraph (a)(5)(i)(B)
------------------------------------------------------------------------
Year of the control period for which Deadline for submission of
CSAPR NOX Annual allowances are allocations or auction results
allocated or auctioned to the administrator
------------------------------------------------------------------------
* * * * * * *
2023 and 2024.......................... June 1 of the fourth year
before the year of the control
period.
2025 and any year thereafter........... June 1 of the third year before
the year of the control
period.
------------------------------------------------------------------------
* * * * *
(6) Withdrawal of CSAPR FIP provisions relating to NOX annual
emissions. * * *
(7) Continued applicability of certain federal trading program
provisions for NOX annual emissions. (i) Notwithstanding the provisions
of paragraph (a)(6) of this section or any State's SIP, when carrying
out the functions of the Administrator under any State CSAPR
NOX Annual Trading Program pursuant to a SIP revision
approved under this section, the Administrator will apply the following
provisions of this section, as amended, and the following provisions of
subpart AAAAA of part 97 of this chapter, as amended, with regard to
the State and any source subject to such State trading program:
(A) The definitions in Sec. 97.402 of this chapter;
(B) The provisions in Sec. 97.410(a) of this chapter (concerning
in part the amounts of the new unit set-asides);
(C) The provisions in Sec. Sec. 97.411(b)(1) and 97.412(a) of this
chapter (concerning the procedures for administering the new unit set-
asides), except where the State allocates or auctions CSAPR
NOX Annual allowances under an approved SIP revision;
(D) The provisions in Sec. 97.411(c)(5) of this chapter
(concerning the disposition of incorrectly allocated CSAPR
NOX Annual allowances);
(E) The provisions in Sec. 97.421(f), (g), and (i) of this chapter
(concerning the deadlines for recordation of allocations or auctions of
CSAPR NOX Annual allowances) and the provisions in
paragraphs (a)(4)(i)(B) and (C) and (a)(5)(i)(B) and (C) of this
section (concerning the deadlines for submission to the Administrator
of State-determined allocations or auction results); and
(F) The provisions in Sec. 97.425(b) of this chapter (concerning
the procedures for administering the assurance provisions).
(ii) Notwithstanding the provisions of paragraph (a)(6) of this
section, if, at the time of any approval of a State's SIP revision
under this section, the Administrator has already started recording any
allocations of CSAPR NOX Annual allowances under subpart
AAAAA of part 97 of this chapter to units in the State for a control
period in any year, the provisions of such subpart authorizing the
Administrator to complete the allocation and recordation of such
allowances to units in the State for each such control period shall
continue to apply, unless provided otherwise by such approval of the
State's SIP revision.
(8) States with approved SIP revisions addressing the CSAPR NOX
Annual Trading Program. * * *
* * * * *
(b) NOX ozone season emissions--(1) General requirements. The CSAPR
NOX Ozone Season Group 1 Trading Program provisions, the
CSAPR NOX Ozone Season Group 2 Trading Program provisions,
and the CSAPR NOX Ozone Season Group 3 Trading Program
provisions set forth respectively in subparts BBBBB, EEEEE, and GGGGG
of part 97 of this chapter constitute the CSAPR Federal Implementation
Plan provisions that relate to emissions of NOX during the
ozone season (defined as May 1 through September 30 of a calendar
year), except as otherwise provided in this section.
(2) Applicability of CSAPR NOX Ozone Season Group 1, Group 2, and
Group 3 Trading Program provisions. * * *
* * * * *
[[Page 23167]]
(iii) The provisions of subpart EEEEE of part 97 of this chapter
apply to sources in each of the following States and Indian country
located within the borders of such States with regard to emissions
occurring in 2017 and each subsequent year: Alabama, Arkansas, Iowa,
Kansas, Mississippi, Missouri, Oklahoma, Tennessee, Texas, and
Wisconsin.
(iv) The provisions of subpart EEEEE of part 97 of this chapter
apply to sources in each of the following States and Indian country
located within the borders of such States with regard to emissions
occurring in 2017 through 2020 only, except as provided in paragraph
(b)(14)(iii) of this section: Illinois, Indiana, Kentucky, Louisiana,
Maryland, Michigan, New Jersey, New York, Ohio, Pennsylvania, Virginia,
and West Virginia.
(v) The provisions of subpart GGGGG of part 97 of this chapter
apply to sources in each of the following States and Indian country
located within the borders of such States with regard to emissions
occurring in 2021 and each subsequent year: Illinois, Indiana,
Kentucky, Louisiana, Maryland, Michigan, New Jersey, New York, Ohio,
Pennsylvania, Virginia, and West Virginia.
(3) State-determined allocations of CSAPR NOX Ozone Season Group 1
allowances for 2016. * * *
* * * * *
(4) Abbreviated SIP revisions replacing certain provisions of the
federal CSAPR NOX Ozone Season Group 1 Trading Program. A State listed
in paragraph (b)(2)(i) of this section may adopt and include in a SIP
revision, and the Administrator will approve, regulations replacing
specified provisions of subpart BBBBB of part 97 of this chapter for
the State's sources, and not substantively replacing any other
provisions, as follows:
* * * * *
(ii) * * *
(B) * * *
Table 3 to Paragraph (b)(4)(ii)(B)
------------------------------------------------------------------------
Year of the control period for which Deadline for submission of
CSAPR NOX Ozone Season Group 1 allocations or auction results
allowances are allocated or auctioned to the administrator
------------------------------------------------------------------------
* * * * * * *
2023 and 2024.......................... June 1 of the fourth year
before the year of the control
period.
2025 and any year thereafter........... June 1 of the third year before
the year of the control
period.
------------------------------------------------------------------------
* * * * *
(5) Full SIP revisions adopting State CSAPR NOX Ozone Season Group
1 Trading Programs. * * *
* * * * *
(ii) * * *
(B) * * *
Table 4 to Paragraph (b)(5)(ii)(B)
------------------------------------------------------------------------
Year of the control period for which Deadline for submission of
CSAPR NOX Ozone Season Group 1 allocations or auction results
allowances are allocated or auctioned to the administrator
------------------------------------------------------------------------
* * * * * * *
2023 and 2024.......................... June 1 of the fourth year
before the year of the control
period.
2025 and any year thereafter........... June 1 of the third year before
the year of the control
period.
------------------------------------------------------------------------
* * * * *
(7) State-determined allocations of CSAPR NOX Ozone Season Group 2
allowances for 2018. * * *
* * * * *
(8) Abbreviated SIP revisions replacing certain provisions of the
federal CSAPR NOX Ozone Season Group 2 Trading Program. A State listed
in paragraph (b)(2)(iii) or (iv) of this section may adopt and include
in a SIP revision, and the Administrator will approve, regulations
replacing specified provisions of subpart EEEEE of part 97 of this
chapter for the State's sources, and not substantively replacing any
other provisions, as follows:
* * * * *
(ii) The State may adopt, as applicability provisions replacing the
provisions in Sec. 97.804(a) and (b) of this chapter with regard to
the State, provisions substantively identical to those provisions,
except that applicability is expanded to include all other units
(beyond any units to which applicability could be expanded under
paragraph (b)(8)(i) of this section) that would have been subject to
any emissions trading program regulations approved as a SIP revision
for the State under Sec. 51.121 of this chapter; and
(iii) * * *
(B) * * *
Table 5 to Paragraph (b)(8)(iii)(B)
------------------------------------------------------------------------
Year of the control period for which Deadline for submission of
CSAPR NOX Ozone Season Group 2 allocations or auction results
allowances are allocated or auctioned to the administrator
------------------------------------------------------------------------
* * * * * * *
2025 and any year thereafter........... June 1 of the third year before
the year of the control
period.
------------------------------------------------------------------------
[[Page 23168]]
* * * * *
(9) Full SIP revisions adopting State CSAPR NOX Ozone
Season Group 2 Trading Programs. * * *
* * * * *
(ii) May adopt, as applicability provisions replacing the
provisions in Sec. 97.804(a) and (b) of this chapter with regard to
the State, provisions substantively identical to those provisions,
except that applicability is expanded to include all other units
(beyond any units to which applicability could be expanded under
paragraph (b)(9)(i) of this section) that would have been subject to
any emissions trading program regulations approved as a SIP revision
for the State under Sec. 51.121 of this chapter;
(iii) * * *
(B) * * *
Table 6 to Paragraph (b)(9)(iii)(B)
------------------------------------------------------------------------
Year of the control period for which Deadline for submission of
CSAPR NOX Ozone Season Group 2 allocations or auction results
allowances are allocated or auctioned to the administrator
------------------------------------------------------------------------
* * * * * * *
2025 and any year thereafter........... June 1 of the third year before
the year of the control
period.
------------------------------------------------------------------------
* * * * *
(10) State-determined allocations of CSAPR NOX Ozone
Season Group 3 allowances for 2022. A State listed in paragraph
(b)(2)(v) of this section may adopt and include in a SIP revision, and
the Administrator will approve, as CSAPR NOX Ozone Season
Group 3 allowance allocation provisions replacing the provisions in
Sec. 97.1011(a) of this chapter with regard to the State and the
control period in 2022, a list of CSAPR NOX Ozone Season
Group 3 units and the amount of CSAPR NOX Ozone Season Group
3 allowances allocated to each unit on such list, provided that the
list of units and allocations meets the following requirements:
(i) All of the units on the list must be units that are in the
State and commenced commercial operation before January 1, 2019;
(ii) The total amount of CSAPR NOX Ozone Season Group 3
allowance allocations on the list must not exceed the amount, under
Sec. 97.1010(a) of this chapter for the State and the control period
in 2022, of the CSAPR NOX Ozone Season Group 3 trading
budget minus the sum of the new unit set-aside and Indian country new
unit set-aside;
(iii) The list must be submitted electronically in a format
specified by the Administrator; and
(iv) The SIP revision must not provide for any change in the units
and allocations on the list after approval of the SIP revision by the
Administrator and must not provide for any change in any allocation
determined and recorded by the Administrator under subpart GGGGG of
part 97 of this chapter;
(v) Provided that:
(A) By June 29, 2021, the State must notify the Administrator
electronically in a format specified by the Administrator of the
State's intent to submit to the Administrator a complete SIP revision
meeting the requirements of paragraphs (b)(10)(i) through (iv) of this
section by September 1, 2021; and
(B) The State must submit to the Administrator a complete SIP
revision described in paragraph (b)(10)(v)(A) of this section by
September 1, 2021.
(11) Abbreviated SIP revisions replacing certain provisions of the
federal CSAPR NOX Ozone Season Group 3 Trading Program. A State listed
in paragraph (b)(2)(v) of this section may adopt and include in a SIP
revision, and the Administrator will approve, regulations replacing
specified provisions of subpart GGGGG of part 97 of this chapter for
the State's sources, and not substantively replacing any other
provisions, as follows:
(i) The State may adopt, as applicability provisions replacing the
provisions in Sec. 97.1004(a)(1) and (2) of this chapter with regard
to the State, provisions substantively identical to those provisions,
except that the words ``more than 25 MWe'' are replaced, wherever such
words appear, by words specifying a uniform lower limit on the amount
of megawatts that is not greater than the amount specified by the words
``more than 25 MWe'' and is not less than the amount specified by the
words ``15 MWe or more'';
(ii) The State may adopt, as applicability provisions replacing the
provisions in Sec. 97.1004(a) and (b) of this chapter with regard to
the State, provisions substantively identical to those provisions,
except that applicability is expanded to include all other units
(beyond any units to which applicability could be expanded under
paragraph (b)(11)(i) of this section) that would have been subject to
any emissions trading program regulations approved as a SIP revision
for the State under Sec. 51.121 of this chapter; and
(iii) The State may adopt, as CSAPR NOX Ozone Season
Group 3 allowance allocation or auction provisions replacing the
provisions in Sec. Sec. 97.1011(a) and (b)(1) and 97.1012(a) of this
chapter with regard to the State and the control period in 2023 or any
subsequent year, any methodology under which the State or the
permitting authority allocates or auctions CSAPR NOX Ozone
Season Group 3 allowances and may adopt, in addition to the definitions
in Sec. 97.1002 of this chapter, one or more definitions that shall
apply only to terms as used in the adopted CSAPR NOX Ozone
Season Group 3 allowance allocation or auction provisions, if such
methodology--
(A) Requires the State or the permitting authority to allocate and,
if applicable, auction a total amount of CSAPR NOX Ozone
Season Group 3 allowances for any such control period not exceeding the
amount, under Sec. Sec. 97.1010(a) and 97.1021 of this chapter for the
State and such control period, of the CSAPR NOX Ozone Season
Group 3 trading budget minus the sum of the Indian country new unit
set-aside and the amount of any CSAPR NOX Ozone Season Group
3 allowances already allocated and recorded by the Administrator, plus,
if the State adopts regulations expanding applicability to additional
units pursuant to paragraph (b)(11)(ii) of this section, an additional
amount of CSAPR NOX Ozone Season Group 3 allowances not
exceeding the lesser of:
(1) The highest of the sum, for all additional units in the State
to which applicability is expanded pursuant to paragraph (b)(11)(ii) of
this section, of the NOX emissions reported in accordance
with part 75 of this chapter for the ozone season in the year before
the year of the submission deadline for the SIP revision under
paragraph (b)(11)(iv) of this section and the corresponding sums of the
NOX emissions reported in accordance with part 75 of this
chapter for each of the two immediately preceding ozone seasons,
provided that each such seasonal sum shall exclude the amount of any
NOX emissions reported by any unit for all hours in any
calendar day
[[Page 23169]]
during which the unit did not have at least one quality-assured monitor
operating hour, as defined in Sec. 72.2 of this chapter; or
(2) The portion of the emissions budget under the State's emissions
trading program regulations approved as a SIP revision under Sec.
51.121 of this chapter that is attributable to the units to which
applicability is expanded pursuant to paragraph (b)(11)(ii) of this
section;
(B) Requires, to the extent the State adopts provisions for
allocations or auctions of CSAPR NOX Ozone Season Group 3
allowances for any such control period to any CSAPR NOX
Ozone Season Group 3 units covered by Sec. 97.1011(a) of this chapter,
that the State or the permitting authority submit such allocations or
the results of such auctions for such control period (except
allocations or results of auctions to such units of CSAPR
NOX Ozone Season Group 3 allowances remaining in a set-aside
after completion of the allocations or auctions for which the set-aside
was created) to the Administrator no later than the dates in Table 7 to
this paragraph;
Table 7 to Paragraph (b)(11)(iii)(B)
------------------------------------------------------------------------
Year of the control period for which Deadline for submission of
CSAPR NOX Ozone Season Group 3 allocations or auction results
allowances are allocated or auctioned to the Administrator
------------------------------------------------------------------------
2023................................... June 1, 2022.
2024................................... June 1, 2022.
2025................................... June 1, 2023.
2026................................... June 1, 2023.
2027 and any year thereafter........... June 1 of the third year before
the year of the control
period.
------------------------------------------------------------------------
(C) Requires, to the extent the State adopts provisions for
allocations or auctions of CSAPR NOX Ozone Season Group 3
allowances for any such control period to any CSAPR NOX
Ozone Season Group 3 units covered by Sec. Sec. 97.1011(b)(1) and
97.1012(a) of this chapter, that the State or the permitting authority
submit such allocations or the results of such auctions (except
allocations or results of auctions to such units of CSAPR
NOX Ozone Season Group 3 allowances remaining in a set-aside
after completion of the allocations or auctions for which the set-aside
was created) to the Administrator by April 1 of the year following the
year of such control period; and
(D) Does not provide for any change, after the submission deadlines
in paragraphs (b)(11)(iii)(B) and (C) of this section, in the
allocations submitted to the Administrator by such deadlines and does
not provide for any change in any allocation determined and recorded by
the Administrator under subpart GGGGG of part 97 of this chapter or
Sec. 97.526(d) or Sec. 97.826(d) of this chapter;
(iv) Provided that the State must submit a complete SIP revision
meeting the requirements of paragraph (b)(11)(i), (ii), or (iii) of
this section by December 1 of the year before the year of the deadlines
for submission of allocations or auction results under paragraphs
(b)(11)(iii)(B) and (C) of this section applicable to the first control
period for which the State wants to replace the applicability
provisions, make allocations, or hold an auction under paragraph
(b)(11)(i), (ii), or (iii) of this section.
(12) Full SIP revisions adopting State CSAPR NOX Ozone Season Group
3 Trading Programs. A State listed in paragraph (b)(2)(v) of this
section may adopt and include in a SIP revision, and the Administrator
will approve, as correcting the deficiency in the SIP that is the basis
for the CSAPR Federal Implementation Plan set forth in paragraphs
(b)(1), (b)(2)(v), and (b)(10) and (11) of this section with regard to
sources in the State (but not sources in any Indian country within the
borders of the State), regulations that are substantively identical to
the provisions of the CSAPR NOX Ozone Season Group 3 Trading
Program set forth in Sec. Sec. 97.1002 through 97.1035 of this
chapter, except that the SIP revision:
(i) May adopt, as applicability provisions replacing the provisions
in Sec. 97.1004(a)(1) and (2) of this chapter with regard to the
State, provisions substantively identical to those provisions, except
that the words ``more than 25 MWe'' are replaced, wherever such words
appear, by words specifying a uniform lower limit on the amount of
megawatts that is not greater than the amount specified by the words
``more than 25 MWe'' and is not less than the amount specified by the
words ``15 MWe or more'';
(ii) May adopt, as applicability provisions replacing the
provisions in Sec. 97.1004(a) and (b) of this chapter with regard to
the State, provisions substantively identical to those provisions,
except that applicability is expanded to include all other units
(beyond any units to which applicability could be expanded under
paragraph (b)(12)(i) of this section) that would have been subject to
any emissions trading program regulations approved as a SIP revision
for the State under Sec. 51.121 of this chapter;
(iii) May adopt, as CSAPR NOX Ozone Season Group 3
allowance allocation provisions replacing the provisions in Sec. Sec.
97.1011(a) and (b)(1) and 97.1012(a) of this chapter with regard to the
State and the control period in 2023 or any subsequent year, any
methodology under which the State or the permitting authority allocates
or auctions CSAPR NOX Ozone Season Group 3 allowances and
that--
(A) Requires the State or the permitting authority to allocate and,
if applicable, auction a total amount of CSAPR NOX Ozone
Season Group 3 allowances for any such control period not exceeding the
amount, under Sec. Sec. 97.1010(a) and 97.1021 of this chapter for the
State and such control period, of the CSAPR NOX Ozone Season
Group 3 trading budget minus the sum of the Indian country new unit
set-aside and the amount of any CSAPR NOX Ozone Season Group
3 allowances already allocated and recorded by the Administrator, plus,
if the State adopts regulations expanding applicability to additional
units pursuant to paragraph (b)(12)(ii) of this section, an additional
amount of CSAPR NOX Ozone Season Group 3 allowances not
exceeding the lesser of:
(1) The highest of the sum, for all additional units in the State
to which applicability is expanded pursuant to paragraph (b)(12)(ii) of
this section, of the NOX emissions reported in accordance
with part 75 of this chapter for the ozone season in the year before
the year of the submission deadline for the SIP revision under
paragraph (b)(12)(viii) of this section and the corresponding sums of
the NOX emissions reported in accordance with part 75 of
this chapter for each of the two immediately preceding ozone seasons,
provided that each such seasonal sum shall exclude the amount
[[Page 23170]]
of any NOX emissions reported by any unit for all hours in
any calendar day during which the unit did not have at least one
quality-assured monitor operating hour, as defined in Sec. 72.2 of
this chapter; or
(2) The portion of the emissions budget under the State's emissions
trading program regulations approved as a SIP revision under Sec.
51.121 of this chapter that is attributable to the units to which
applicability is expanded pursuant to paragraph (b)(12)(ii) of this
section;
(B) Requires, to the extent the State adopts provisions for
allocations or auctions of CSAPR NOX Ozone Season Group 3
allowances for any such control period to any CSAPR NOX
Ozone Season Group 3 units covered by Sec. 97.1011(a) of this chapter,
that the State or the permitting authority submit such allocations or
the results of such auctions for such control period (except
allocations or results of auctions to such units of CSAPR
NOX Ozone Season Group 3 allowances remaining in a set-aside
after completion of the allocations or auctions for which the set-aside
was created) to the Administrator no later than the dates in Table 8 to
this paragraph;
Table 8 to Paragraph (b)(12)(iii)(B)
------------------------------------------------------------------------
Year of the control period
for which CSAPR NOX Ozone Deadline for submission of allocations or
Season Group 3 allowances are auction results to the Administrator
allocated or auctioned
------------------------------------------------------------------------
2023......................... June 1, 2022.
2024......................... June 1, 2022.
2025......................... June 1, 2023.
2026......................... June 1, 2023.
2027 and any year thereafter. June 1 of the third year before the year
of the control period.
------------------------------------------------------------------------
(C) Requires, to the extent the State adopts provisions for
allocations or auctions of CSAPR NOX Ozone Season Group 3
allowances for any such control period to any CSAPR NOX
Ozone Season Group 3 units covered by Sec. Sec. 97.1011(b)(1) and
97.1012(a) of this chapter, that the State or the permitting authority
submit such allocations or the results of such auctions (except
allocations or results of auctions to such units of CSAPR
NOX Ozone Season Group 3 allowances remaining in a set-aside
after completion of the allocations or auctions for which the set-aside
was created) to the Administrator by April 1 of the year following the
year of such control period; and
(D) Does not provide for any change, after the submission deadlines
in paragraphs (b)(12)(iii)(B) and (C) of this section, in the
allocations submitted to the Administrator by such deadlines and does
not provide for any change in any allocation determined and recorded by
the Administrator under subpart GGGGG of part 97 of this chapter or
Sec. 97.526(d) or Sec. 97.826(d) of this chapter;
(iv) May adopt, in addition to the definitions in Sec. 97.1002 of
this chapter, one or more definitions that shall apply only to terms as
used in the CSAPR NOX Ozone Season Group 3 allowance
allocation or auction provisions adopted under paragraph (b)(12)(iii)
of this section;
(v) May substitute the name of the State for the term ``State'' as
used in subpart GGGGG of part 97 of this chapter, to the extent the
Administrator determines that such substitutions do not make
substantive changes in the provisions in Sec. Sec. 97.1002 through
97.1035 of this chapter; and
(vi) Must not include any of the requirements imposed on any unit
in Indian country within the borders of the State in the provisions in
Sec. Sec. 97.1002 through 97.1035 of this chapter and must not include
the provisions in Sec. Sec. 97.1011(b)(2) and (c)(5)(iii), 97.1012(b),
and 97.1021(h) of this chapter, all of which provisions will continue
to apply under any portion of the CSAPR Federal Implementation Plan
that is not replaced by the SIP revision;
(vii) Provided that, if and when any covered unit is located in
Indian country within the borders of the State, the Administrator may
modify his or her approval of the SIP revision to exclude the
provisions in Sec. Sec. 97.1002 (definitions of ``base CSAPR
NOX Ozone Season Group 3 source'', ``base CSAPR
NOX Ozone Season Group 3 unit'', ``common designated
representative'', ``common designated representative's assurance
level'', and ``common designated representative's share''),
97.1006(c)(2), and 97.1025 of this chapter and the portions of other
provisions of subpart GGGGG of part 97 of this chapter referencing
these sections and may modify any portion of the CSAPR Federal
Implementation Plan that is not replaced by the SIP revision to include
these provisions; and
(viii) Provided that the State must submit a complete SIP revision
meeting the requirements of paragraphs (b)(12)(i) through (vi) of this
section by December 1 of the year before the year of the deadlines for
submission of allocations or auction results under paragraphs
(b)(12)(iii)(B) and (C) of this section applicable to the first control
period for which the State wants to replace the applicability
provisions, make allocations, or hold an auction under paragraph
(b)(12)(i), (ii), or (iii) of this section.
(13) Withdrawal of CSAPR FIP provisions relating to NOX ozone
season emissions; satisfaction of NOX SIP Call requirements. Following
promulgation of an approval by the Administrator of a State's SIP
revision as correcting the SIP's deficiency that is the basis for the
CSAPR Federal Implementation Plan set forth in paragraphs (b)(1),
(b)(2)(i), and (b)(3) and (4) of this section, paragraphs (b)(1),
(b)(2)(iii) or (iv), and (b)(7) and (8) of this section, or paragraphs
(b)(1), (b)(2)(v), and (b)(10) and (11) of this section for sources in
the State--
* * * * *
(14) Continued applicability of certain federal trading program
provisions for NOX ozone season emissions. (i) Notwithstanding the
provisions of paragraph (b)(13)(i) of this section or any State's SIP,
when carrying out the functions of the Administrator under any State
CSAPR NOX Ozone Season Group 1 Trading Program or State
CSAPR NOX Ozone Season Group 2 Trading Program pursuant to a
SIP revision approved under this section, the Administrator will apply
the following provisions of this section, as amended, and the following
provisions of subpart BBBBB of part 97 of this chapter, as amended, or
subpart EEEEE of part 97 of this chapter, as amended, with regard to
the State and any source subject to such State trading program:
(A) The definitions in Sec. 97.502 of this chapter or Sec. 97.802
of this chapter;
(B) The provisions in Sec. 97.510(a) of this chapter (concerning
in part the amounts of the new unit set-asides);
(C) The provisions in Sec. Sec. 97.511(b)(1) and 97.512(a) of this
chapter or
[[Page 23171]]
Sec. Sec. 97.811(b)(1) and 97.812(a) of this chapter (concerning the
procedures for administering the new unit set-asides), except where the
State allocates or auctions CSAPR NOX Ozone Season Group 1
allowances or CSAPR NOX Ozone Season Group 2 allowances
under an approved SIP revision;
(D) The provisions in Sec. 97.511(c)(5) of this chapter or Sec.
97.811(c)(5) of this chapter (concerning the disposition of incorrectly
allocated CSAPR NOX Ozone Season Group 1 allowances or CSAPR
NOX Ozone Season Group 2 allowances);
(E) The provisions in Sec. 97.521(f), (g), and (i) of this chapter
or Sec. 97.821(f), (g), and (i) of this chapter (concerning the
deadlines for recordation of allocations or auctions of CSAPR
NOX Ozone Season Group 1 allowances or CSAPR NOX
Ozone Season Group 2 allowances) and the provisions in paragraphs
(b)(4)(ii)(B) and (C) and (b)(5)(ii)(B) and (C) of this section or
paragraphs (b)(8)(iii)(B) and (C) and (b)(9)(iii)(B) and (C) of this
section (concerning the deadlines for submission to the Administrator
of State-determined allocations or auction results);
(F) The provisions in Sec. 97.525(b) of this chapter or Sec.
97.825(b) of this chapter (concerning the procedures for administering
the assurance provisions); and
(G) The provisions in Sec. 97.526(e) of this chapter or Sec.
97.826(e) of this chapter (concerning the use of CSAPR NOX
Ozone Season Group 2 allowances or CSAPR NOX Ozone Season
Group 3 allowances to satisfy requirements to hold CSAPR NOX
Ozone Season Group 1 allowances or the use of CSAPR NOX
Ozone Season Group 3 allowances to satisfy requirements to hold CSAPR
NOX Ozone Season Group 2 allowances).
(ii) Notwithstanding the provisions of paragraph (b)(13)(i) of this
section, if, at the time of any approval of a State's SIP revision
under this section, the Administrator has already started recording any
allocations of CSAPR NOX Ozone Season Group 1 allowances
under subpart BBBBB of part 97 of this chapter, or allocations of CSAPR
NOX Ozone Season Group 2 allowances under subpart EEEEE of
part 97 of this chapter, or allocations of CSAPR NOX Ozone
Season Group 3 allowances under subpart GGGGG of part 97 of this
chapter, to units in the State for a control period in any year, the
provisions of such subpart authorizing the Administrator to complete
the allocation and recordation of such allowances to units in the State
for each such control period shall continue to apply, unless provided
otherwise by such approval of the State's SIP revision.
(iii) Notwithstanding any discontinuation of the applicability of
subpart BBBBB or EEEEE of part 97 of this chapter to the sources in a
State with regard to emissions occurring in any control period pursuant
to paragraph (b)(2)(ii) or (iv) or (b)(13)(i) of this section, the
following provisions shall continue to apply with regard to all CSAPR
NOX Ozone Season Group 1 allowances and CSAPR NOX
Ozone Season Group 2 allowances at any time allocated for any control
period to any source or other entity in the State and shall apply to
all entities, wherever located, that at any time held or hold such
allowances:
(A) The provisions of Sec. 97.526(c) of this chapter (concerning
the transfer of CSAPR NOX Ozone Season Group 1 allowances
between certain Allowance Management System accounts under common
control);
(B) The provisions of Sec. 97.526(d) of this chapter (concerning
the conversion of amounts of unused CSAPR NOX Ozone Season
Group 1 allowances allocated for control periods before 2017 to
different amounts of CSAPR NOX Ozone Season Group 2
allowances or CSAPR NOX Ozone Season Group 3 allowances);
(C) The provisions of Sec. 97.826(c) of this chapter (concerning
the transfer of CSAPR NOX Ozone Season Group 2 allowances
between certain Allowance Management System accounts under common
control);
(D) The provisions of Sec. 97.826(d) of this chapter (concerning
the conversion of amounts of unused CSAPR NOX Ozone Season
Group 2 allowances allocated for control periods before 2021 to
different amounts of CSAPR NOX Ozone Season Group 3
allowances); and
(E) The provisions of Sec. 97.811(d) of this chapter (concerning
the recall of CSAPR NOX Ozone Season Group 2 allowances
equivalent in quantity and usability to all CSAPR NOX Ozone
Season Group 2 allowances allocated for control periods after 2020 and
recorded in the compliance accounts of sources in States listed in
paragraph (b)(2)(iv) of this section).
(15) States with approved SIP revisions addressing the CSAPR NOX
Ozone Season Group 1 Trading Program. * * *
* * * * *
(16) States with approved SIP revisions addressing the CSAPR NOX
Ozone Season Group 2 Trading Program. (i) The following States have SIP
revisions approved by the Administrator under paragraph (b)(7), (8), or
(9) of this section:
* * * * *
(ii) Notwithstanding any provision of subpart EEEEE of part 97 of
this chapter or any State's SIP, with regard to any State listed in
paragraph (b)(2)(iv) of this section and any control period that begins
after December 31, 2020, the Administrator will not carry out any of
the functions set forth for the Administrator in subpart EEEEE of part
97 of this chapter, except Sec. Sec. 97.811(d) and 97.826(c) and (d)
of this chapter, or in any emissions trading program provisions in a
State's SIP approved under paragraph (b)(8) or (9) of this section.
(17) States with approved SIP revisions addressing the CSAPR NOX
Ozone Season Group 3 Trading Program. The following States have SIP
revisions approved by the Administrator under paragraph (b)(10), (11),
or (12) of this section:
(i) For each of the following States, the Administrator has
approved a SIP revision under paragraph (b)(10) of this section as
replacing the CSAPR NOX Ozone Season Group 3 allowance
allocation provisions in Sec. 97.1011(a) of this chapter with regard
to the State and the control period in 2022: [None].
(ii) For each of the following States, the Administrator has
approved a SIP revision under paragraph (b)(11) of this section as
replacing the CSAPR NOX Ozone Season Group 3 applicability
provisions in Sec. 97.1004(a) and (b) or Sec. 97.1004(a)(1) and (2)
of this chapter or the CSAPR NOX Ozone Season Group 2
allowance allocation provisions in Sec. Sec. 97.1011(a) and (b)(1) and
97.1012(a) of this chapter with regard to the State and the control
period in 2023 or any subsequent year: [None].
(iii) For each of the following States, the Administrator has
approved a SIP revision under paragraph (b)(12) of this section as
correcting the SIP's deficiency that is the basis for the CSAPR Federal
Implementation Plan set forth in paragraphs (b)(1), (b)(2)(v), and
(b)(10) and (11) of this section with regard to sources in the State
(but not sources in any Indian country within the borders of the
State): [None].
0
5. Amend Sec. 52.39 by:
0
a. Adding a paragraph heading to paragraph (a) and removing
``(SO2).'' and adding in its place ``(SO2),
except as otherwise provided in this section.'';
0
b. Adding paragraph headings to paragraphs (b) and (c);
0
c. Adding a paragraph heading to paragraph (d) introductory text and
removing ``Notwithstanding the provisions of paragraph (a) of this
[[Page 23172]]
section, a State'' and adding in its place ``A State'';
0
d. Revising paragraph (e) introductory text;
0
e. In paragraph (e)(1)(i), removing the period at the end of the
paragraph and adding in its place a semicolon;
0
f. In paragraph (e)(1)(ii), removing ``the following dates:'' and
adding in its place ``the dates in Table 1 to this paragraph;'', adding
a heading to the table, removing the table entry for ``2023 and any
year thereafter'', and adding table entries for ``2023 and 2024'' and
``2025 and any year thereafter'';
0
g. In paragraph (e)(1)(iii), removing ``year of such control period.''
and adding in its place ``year of such control period, for a control
period before 2021, or by April 1 of the year following the control
period, for a control period in 2021 or thereafter; and'';
0
h. Adding a paragraph heading to paragraph (f) introductory text and
removing ``Notwithstanding the provisions of paragraph (a) of this
section, a State'' and adding in its place ``A State'';
0
i. In paragraph (f)(1)(i), removing the period at the end of the
paragraph and adding in its place a semicolon;
0
j. In paragraph (f)(1)(ii), removing ``the following dates:'' and
adding in its place ``the dates in Table 2 to this paragraph;'', adding
a heading to the table, removing the table entry for ``2023 and any
year thereafter'', and adding table entries for ``2023 and 2024'' and
``2025 and any year thereafter'';
0
k. In paragraph (f)(1)(iii), removing ``year of such control period.''
and adding in its place ``year of such control period, for a control
period before 2021, or by April 1 of the year following the control
period, for a control period in 2021 or thereafter; and'';
0
l. In paragraph (f)(5), adding ``and'' after the semicolon at the end
of the paragraph;
0
m. Adding a paragraph heading to paragraph (g) introductory text and
removing ``Notwithstanding the provisions of paragraph (a) of this
section, a State'' and adding in its place ``A State'';
0
n. Revising paragraph (h) introductory text;
0
o. In paragraph (h)(1)(i), removing the period at the end of the
paragraph and adding in its place a semicolon;
0
p. In paragraph (h)(1)(ii), removing ``the following dates:'' and
adding in its place ``the dates in Table 3 to this paragraph;'', adding
a heading to the table, removing the table entry for ``2023 and any
year thereafter'', and adding table entries for ``2023 and 2024'' and
``2025 and any year thereafter'';
0
q. In paragraph (h)(1)(iii), removing ``year of such control period.''
and adding in its place ``year of such control period, for a control
period before 2021, or by April 1 of the year following the control
period, for a control period in 2021 or thereafter; and'';
0
r. Adding a paragraph heading to paragraph (i) introductory text and
removing ``Notwithstanding the provisions of paragraph (a) of this
section, a State'' and adding in its place ``A State'';
0
s. In paragraph (i)(1)(i), removing the period at the end of the
paragraph and adding in its place a semicolon;
0
t. In paragraph (i)(1)(ii), removing ``the following dates:'' and
adding in its place ``the dates in Table 4 to this paragraph;'', adding
a heading to the table, removing the table entry for ``2023 and any
year thereafter'', and adding table entries for ``2023 and 2024'' and
``2025 and any year thereafter'';
0
u. In paragraph (i)(1)(iii), removing ``year of such control period.''
and adding in its place ``year of such control period, for a control
period before 2021, or by April 1 of the year following the control
period, for a control period in 2021 or thereafter; and'';
0
v. In paragraph (i)(5), adding ``and'' after the semicolon at the end
of the paragraph;
0
w. Adding a paragraph heading to paragraph (j) and removing ``Following
promulgation'' and adding in its place ``Except as provided in
paragraph (k) of this section, following promulgation'';
0
x. Revising paragraph (k); and
0
y. Adding paragraph headings to paragraphs (l) introductory text and
(m) introductory text.
The additions and revisions read as follows:
Sec. 52.39 What are the requirements of the Federal Implementation
Plans (FIPs) for the Cross-State Air Pollution Rule (CSAPR) relating to
emissions of sulfur dioxide?
(a) General requirements for SO2 emissions. * * *
(b) Applicability of CSAPR SO2 Group 1 Trading Program provisions.
* * *
(c) Applicability of CSAPR SO2 Group 2 Trading Program provisions.
* * *
* * * * *
(d) State-determined allocations of CSAPR SO2 Group 1 allowances
for 2016. * * *
* * * * *
(e) Abbreviated SIP revisions replacing certain provisions of the
federal CSAPR SO2 Group 1 Trading Program. A State listed in paragraph
(b) of this section may adopt and include in a SIP revision, and the
Administrator will approve, regulations replacing specified provisions
of subpart CCCCC of part 97 of this chapter for the State's sources,
and not substantively replacing any other provisions, as follows:
(1) * * *
(ii) * * *
Table 1 to Paragraph (e)(1)(ii)
------------------------------------------------------------------------
Year of the control period for which Deadline for submission of
CSAPR SO2 Group 1 allowances are allocations or auction results
allocated or auctioned to the administrator
------------------------------------------------------------------------
* * * * * * *
2023 and 2024.......................... June 1 of the fourth year
before the year of the control
period.
2025 and any year thereafter........... June 1 of the third year before
the year of the control
period.
------------------------------------------------------------------------
* * * * *
(f) Full SIP revisions adopting State CSAPR SO2 Group 1
Trading Programs. * * *
(1) * * *
(ii) * * *
[[Page 23173]]
Table 2 to Paragraph (f)(1)(ii)
------------------------------------------------------------------------
Year of the control period for which Deadline for submission of
CSAPR SO2 Group 1 allowances are allocations or auction results
allocated or auctioned to the Administrator
------------------------------------------------------------------------
* * * * * * *
2023 and 2024.......................... June 1 of the fourth year
before the year of the control
period.
2025 and any year thereafter........... June 1 of the third year before
the year of the control
period.
------------------------------------------------------------------------
* * * * *
(g) State-determined allocations of CSAPR SO2 Group 2 allowances
for 2016. * * *
* * * * *
(h) Abbreviated SIP revisions replacing certain provisions of the
federal CSAPR SO2 Group 2 Trading Program. A State listed in
paragraph (c)(1) of this section may adopt and include in a SIP
revision, and the Administrator will approve, regulations replacing
specified provisions of subpart DDDDD of part 97 of this chapter for
the State's sources, and not substantively replacing any other
provisions, as follows:
(1) * * *
(ii) * * *
Table 3 to Paragraph (h)(1)(ii)
------------------------------------------------------------------------
Year of the control period for which Deadline for submission of
CSAPR SO2 Group 2 allowances are allocations or auction results
allocated or auctioned to the Administrator
------------------------------------------------------------------------
* * * * * * *
2023 and 2024.......................... June 1 of the fourth year
before the year of the control
period.
2025 and any year thereafter........... June 1 of the third year before
the year of the control
period.
------------------------------------------------------------------------
* * * * *
(i) Full SIP revisions adopting State CSAPR SO2 Group 2 Trading
Programs. * * *
(1) * * *
(ii) * * *
Table 4 to Paragraph (i)(1)(ii)
------------------------------------------------------------------------
Year of the control period for which Deadline for submission of
CSAPR SO2 Group 2 allowances are allocations or auction results
allocated or auctioned to the Administrator
------------------------------------------------------------------------
* * * * * * *
2023 and 2024.......................... June 1 of the fourth year
before the year of the control
period.
2025 and any year thereafter........... June 1 of the third year before
the year of the control
period.
------------------------------------------------------------------------
* * * * *
(j) Withdrawal of CSAPR FIP provisions relating to SO2 emissions. *
* *
(k) Continued applicability of certain federal trading program
provisions for SO2 emissions. (1) Notwithstanding the provisions of
paragraph (j) of this section or any State's SIP, when carrying out the
functions of the Administrator under any State CSAPR SO2
Group 1 Trading Program or State CSAPR SO2 Group 2 Trading
Program pursuant to a SIP revision approved under this section, the
Administrator will apply the following provisions of this section, as
amended, and the following provisions of subpart CCCCC of part 97 of
this chapter, as amended, or subpart DDDDD of part 97 of this chapter,
as amended, with regard to the State and any source subject to such
State trading program:
(i) The definitions in Sec. 97.602 of this chapter or Sec. 97.702
of this chapter;
(ii) The provisions in Sec. 97.610(a) of this chapter or Sec.
97.710(a) of this chapter (concerning in part the amounts of the new
unit set-asides);
(iii) The provisions in Sec. Sec. 97.611(b)(1) and 97.612(a) of
this chapter or Sec. Sec. 97.711(b)(1) and 97.712(a) of this chapter
(concerning the procedures for administering the new unit set-asides),
except where the State allocates or auctions CSAPR SO2 Group
1 allowances or CSAPR SO2 Group 2 allowances under an
approved SIP revision;
(iv) The provisions in Sec. 97.611(c)(5) of this chapter or Sec.
97.711(c)(5) of this chapter (concerning the disposition of incorrectly
allocated CSAPR SO2 Group 1 allowances or CSAPR
SO2 Group 2 allowances);
(v) The provisions in Sec. 97.621(f), (g), and (i) of this chapter
or Sec. 97.721(f), (g), and (i) of this chapter (concerning the
deadlines for recordation of allocations or auctions of CSAPR
SO2 Group 1 allowances or CSAPR SO2 Group 2
allowances) and the provisions in paragraphs (e)(1)(ii) and (iii) and
(f)(1)(ii) and (iii) of this section or paragraphs (h)(1)(ii) and (iii)
and (i)(1)(ii) and (iii) of this section (concerning the deadlines for
submission to the Administrator of State-determined allocations or
auction results); and
(vi) The provisions in Sec. 97.625(b) of this chapter or Sec.
97.725(b) of this chapter (concerning the procedures for administering
the assurance provisions).
(2) Notwithstanding the provisions of paragraph (j) of this
section, if, at the time of any approval of a State's SIP revision
under this section, the Administrator has already started recording any
allocations of CSAPR SO2 Group 1 allowances under subpart
CCCCC of part 97 of this chapter, or allocations of CSAPR
SO2 Group 2 allowances under subpart DDDDD of part 97 of
this chapter, to units in the
[[Page 23174]]
State for a control period in any year, the provisions of such subpart
authorizing the Administrator to complete the allocation and
recordation of such allowances to units in the State for each such
control period shall continue to apply, unless provided otherwise by
such approval of the State's SIP revision.
(l) States with approved SIP revisions addressing the CSAPR SO2
Group 1 Trading Program. * * *
* * * * *
(m) States with approved SIP revisions addressing the CSAPR SO2
Group 2 Trading Program. * * *
* * * * *
Subpart O--Illinois
0
6. Amend Sec. 52.731 by:
0
a. In paragraph (b)(2), removing ``2017 and each subsequent year.'' and
adding in its place ``2017 through 2020.'', and removing the second
sentence;
0
b. Redesignating paragraph (b)(3) as paragraph (b)(4) and adding a new
paragraph (b)(3);
0
c. In newly redesignated paragraph (b)(4), removing ``(b)(2)'' and
adding in its place ``(b)(3)'' each time it appears, removing ``Group
2'' and adding in its place ``Group 3'' each time it appears, and
removing ``EEEEE'' and adding in its place ``GGGGG'' each time it
appears; and
0
d. Adding paragraph (b)(5).
The additions read as follows:
Sec. 52.731 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
* * * * *
(b) * * *
(3) The owner and operator of each source and each unit located in
the State of Illinois and for which requirements are set forth under
the CSAPR NOX Ozone Season Group 3 Trading Program in
subpart GGGGG of part 97 of this chapter must comply with such
requirements with regard to emissions occurring in 2021 and each
subsequent year. The obligation to comply with such requirements will
be eliminated by the promulgation of an approval by the Administrator
of a revision to Illinois' State Implementation Plan (SIP) as
correcting the SIP's deficiency that is the basis for the CSAPR Federal
Implementation Plan (FIP) under Sec. 52.38(b)(1) and (b)(2)(v), except
to the extent the Administrator's approval is partial or conditional.
* * * * *
(5) Notwithstanding the provisions of paragraph (b)(2) of this
section, after 2020 the provisions of Sec. 97.826(c) of this chapter
(concerning the transfer of CSAPR NOX Ozone Season Group 2
allowances between certain accounts under common control), the
provisions of Sec. 97.826(d) of this chapter (concerning the
conversion of amounts of unused CSAPR NOX Ozone Season Group
2 allowances allocated for control periods before 2021 to different
amounts of CSAPR NOX Ozone Season Group 3 allowances), and
the provisions of Sec. 97.811(d) of this chapter (concerning the
recall of CSAPR NOX Ozone Season Group 2 allowances
equivalent in quantity and usability to all such allowances allocated
to units in the State for control periods after 2020) shall continue to
apply.
Subpart P--Indiana
0
7. Amend Sec. 52.789 by revising paragraphs (b)(2) and (3) and adding
paragraphs (b)(4) and (5) to read as follows:
Sec. 52.789 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
* * * * *
(b) * * *
(2) The owner and operator of each source and each unit located in
the State of Indiana and for which requirements are set forth under the
CSAPR NOX Ozone Season Group 2 Trading Program in subpart
EEEEE of part 97 of this chapter must comply with such requirements
with regard to emissions occurring in 2017 through 2020. The obligation
to comply with such requirements will be eliminated by the promulgation
of an approval by the Administrator of a revision to Indiana's State
Implementation Plan (SIP) as correcting the SIP's deficiency that is
the basis for the CSAPR Federal Implementation Plan (FIP) under Sec.
52.38(b)(1) and (b)(2)(iv), except to the extent the Administrator's
approval is partial or conditional, provided that because the CSAPR FIP
was promulgated as a partial rather than full remedy for an obligation
of the State to address interstate air pollution, the SIP revision
likewise will constitute a partial rather than full remedy for the
State's obligation unless provided otherwise in the Administrator's
approval of the SIP revision.
(3) The owner and operator of each source and each unit located in
the State of Indiana and for which requirements are set forth under the
CSAPR NOX Ozone Season Group 3 Trading Program in subpart
GGGGG of part 97 of this chapter must comply with such requirements
with regard to emissions occurring in 2021 and each subsequent year.
The obligation to comply with such requirements will be eliminated by
the promulgation of an approval by the Administrator of a revision to
Indiana's State Implementation Plan (SIP) as correcting the SIP's
deficiency that is the basis for the CSAPR Federal Implementation Plan
(FIP) under Sec. 52.38(b)(1) and (b)(2)(v), except to the extent the
Administrator's approval is partial or conditional.
(4) Notwithstanding the provisions of paragraphs (b)(2) and (3) of
this section, if, at the time of the approval of Indiana's SIP revision
described in paragraph (b)(2) or (3) of this section, the Administrator
has already started recording any allocations of CSAPR NOX
Ozone Season Group 2 allowances or CSAPR NOX Ozone Season
Group 3 allowances under subpart EEEEE or GGGGG, respectively, of part
97 of this chapter to units in the State for a control period in any
year, the provisions of such subpart authorizing the Administrator to
complete the allocation and recordation of such allowances to units in
the State for each such control period shall continue to apply, unless
provided otherwise by such approval of the State's SIP revision.
(5) Notwithstanding the provisions of paragraph (b)(2) of this
section, after 2020 the provisions of Sec. 97.826(c) of this chapter
(concerning the transfer of CSAPR NOX Ozone Season Group 2
allowances between certain accounts under common control), the
provisions of Sec. 97.826(d) of this chapter (concerning the
conversion of amounts of unused CSAPR NOX Ozone Season Group
2 allowances allocated for control periods before 2021 to different
amounts of CSAPR NOX Ozone Season Group 3 allowances), and
the provisions of Sec. 97.811(d) of this chapter (concerning the
recall of CSAPR NOX Ozone Season Group 2 allowances
equivalent in quantity and usability to all such allowances allocated
to units in the State for control periods after 2020) shall continue to
apply.
Subpart S--Kentucky
0
8. Amend Sec. 52.940 by:
0
a. In paragraph (b)(2), removing ``2017 and each subsequent year.'' and
adding in its place ``2017 through 2020.'', and removing the second
sentence;
0
b. Redesignating paragraph (b)(3) as paragraph (b)(4) and adding a new
paragraph (b)(3);
0
c. In newly redesignated paragraph (b)(4), removing ``(b)(2)'' and
adding in its place ``(b)(3)'' each time it appears, removing ``Group
2'' and adding in its place ``Group 3'' each time it appears,
[[Page 23175]]
and removing ``EEEEE'' and adding in its place ``GGGGG'' each time it
appears; and
0
d. Adding paragraph (b)(5).
The additions read as follows:
Sec. 52.940 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
* * * * *
(b) * * *
(3) The owner and operator of each source and each unit located in
the State of Kentucky and for which requirements are set forth under
the CSAPR NOX Ozone Season Group 3 Trading Program in
subpart GGGGG of part 97 of this chapter must comply with such
requirements with regard to emissions occurring in 2021 and each
subsequent year. The obligation to comply with such requirements will
be eliminated by the promulgation of an approval by the Administrator
of a revision to Kentucky's State Implementation Plan (SIP) as
correcting the SIP's deficiency that is the basis for the CSAPR Federal
Implementation Plan (FIP) under Sec. 52.38(b)(1) and (b)(2)(v), except
to the extent the Administrator's approval is partial or conditional.
* * * * *
(5) Notwithstanding the provisions of paragraph (b)(2) of this
section, after 2020 the provisions of Sec. 97.826(c) of this chapter
(concerning the transfer of CSAPR NOX Ozone Season Group 2
allowances between certain accounts under common control), the
provisions of Sec. 97.826(d) of this chapter (concerning the
conversion of amounts of unused CSAPR NOX Ozone Season Group
2 allowances allocated for control periods before 2021 to different
amounts of CSAPR NOX Ozone Season Group 3 allowances), and
the provisions of Sec. 97.811(d) of this chapter (concerning the
recall of CSAPR NOX Ozone Season Group 2 allowances
equivalent in quantity and usability to all such allowances allocated
to units in the State for control periods after 2020) shall continue to
apply.
Subpart T--Louisiana
0
9. Amend Sec. 52.984 by:
0
a. In paragraph (d)(2), removing ``2017 and each subsequent year.'' and
adding in its place ``2017 through 2020.'', and removing the second and
third sentences;
0
b. Redesignating paragraph (d)(3) as paragraph (d)(4) and adding a new
paragraph (d)(3);
0
c. In newly redesignated paragraph (d)(4), removing ``(d)(2)'' and
adding in its place ``(d)(3)'' each time it appears, removing ``Group
2'' and adding in its place ``Group 3'' each time it appears, and
removing ``EEEEE'' and adding in its place ``GGGGG'' each time it
appears; and
0
d. Adding paragraph (d)(5).
The additions read as follows:
Sec. 52.984 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
* * * * *
(d) * * *
(3) The owner and operator of each source and each unit located in
the State of Louisiana and Indian country within the borders of the
State and for which requirements are set forth under the CSAPR
NOX Ozone Season Group 3 Trading Program in subpart GGGGG of
part 97 of this chapter must comply with such requirements with regard
to emissions occurring in 2021 and each subsequent year. The obligation
to comply with such requirements with regard to sources and units in
the State will be eliminated by the promulgation of an approval by the
Administrator of a revision to Louisiana's State Implementation Plan
(SIP) as correcting the SIP's deficiency that is the basis for the
CSAPR Federal Implementation Plan (FIP) under Sec. 52.38(b)(1) and
(b)(2)(v) for those sources and units, except to the extent the
Administrator's approval is partial or conditional. The obligation to
comply with such requirements with regard to sources and units located
in Indian country within the borders of the State will not be
eliminated by the promulgation of an approval by the Administrator of a
revision to Louisiana's SIP.
* * * * *
(5) Notwithstanding the provisions of paragraph (d)(2) of this
section, after 2020 the provisions of Sec. 97.826(c) of this chapter
(concerning the transfer of CSAPR NOX Ozone Season Group 2
allowances between certain accounts under common control), the
provisions of Sec. 97.826(d) of this chapter (concerning the
conversion of amounts of unused CSAPR NOX Ozone Season Group
2 allowances allocated for control periods before 2021 to different
amounts of CSAPR NOX Ozone Season Group 3 allowances), and
the provisions of Sec. 97.811(d) of this chapter (concerning the
recall of CSAPR NOX Ozone Season Group 2 allowances
equivalent in quantity and usability to all such allowances allocated
to units in the State for control periods after 2020) shall continue to
apply.
Subpart V--Maryland
0
10. Amend Sec. 52.1084 by:
0
a. In paragraph (b)(2), removing ``2017 and each subsequent year.'' and
adding in its place ``2017 through 2020.'', and removing the second
sentence;
0
b. Redesignating paragraph (b)(3) as paragraph (b)(4) and adding a new
paragraph (b)(3);
0
c. In newly redesignated paragraph (b)(4), removing ``(b)(2)'' and
adding in its place ``(b)(3)'' each time it appears, removing ``Group
2'' and adding in its place ``Group 3'' each time it appears, and
removing ``EEEEE'' and adding in its place ``GGGGG'' each time it
appears; and
0
d. Adding paragraph (b)(5).
The additions read as follows:
Sec. 52.1084 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
* * * * *
(b) * * *
(3) The owner and operator of each source and each unit located in
the State of Maryland and for which requirements are set forth under
the CSAPR NOX Ozone Season Group 3 Trading Program in
subpart GGGGG of part 97 of this chapter must comply with such
requirements with regard to emissions occurring in 2021 and each
subsequent year. The obligation to comply with such requirements will
be eliminated by the promulgation of an approval by the Administrator
of a revision to Maryland's State Implementation Plan (SIP) as
correcting the SIP's deficiency that is the basis for the CSAPR Federal
Implementation Plan (FIP) under Sec. 52.38(b)(1) and (b)(2)(v), except
to the extent the Administrator's approval is partial or conditional.
* * * * *
(5) Notwithstanding the provisions of paragraph (b)(2) of this
section, after 2020 the provisions of Sec. 97.826(c) of this chapter
(concerning the transfer of CSAPR NOX Ozone Season Group 2
allowances between certain accounts under common control), the
provisions of Sec. 97.826(d) of this chapter (concerning the
conversion of amounts of unused CSAPR NOX Ozone Season Group
2 allowances allocated for control periods before 2021 to different
amounts of CSAPR NOX Ozone Season Group 3 allowances), and
the provisions of Sec. 97.811(d) of this chapter (concerning the
recall of CSAPR NOX Ozone Season Group 2 allowances
equivalent in quantity and usability to all such allowances allocated
to units in the State for control periods after 2020) shall continue to
apply.
Subpart X--Michigan
0
11. Amend Sec. 52.1186 by:
[[Page 23176]]
0
a. In paragraph (e)(2), removing ``2017 and each subsequent year.'' and
adding in its place ``2017 through 2020.'', and removing the second and
third sentences;
0
b. Redesignating paragraph (e)(3) as paragraph (e)(4) and adding a new
paragraph (e)(3);
0
c. In newly redesignated paragraph (e)(4), removing ``(e)(2)'' and
adding in its place ``(e)(3)'' each time it appears, removing ``Group
2'' and adding in its place ``Group 3'' each time it appears, and
removing ``EEEEE'' and adding in its place ``GGGGG'' each time it
appears; and
0
d. Adding paragraph (e)(5).
The additions read as follows:
Sec. 52.1186 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
* * * * *
(e) * * *
(3) The owner and operator of each source and each unit located in
the State of Michigan and Indian country within the borders of the
State and for which requirements are set forth under the CSAPR
NOX Ozone Season Group 3 Trading Program in subpart GGGGG of
part 97 of this chapter must comply with such requirements with regard
to emissions occurring in 2021 and each subsequent year. The obligation
to comply with such requirements with regard to sources and units in
the State will be eliminated by the promulgation of an approval by the
Administrator of a revision to Michigan's State Implementation Plan
(SIP) as correcting the SIP's deficiency that is the basis for the
CSAPR Federal Implementation Plan (FIP) under Sec. 52.38(b)(1) and
(b)(2)(v) for those sources and units, except to the extent the
Administrator's approval is partial or conditional. The obligation to
comply with such requirements with regard to sources and units located
in Indian country within the borders of the State will not be
eliminated by the promulgation of an approval by the Administrator of a
revision to Michigan's SIP.
* * * * *
(5) Notwithstanding the provisions of paragraph (e)(2) of this
section, after 2020 the provisions of Sec. 97.826(c) of this chapter
(concerning the transfer of CSAPR NOX Ozone Season Group 2
allowances between certain accounts under common control), the
provisions of Sec. 97.826(d) of this chapter (concerning the
conversion of amounts of unused CSAPR NOX Ozone Season Group
2 allowances allocated for control periods before 2021 to different
amounts of CSAPR NOX Ozone Season Group 3 allowances), and
the provisions of Sec. 97.811(d) of this chapter (concerning the
recall of CSAPR NOX Ozone Season Group 2 allowances
equivalent in quantity and usability to all such allowances allocated
to units in the State for control periods after 2020) shall continue to
apply.
Subpart FF--New Jersey
0
12. Amend Sec. 52.1584 by:
0
a. In paragraph (e)(2), removing ``2017 and each subsequent year.'' and
adding in its place ``2017 through 2020.'', and removing the second
sentence;
0
b. Redesignating paragraph (e)(3) as paragraph (e)(4) and adding a new
paragraph (e)(3);
0
c. In newly redesignated paragraph (e)(4), removing ``(e)(2)'' and
adding in its place ``(e)(3)'' each time it appears, removing ``Group
2'' and adding in its place ``Group 3'' each time it appears, and
removing ``EEEEE'' and adding in its place ``GGGGG'' each time it
appears; and
0
d. Adding paragraph (e)(5).
The additions read as follows:
Sec. 52.1584 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
* * * * *
(e) * * *
(3) The owner and operator of each source and each unit located in
the State of New Jersey and for which requirements are set forth under
the CSAPR NOX Ozone Season Group 3 Trading Program in
subpart GGGGG of part 97 of this chapter must comply with such
requirements with regard to emissions occurring in 2021 and each
subsequent year. The obligation to comply with such requirements will
be eliminated by the promulgation of an approval by the Administrator
of a revision to New Jersey's State Implementation Plan (SIP) as
correcting the SIP's deficiency that is the basis for the CSAPR Federal
Implementation Plan (FIP) under Sec. 52.38(b)(1) and (b)(2)(v), except
to the extent the Administrator's approval is partial or conditional.
* * * * *
(5) Notwithstanding the provisions of paragraph (e)(2) of this
section, after 2020 the provisions of Sec. 97.826(c) of this chapter
(concerning the transfer of CSAPR NOX Ozone Season Group 2
allowances between certain accounts under common control), the
provisions of Sec. 97.826(d) of this chapter (concerning the
conversion of amounts of unused CSAPR NOX Ozone Season Group
2 allowances allocated for control periods before 2021 to different
amounts of CSAPR NOX Ozone Season Group 3 allowances), and
the provisions of Sec. 97.811(d) of this chapter (concerning the
recall of CSAPR NOX Ozone Season Group 2 allowances
equivalent in quantity and usability to all such allowances allocated
to units in the State for control periods after 2020) shall continue to
apply.
Subpart HH--New York
0
13. Amend Sec. 52.1684 by:
0
a. In paragraph (b)(2), removing ``2017 and each subsequent year.'' and
adding in its place ``2017 through 2020.'', and removing the second and
third sentences;
0
b. Redesignating paragraph (b)(3) as paragraph (b)(4) and adding a new
paragraph (b)(3);
0
c. In newly redesignated paragraph (b)(4), removing ``(b)(2)'' and
adding in its place ``(b)(3)'' each time it appears, removing ``Group
2'' and adding in its place ``Group 3'' each time it appears, and
removing ``EEEEE'' and adding in its place ``GGGGG'' each time it
appears; and
0
d. Adding paragraph (b)(5).
The additions read as follows:
Sec. 52.1684 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
* * * * *
(b) * * *
(3) The owner and operator of each source and each unit located in
the State of New York and Indian country within the borders of the
State and for which requirements are set forth under the CSAPR
NOX Ozone Season Group 3 Trading Program in subpart GGGGG of
part 97 of this chapter must comply with such requirements with regard
to emissions occurring in 2021 and each subsequent year. The obligation
to comply with such requirements with regard to sources and units in
the State will be eliminated by the promulgation of an approval by the
Administrator of a revision to New York's State Implementation Plan
(SIP) as correcting the SIP's deficiency that is the basis for the
CSAPR Federal Implementation Plan (FIP) under Sec. 52.38(b)(1) and
(b)(2)(v) for those sources and units, except to the extent the
Administrator's approval is partial or conditional. The obligation to
comply with such requirements with regard to sources and units located
in Indian country within the borders of the State will not be
eliminated by the promulgation of an approval by the Administrator of a
revision to New York's SIP.
* * * * *
[[Page 23177]]
(5) Notwithstanding the provisions of paragraph (b)(2) of this
section, after 2020 the provisions of Sec. 97.826(c) of this chapter
(concerning the transfer of CSAPR NOX Ozone Season Group 2
allowances between certain accounts under common control), the
provisions of Sec. 97.826(d) of this chapter (concerning the
conversion of amounts of unused CSAPR NOX Ozone Season Group
2 allowances allocated for control periods before 2021 to different
amounts of CSAPR NOX Ozone Season Group 3 allowances), and
the provisions of Sec. 97.811(d) of this chapter (concerning the
recall of CSAPR NOX Ozone Season Group 2 allowances
equivalent in quantity and usability to all such allowances allocated
to units in the State for control periods after 2020) shall continue to
apply.
Subpart KK--Ohio
0
14. Amend Sec. 52.1882 by:
0
a. In paragraph (b)(2), removing ``2017 and each subsequent year.'' and
adding in its place ``2017 through 2020.'', and removing the second
sentence;
0
b. Redesignating paragraph (b)(3) as paragraph (b)(4) and adding a new
paragraph (b)(3);
0
c. In newly redesignated paragraph (b)(4), removing ``(b)(2)'' and
adding in its place ``(b)(3)'' each time it appears, removing ``Group
2'' and adding in its place ``Group 3'' each time it appears, and
removing ``EEEEE'' and adding in its place ``GGGGG'' each time it
appears; and
0
d. Adding paragraph (b)(5).
The additions read as follows:
Sec. 52.1882 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
* * * * *
(b) * * *
(3) The owner and operator of each source and each unit located in
the State of Ohio and for which requirements are set forth under the
CSAPR NOX Ozone Season Group 3 Trading Program in subpart
GGGGG of part 97 of this chapter must comply with such requirements
with regard to emissions occurring in 2021 and each subsequent year.
The obligation to comply with such requirements will be eliminated by
the promulgation of an approval by the Administrator of a revision to
Ohio's State Implementation Plan (SIP) as correcting the SIP's
deficiency that is the basis for the CSAPR Federal Implementation Plan
(FIP) under Sec. 52.38(b)(1) and (b)(2)(v), except to the extent the
Administrator's approval is partial or conditional.
* * * * *
(5) Notwithstanding the provisions of paragraph (b)(2) of this
section, after 2020 the provisions of Sec. 97.826(c) of this chapter
(concerning the transfer of CSAPR NOX Ozone Season Group 2
allowances between certain accounts under common control), the
provisions of Sec. 97.826(d) of this chapter (concerning the
conversion of amounts of unused CSAPR NOX Ozone Season Group
2 allowances allocated for control periods before 2021 to different
amounts of CSAPR NOX Ozone Season Group 3 allowances), and
the provisions of Sec. 97.811(d) of this chapter (concerning the
recall of CSAPR NOX Ozone Season Group 2 allowances
equivalent in quantity and usability to all such allowances allocated
to units in the State for control periods after 2020) shall continue to
apply.
Subpart NN--Pennsylvania
0
15. Amend Sec. 52.2040 by:
0
a. In paragraph (b)(2), removing ``2017 and each subsequent year.'' and
adding in its place ``2017 through 2020.'', and removing the second
sentence;
0
b. Redesignating paragraph (b)(3) as paragraph (b)(4) and adding a new
paragraph (b)(3);
0
c. In newly redesignated paragraph (b)(4), removing ``(b)(2)'' and
adding in its place ``(b)(3)'' each time it appears, removing ``Group
2'' and adding in its place ``Group 3'' each time it appears, and
removing ``EEEEE'' and adding in its place ``GGGGG'' each time it
appears; and
0
d. Adding paragraph (b)(5).
The additions read as follows:
Sec. 52.2040 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
* * * * *
(b) * * *
(3) The owner and operator of each source and each unit located in
the State of Pennsylvania and for which requirements are set forth
under the CSAPR NOX Ozone Season Group 3 Trading Program in
subpart GGGGG of part 97 of this chapter must comply with such
requirements with regard to emissions occurring in 2021 and each
subsequent year. The obligation to comply with such requirements will
be eliminated by the promulgation of an approval by the Administrator
of a revision to Pennsylvania's State Implementation Plan (SIP) as
correcting the SIP's deficiency that is the basis for the CSAPR Federal
Implementation Plan (FIP) under Sec. 52.38(b)(1) and (b)(2)(v), except
to the extent the Administrator's approval is partial or conditional.
* * * * *
(5) Notwithstanding the provisions of paragraph (b)(2) of this
section, after 2020 the provisions of Sec. 97.826(c) of this chapter
(concerning the transfer of CSAPR NOX Ozone Season Group 2
allowances between certain accounts under common control), the
provisions of Sec. 97.826(d) of this chapter (concerning the
conversion of amounts of unused CSAPR NOX Ozone Season Group
2 allowances allocated for control periods before 2021 to different
amounts of CSAPR NOX Ozone Season Group 3 allowances), and
the provisions of Sec. 97.811(d) of this chapter (concerning the
recall of CSAPR NOX Ozone Season Group 2 allowances
equivalent in quantity and usability to all such allowances allocated
to units in the State for control periods after 2020) shall continue to
apply.
Subpart VV--Virginia
0
16. Amend Sec. 52.2440 by:
0
a. In paragraph (b)(2), removing ``2017 and each subsequent year.'' and
adding in its place ``2017 through 2020.'', and removing the second
sentence;
0
b. Redesignating paragraph (b)(3) as paragraph (b)(4) and adding a new
paragraph (b)(3);
0
c. In newly redesignated paragraph (b)(4), removing ``(b)(2)'' and
adding in its place ``(b)(3)'' each time it appears, removing ``Group
2'' and adding in its place ``Group 3'' each time it appears, and
removing ``EEEEE'' and adding in its place ``GGGGG'' each time it
appears; and
0
d. Adding paragraph (b)(5).
The additions read as follows:
Sec. 52.2440 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
* * * * *
(b) * * *
(3) The owner and operator of each source and each unit located in
the State of Virginia and for which requirements are set forth under
the CSAPR NOX Ozone Season Group 3 Trading Program in
subpart GGGGG of part 97 of this chapter must comply with such
requirements with regard to emissions occurring in 2021 and each
subsequent year. The obligation to comply with such requirements will
be eliminated by the promulgation of an approval by the Administrator
of a revision to Virginia's State Implementation Plan (SIP) as
correcting the SIP's deficiency that is the basis for the CSAPR Federal
Implementation Plan (FIP) under
[[Page 23178]]
Sec. 52.38(b)(1) and (b)(2)(v), except to the extent the
Administrator's approval is partial or conditional.
* * * * *
(5) Notwithstanding the provisions of paragraph (b)(2) of this
section, after 2020 the provisions of Sec. 97.826(c) of this chapter
(concerning the transfer of CSAPR NOX Ozone Season Group 2
allowances between certain accounts under common control), the
provisions of Sec. 97.826(d) of this chapter (concerning the
conversion of amounts of unused CSAPR NOX Ozone Season Group
2 allowances allocated for control periods before 2021 to different
amounts of CSAPR NOX Ozone Season Group 3 allowances), and
the provisions of Sec. 97.811(d) of this chapter (concerning the
recall of CSAPR NOX Ozone Season Group 2 allowances
equivalent in quantity and usability to all such allowances allocated
to units in the State for control periods after 2020) shall continue to
apply.
Subpart XX--West Virginia
0
17. Amend Sec. 52.2540 by:
0
a. In paragraph (b)(2), removing ``2017 and each subsequent year.'' and
adding in its place ``2017 through 2020.'', and removing the second
sentence;
0
b. Redesignating paragraph (b)(3) as paragraph (b)(4) and adding a new
paragraph (b)(3);
0
c. In newly redesignated paragraph (b)(4), removing ``(b)(2)'' and
adding in its place ``(b)(3)'' each time it appears, removing ``Group
2'' and adding in its place ``Group 3'' each time it appears, and
removing ``EEEEE'' and adding in its place ``GGGGG'' each time it
appears; and
0
d. Adding paragraph (b)(5).
The additions read as follows:
Sec. 52.2540 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
* * * * *
(b) * * *
(3) The owner and operator of each source and each unit located in
the State of West Virginia and for which requirements are set forth
under the CSAPR NOX Ozone Season Group 3 Trading Program in
subpart GGGGG of part 97 of this chapter must comply with such
requirements with regard to emissions occurring in 2021 and each
subsequent year. The obligation to comply with such requirements will
be eliminated by the promulgation of an approval by the Administrator
of a revision to West Virginia's State Implementation Plan (SIP) as
correcting the SIP's deficiency that is the basis for the CSAPR Federal
Implementation Plan (FIP) under Sec. 52.38(b)(1) and (b)(2)(v), except
to the extent the Administrator's approval is partial or conditional.
* * * * *
(5) Notwithstanding the provisions of paragraph (b)(2) of this
section, after 2020 the provisions of Sec. 97.826(c) of this chapter
(concerning the transfer of CSAPR NOX Ozone Season Group 2
allowances between certain accounts under common control), the
provisions of Sec. 97.826(d) of this chapter (concerning the
conversion of amounts of unused CSAPR NOX Ozone Season Group
2 allowances allocated for control periods before 2021 to different
amounts of CSAPR NOX Ozone Season Group 3 allowances), and
the provisions of Sec. 97.811(d) of this chapter (concerning the
recall of CSAPR NOX Ozone Season Group 2 allowances
equivalent in quantity and usability to all such allowances allocated
to units in the State for control periods after 2020) shall continue to
apply.
PART 78--APPEAL PROCEDURES
0
18. The authority citation for part 78 is revised to read as follows:
Authority: 42 U.S.C. 7401-7671q.
0
19. Amend Sec. 78.1 by:
0
a. In paragraphs (a)(1)(i)(A) and (B), removing the period at the end
of the paragraph and adding in its place a semicolon;
0
b. Revising paragraphs (a)(1)(i)(C) and (D);
0
c. Removing paragraph (a)(1)(i)(E) and redesignating paragraph
(a)(1)(i)(F) as paragraph (a)(1)(i)(E);
0
d. In paragraph (a)(1)(iv), removing ``and subpart EEEEE'' and adding
in its place ``subpart EEEEE of part 97 of this chapter, and subpart
GGGGG'' and removing ``and Sec. 52.38(b)(6), (8), or (9)'' and adding
in its place ``Sec. 52.38(b)(8) or (9) of this chapter, and Sec.
52.38(b)(11) or (12)'';
0
e. In paragraph (b)(1) introductory text, removing the semicolon at the
end of the paragraph and adding in its place a comma;
0
f. In paragraph (b)(9)(i), removing ``(c)(2) of'' and adding in its
place ``(c)(2) of'';
0
g. In paragraph (b)(13)(i), removing ``and (b)'' and adding in its
place ``or (c) or Sec. 97.412'';
0
h. In paragraph (b)(13)(iii), removing ``Sec. Sec. 97.424 and 97.425''
and adding in its place ``Sec. 97.424 or Sec. 97.425'';
0
i. In paragraph (b)(14)(i), removing ``and (b)'' and adding in its
place ``or (c) or Sec. 97.512'';
0
j. In paragraph (b)(14)(iii), removing ``Sec. Sec. 97.524 and 97.525''
and adding in its place ``Sec. 97.524 or Sec. 97.525'';
0
k. In paragraph (b)(14)(viii), removing ``the removal of'' and adding
in its place ``the deduction of'', and removing ``under Sec.
97.526(c)'' and adding in its place ``or CSAPR NOX Ozone
Season Group 3 allowances under Sec. 97.526(d)'';
0
l. In paragraph (b)(15)(i), removing ``and (b)'' and adding in its
place ``or (c) or Sec. 97.612'';
0
m. In paragraph (b)(15)(iii), removing ``Sec. Sec. 97.624 and 97.625''
and adding in its place ``Sec. 97.624 or Sec. 97.625'';
0
n. In paragraph (b)(16)(i), removing ``and (b)'' and adding in its
place ``or (c) or Sec. 97.712'';
0
o. In paragraph (b)(16)(iii), removing ``Sec. Sec. 97.724 and 97.725''
and adding in its place ``Sec. 97.724 or Sec. 97.725'';
0
p. In paragraph (b)(17)(i), removing ``and (b)'' and adding in its
place ``or (c) or Sec. 97.812'';
0
q. In paragraph (b)(17)(iii), removing ``Sec. Sec. 97.824 and 97.825''
and adding in its place ``Sec. 97.824 or Sec. 97.825'';
0
r. Adding paragraphs (b)(17)(viii) and (ix);
0
s. Redesignating paragraph (b)(18) as paragraph (b)(20) and adding new
paragraphs (b)(18) and (19);
0
t. In newly redesignated paragraph (b)(20)(i), removing ``A
determination of eligibility for'' and adding in its place ``The
decision on eligibility for a''; and
0
u. In newly redesignated paragraph (b)(20)(iii), removing ``and Sec.
98.448(d)'' and adding in its place ``or (d)''.
The revisions and additions read as follows:
Sec. 78.1 Purpose and scope.
(a) * * *
(1) * * *
(i) * * *
(C) Subparts AA through II, AAA through III, or AAAA through IIII
of part 96 of this chapter; subparts AA through II, AAA through III, or
AAAA through IIII of part 97 of this chapter; or State regulations
approved under Sec. 51.123(o)(1) or (2) or (aa)(1) or (2) or Sec.
51.124(o)(1) or (2) of this chapter;
(D) Subpart AAAAA, BBBBB, CCCCC, DDDDD, EEEEE, FFFFF, or GGGGG of
part 97 of this chapter or State regulations approved under Sec.
52.38(a)(4) or (5) or (b)(4), (5), (8), (9), (11), or (12) or Sec.
52.39(e), (f), (h), or (i) of this chapter; or
* * * * *
(b) * * *
(17) * * *
(viii) The decision on the deduction of CSAPR NOX Ozone
Season Group 2 allowances from an Allowance Management System account
and the allocation to such account or another
[[Page 23179]]
account of CSAPR NOX Ozone Season Group 3 allowances under
Sec. 97.826(d) of this chapter.
(ix) The decision on the recall of allocations of CSAPR
NOX Ozone Season Group 2 allowances and the deduction of
such allowances from an Allowance Management System account under Sec.
97.811(d) of this chapter.
(18) Under subpart FFFFF of part 97 of this chapter,
(i) The decision on the allocation of Texas SO2 Trading
Program allowances under Sec. 97.911(a)(2) or (c) or Sec. 97.912 of
this chapter.
(ii) The decision on the transfer of Texas SO2 Trading
Program allowances under Sec. 97.923 of this chapter.
(iii) The decision on the deduction of Texas SO2 Trading
Program allowances under Sec. 97.924 or Sec. 97.925 of this chapter.
(iv) The correction of an error in an Allowance Management System
account under Sec. 97.927 of this chapter.
(v) The adjustment of information in a submission and the decision
on the deduction and transfer of Texas SO2 Trading Program
allowances based on the information as adjusted under Sec. 97.928 of
this chapter.
(vi) The finalization of control period emissions data, including
retroactive adjustment based on audit.
(vii) The approval or disapproval of a petition under Sec. 97.935
of this chapter.
(19) Under subpart GGGGG of part 97 of this chapter,
(i) The decision on the allocation of CSAPR NOX Ozone
Season Group 3 allowances under Sec. 97.1011(a)(2) or (3) or (c) or
Sec. 97.1012 of this chapter.
(ii) The decision on the transfer of CSAPR NOX Ozone
Season Group 3 allowances under Sec. 97.1023 of this chapter.
(iii) The decision on the deduction of CSAPR NOX Ozone
Season Group 3 allowances under Sec. 97.1024 or Sec. 97.1025 of this
chapter.
(iv) The correction of an error in an Allowance Management System
account under Sec. 97.1027 of this chapter.
(v) The adjustment of information in a submission and the decision
on the deduction and transfer of CSAPR NOX Ozone Season
Group 3 allowances based on the information as adjusted under Sec.
97.1028 of this chapter.
(vi) The finalization of control period emissions data, including
retroactive adjustment based on audit.
(vii) The approval or disapproval of a petition under Sec. 97.1035
of this chapter.
* * * * *
0
20. Amend Sec. 78.2 by:
0
a. Revising paragraph (a)(1);
0
b. In paragraphs (a)(2)(ii) and (iii), removing ``Who submitted'' and
adding in its place ``Any person who submitted''; and
0
c. In paragraph (b), removing ``subpart'' and adding in its place
``part''.
The revision reads as follows:
Sec. 78.2 General.
(a) * * *
(1) The terms used in this part with regard to a decision of the
Administrator that is appealed under this part shall have the meanings
as set forth in the regulations under which the Administrator made such
decision and as set forth in paragraph (a)(2) of this section and Sec.
72.2 of this chapter.
* * * * *
0
21. Amend Sec. 78.3 by:
0
a. Revising paragraph (a);
0
b. In paragraph (b)(3)(i)(A), removing ``(a)(1), (2), (10), or (11) of
this section.'' and adding in its place ``(a)(1) of this section;'';
0
c. In paragraph (b)(3)(i)(B), removing ``(a)(3) of this section.'' and
adding in its place ``(a)(2) of this section;'';
0
d. In paragraph (b)(3)(i)(C), removing ``(a)(4), (5), (6), (7), (8), or
(9) of this section.'' and adding in its place ``(a)(3) of this
section;'';
0
e. Adding paragraphs (b)(3)(i)(D) and (E);
0
f. In paragraph (c)(5)(ii), removing the period at the end of the
paragraph and adding in its place a semicolon;
0
g. Revising paragraphs (c)(7)(i) through (v);
0
h. In paragraph (d)(1), removing the period at the end of the paragraph
and adding in its place a semicolon;
0
i. In paragraph (d)(2)(i), removing ``the Acid Rain Program or subpart
AAAAA, BBBBB, CCCCC, DDDDD, or EEEEE of part 97 of this chapter.'' and
adding in its place ``parts 72, 73, 74, 75, 76, and 77 of this
chapter;'';
0
j. In paragraph (d)(2)(ii), removing ``the NOX Budget
Trading Program.'' and adding in its place ``subparts A through J of
part 97 of this chapter;'';
0
k. In paragraph (d)(2)(iii), removing the period at the end of the
paragraph and adding in its place a semicolon;
0
l. Adding paragraphs (d)(2)(iv) and (v);
0
m. In paragraphs (d)(3) and (4), removing the period at the end of the
paragraph and adding in its place a semicolon;
0
n. Revising paragraphs (d)(5) and (6); and
0
o. Removing paragraph (d)(7) and redesignating paragraph (d)(8) as
paragraph (d)(7).
The revisions and additions read as follows:
Sec. 78.3 Petition for administrative review and request for
evidentiary hearing.
(a)(1) The following persons may petition for administrative review
of a decision of the Administrator that is made under parts 72, 73, 74,
75, 76, and 77 of this chapter and that is appealable under Sec.
78.1(a):
(i) The designated representative for a unit or source covered by
the decision or the authorized account representative for any Allowance
Tracking System account covered by the decision; or
(ii) Any interested person with regard to the decision.
(2) The following persons may petition for administrative review of
a decision of the Administrator that is made under subparts A through J
of part 97 of this chapter and that is appealable under Sec. 78.1(a):
(i) The NOX authorized account representative for a unit
or source covered by the decision or any NOX Allowance
Tracking System account covered by the decision; or
(ii) Any interested person with regard to the decision.
(3) The following persons may petition for administrative review of
a decision of the Administrator that is made under subparts AA through
II, AAA through III, or AAAA through IIII of part 96 of this chapter or
subparts AA through II, AAA through III, or AAAA through IIII of part
97 of this chapter and that is appealable under Sec. 78.1(a):
(i) The CAIR designated representative for a unit or source covered
by the decision or the CAIR authorized account representative for any
CAIR NOX Allowance Tracking System account, CAIR
SO2 Allowance Tracking System account, or CAIR
NOX Ozone Season Allowance Tracking System account covered
by the decision; or
(ii) Any interested person with regard to the decision.
(4) The following persons may petition for administrative review of
a decision of the Administrator that is made under subpart AAAAA,
BBBBB, CCCCC, DDDDD, EEEEE, FFFFF, or GGGGG of part 97 of this chapter
and that is appealable under Sec. 78.1(a):
(i) The designated representative for a unit or source covered by
the decision or the authorized account representative for any Allowance
Management System account covered by the decision; or
(ii) Any interested person with regard to the decision.
(5) The following persons may petition for administrative review of
a decision of the Administrator that is made under subpart RR of part
98 of this chapter and that is appealable under Sec. 78.1(a):
[[Page 23180]]
(i) The designated representative for a facility covered by the
decision; or
(ii) Any interested person with regard to the decision.
(b) * * *
(3) * * *
(i) * * *
(D) The designated representative or authorized account
representative, for a petition under paragraph (a)(4) of this section;
or
(E) The designated representative, for a petition under paragraph
(a)(5) of this section; and
* * * * *
(c) * * *
(7) * * *
(i) Parts 72, 73, 74, 75, 76, and 77 of this chapter;
(ii) Subparts A through J of part 97 of this chapter;
(iii) Subparts AA through II, AAA through III, or AAAA through IIII
of part 96 of this chapter or subparts AA through II, AAA through III,
or AAAA through IIII of part 97 of this chapter;
(iv) Subpart AAAAA, BBBBB, CCCCC, DDDDD, EEEEE, FFFFF, or GGGGG of
part 97 of this chapter; or
(v) Subpart RR of part 98 of this chapter.
(d) * * *
(2) * * *
(iv) A certificate of representation submitted by a designated
representative or an application for a general account submitted by an
authorized account representative under subpart AAAAA, BBBBB, CCCCC,
DDDDD, EEEEE, FFFFF, or GGGGG of part 97 of this chapter; or
(v) A certificate of representation submitted by a designated
representative under part 98 of this chapter;
* * * * *
(5) Any provision or requirement of subparts AA through II, AAA
through III, or AAAA through IIII of part 96 of this chapter or
subparts AA through II, AAA through III, or AAAA through IIII of part
97 of this chapter, including the standard requirements under Sec.
96.106, Sec. 96.206, or Sec. 96.306 of this chapter or Sec. 97.106,
Sec. 97.206, or Sec. 97.306 of this chapter, respectively, and any
emission monitoring or reporting requirements;
(6) Any provision or requirement of subpart AAAAA, BBBBB, CCCCC,
DDDDD, EEEEE, FFFFF, or GGGGG of part 97 of this chapter, including the
standard requirements under Sec. 97.406, Sec. 97.506, Sec. 97.606,
Sec. 97.706, Sec. 97.806, Sec. 97.906, or Sec. 97.1006 of this
chapter, respectively, and any emission monitoring or reporting
requirements; or
* * * * *
0
22. Amend Sec. 78.4 by:
0
a. Revising paragraph (a)(1)(i);
0
b. In paragraph (a)(1)(ii), designating the first sentence as paragraph
(a)(1)(ii)(A) and designating the second sentence as paragraph
(a)(1)(ii)(B);
0
c. In paragraph (a)(1)(iii), designating the first sentence as
paragraph (a)(1)(iii)(A) and designating the second sentence as
paragraph (a)(1)(iii)(B); and
0
d. Redesignating paragraph (a)(1)(iv) as paragraph (a)(1)(v) and adding
a new paragraph (a)(1)(iv).
The revision and addition read as follows:
Sec. 78.4 Filings.
(a) * * *
(1) * * *
(i)(A) Any filings on behalf of owners and operators of an affected
unit or affected source under parts 72, 73, 74, 75, 76, and 77 of this
chapter shall be signed by the designated representative.
(B) Any filings on behalf of persons with an ownership interest
with respect to allowances in a general account under parts 72, 73, 74,
75, 76, and 77 of this chapter shall be signed by the authorized
account representative.
* * * * *
(iv)(A) Any filings on behalf of owners and operators of a CSAPR
NOX Annual unit or CSAPR NOX Annual source, CSAPR
NOX Ozone Season Group 1 unit or CSAPR NOX Ozone
Season Group 1 source, CSAPR NOX Ozone Season Group 2 unit
or CSAPR NOX Ozone Season Group 2 source, CSAPR
NOX Ozone Season Group 3 unit or CSAPR NOX Ozone
Season Group 3 source, CSAPR SO2 Group 1 unit or CSAPR
SO2 Group 1 source, CSAPR SO2 Group 2 unit or
CSAPR SO2 Group 2 source, or Texas SO2 Trading
Program unit or Texas SO2 Trading Program source shall be
signed by the designated representative.
(B) Any filings on behalf of persons with an ownership interest
with respect to CSAPR NOX Annual allowances, CSAPR
NOX Ozone Season Group 1 allowances, CSAPR NOX
Ozone Season Group 2 allowances, CSAPR NOX Ozone Season
Group 3 allowances, CSAPR SO2 Group 1 allowances, CSAPR
SO2 Group 2 allowances, or Texas SO2 Trading
Program allowances in a general account shall be signed by the
authorized account representative.
* * * * *
Sec. 78.5 [Amended]
0
23. In Sec. 78.5, amend paragraph (a) by removing from the second
sentence ``presented, the issue could not'' and adding in its place
``presented or the issue could not''.
Sec. 78.6 [Amended]
0
24. Amend Sec. 78.6 by:
0
a. In paragraph (a), removing ``of this part'';
0
b. In paragraph (b)(2) introductory text, removing ``in part, it
will:'' and adding in its place ``in part:'';
0
c. In paragraph (b)(2)(i), removing ``Identify the portions'' and
adding in its place ``It will identify the portions'', and removing the
comma after ``contested''; and
0
d. In paragraph (b)(2)(ii), removing ``Refer the disputed'' and adding
in its place ``It will refer the disputed''.
Sec. 78.10 [Amended]
0
25. Amend Sec. 78.10 by:
0
a. In paragraph (a)(3), removing ``this paragraph'' and adding in its
place ``paragraph (a)(1) or (2) of this section'';
0
b. In paragraph (b), adding a comma after ``knowingly caused to be
made''; and
0
c. In paragraph (c), removing ``under Sec. 78.9 of this part. This
prohibition terminates'' and adding in its place ``under Sec. 78.9.
These prohibitions terminate''.
Sec. 78.11 [Amended]
0
26. Amend Sec. 78.11 by:
0
a. In paragraph (a), removing ``of this part'' each time it appears;
and
0
b. In paragraph (b) introductory text, removing ``of'' and adding in
its place ``or''.
Sec. 78.12 [Amended]
0
27. Amend Sec. 78.12 by:
0
a. In paragraph (a)(1), removing ``warrants review.'' and adding in its
place ``warrants review; and''; and
0
b. In paragraph (a)(2), adding a comma after ``Acid Rain permit''.
Sec. 78.13 [Amended]
0
28. In Sec. 78.13, amend paragraph (a)(3) by removing ``of this
part''.
Sec. 78.14 [Amended]
0
29. In Sec. 78.14, amend paragraphs (a)(4) and (7) and (c)(4) by
removing ``of this part''.
Sec. 78.15 [Amended]
0
30. In Sec. 78.15, amend paragraphs (a) and (e) by removing ``of this
part'' each time it appears.
Sec. 78.16 [Amended]
0
31. In Sec. 78.16, amend paragraph (b) introductory text by removing
the period at the end of the paragraph and adding in its place a colon.
Sec. 78.17 [Amended]
0
32. Amend Sec. 78.17 by removing ``of this part''.
[[Page 23181]]
Sec. 78.18 [Amended]
0
33. In Sec. 78.18, amend paragraphs (a) and (b)(1) and (2) by removing
``of this part''.
Sec. 78.19 [Amended]
0
34. Amend Sec. 78.19 by:
0
a. In paragraph (d), in the second sentence, adding ``the'' before
``Environmental Appeals Board''; and
0
b. In paragraph (e), removing ``of this part''.
Sec. 78.20 [Amended]
0
35. Amend Sec. 78.20 by:
0
a. In paragraph (a)(2), removing ``Sec. 78.12(a) (1) and (2) of this
part.'' and adding in its place ``Sec. 78.12(a)(1) and (2).''; and
0
b. In paragraph (c), removing ``of this part''.
PART 97--FEDERAL NOX BUDGET TRADING PROGRAM, CAIR NOX AND SO2
TRADING PROGRAMS, CSAPR NOX AND SO2 TRADING PROGRAMS, AND TEXAS SO2
TRADING PROGRAM
0
36. The authority citation for part 97 continues to read as follows:
Authority: 42 U.S.C. 7401, 7403, 7410, 7426, 7491, 7601, and
7651, et seq.
Subpart AAAAA--CSAPR NOX Annual Trading Program
0
37. Amend Sec. 97.402 by:
0
a. Removing the definition of ``Allowable NOX emission
rate'';
0
b. Revising the definition of ``Allowance transfer deadline'';
0
c. In the definition of ``Alternate designated representative'', adding
``CSAPR NOX Ozone Season Group 3 Trading Program,'' before
``CSAPR SO2 Group 1 Trading Program,'';
0
d. In the definition of ``Biomass'', paragraph (3) introductory text,
removing the semicolon and adding in its place a colon;
0
e. Removing the definition of ``Coal-derived fuel'';
0
f. In the definition of ``Cogeneration unit'', paragraph (2)(i)(B),
removing ``15 percent of total energy output.'' and adding in its place
``15 percent of total energy output; or'';
0
g. In the definition of ``Common designated representative'', removing
``such control period, the same'' and adding in its place ``such a
control period before 2021, or as of July 1 immediately after such
deadline for such a control period in 2021 or thereafter, the same'',
and removing ``located'' before ``in a State'';
0
h. Revising the definitions of ``Common designated representative's
assurance level'' and ``Common designated representative's share'';
0
i. In the definition of ``CSAPR NOX Ozone Season Group 1
Trading Program'', removing ``(b)(3) through (5), and (b)(10) through
(12)'' and adding in its place ``and (b)(3) through (5) and (13)
through (15)'';
0
j. In the definition of ``CSAPR NOX Ozone Season Group 2
Trading Program'', removing ``(b)(2)(i) and (iii), (b)(6) through (11),
and (b)(13)'' and adding in its place ``(b)(2)(iii) and (iv), and
(b)(7) through (9), (13), (14), and (16)'', and removing ``Sec.
52.38(b)(6) or (9)'' and adding in its place ``Sec. 52.38(b)(9)'';
0
k. Adding in alphabetical order a definition for ``CSAPR NOX
Ozone Season Group 3 Trading Program'';
0
l. In the definition of ``Designated representative'', adding ``CSAPR
NOX Ozone Season Group 3 Trading Program,'' before ``CSAPR
SO2 Group 1 Trading Program,'';
0
m. In the definition of ``Fossil fuel'', paragraph (2), removing ``and
(ii),'' and adding in its place ``and (b)(2)(ii),'';
0
n. Removing the definition of ``Heat rate''; and
0
o. Adding in alphabetical order a definition for ``Nitrogen oxides''.
The revisions and additions read as follows:
Sec. 97.402 Definitions.
* * * * *
Allowance transfer deadline means, for a control period before
2021, midnight of March 1 immediately after such control period or, for
a control period in 2021 or thereafter, midnight of June 1 immediately
after such control period (or if such March 1 or June 1 is not a
business day, midnight of the first business day thereafter) and is the
deadline by which a CSAPR NOX Annual allowance transfer must
be submitted for recordation in a CSAPR NOX Annual source's
compliance account in order to be available for use in complying with
the source's CSAPR NOX Annual emissions limitation for such
control period in accordance with Sec. Sec. 97.406 and 97.424.
* * * * *
Common designated representative's assurance level means, with
regard to a specific common designated representative and a State (and
Indian country within the borders of such State) and control period in
a given year for which the State assurance level is exceeded as
described in Sec. 97.406(c)(2)(iii), the amount (rounded to the
nearest allowance) equal to the sum of the total amount of CSAPR
NOX Annual allowances allocated for such control period to
the group of one or more CSAPR NOX Annual units in such
State (and such Indian country) having the common designated
representative for such control period and the total amount of CSAPR
NOX Annual allowances purchased by an owner or operator of
such CSAPR NOX Annual units in an auction for such control
period and submitted by the State or the permitting authority to the
Administrator for recordation in the compliance accounts for such CSAPR
NOX Annual units in accordance with the CSAPR NOX
Annual allowance auction provisions in a SIP revision approved by the
Administrator under Sec. 52.38(a)(4) or (5) of this chapter,
multiplied by the sum of the State NOX Annual trading budget
under Sec. 97.410(a) and the State's variability limit under Sec.
97.410(b) for such control period, and divided by such State
NOX Annual trading budget.
Common designated representative's share means, with regard to a
specific common designated representative for a control period in a
given year and a total amount of NOX emissions from all
CSAPR NOX Annual units in a State (and Indian country within
the borders of such State) during such control period, the total
tonnage of NOX emissions during such control period from the
group of one or more CSAPR NOX Annual units in such State
(and such Indian country) having the common designated representative
for such control period.
* * * * *
CSAPR NOX Ozone Season Group 3 Trading Program means a multi-state
NOX air pollution control and emission reduction program
established in accordance with subpart GGGGG of this part and Sec.
52.38(b)(1), (b)(2)(v), and (b)(10) through (14) and (17) of this
chapter (including such a program that is revised in a SIP revision
approved by the Administrator under Sec. 52.38(b)(10) or (11) of this
chapter or that is established in a SIP revision approved by the
Administrator under Sec. 52.38(b)(12) of this chapter), as a means of
mitigating interstate transport of ozone and NOX.
* * * * *
Nitrogen oxides means all oxides of nitrogen except nitrous oxide
(N2O), reported on an equivalent molecular weight basis as
nitrogen dioxide (NO2).
* * * * *
Sec. 97.404 [Amended]
0
38. In Sec. 97.404, amend paragraph (b) introductory text by removing
``or (2)(i)'' and adding in its place ``or (b)(2)(i)''.
Sec. 97.405 [Amended]
0
39. In Sec. 97.405, amend paragraph (b) by removing the paragraph
heading.
[[Page 23182]]
Sec. 97.406 [Amended]
0
40. In Sec. 97.406, amend paragraph (c)(4)(ii) by removing ``and
(2)(i)'' and adding in its place ``and (c)(2)(i)''.
Sec. 97.410 [Amended]
0
41. Amend Sec. 97.410 by:
0
a. In paragraph (a) introductory text, removing ``2015 and thereafter''
and adding in its place ``the years indicated'';
0
b. In paragraph (a)(1)(v), removing ``1,439'' and adding in its place
``1,441'';
0
c. In paragraph (a)(2)(v), removing ``1,075'' and adding in its place
``1,074'';
0
d. In paragraph (a)(3)(v), removing ``3,830'' and adding in its place
``3,831'';
0
e. In paragraph (a)(4)(v), removing ``3,253'' and adding in its place
``3,256'';
0
f. In paragraph (a)(5)(v), removing ``712'' and adding in its place
``715'';
0
g. In paragraph (a)(8)(v), removing ``331'' and adding in its place
``333'';
0
h. In paragraph (a)(9)(v), removing ``1,198'' and adding in its place
``1,201'';
0
i. In paragraph (a)(10)(v), removing ``561'' and adding in its place
``565'';
0
j. In paragraph (a)(11)(v), removing ``2,925'' and adding in its place
``2,929'';
0
k. In paragraph (a)(12)(v), removing ``1,772'' and adding in its place
``1,771'';
0
l. In paragraph (a)(13)(v), removing ``159'' and adding in its place
``155'';
0
m. In paragraph (a)(14)(v), removing ``412'' and adding in its place
``410'';
0
n. In paragraph (a)(17)(v), removing ``2,384'' and adding in its place
``2,383'';
0
o. In paragraph (a)(18)(v), removing ``617'' and adding in its place
``620'';
0
p. In paragraph (a)(19)(v), removing ``387'' and adding in its place
``381'';
0
q. Removing and reserving paragraphs (a)(20)(iv) through (vi);
0
r. In paragraph (a)(21)(v), removing ``1,662'' and adding in its place
``1,663'';
0
s. In paragraph (a)(22)(v), removing ``2,729'' and adding in its place
``2,730''; and
0
t. Removing and reserving paragraph (b)(20).
0
42. Amend Sec. 97.411 by:
0
a. Redesignating paragraph (b)(1)(i) as paragraph (b)(1)(i)(A), and in
the newly redesignated paragraph, removing ``By June 1, 2015 and June 1
of each year thereafter,'' and adding in its place ``By June 1 of each
year from 2015 through 2020,'', and removing ``and (12),'' and adding
in its place ``and (12) and Sec. Sec. 97.406(b)(2) and 97.430 through
97.435,'';
0
b. Adding paragraph (b)(1)(i)(B);
0
c. In paragraph (b)(1)(ii)(A), removing ``Sec. 97.412(a)(2) through
(7) and (12) and Sec. Sec. 97.406(b)(2) and 97.430 through 97.435.''
and adding in its place ``the provisions referenced in paragraph
(b)(1)(i)(A) or (B) of this section, as applicable.'';
0
d. Revising paragraph (b)(1)(ii)(B);
0
e. In paragraph (b)(1)(iii), removing ``such control period contains''
and adding in its place ``a control period before 2021 contains'';
0
f. In paragraph (b)(1)(v), removing ``of this section,'' and adding in
its place ``of this section for a control period before 2021, or in
paragraph (b)(1)(ii) of this section for a control period in 2021 or
thereafter,'';
0
g. Redesignating paragraph (b)(2)(i) as paragraph (b)(2)(i)(A), and in
the newly redesignated paragraph, removing ``By June 1, 2015 and June 1
of each year thereafter,'' and adding in its place ``By June 1 of each
year from 2015 through 2020,'', and removing ``and (12),'' and adding
in its place ``and (12) and Sec. Sec. 97.406(b)(2) and 97.430 through
97.435,'';
0
h. Adding paragraph (b)(2)(i)(B);
0
i. In paragraph (b)(2)(ii)(A), removing ``Sec. 97.412(b)(2) through
(7) and (12) and Sec. Sec. 97.406(b)(2) and 97.430 through 97.435.''
and adding in its place ``the provisions referenced in paragraph
(b)(2)(i)(A) or (B) of this section, as applicable.'';
0
j. Revising paragraph (b)(2)(ii)(B);
0
k. In paragraph (b)(2)(iii), removing ``such control period contains''
and adding in its place ``a control period before 2021 contains'';
0
l. In paragraph (b)(2)(v), removing ``of this section,'' and adding in
its place ``of this section for a control period before 2021, or in
paragraph (b)(2)(ii) of this section for a control period in 2021 or
thereafter,'';
0
m. In paragraph (c)(5)(i)(A), adding ``(or a subsequent control
period)'' before ``for the State'';
0
n. In paragraph (c)(5)(i)(B), adding ``(or a subsequent control
period)'' before ``in accordance with such SIP revision'';
0
o. In paragraph (c)(5)(ii)(A), adding ``(or a subsequent control
period)'' before the semicolon at the end of the paragraph;
0
p. In paragraph (c)(5)(ii)(B), adding ``(or a subsequent control
period)'' before ``in accordance with such SIP revision''; and
0
q. In paragraph (c)(5)(iii), adding ``(or a subsequent control
period)'' before the period at the end of the paragraph.
The additions and revisions read as follows:
Sec. 97.411 Timing requirements for CSAPR NOX Annual allowance
allocations.
* * * * *
(b) * * *
(1) * * *
(i) * * *
(B) By March 1, 2022 and March 1 of each year thereafter, the
Administrator will calculate the CSAPR NOX Annual allowance
allocation to each CSAPR NOX Annual unit in a State, in
accordance with Sec. 97.412(a)(2) through (7), (10), and (12) and
Sec. Sec. 97.406(b)(2) and 97.430 through 97.435, for the control
period in the year before the year of the applicable calculation
deadline under this paragraph and will promulgate a notice of data
availability of the results of the calculations.
(ii) * * *
(B) The Administrator will adjust the calculations to the extent
necessary to ensure that they are in accordance with the provisions
referenced in paragraph (b)(1)(i)(A) or (B) of this section, as
applicable. By August 1 immediately after the promulgation of each
notice of data availability required in paragraph (b)(1)(i)(A) of this
section, or by May 1 immediately after the promulgation of each notice
of data availability required in paragraph (b)(1)(i)(B) of this
section, the Administrator will promulgate a notice of data
availability of the results of the calculations incorporating any
adjustments that the Administrator determines to be necessary and the
reasons for accepting or rejecting any objections submitted in
accordance with paragraph (b)(1)(ii)(A) of this section.
* * * * *
(2) * * *
(i) * * *
(B) By March 1, 2022 and March 1 of each year thereafter, the
Administrator will calculate the CSAPR NOX Annual allowance
allocation to each CSAPR NOX Annual unit in Indian country
within the borders of a State, in accordance with Sec. 97.412(b)(2)
through (7), (10), and (12) and Sec. Sec. 97.406(b)(2) and 97.430
through 97.435, for the control period in the year before the year of
the applicable calculation deadline under this paragraph and will
promulgate a notice of data availability of the results of the
calculations.
(ii) * * *
(B) The Administrator will adjust the calculations to the extent
necessary to ensure that they are in accordance with the provisions
referenced in paragraph (b)(2)(i)(A) or (B) of this section, as
applicable. By August 1 immediately after the promulgation of each
notice of data availability required in paragraph (b)(2)(i)(A) of this
section, or by May 1 immediately after the promulgation of each notice
of data availability required in paragraph (b)(2)(i)(B) of this
section, the Administrator will promulgate a notice of data
availability of the results of the calculations incorporating any
adjustments that the Administrator determines to be necessary and the
reasons for accepting or rejecting any
[[Page 23183]]
objections submitted in accordance with paragraph (b)(2)(ii)(A) of this
section.
* * * * *
0
43. Amend Sec. 97.412 by:
0
a. Adding a paragraph heading to paragraph (a) introductory text;
0
b. In paragraph (a)(1)(i), removing ``Sec. 97.411(a)(1);'' and adding
in its place ``Sec. 97.411(a)(1) and that have deadlines for
certification of monitoring systems under Sec. 97.430(b) not later
than December 31 of the year of the control period;'';
0
c. In paragraph (a)(1)(iii), removing ``control period; or'' and adding
in its place ``control period, for allocations for a control period
before 2021, or that operate during such control period, for
allocations for a control period in 2021 or thereafter; or'';
0
d. In paragraph (a)(3) introductory text, removing ``later'' and adding
in its place ``latest'';
0
e. Revising paragraph (a)(3)(ii);
0
f. In paragraph (a)(3)(iv), removing ``resumes operation.'' and adding
in its place ``resumes operation, for allocations for a control period
before 2021, or the control period in which the unit resumes operation,
for allocations for a control period in 2021 or thereafter.'';
0
g. In paragraph (a)(4)(i), removing ``preceding control period.'' and
adding in its place ``preceding control period, for allocations for a
control period before 2021, or the unit's total tons of NOX
emissions during the control period, for allocations for a control
period in 2021 or thereafter.'';
0
h. In paragraph (a)(5), adding ``allocation amounts of'' after ``sum of
the'';
0
i. In paragraph (a)(8), removing ``The Administrator'' and adding in
its place ``For a control period before 2021, the Administrator'';
0
j. In paragraph (a)(9) introductory text, removing ``If, after
completion'' and adding in its place ``For a control period before
2021, if, after completion'';
0
k. In paragraph (a)(10), removing ``for such control period, any
unallocated'' and adding in its place ``for a control period before
2021, or under paragraphs (a)(2) through (7) and (12) of this section
for a control period in 2021 or thereafter, any unallocated'';
0
l. Redesignating paragraph (a)(11) as paragraph (a)(11)(i) and in the
newly redesignated paragraph, removing ``The Administrator'' and adding
in its place ``For a control period before 2021, the Administrator'';
0
m. Adding paragraph (a)(11)(ii);
0
n. Revising paragraph (a)(12);
0
o. Adding a paragraph heading to paragraph (b) introductory text and
removing ``located'' before ``in Indian country'';
0
p. In paragraph (b)(1)(i), removing ``Sec. 97.411(a)(1); or'' and
adding in its place ``Sec. 97.411(a)(1) and that have deadlines for
certification of monitoring systems under Sec. 97.430(b) not later
than December 31 of the year of the control period; or'';
0
q. Revising paragraph (b)(3)(ii);
0
r. In paragraph (b)(4)(i), removing ``preceding control period.'' and
adding in its place ``preceding control period, for allocations for a
control period before 2021, or the unit's total tons of NOX
emissions during the control period, for allocations for a control
period in 2021 or thereafter.'';
0
s. In paragraph (b)(5), adding ``allocation amounts of'' after ``sum of
the'';
0
t. In paragraph (b)(8), removing ``The Administrator'' and adding in
its place ``For a control period before 2021, the Administrator'';
0
u. In paragraph (b)(9) introductory text, removing ``If, after
completion'' and adding in its place ``For a control period before
2021, if, after completion'';
0
v. In paragraph (b)(10) introductory text, removing ``for such control
period, any unallocated'' and adding in its place ``for a control
period before 2021, or under paragraphs (b)(2) through (7) and (12) of
this section for a control period in 2021 or thereafter, any
unallocated'';
0
w. Redesignating paragraph (b)(11) as paragraph (b)(11)(i) and in the
newly redesignated paragraph, removing ``The Administrator'' and adding
in its place ``For a control period before 2021, the Administrator'';
0
x. Adding paragraph (b)(11)(ii); and
0
y. Revising paragraph (b)(12).
The additions and revisions read as follows:
Sec. 97.412 CSAPR NOX Annual allowance allocations to new units.
(a) Allocations from new unit set-asides. * * *
* * * * *
(3) * * *
(ii)(A) The first control period after the control period in which
the CSAPR NOX Annual unit commences commercial operation,
for allocations for a control period before 2021; or
(B) The control period containing the deadline for certification of
the CSAPR NOX Annual unit's monitoring systems under Sec.
97.430(b), for allocations for a control period in 2021 or thereafter;
* * * * *
(11) * * *
(ii) For a control period in 2021 or thereafter, the Administrator
will notify the public, through the promulgation of the notices of data
availability described in Sec. 97.411(b)(1)(i), (ii), and (v), of the
amount of CSAPR NOX Annual allowances allocated under
paragraphs (a)(2) through (7), (10), and (12) of this section for such
control period to each CSAPR NOX Annual unit eligible for
such allocation.
(12) Notwithstanding the requirements of paragraphs (a)(2) through
(11) of this section, if the calculations of allocations from a new
unit set-aside for a control period before 2021 under paragraph (a)(7)
of this section, paragraphs (a)(6) and (a)(9)(iv) of this section, or
paragraphs (a)(6), (a)(9)(iii), and (a)(10) of this section, or for a
control period in 2021 or thereafter under paragraph (a)(7) of this
section or paragraphs (a)(6) and (10) of this section, would otherwise
result in total allocations from such new unit set-aside unequal to the
total amount of such new unit set-aside, then the Administrator will
adjust the results of such calculations as follows. The Administrator
will list the CSAPR NOX Annual units in descending order
based on such units' allocation amounts under paragraph (a)(7),
(a)(9)(iv), or (a)(10) of this section, as applicable, and, in cases of
equal allocation amounts, in alphabetical order of the relevant
sources' names and numerical order of the relevant units'
identification numbers, and will adjust each unit's allocation amount
under such paragraph upward or downward by one CSAPR NOX
Annual allowance (but not below zero) in the order in which the units
are listed, and will repeat this adjustment process as necessary, until
the total allocations from such new unit set-aside equal the total
amount of such new unit set-aside.
(b) Allocations from Indian country new unit set-asides. * * *
* * * * *
(3) * * *
(ii)(A) The first control period after the control period in which
the CSAPR NOX Annual unit commences commercial operation,
for allocations for a control period before 2021; or
(B) The control period containing the deadline for certification of
the CSAPR NOX Annual unit's monitoring systems under Sec.
97.430(b), for allocations for a control period in 2021 or thereafter.
* * * * *
(11) * * *
(ii) For a control period in 2021 or thereafter, the Administrator
will notify the public, through the promulgation of the notices of data
availability described in Sec. 97.411(b)(2)(i), (ii), and (v), of the
amount of CSAPR NOX Annual allowances allocated under
paragraphs
[[Page 23184]]
(b)(2) through (7), (10), and (12) of this section for such control
period to each CSAPR NOX Annual unit eligible for such
allocation.
(12) Notwithstanding the requirements of paragraphs (b)(2) through
(11) of this section, if the calculations of allocations from an Indian
country new unit set-aside for a control period before 2021 under
paragraph (b)(7) of this section or paragraphs (b)(6) and (b)(9)(iv) of
this section, or for a control period in 2021 or thereafter under
paragraph (b)(7) of this section, would otherwise result in total
allocations from such Indian country new unit set-aside unequal to the
total amount of such Indian country new unit set-aside, then the
Administrator will adjust the results of such calculations as follows.
The Administrator will list the CSAPR NOX Annual units in
descending order based on such units' allocation amounts under
paragraph (b)(7) or (b)(9)(iv) of this section, as applicable, and, in
cases of equal allocation amounts, in alphabetical order of the
relevant sources' names and numerical order of the relevant units'
identification numbers, and will adjust each unit's allocation amount
under such paragraph upward or downward by one CSAPR NOX
Annual allowance (but not below zero) in the order in which the units
are listed, and will repeat this adjustment process as necessary, until
the total allocations from such Indian country new unit set-aside equal
the total amount of such Indian country new unit set-aside.
Sec. 97.420 [Amended]
0
44. Amend Sec. 97.420 by:
0
a. In paragraph (c)(1)(ii)(D), adding ``; and'' after the closing
quotation mark; and
0
b. In paragraph (c)(3)(iii)(B), removing ``to NOX'' and
adding in its place ``to CSAPR NOX''.
0
45. Amend Sec. 97.421 by:
0
a. Redesignating paragraph (f) as paragraph (f)(1) and in the newly
redesignated paragraph, removing ``By July 1, 2019 and July 1 of each
year thereafter,'' and adding in its place ``By July 1, 2019 and July
1, 2020,'';
0
b. Adding paragraph (f)(2);
0
c. Redesignating paragraph (g) as paragraph (g)(1) and in the newly
redesignated paragraph, removing ``By August 1, 2015 and August 1 of
each year thereafter,'' and adding in its place ``By August 1 of each
year from 2015 through 2020,'';
0
d. Adding paragraph (g)(2);
0
e. Redesignating paragraph (h) as paragraph (h)(1) and in the newly
redesignated paragraph, removing ``By August 1, 2015 and August 1 of
each year thereafter,'' and adding in its place ``By August 1 of each
year from 2015 through 2020,'';
0
f. Adding paragraph (h)(2); and
0
g. In paragraphs (i) and (j), removing ``By February 15, 2016 and
February 15 of each year thereafter,'' and adding in its place ``By
February 15 of each year from 2016 through 2021,''.
The additions read as follows:
Sec. 97.421 Recordation of CSAPR NOX Annual allowance allocations and
auction results.
* * * * *
(f) * * *
(2) By July 1, 2022 and July 1 of each year thereafter, the
Administrator will record in each CSAPR NOX Annual source's
compliance account the CSAPR NOX Annual allowances allocated
to the CSAPR NOX Annual units at the source, or in each
appropriate Allowance Management System account the CSAPR
NOX Annual allowances auctioned to CSAPR NOX
Annual units, in accordance with Sec. 97.411(a), or with a SIP
revision approved under Sec. 52.38(a)(4) or (5) of this chapter, for
the control period in the third year after the year of the applicable
recordation deadline under this paragraph.
(g) * * *
(2) By May 1, 2022 and May 1 of each year thereafter, the
Administrator will record in each CSAPR NOX Annual source's
compliance account the CSAPR NOX Annual allowances allocated
to the CSAPR NOX Annual units at the source, or in each
appropriate Allowance Management System account the CSAPR
NOX Annual allowances auctioned to CSAPR NOX
Annual units, in accordance with Sec. 97.412(a), or with a SIP
revision approved under Sec. 52.38(a)(4) or (5) of this chapter, for
the control period in the year before the year of the applicable
recordation deadline under this paragraph.
(h) * * *
(2) By May 1, 2022 and May 1 of each year thereafter, the
Administrator will record in each CSAPR NOX Annual source's
compliance account the CSAPR NOX Annual allowances allocated
to the CSAPR NOX Annual units at the source in accordance
with Sec. 97.412(b) for the control period in the year before the year
of the applicable recordation deadline under this paragraph.
* * * * *
0
46. Amend Sec. 97.424 by adding a paragraph heading to paragraph (c)
and revising paragraph (c)(1) to read as follows:
Sec. 97.424 Compliance with CSAPR NOX Annual emissions limitation.
* * * * *
(c) Selection of CSAPR NOX Annual allowances for deduction--(1)
Identification by serial number. The designated representative for a
source may request that specific CSAPR NOX Annual
allowances, identified by serial number, in the source's compliance
account be deducted for emissions or excess emissions for a control
period in a given year in accordance with paragraph (b) or (d) of this
section. In order to be complete, such request shall be submitted to
the Administrator by the allowance transfer deadline for such control
period and include, in a format prescribed by the Administrator, the
identification of the CSAPR NOX Annual source and the
appropriate serial numbers.
* * * * *
0
47. Amend Sec. 97.425 by:
0
a. Revising paragraphs (b)(1) introductory text and (b)(1)(ii);
0
b. Removing paragraphs (b)(2) introductory text and (b)(2)(i) and (ii)
and redesignating paragraphs (b)(2)(iii) introductory text and
(b)(2)(iii)(A) and (B) as paragraphs (b)(2) introductory text and
(b)(2)(i) and (ii), respectively;
0
c. In newly redesignated paragraph (b)(2) introductory text, removing
``the notice of data availability required in paragraph (b)(2)(ii) of
this section and the calculations referenced by the relevant notice''
and adding in its place ``each notice'';
0
d. In newly redesignated paragraph (b)(2)(i), removing ``the relevant
notice required under paragraph (b)(1)(ii) of this section and
referenced in the notice required under paragraph (b)(2)(ii) of this
section'' and adding in its place ``such notice'';
0
e. In newly redesignated paragraph (b)(2)(ii), removing
``(b)(2)(iii)(A)'' and adding in its place ``(b)(2)(i)'' each time it
appears, and adding ``results of the'' before ``calculations
incorporating any adjustments'';
0
f. In paragraphs (b)(3), (b)(4)(i), (b)(5), (b)(6) introductory text,
and (b)(6)(i), removing ``(b)(2)(iii)(B)'' and adding in its place
``(b)(2)(ii)'' each time it appears;
0
g. Removing and reserving paragraph (b)(6)(ii); and
0
h. In paragraph (b)(6)(iii) introductory text, removing ``paragraphs
(b)(6)(i) and (ii)'' and adding in its place ``paragraph (b)(6)(i)''.
The revisions read as follows:
Sec. 97.425 Compliance with CSAPR NOX Annual assurance provisions.
* * * * *
(b) * * *
[[Page 23185]]
(1) By June 1 of each year from 2018 through 2021 and August 1 of
each year thereafter, the Administrator will:
* * * * *
(ii) For the set of any States (and Indian country within the
borders of such States) for which the results of the calculations
required in paragraph (b)(1)(i) of this section indicate that total
NOX emissions exceed the respective State assurance levels
for such control period--
(A) Calculate, for each such State (and Indian country within the
borders of such State) and such control period and each common
designated representative for such control period for a group of one or
more CSAPR NOX Annual sources and units in such State (and
such Indian country), the common designated representative's share of
the total NOX emissions from all CSAPR NOX Annual
units at CSAPR NOX Annual sources in such State (and such
Indian country), the common designated representative's assurance
level, and the amount (if any) of CSAPR NOX Annual
allowances that the owners and operators of such group of sources and
units must hold in accordance with the calculation formula in Sec.
97.406(c)(2)(i); and
(B) Promulgate a notice of data availability of the results of the
calculations required in paragraphs (b)(1)(i) and (b)(1)(ii)(A) of this
section, including separate calculations of the NOX
emissions from each CSAPR NOX Annual source in each such
State (and Indian country within the borders of such State).
* * * * *
0
48. Amend Sec. 97.426 by:
0
a. In paragraph (b), removing ``Sec. 97.428.'' and adding in its place
``Sec. 97.428 or paragraph (c) of this section.''; and
0
b. Adding paragraph (c).
The addition reads as follows:
Sec. 97.426 Banking.
* * * * *
(c) At any time after the allowance transfer deadline for the last
control period for which a State NOX Annual trading budget
is set forth in Sec. 97.410(a) for a given State, the Administrator
may record a transfer of any CSAPR NOX Annual allowances
held in the compliance account for a source in such State (or Indian
country within the borders of such State) to a general account
identified or established by the Administrator with the source's
designated representative as the authorized account representative and
with the owners and operators of the source (as indicated on the
certificate of representation for the source) as the persons
represented by the authorized account representative. The Administrator
will notify the designated representative not less than 15 days before
making such a transfer.
Sec. 97.431 [Amended]
0
49. In Sec. 97.431, amend paragraph (d)(3) introductory text by
removing ``with'' in the last sentence.
Sec. 97.434 [Amended]
0
50. In Sec. 97.434, amend paragraph (d)(3) by adding ``CSAPR
NOX Ozone Season Group 3 Trading Program,'' before ``CSAPR
SO2 Group 1 Trading Program,''.
Subpart BBBBB--CSAPR NOX Ozone Season Group 1 Trading Program
0
51. Amend Sec. 97.502 by:
0
a. Removing the definition of ``Allowable NOX emission
rate'';
0
b. Revising the definition of ``Allowance transfer deadline'';
0
c. In the definition of ``Biomass'', paragraph (3) introductory text,
removing the semicolon and adding in its place a colon;
0
d. Removing the definition of ``Coal-derived fuel'';
0
e. In the definition of ``Cogeneration unit'', paragraph (2)(i)(B),
removing ``15 percent of total energy output.'' and adding in its place
``15 percent of total energy output; or'';
0
f. In the definition of ``Common designated representative'', removing
``such control period, the same'' and adding in its place ``such a
control period before 2021, or as of July 1 immediately after such
deadline for such a control period in 2021 or thereafter, the same'',
and removing ``located'' before ``in a State'';
0
g. Revising the definitions of ``Common designated representative's
assurance level'' and ``Common designated representative's share'';
0
h. In the definition of ``CSAPR NOX Ozone Season Group 1
Trading Program'', removing ``(b)(3) through (5), and (b)(10) through
(12)'' and adding in its place ``and (b)(3) through (5) and (13)
through (15)'';
0
i. In the definition of ``CSAPR NOX Ozone Season Group 2
allowance'', removing ``Sec. 97.526(c),'' and adding in its place
``Sec. 97.526(d),'', and removing ``Sec. 52.38(b)(6), (7), (8), or
(9)'' and adding in its place ``Sec. 52.38(b)(7), (8), or (9)'';
0
j. In the definition of ``CSAPR NOX Ozone Season Group 2
Trading Program'', removing ``(b)(2)(i) and (iii), (b)(6) through (11),
and (b)(13)'' and adding in its place ``(b)(2)(iii) and (iv), and
(b)(7) through (9), (13), (14), and (16)'', and removing ``Sec.
52.38(b)(6) or (9)'' and adding in its place ``Sec. 52.38(b)(9)'';
0
k. Adding in alphabetical order definitions for ``CSAPR NOX
Ozone Season Group 3 allowance'' and ``CSAPR NOX Ozone
Season Group 3 Trading Program'';
0
l. In the definition of ``Fossil fuel'', paragraph (2), removing ``and
(ii),'' and adding in its place ``and (b)(2)(ii),'';
0
m. Removing the definition of ``Heat rate'';
0
n. Adding in alphabetical order a definition for ``Nitrogen oxides'';
and
0
o. In the definition of ``State'', removing ``(b)(3) through (5), and
(b)(10) through (12)'' and adding in its place ``and (b)(3) through (5)
and (13) through (15)''.
The revisions and additions read as follows:
Sec. 97.502 Definitions.
* * * * *
Allowance transfer deadline means, for a control period in 2015 or
2016, midnight of December 1 immediately after such control period or,
for a control period in a year from 2017 through 2020, midnight of
March 1 immediately after such control period or, for a control period
in 2021 or thereafter, midnight of June 1 immediately after such
control period (or if such December 1, March 1, or June 1 is not a
business day, midnight of the first business day thereafter) and is the
deadline by which a CSAPR NOX Ozone Season Group 1 allowance
transfer must be submitted for recordation in a CSAPR NOX
Ozone Season Group 1 source's compliance account in order to be
available for use in complying with the source's CSAPR NOX
Ozone Season Group 1 emissions limitation for such control period in
accordance with Sec. Sec. 97.506 and 97.524.
* * * * *
Common designated representative's assurance level means, with
regard to a specific common designated representative and a State (and
Indian country within the borders of such State) and control period in
a given year for which the State assurance level is exceeded as
described in Sec. 97.506(c)(2)(iii), the amount (rounded to the
nearest allowance) equal to the sum of the total amount of CSAPR
NOX Ozone Season Group 1 allowances allocated for such
control period to the group of one or more CSAPR NOX Ozone
Season Group 1 units in such State (and such Indian country) having the
common designated representative for such control period and the total
amount of CSAPR NOX Ozone Season
[[Page 23186]]
Group 1 allowances purchased by an owner or operator of such CSAPR
NOX Ozone Season Group 1 units in an auction for such
control period and submitted by the State or the permitting authority
to the Administrator for recordation in the compliance accounts for
such CSAPR NOX Ozone Season Group 1 units in accordance with
the CSAPR NOX Ozone Season Group 1 allowance auction
provisions in a SIP revision approved by the Administrator under Sec.
52.38(b)(4) or (5) of this chapter, multiplied by the sum of the State
NOX Ozone Season Group 1 trading budget under Sec.
97.510(a) and the State's variability limit under Sec. 97.510(b) for
such control period, and divided by such State NOX Ozone
Season Group 1 trading budget.
Common designated representative's share means, with regard to a
specific common designated representative for a control period in a
given year and a total amount of NOX emissions from all
CSAPR NOX Ozone Season Group 1 units in a State (and Indian
country within the borders of such State) during such control period,
the total tonnage of NOX emissions during such control
period from the group of one or more CSAPR NOX Ozone Season
Group 1 units in such State (and such Indian country) having the common
designated representative for such control period.
* * * * *
CSAPR NOX Ozone Season Group 3 allowance means a limited
authorization issued and allocated or auctioned by the Administrator
under subpart GGGGG of this part, Sec. 97.526(d), or Sec. 97.826(d),
or by a State or permitting authority under a SIP revision approved by
the Administrator under Sec. 52.38(b)(10), (11), or (12) of this
chapter, to emit one ton of NOX during a control period of
the specified calendar year for which the authorization is allocated or
auctioned or of any calendar year thereafter under the CSAPR
NOX Ozone Season Group 3 Trading Program.
CSAPR NOX Ozone Season Group 3 Trading Program means a multi-state
NOX air pollution control and emission reduction program
established in accordance with subpart GGGGG of this part and Sec.
52.38(b)(1), (b)(2)(v), and (b)(10) through (14) and (17) of this
chapter (including such a program that is revised in a SIP revision
approved by the Administrator under Sec. 52.38(b)(10) or (11) of this
chapter or that is established in a SIP revision approved by the
Administrator under Sec. 52.38(b)(12) of this chapter), as a means of
mitigating interstate transport of ozone and NOX.
* * * * *
Nitrogen oxides means all oxides of nitrogen except nitrous oxide
(N2O), reported on an equivalent molecular weight basis as
nitrogen dioxide (NO2).
* * * * *
Sec. 97.504 [Amended]
0
52. In Sec. 97.504, amend paragraph (b) introductory text by removing
``or (2)(i)'' and adding in its place ``or (b)(2)(i)''.
Sec. 97.505 [Amended]
0
53. In Sec. 97.505, amend paragraph (b) by removing the paragraph
heading.
Sec. 97.506 [Amended]
0
54. In Sec. 97.506, amend paragraph (c)(4)(ii) by removing ``and
(2)(i)'' and adding in its place ``and (c)(2)(i)''.
Sec. 97.510 [Amended]
0
55. Amend Sec. 97.510 by:
0
a. In paragraph (a) introductory text, removing ``2015 and thereafter''
and adding in its place ``the years indicated'';
0
b. Removing and reserving paragraphs (a)(1)(iv) and (v), (a)(2)(iv) and
(v), and (a)(3)(iv) through (vi);
0
c. In paragraph (a)(4)(v), removing ``481'' and adding in its place
``485''; and
0
d. Removing and reserving paragraphs (a)(5)(iv) and (v), (a)(6)(iv) and
(v), (a)(7)(iv) through (vi), (a)(8)(iv) and (v), (a)(9)(iv) through
(vi), (a)(10)(iv) and (v), (a)(11)(iv) through (vi), (a)(12)(iv)
through (vi), (a)(13)(iv) and (v), (a)(14)(iv) and (v), (a)(15)(iv)
through (vi), (a)(16)(iv) through (vi), (a)(17)(iv) and (v),
(a)(18)(iv) and (v), (a)(19)(iv) and (v), (a)(20)(iv) through (vi),
(a)(21)(iv) and (v), (a)(22)(iv) through (vi), (a)(23)(iv) and (v),
(a)(24)(iv) and (v), (a)(25)(iv) through (vi), and (b)(1) through (3)
and (5) through (25).
0
56. Amend Sec. 97.511 by:
0
a. Redesignating paragraph (b)(1)(i) as paragraph (b)(1)(i)(A), and in
newly redesignated paragraph, removing ``By June 1, 2015 and June 1 of
each year thereafter,'' and adding in its place ``By June 1 of each
year from 2015 through 2020,'', and removing ``and (12),'' and adding
in its place ``and (12) and Sec. Sec. 97.506(b)(2) and 97.530 through
97.535,'';
0
b. Adding paragraph (b)(1)(i)(B);
0
c. In paragraph (b)(1)(ii)(A), removing ``Sec. 97.512(a)(2) through
(7) and (12) and Sec. Sec. 97.506(b)(2) and 97.530 through 97.535.''
and adding in its place ``the provisions referenced in paragraph
(b)(1)(i)(A) or (B) of this section, as applicable.'';
0
d. Revising paragraph (b)(1)(ii)(B);
0
e. In paragraph (b)(1)(iii)(B), removing ``2017 or any subsequent
year'' and adding in its place ``a year from 2017 through 2020'';
0
f. In paragraph (b)(1)(v), removing ``of this section,'' and adding in
its place ``of this section for a control period before 2021, or in
paragraph (b)(1)(ii) of this section for a control period in 2021 or
thereafter,'';
0
g. Redesignating paragraph (b)(2)(i) as paragraph (b)(2)(i)(A), and in
the newly redesignated paragraph, removing ``By June 1, 2015 and June 1
of each year thereafter,'' and adding in its place ``By June 1 of each
year from 2015 through 2020,'', and removing ``and (12),'' and adding
in its place ``and (12) and Sec. Sec. 97.506(b)(2) and 97.530 through
97.535,'';
0
h. Adding paragraph (b)(2)(i)(B);
0
i. In paragraph (b)(2)(ii)(A), removing ``Sec. 97.512(b)(2) through
(7) and (12) and Sec. Sec. 97.506(b)(2) and 97.530 through 97.535.''
and adding in its place ``the provisions referenced in paragraph
(b)(2)(i)(A) or (B) of this section, as applicable.'';
0
j. Revising paragraph (b)(2)(ii)(B);
0
k. In paragraph (b)(2)(iii)(B), removing ``2017 or any subsequent
year'' and adding in its place ``a year from 2017 through 2020'';
0
l. In paragraph (b)(2)(v), removing ``of this section,'' and adding in
its place ``of this section for a control period before 2021, or in
paragraph (b)(2)(ii) of this section for a control period in 2021 or
thereafter,'';
0
m. In paragraph (c)(5)(i)(A), adding ``(or a subsequent control
period)'' before ``for the State'';
0
n. In paragraph (c)(5)(i)(B), adding ``(or a subsequent control
period)'' before ``in accordance with such SIP revision'';
0
o. In paragraph (c)(5)(ii)(A), adding ``(or a subsequent control
period)'' before the semicolon at the end of the paragraph;
0
p. In paragraph (c)(5)(ii)(B), adding ``(or a subsequent control
period)'' before ``in accordance with such SIP revision''; and
0
q. In paragraph (c)(5)(iii), adding ``(or a subsequent control
period)'' before the period at the end of the paragraph.
The additions and revisions read as follows:
Sec. 97.511 Timing requirements for CSAPR NOX Ozone Season Group 1
allowance allocations.
* * * * *
(b) * * *
(1) * * *
(i) * * *
(B) By March 1, 2022 and March 1 of each year thereafter, the
Administrator
[[Page 23187]]
will calculate the CSAPR NOX Ozone Season Group 1 allowance
allocation to each CSAPR NOX Ozone Season Group 1 unit in a
State, in accordance with Sec. 97.512(a)(2) through (7), (10), and
(12) and Sec. Sec. 97.506(b)(2) and 97.530 through 97.535, for the
control period in the year before the year of the applicable
calculation deadline under this paragraph and will promulgate a notice
of data availability of the results of the calculations.
(ii) * * *
(B) The Administrator will adjust the calculations to the extent
necessary to ensure that they are in accordance with the provisions
referenced in paragraph (b)(1)(i)(A) or (B) of this section, as
applicable. By August 1 immediately after the promulgation of each
notice of data availability required in paragraph (b)(1)(i)(A) of this
section, or by May 1 immediately after the promulgation of each notice
of data availability required in paragraph (b)(1)(i)(B) of this
section, the Administrator will promulgate a notice of data
availability of the results of the calculations incorporating any
adjustments that the Administrator determines to be necessary and the
reasons for accepting or rejecting any objections submitted in
accordance with paragraph (b)(1)(ii)(A) of this section.
* * * * *
(2) * * *
(i) * * *
(B) By March 1, 2022 and March 1 of each year thereafter, the
Administrator will calculate the CSAPR NOX Ozone Season
Group 1 allowance allocation to each CSAPR NOX Ozone Season
Group 1 unit in Indian country within the borders of a State, in
accordance with Sec. 97.512(b)(2) through (7), (10), and (12) and
Sec. Sec. 97.506(b)(2) and 97.530 through 97.535, for the control
period in the year before the year of the applicable calculation
deadline under this paragraph and will promulgate a notice of data
availability of the results of the calculations.
(ii) * * *
(B) The Administrator will adjust the calculations to the extent
necessary to ensure that they are in accordance with the provisions
referenced in paragraph (b)(2)(i)(A) or (B) of this section, as
applicable. By August 1 immediately after the promulgation of each
notice of data availability required in paragraph (b)(2)(i)(A) of this
section, or by May 1 immediately after the promulgation of each notice
of data availability required in paragraph (b)(2)(i)(B) of this
section, the Administrator will promulgate a notice of data
availability of the results of the calculations incorporating any
adjustments that the Administrator determines to be necessary and the
reasons for accepting or rejecting any objections submitted in
accordance with paragraph (b)(2)(ii)(A) of this section.
* * * * *
0
57. Amend Sec. 97.512 by:
0
a. Adding a paragraph heading to paragraph (a) introductory text ;
0
b. In paragraph (a)(1)(i), removing ``Sec. 97.511(a)(1);'' and adding
in its place ``Sec. 97.511(a)(1) and that have deadlines for
certification of monitoring systems under Sec. 97.530(b) not later
than September 30 of the year of the control period;'';
0
c. In paragraph (a)(1)(iii), removing ``control period; or'' and adding
in its place ``control period, for allocations for a control period
before 2021, or that operate during such control period, for
allocations for a control period in 2021 or thereafter; or'';
0
d. In paragraph (a)(3) introductory text, removing ``later'' and adding
in its place ``latest'';
0
e. Revising paragraph (a)(3)(ii);
0
f. In paragraph (a)(3)(iv), removing ``resumes operation.'' and adding
in its place ``resumes operation, for allocations for a control period
before 2021, or the control period in which the unit resumes operation,
for allocations for a control period in 2021 or thereafter.'';
0
g. In paragraph (a)(4)(i), removing ``preceding control period.'' and
adding in its place ``preceding control period, for allocations for a
control period before 2021, or the unit's total tons of NOX
emissions during the control period, for allocations for a control
period in 2021 or thereafter.'';
0
h. In paragraph (a)(5), adding ``allocation amounts of'' after ``sum of
the'';
0
i. In paragraph (a)(8), removing ``The Administrator'' and adding in
its place ``For a control period before 2021, the Administrator'';
0
j. In paragraph (a)(9) introductory text, removing ``If, after
completion'' and adding in its place ``For a control period before
2021, if, after completion'';
0
k. In paragraph (a)(9)(i)(B), removing ``2017 or any subsequent year,''
and adding in its place ``2017, 2018, 2019, or 2020,'';
0
l. In paragraph (a)(10), removing ``for such control period, any
unallocated'' and adding in its place ``for a control period before
2021, or under paragraphs (a)(2) through (7) and (12) of this section
for a control period in 2021 or thereafter, any unallocated'';
0
m. Redesignating paragraph (a)(11) as paragraph (a)(11)(i) and in the
newly redesignated paragraph, removing ``The Administrator'' and adding
in its place ``For a control period before 2021, the Administrator'';
0
n. Adding paragraph (a)(11)(ii);
0
o. Revising paragraph (a)(12);
0
p. Adding a paragraph heading to paragraph (b) introductory text and
removing ``located'' before ``in Indian country'';
0
q. In paragraph (b)(1)(i), removing ``Sec. 97.511(a)(1); or'' and
adding in its place ``Sec. 97.511(a)(1) and that have deadlines for
certification of monitoring systems under Sec. 97.530(b) not later
than September 30 of the year of the control period; or'';
0
r. Revising paragraph (b)(3)(ii);
0
s. In paragraph (b)(4)(i), removing ``preceding control period.'' and
adding in its place ``preceding control period, for allocations for a
control period before 2021, or the unit's total tons of NOX
emissions during the control period, for allocations for a control
period in 2021 or thereafter.'';
0
t. In paragraph (b)(5), adding ``allocation amounts of'' after ``sum of
the'';
0
u. In paragraph (b)(8), removing ``The Administrator'' and adding in
its place ``For a control period before 2021, the Administrator'';
0
v. In paragraph (b)(9) introductory text, removing ``If, after
completion'' and adding in its place ``For a control period before
2021, if, after completion'';
0
w. In paragraph (b)(9)(i)(B), removing ``2017 or any subsequent year,''
and adding in its place ``2017, 2018, 2019, or 2020,'';
0
x. In paragraph (b)(10) introductory text, removing ``for such control
period, any unallocated'' and adding in its place ``for a control
period before 2021, or under paragraphs (b)(2) through (7) and (12) of
this section for a control period in 2021 or thereafter, any
unallocated'';
0
y. Redesignating paragraph (b)(11) as paragraph (b)(11)(i) and in the
newly redesignated paragraph, removing ``The Administrator'' and adding
in its place ``For a control period before 2021, the Administrator'';
0
z. Adding paragraph (b)(11)(ii); and
0
aa. Revising paragraph (b)(12).
The additions and revisions read as follows:
Sec. 97.512 CSAPR NOX Ozone Season Group 1 allowance allocations to
new units.
(a) Allocations from new unit set-asides. * * *
* * * * *
(3) * * *
(ii)(A) The first control period after the control period in which
the CSAPR NOX Ozone Season Group 1 unit commences commercial
operation, for allocations for a control period before 2021; or
[[Page 23188]]
(B) The control period containing the deadline for certification of
the CSAPR NOX Ozone Season Group 1 unit's monitoring systems
under Sec. 97.530(b), for allocations for a control period in 2021 or
thereafter;
* * * * *
(11) * * *
(ii) For a control period in 2021 or thereafter, the Administrator
will notify the public, through the promulgation of the notices of data
availability described in Sec. 97.511(b)(1)(i), (ii), and (v), of the
amount of CSAPR NOX Ozone Season Group 1 allowances
allocated under paragraphs (a)(2) through (7), (10), and (12) of this
section for such control period to each CSAPR NOX Ozone
Season Group 1 unit eligible for such allocation.
(12) Notwithstanding the requirements of paragraphs (a)(2) through
(11) of this section, if the calculations of allocations from a new
unit set-aside for a control period before 2021 under paragraph (a)(7)
of this section, paragraphs (a)(6) and (a)(9)(iv) of this section, or
paragraphs (a)(6), (a)(9)(iii), and (a)(10) of this section, or for a
control period in 2021 or thereafter under paragraph (a)(7) of this
section or paragraphs (a)(6) and (10) of this section, would otherwise
result in total allocations from such new unit set-aside unequal to the
total amount of such new unit set-aside, then the Administrator will
adjust the results of such calculations as follows. The Administrator
will list the CSAPR NOX Ozone Season Group 1 units in
descending order based on such units' allocation amounts under
paragraph (a)(7), (a)(9)(iv), or (a)(10) of this section, as
applicable, and, in cases of equal allocation amounts, in alphabetical
order of the relevant sources' names and numerical order of the
relevant units' identification numbers, and will adjust each unit's
allocation amount under such paragraph upward or downward by one CSAPR
NOX Ozone Season Group 1 allowance (but not below zero) in
the order in which the units are listed, and will repeat this
adjustment process as necessary, until the total allocations from such
new unit set-aside equal the total amount of such new unit set-aside.
(b) Allocations from Indian country new unit set-asides. * * *
* * * * *
(3) * * *
(ii)(A) The first control period after the control period in which
the CSAPR NOX Ozone Season Group 1 unit commences commercial
operation, for allocations for a control period before 2021; or
(B) The control period containing the deadline for certification of
the CSAPR NOX Ozone Season Group 1 unit's monitoring systems
under Sec. 97.530(b), for allocations for a control period in 2021 or
thereafter.
* * * * *
(11) * * *
(ii) For a control period in 2021 or thereafter, the Administrator
will notify the public, through the promulgation of the notices of data
availability described in Sec. 97.511(b)(2)(i), (ii), and (v), of the
amount of CSAPR NOX Ozone Season Group 1 allowances
allocated under paragraphs (b)(2) through (7), (10), and (12) of this
section for such control period to each CSAPR NOX Ozone
Season Group 1 unit eligible for such allocation.
(12) Notwithstanding the requirements of paragraphs (b)(2) through
(11) of this section, if the calculations of allocations from an Indian
country new unit set-aside for a control period before 2021 under
paragraph (b)(7) of this section or paragraphs (b)(6) and (b)(9)(iv) of
this section, or for a control period in 2021 or thereafter under
paragraph (b)(7) of this section, would otherwise result in total
allocations from such Indian country new unit set-aside unequal to the
total amount of such Indian country new unit set-aside, then the
Administrator will adjust the results of such calculations as follows.
The Administrator will list the CSAPR NOX Ozone Season Group
1 units in descending order based on such units' allocation amounts
under paragraph (b)(7) or (b)(9)(iv) of this section, as applicable,
and, in cases of equal allocation amounts, in alphabetical order of the
relevant sources' names and numerical order of the relevant units'
identification numbers, and will adjust each unit's allocation amount
under such paragraph upward or downward by one CSAPR NOX
Ozone Season Group 1 allowance (but not below zero) in the order in
which the units are listed, and will repeat this adjustment process as
necessary, until the total allocations from such Indian country new
unit set-aside equal the total amount of such Indian country new unit
set-aside.
Sec. 97.520 [Amended]
0
58. Amend Sec. 97.520 by:
0
a. In paragraph (c)(1)(ii)(D), adding ``; and'' after the closing
quotation mark; and
0
b. In paragraph (c)(3)(iii)(B), removing ``to NOX'' and
adding in its place ``to CSAPR NOX''.
0
59. Amend Sec. 97.521 by:
0
a. Redesignating paragraph (f) as paragraph (f)(1) and in the newly
redesignated paragraph, removing ``By July 1, 2019 and July 1 of each
year thereafter,'' and adding in its place ``By July 1, 2019 and July
1, 2020,'';
0
b. Adding paragraph (f)(2);
0
c. Redesignating paragraph (g) as paragraph (g)(1) and in the newly
redesignated paragraph, removing ``By August 1, 2015 and August 1 of
each year thereafter,'' and adding in its place ``By August 1 of each
year from 2015 through 2020,'';
0
d. Adding paragraph (g)(2);
0
e. Redesignating paragraph (h) as paragraph (h)(1) and in the newly
redesignated paragraph, removing ``By August 1, 2015 and August 1 of
each year thereafter,'' and adding in its place ``By August 1 of each
year from 2015 through 2020,'';
0
f. Adding paragraph (h)(2); and
0
g. In paragraphs (i)(2) and (j)(2), removing ``By February 15, 2018 and
February 15 of each year thereafter,'' and adding in its place ``By
February 15 of each year from 2018 through 2021,''.
The additions read as follows:
Sec. 97.521 Recordation of CSAPR NOX Ozone Season Group 1 allowance
allocations and auction results.
* * * * *
(f) * * *
(2) By July 1, 2022 and July 1 of each year thereafter, the
Administrator will record in each CSAPR NOX Ozone Season Group 1
source's compliance account the CSAPR NOX Ozone Season Group
1 allowances allocated to the CSAPR NOX Ozone Season Group 1
units at the source, or in each appropriate Allowance Management System
account the CSAPR NOX Ozone Season Group 1 allowances
auctioned to CSAPR NOX Ozone Season Group 1 units, in
accordance with Sec. 97.511(a), or with a SIP revision approved under
Sec. 52.38(b)(4) or (5) of this chapter, for the control period in the
third year after the year of the applicable recordation deadline under
this paragraph.
(g) * * *
(2) By May 1, 2022 and May 1 of each year thereafter, the
Administrator will record in each CSAPR NOX Ozone Season
Group 1 source's compliance account the CSAPR NOX Ozone
Season Group 1 allowances allocated to the CSAPR NOX Ozone
Season Group 1 units at the source, or in each appropriate Allowance
Management System account the CSAPR NOX Ozone Season Group 1
allowances auctioned to CSAPR NOX Ozone Season Group 1
units, in accordance with Sec. 97.512(a), or with a SIP revision
approved under Sec. 52.38(b)(4) or (5) of this chapter, for
[[Page 23189]]
the control period in the year before the year of the applicable
recordation deadline under this paragraph.
(h) * * *
(2) By May 1, 2022 and May 1 of each year thereafter, the
Administrator will record in each CSAPR NOX Ozone Season
Group 1 source's compliance account the CSAPR NOX Ozone
Season Group 1 allowances allocated to the CSAPR NOX Ozone
Season Group 1 units at the source in accordance with Sec. 97.512(b)
for the control period in the year before the year of the applicable
recordation deadline under this paragraph.
* * * * *
0
60. Amend Sec. 97.524 by adding a paragraph heading to paragraph (c)
and revising paragraph (c)(1) to read as follows:
Sec. 97.524 Compliance with CSAPR NOX Ozone Season Group 1 emissions
limitation.
* * * * *
(c) Selection of CSAPR NOX Ozone Season Group 1 allowances for
deduction--(1) Identification by serial number. The designated
representative for a source may request that specific CSAPR
NOX Ozone Season Group 1 allowances, identified by serial
number, in the source's compliance account be deducted for emissions or
excess emissions for a control period in a given year in accordance
with paragraph (b) or (d) of this section. In order to be complete,
such request shall be submitted to the Administrator by the allowance
transfer deadline for such control period and include, in a format
prescribed by the Administrator, the identification of the CSAPR
NOX Ozone Season Group 1 source and the appropriate serial
numbers.
* * * * *
0
61. Amend Sec. 97.525 by:
0
a. Revising paragraphs (b)(1) introductory text and (b)(1)(ii);
0
b. Removing paragraphs (b)(2) introductory text and (b)(2)(i) and (ii)
and redesignating paragraphs (b)(2)(iii) introductory text and
(b)(2)(iii)(A) and (B) as paragraphs (b)(2) introductory text and
(b)(2)(i) and (ii), respectively;
0
c. In newly redesignated paragraph (b)(2) introductory text, removing
``the notice of data availability required in paragraph (b)(2)(ii) of
this section and the calculations referenced by the relevant notice''
and adding in its place ``each notice'';
0
d. In newly redesignated paragraph (b)(2)(i), removing ``the relevant
notice required under paragraph (b)(1)(ii) of this section and
referenced in the notice required under paragraph (b)(2)(ii) of this
section'' and adding in its place ``such notice'';
0
e. In newly redesignated paragraph (b)(2)(ii), removing
``(b)(2)(iii)(A)'' and adding in its place ``(b)(2)(i)'' each time it
appears, and adding ``results of the'' before ``calculations
incorporating any adjustments'';
0
f. In paragraphs (b)(3), (b)(4)(i), (b)(5), (b)(6) introductory text,
and (b)(6)(i), removing ``(b)(2)(iii)(B)'' and adding in its place
``(b)(2)(ii)'' each time it appears;
0
g. Removing and reserving paragraph (b)(6)(ii); and
0
h. In paragraph (b)(6)(iii) introductory text, removing ``paragraphs
(b)(6)(i) and (ii)'' and adding in its place ``paragraph (b)(6)(i)''.
The revisions read as follows:
Sec. 97.525 Compliance with CSAPR NOX Ozone Season Group 1 assurance
provisions.
* * * * *
(b) * * *
(1) By June 1 of each year from 2018 through 2021 and August 1 of
each year thereafter, the Administrator will:
* * * * *
(ii) For the set of any States (and Indian country within the
borders of such States) for which the results of the calculations
required in paragraph (b)(1)(i) of this section indicate that total
NOX emissions exceed the respective State assurance levels
for such control period--
(A) Calculate, for each such State (and Indian country within the
borders of such State) and such control period and each common
designated representative for such control period for a group of one or
more CSAPR NOX Ozone Season Group 1 sources and units in
such State (and such Indian country), the common designated
representative's share of the total NOX emissions from all
CSAPR NOX Ozone Season Group 1 units at CSAPR NOX
Ozone Season Group 1 sources in such State (and such Indian country),
the common designated representative's assurance level, and the amount
(if any) of CSAPR NOX Ozone Season Group 1 allowances that
the owners and operators of such group of sources and units must hold
in accordance with the calculation formula in Sec. 97.506(c)(2)(i);
and
(B) Promulgate a notice of data availability of the results of the
calculations required in paragraphs (b)(1)(i) and (b)(1)(ii)(A) of this
section, including separate calculations of the NOX
emissions from each CSAPR NOX Ozone Season Group 1 source in
each such State (and Indian country within the borders of such State).
* * * * *
0
62. Amend Sec. 97.526 by:
0
a. Revising the section heading;
0
b. In paragraph (b), removing ``removed under paragraph (c)'' and
adding in its place ``paragraph (c) or (d)'';
0
c. Revising paragraph (c); and
0
d. Adding paragraphs (d) and (e).
The revisions and additions read as follows:
Sec. 97.526 Banking and conversion.
* * * * *
(c) At any time after the allowance transfer deadline for the last
control period for which a State NOX Ozone Season Group 1
trading budget is set forth in Sec. 97.510(a) for a given State and
after completion of the procedures under paragraph (d)(1) of this
section, the Administrator may record a transfer of any CSAPR
NOX Ozone Season Group 1 allowances held in the compliance
account for a source in such State (or Indian country within the
borders of such State) to a general account identified or established
by the Administrator with the source's designated representative as the
authorized account representative and with the owners and operators of
the source (as indicated on the certificate of representation for the
source) as the persons represented by the authorized account
representative. The Administrator will notify the designated
representative not less than 15 days before making such a transfer.
(d) Notwithstanding any other provision of this subpart, part 52 of
this chapter, or any SIP revision approved under Sec. 52.38(b)(4) or
(5) of this chapter:
(1) As soon as practicable after the completion of deductions under
Sec. 97.524 for the control period in 2016, but not later than March
1, 2018, the Administrator will temporarily suspend acceptance of CSAPR
NOX Ozone Season Group 1 allowance transfers submitted under
Sec. 97.522 and, before resuming acceptance of such transfers, will
take the actions in paragraphs (d)(1)(i) through (iii) of this section
with regard to every general account and every compliance account
except a compliance account for a CSAPR NOX Ozone Season
Group 1 source in a State listed in Sec. 52.38(b)(2)(i) of this
chapter (or Indian country within the borders of such a State):
(i) The Administrator will deduct all CSAPR NOX Ozone
Season Group 1 allowances allocated for the control periods in 2015 and
2016 from each such account.
(ii) The Administrator will determine a conversion factor equal to
the greater of 1.0000 or the quotient, expressed to four decimal
places, of the sum of all
[[Page 23190]]
CSAPR NOX Ozone Season Group 1 allowances deducted from all
such accounts under paragraph (d)(1)(i) of this section divided by the
product of 1.5 multiplied by the sum of the variability limits for the
control period in 2017 set forth in Sec. 97.810(b) for all States
except a State listed in Sec. 52.38(b)(2)(i) of this chapter.
(iii) The Administrator will allocate and record in each such
account an amount of CSAPR NOX Ozone Season Group 2
allowances for the control period in 2017 computed as the quotient,
rounded up to the nearest allowance, of the number of CSAPR
NOX Ozone Season Group 1 allowances deducted from such
account under paragraph (d)(1)(i) of this section divided by the
conversion factor determined under paragraph (d)(1)(ii) of this
section, except as provided in paragraph (d)(1)(iv) of this section.
(iv) Where, pursuant to paragraph (d)(1)(i) of this section, the
Administrator deducts CSAPR NOX Ozone Season Group 1
allowances from the compliance account for a source in a State not
listed in Sec. 52.38(b)(2)(iii) or (iv) of this chapter (or Indian
country within the borders of such a State), the Administrator will not
record CSAPR NOX Ozone Season Group 2 allowances in that
compliance account but instead will allocate and record the amount of
CSAPR NOX Ozone Season Group 2 allowances for the control
period in 2017 computed for such source in accordance with paragraph
(d)(1)(iii) of this section in a general account identified by the
designated representative for such source, provided that if the
designated representative fails to identify such a general account in a
submission to the Administrator by July 14, 2021, the Administrator may
record such CSAPR NOX Ozone Season Group 2 allowances in a
general account identified or established by the Administrator with the
designated representative as the authorized account representative and
with the owners and operators of such source (as indicated on the
certificate of representation for the source) as the persons
represented by the authorized account representative.
(2)(i) After the Administrator has carried out the procedures set
forth in paragraph (d)(1) of this section, upon any determination that
would otherwise result in the initial recordation of a given number of
CSAPR NOX Ozone Season Group 1 allowances in the compliance
account for a source in a State listed in Sec. 52.38(b)(2)(iii) of
this chapter (or Indian country within the borders of such a State),
the Administrator will not record such CSAPR NOX Ozone
Season Group 1 allowances but instead will allocate and record in such
account an amount of CSAPR NOX Ozone Season Group 2
allowances for the control period in 2017 computed as the quotient,
rounded up to the nearest allowance, of such given number of CSAPR
NOX Ozone Season Group 1 allowances divided by the
conversion factor determined under paragraph (d)(1)(ii) of this
section.
(ii) After the Administrator has carried out the procedures set
forth in paragraph (d)(1) of this section and Sec. 97.826(d)(1), upon
any determination that would otherwise result in the initial
recordation of a given number of CSAPR NOX Ozone Season
Group 1 allowances in the compliance account for a source in a State
listed in Sec. 52.38(b)(2)(v) of this chapter (or Indian country
within the borders of such a State), the Administrator will not record
such CSAPR NOX Ozone Season Group 1 allowances but instead
will allocate and record in such account an amount of CSAPR
NOX Ozone Season Group 3 allowances for the control period
in 2021 computed as the quotient, rounded up to the nearest allowance,
of such given number of CSAPR NOX Ozone Season Group 1
allowances divided by the conversion factor determined under paragraph
(d)(1)(ii) of this section and further divided by the conversion factor
determined under Sec. 97.826(d)(1)(i)(D).
(e) Notwithstanding any other provision of this subpart or any SIP
revision approved under Sec. 52.38(b)(4) or (5) of this chapter, CSAPR
NOX Ozone Season Group 2 allowances or CSAPR NOX
Ozone Season Group 3 allowances may be used to satisfy requirements to
hold CSAPR NOX Ozone Season Group 1 allowances under this
subpart as follows, provided that nothing in this paragraph alters the
time as of which any such allowance holding requirement must be met or
limits any consequence of a failure to timely meet any such allowance
holding requirement:
(1) After the Administrator has carried out the procedures set
forth in paragraph (d)(1) of this section, the owner or operator of a
CSAPR NOX Ozone Season Group 1 source in a State listed in
Sec. 52.38(b)(2)(ii) of this chapter (or Indian country within the
borders of such a State) may satisfy a requirement to hold a given
number of CSAPR NOX Ozone Season Group 1 allowances for the
control period in 2015 or 2016 by holding instead, in a general account
established for this sole purpose, an amount of CSAPR NOX
Ozone Season Group 2 allowances for the control period in 2017 (or any
later control period for which the allowance transfer deadline defined
in Sec. 97.802 has passed) computed as the quotient, rounded up to the
nearest allowance, of such given number of CSAPR NOX Ozone
Season Group 1 allowances divided by the conversion factor determined
under paragraph (d)(1)(ii) of this section.
(2) After the Administrator has carried out the procedures set
forth in paragraph (d)(1) of this section and Sec. 97.826(d)(1), the
owner or operator of a CSAPR NOX Ozone Season Group 1 source
in a State listed in Sec. 52.38(b)(2)(iv) of this chapter (or Indian
country within the borders of such a State) may satisfy a requirement
to hold a given number of CSAPR NOX Ozone Season Group 1
allowances for the control period in 2015 or 2016 by holding instead,
in a general account established for this sole purpose, an amount of
CSAPR NOX Ozone Season Group 3 allowances for the control
period in 2021 (or any later control period for which the allowance
transfer deadline defined in Sec. 97.1002 has passed) computed as the
quotient, rounded up to the nearest allowance, of such given number of
CSAPR NOX Ozone Season Group 1 allowances divided by the
conversion factor determined under paragraph (d)(1)(ii) of this section
and further divided by the conversion factor determined under Sec.
97.826(d)(1)(i)(D).
Sec. 97.531 [Amended]
0
63. In Sec. 97.531, amend paragraph (d)(3) introductory text by
removing ``with'' in the last sentence.
Subpart CCCCC--CSAPR SO2 Group 1 Trading Program
0
64. Amend Sec. 97.602 by:
0
a. Removing the definition of ``Allowable SO2 emission
rate'';
0
b. Revising the definition of ``Allowance transfer deadline'';
0
c. In the definition of ``Alternate designated representative'',
removing ``or CSAPR NOX Ozone Season Group 2 Trading
Program,'' and adding in its place ``CSAPR NOX Ozone Season
Group 2 Trading Program, or CSAPR NOX Ozone Season Group 3
Trading Program,'';
0
d. In the definition of ``Biomass'', paragraph (3) introductory text,
removing the semicolon and adding in its place a colon;
0
e. Removing the definition of ``Coal-derived fuel'';
0
f. In the definition of ``Cogeneration unit'', paragraph (2)(i)(B),
removing ``15 percent of total energy output.'' and adding in its place
``15 percent of total energy output; or'';
[[Page 23191]]
0
g. In the definition of ``Common designated representative'', removing
``such control period, the same'' and adding in its place ``such a
control period before 2021, or as of July 1 immediately after such
deadline for such a control period in 2021 or thereafter, the same'',
and removing ``located'' before ``in a State'';
0
h. Revising the definitions of ``Common designated representative's
assurance level'' and ``Common designated representative's share'';
0
i. In the definition of ``CSAPR NOX Ozone Season Group 1
Trading Program'', removing ``(b)(3) through (5), and (b)(10) through
(12)'' and adding in its place ``and (b)(3) through (5) and (13)
through (15)'';
0
j. In the definition of ``CSAPR NOX Ozone Season Group 2
Trading Program'', removing ``(b)(2)(i) and (iii), (b)(6) through (11),
and (b)(13)'' and adding in its place ``(b)(2)(iii) and (iv), and
(b)(7) through (9), (13), (14), and (16)'', and removing ``Sec.
52.38(b)(6) or (9)'' and adding in its place ``Sec. 52.38(b)(9)'';
0
k. Adding in alphabetical order a definition for ``CSAPR NOX
Ozone Season Group 3 Trading Program'';
0
l. In the definition of ``Designated representative'', removing ``or
CSAPR NOX Ozone Season Group 2 Trading Program,'' and adding
in its place ``CSAPR NOX Ozone Season Group 2 Trading
Program, or CSAPR NOX Ozone Season Group 3 Trading
Program,'';
0
m. In the definition of ``Fossil fuel'', paragraph (2), removing ``and
(ii),'' and adding in its place ``and (b)(2)(ii),'';
0
n. Removing the definition of ``Heat rate''; and
0
o. Adding in alphabetical order a definition for ``Nitrogen oxides''.
The revisions and additions read as follows:
Sec. 97.602 Definitions.
* * * * *
Allowance transfer deadline means, for a control period before
2021, midnight of March 1 immediately after such control period or, for
a control period in 2021 or thereafter, midnight of June 1 immediately
after such control period (or if such March 1 or June 1 is not a
business day, midnight of the first business day thereafter) and is the
deadline by which a CSAPR SO2 Group 1 allowance transfer
must be submitted for recordation in a CSAPR SO2 Group 1
source's compliance account in order to be available for use in
complying with the source's CSAPR SO2 Group 1 emissions
limitation for such control period in accordance with Sec. Sec. 97.606
and 97.624.
* * * * *
Common designated representative's assurance level means, with
regard to a specific common designated representative and a State (and
Indian country within the borders of such State) and control period in
a given year for which the State assurance level is exceeded as
described in Sec. 97.606(c)(2)(iii), the amount (rounded to the
nearest allowance) equal to the sum of the total amount of CSAPR
SO2 Group 1 allowances allocated for such control period to
the group of one or more CSAPR SO2 Group 1 units in such
State (and such Indian country) having the common designated
representative for such control period and the total amount of CSAPR
SO2 Group 1 allowances purchased by an owner or operator of
such CSAPR SO2 Group 1 units in an auction for such control
period and submitted by the State or the permitting authority to the
Administrator for recordation in the compliance accounts for such CSAPR
SO2 Group 1 units in accordance with the CSAPR
SO2 Group 1 allowance auction provisions in a SIP revision
approved by the Administrator under Sec. 52.39(e) or (f) of this
chapter, multiplied by the sum of the State SO2 Group 1
trading budget under Sec. 97.610(a) and the State's variability limit
under Sec. 97.610(b) for such control period, and divided by such
State SO2 Group 1 trading budget.
Common designated representative's share means, with regard to a
specific common designated representative for a control period in a
given year and a total amount of SO2 emissions from all
CSAPR SO2 Group 1 units in a State (and Indian country
within the borders of such State) during such control period, the total
tonnage of SO2 emissions during such control period from the
group of one or more CSAPR SO2 Group 1 units in such State
(and such Indian country) having the common designated representative
for such control period.
* * * * *
CSAPR NOX Ozone Season Group 3 Trading Program means a multi-state
NOX air pollution control and emission reduction program
established in accordance with subpart GGGGG of this part and Sec.
52.38(b)(1), (b)(2)(v), and (b)(10) through (14) and (17) of this
chapter (including such a program that is revised in a SIP revision
approved by the Administrator under Sec. 52.38(b)(10) or (11) of this
chapter or that is established in a SIP revision approved by the
Administrator under Sec. 52.38(b)(12) of this chapter), as a means of
mitigating interstate transport of ozone and NOX.
* * * * *
Nitrogen oxides means all oxides of nitrogen except nitrous oxide
(N2O), reported on an equivalent molecular weight basis as
nitrogen dioxide (NO2).
* * * * *
Sec. 97.604 [Amended]
0
65. In Sec. 97.604, amend paragraph (b) introductory text by removing
``or (2)(i)'' and adding in its place ``or (b)(2)(i)''.
Sec. 97.605 [Amended]
0
66. In Sec. 97.605, amend paragraph (b) by removing the paragraph
heading.
Sec. 97.606 [Amended]
0
67. In Sec. 97.606, amend paragraph (c)(4)(ii) by removing ``and
(2)(i)'' and adding in its place ``and (c)(2)(i)''.
Sec. 97.610 [Amended]
0
68. Amend Sec. 97.610 by:
0
a. In paragraph (a) introductory text, removing ``2015 and thereafter''
and adding in its place ``the years indicated'';
0
b. In paragraph (a)(1)(v), removing ``6,206'' and adding in its place
``6,223'';
0
c. In paragraph (a)(3)(v), removing ``1,429'' and adding in its place
``1,426'';
0
d. In paragraph (a)(4)(v), removing ``6,377'' and adding in its place
``6,381'';
0
e. In paragraph (a)(5)(v), removing ``564'' and adding in its place
``568'';
0
f. In paragraph (a)(6)(v), removing ``2,736'' and adding in its place
``2,743'';
0
g. In paragraph (a)(7)(v), removing ``4,978'' and adding in its place
``4,982'';
0
h. In paragraph (a)(8)(v), removing ``111'' and adding in its place
``110'';
0
i. In paragraph (a)(9)(v), removing ``523'' and adding in its place
``535'';
0
j. In paragraph (a)(10)(v), removing ``4,552'' and adding in its place
``4,559'';
0
k. In paragraph (a)(11)(v), removing ``2,845'' and adding in its place
``2,850'';
0
l. In paragraph (a)(12)(v), removing ``2,240'' and adding in its place
``2,242'';
0
m. In paragraph (a)(13)(v), removing ``1,177'' and adding in its place
``1,181'';
0
n. In paragraph (a)(14)(v), removing ``1,402'' and adding in its place
``1,401'';
0
o. In paragraph (a)(15)(v), removing ``5,297'' and adding in its place
``5,299''; and
0
p. In paragraph (a)(16)(v), removing ``1,867'' and adding in its place
``1,870''.
0
69. Amend Sec. 97.611 by:
0
a. Redesignating paragraph (b)(1)(i) as paragraph (b)(1)(i)(A), and in
the newly redesignated paragraph, removing ``By June 1, 2015 and June 1
of each year thereafter,'' and adding in its place ``By June 1 of each
year from 2015 through 2020,'', and removing ``and (12),'' and
[[Page 23192]]
adding in its place ``and (12) and Sec. Sec. 97.606(b)(2) and 97.630
through 97.635,'';
0
b. Adding paragraph (b)(1)(i)(B);
0
c. In paragraph (b)(1)(ii)(A), removing ``Sec. 97.612(a)(2) through
(7) and (12) and Sec. Sec. 97.606(b)(2) and 97.630 through 97.635.''
and adding in its place ``the provisions referenced in paragraph
(b)(1)(i)(A) or (B) of this section, as applicable.'';
0
d. Revising paragraph (b)(1)(ii)(B);
0
e. In paragraph (b)(1)(iii), removing ``such control period contains''
and adding in its place ``a control period before 2021 contains'';
0
f. In paragraphs (b)(1)(iv) introductory text and (b)(1)(iv)(A),
removing ``SO2 annual'' and adding in its place
``SO2 Group 1'';
0
g. In paragraph (b)(1)(v), removing ``of this section,'' and adding in
its place ``of this section for a control period before 2021, or in
paragraph (b)(1)(ii) of this section for a control period in 2021 or
thereafter,'';
0
h. Redesignating paragraph (b)(2)(i) as paragraph (b)(2)(i)(A), and in
the newly redesignated paragraph, removing ``By June 1, 2015 and June 1
of each year thereafter,'' and adding in its place ``By June 1 of each
year from 2015 through 2020,'', and removing ``and (12),'' and adding
in its place ``and (12) and Sec. Sec. 97.606(b)(2) and 97.630 through
97.635,'';
0
i. Adding paragraph (b)(2)(i)(B);
0
j. In paragraph (b)(2)(ii)(A), removing ``Sec. 97.612(b)(2) through
(7) and (12) and Sec. Sec. 97.606(b)(2) and 97.630 through 97.635.''
and adding in its place ``the provisions referenced in paragraph
(b)(2)(i)(A) or (B) of this section, as applicable.'';
0
k. Revising paragraph (b)(2)(ii)(B);
0
l. In paragraph (b)(2)(iii), removing ``such control period contains''
and adding in its place ``a control period before 2021 contains'';
0
m. In paragraphs (b)(2)(iv) introductory text and (b)(2)(iv)(A),
removing ``SO2 annual'' and adding in its place
``SO2 Group 1'';
0
n. In paragraph (b)(2)(v), removing ``of this section,'' and adding in
its place ``of this section for a control period before 2021, or in
paragraph (b)(2)(ii) of this section for a control period in 2021 or
thereafter,'';
0
o. In paragraph (c)(5)(i)(A), adding ``(or a subsequent control
period)'' before ``for the State'';
0
p. In paragraph (c)(5)(i)(B), adding ``(or a subsequent control
period)'' before ``in accordance with such SIP revision'';
0
q. In paragraph (c)(5)(ii)(A), adding ``(or a subsequent control
period)'' before the semicolon at the end of the paragraph;
0
r. In paragraph (c)(5)(ii)(B), adding ``(or a subsequent control
period)'' before ``in accordance with such SIP revision''; and
0
s. In paragraph (c)(5)(iii), adding ``(or a subsequent control
period)'' before the period at the end of the paragraph.
The additions and revisions read as follows:
Sec. 97.611 Timing requirements for CSAPR SO2 Group 1
allowance allocations.
* * * * *
(b) * * *
(1) * * *
(i) * * *
(B) By March 1, 2022 and March 1 of each year thereafter, the
Administrator will calculate the CSAPR SO2 Group 1 allowance
allocation to each CSAPR SO2 Group 1 unit in a State, in
accordance with Sec. 97.612(a)(2) through (7), (10), and (12) and
Sec. Sec. 97.606(b)(2) and 97.630 through 97.635, for the control
period in the year before the year of the applicable calculation
deadline under this paragraph and will promulgate a notice of data
availability of the results of the calculations.
(ii) * * *
(B) The Administrator will adjust the calculations to the extent
necessary to ensure that they are in accordance with the provisions
referenced in paragraph (b)(1)(i)(A) or (B) of this section, as
applicable. By August 1 immediately after the promulgation of each
notice of data availability required in paragraph (b)(1)(i)(A) of this
section, or by May 1 immediately after the promulgation of each notice
of data availability required in paragraph (b)(1)(i)(B) of this
section, the Administrator will promulgate a notice of data
availability of the results of the calculations incorporating any
adjustments that the Administrator determines to be necessary and the
reasons for accepting or rejecting any objections submitted in
accordance with paragraph (b)(1)(ii)(A) of this section.
* * * * *
(2) * * *
(i) * * *
(B) By March 1, 2022 and March 1 of each year thereafter, the
Administrator will calculate the CSAPR SO2 Group 1 allowance
allocation to each CSAPR SO2 Group 1 unit in Indian country
within the borders of a State, in accordance with Sec. 97.612(b)(2)
through (7), (10), and (12) and Sec. Sec. 97.606(b)(2) and 97.630
through 97.635, for the control period in the year before the year of
the applicable calculation deadline under this paragraph and will
promulgate a notice of data availability of the results of the
calculations.
(ii) * * *
(B) The Administrator will adjust the calculations to the extent
necessary to ensure that they are in accordance with the provisions
referenced in paragraph (b)(2)(i)(A) or (B) of this section, as
applicable. By August 1 immediately after the promulgation of each
notice of data availability required in paragraph (b)(2)(i)(A) of this
section, or by May 1 immediately after the promulgation of each notice
of data availability required in paragraph (b)(2)(i)(B) of this
section, the Administrator will promulgate a notice of data
availability of the results of the calculations incorporating any
adjustments that the Administrator determines to be necessary and the
reasons for accepting or rejecting any objections submitted in
accordance with paragraph (b)(2)(ii)(A) of this section.
* * * * *
0
70. Amend Sec. 97.612 by:
0
a. Adding a paragraph heading to paragraph (a) introductory text;
0
b. In paragraph (a)(1)(i), removing ``Sec. 97.611(a)(1);'' and adding
in its place ``Sec. 97.611(a)(1) and that have deadlines for
certification of monitoring systems under Sec. 97.630(b) not later
than December 31 of the year of the control period;'';
0
c. In paragraph (a)(1)(iii), removing ``control period; or'' and adding
in its place ``control period, for allocations for a control period
before 2021, or that operate during such control period, for
allocations for a control period in 2021 or thereafter; or'';
0
d. In paragraph (a)(3) introductory text, removing ``later'' and adding
in its place ``latest'';
0
e. Revising paragraph (a)(3)(ii);
0
f. In paragraph (a)(3)(iv), removing ``resumes operation.'' and adding
in its place ``resumes operation, for allocations for a control period
before 2021, or the control period in which the unit resumes operation,
for allocations for a control period in 2021 or thereafter.'';
0
g. In paragraph (a)(4)(i), removing ``SO2 annual'' and
adding in its place ``SO2 Group 1'', and removing
``preceding control period.'' and adding in its place ``preceding
control period, for allocations for a control period before 2021, or
the unit's total tons of SO2 emissions during the control
period, for allocations for a control period in 2021 or thereafter.'';
0
h. In paragraph (a)(5), adding ``allocation amounts of'' after ``sum of
the'';
0
i. In paragraph (a)(8), removing ``The Administrator'' and adding in
its place ``For a control period before 2021, the Administrator'';
0
j. In paragraph (a)(9) introductory text, removing ``If, after
completion'' and
[[Page 23193]]
adding in its place ``For a control period before 2021, if, after
completion'';
0
k. In paragraph (a)(10), removing ``for such control period, any
unallocated'' and adding in its place ``for a control period before
2021, or under paragraphs (a)(2) through (7) and (12) of this section
for a control period in 2021 or thereafter, any unallocated'';
0
l. Redesignating paragraph (a)(11) as paragraph (a)(11)(i) and in the
newly redesignated paragraph, removing ``The Administrator'' and adding
in its place ``For a control period before 2021, the Administrator'';
0
m. Adding paragraph (a)(11)(ii);
0
n. Revising paragraph (a)(12);
0
o. Adding a paragraph heading to paragraph (b) introductory text and
removing ``located'' before ``in Indian country'';
0
p. In paragraph (b)(1)(i), removing ``Sec. 97.611(a)(1); or'' and
adding in its place ``Sec. 97.611(a)(1) and that have deadlines for
certification of monitoring systems under Sec. 97.630(b) not later
than December 31 of the year of the control period; or'';
0
q. Revising paragraph (b)(3)(ii);
0
r. In paragraph (b)(4)(i), removing ``SO2 annual'' and
adding in its place ``SO2 Group 1'', and removing
``preceding control period.'' and adding in its place ``preceding
control period, for allocations for a control period before 2021, or
the unit's total tons of SO2 emissions during the control
period, for allocations for a control period in 2021 or thereafter.'';
0
s. In paragraph (b)(5), adding ``allocation amounts of'' after ``sum of
the'';
0
t. In paragraph (b)(8), removing ``The Administrator'' and adding in
its place ``For a control period before 2021, the Administrator'';
0
u. In paragraph (b)(9) introductory text, removing ``If, after
completion'' and adding in its place ``For a control period before
2021, if, after completion'';
0
v. In paragraph (b)(10) introductory text, removing ``for such control
period, any unallocated'' and adding in its place ``for a control
period before 2021, or under paragraphs (b)(2) through (7) and (12) of
this section for a control period in 2021 or thereafter, any
unallocated'';
0
w. Redesignating paragraph (b)(11) as paragraph (b)(11)(i) and in the
newly redesignated paragraph, removing ``The Administrator'' and adding
in its place ``For a control period before 2021, the Administrator'';
0
x. Adding paragraph (b)(11)(ii); and
0
y. Revising paragraph (b)(12).
The additions and revisions read as follows:
Sec. 97.612 CSAPR SO2 Group 1 allowance allocations to new units.
(a) Allocations from new unit set-asides. * * *
* * * * *
(3) * * *
(ii)(A) The first control period after the control period in which
the CSAPR SO2 Group 1 unit commences commercial operation,
for allocations for a control period before 2021; or
(B) The control period containing the deadline for certification of
the CSAPR SO2 Group 1 unit's monitoring systems under Sec.
97.630(b), for allocations for a control period in 2021 or thereafter;
* * * * *
(11) * * *
(ii) For a control period in 2021 or thereafter, the Administrator
will notify the public, through the promulgation of the notices of data
availability described in Sec. 97.611(b)(1)(i), (ii), and (v), of the
amount of CSAPR SO2 Group 1 allowances allocated under
paragraphs (a)(2) through (7), (10), and (12) of this section for such
control period to each CSAPR SO2 Group 1 unit eligible for
such allocation.
(12) Notwithstanding the requirements of paragraphs (a)(2) through
(11) of this section, if the calculations of allocations from a new
unit set-aside for a control period before 2021 under paragraph (a)(7)
of this section, paragraphs (a)(6) and (a)(9)(iv) of this section, or
paragraphs (a)(6), (a)(9)(iii), and (a)(10) of this section, or for a
control period in 2021 or thereafter under paragraph (a)(7) of this
section or paragraphs (a)(6) and (10) of this section, would otherwise
result in total allocations from such new unit set-aside unequal to the
total amount of such new unit set-aside, then the Administrator will
adjust the results of such calculations as follows. The Administrator
will list the CSAPR SO2 Group 1 units in descending order
based on such units' allocation amounts under paragraph (a)(7),
(a)(9)(iv), or (a)(10) of this section, as applicable, and, in cases of
equal allocation amounts, in alphabetical order of the relevant
sources' names and numerical order of the relevant units'
identification numbers, and will adjust each unit's allocation amount
under such paragraph upward or downward by one CSAPR SO2
Group 1 allowance (but not below zero) in the order in which the units
are listed, and will repeat this adjustment process as necessary, until
the total allocations from such new unit set-aside equal the total
amount of such new unit set-aside.
(b) Allocations from Indian country new unit set-asides. * * *
* * * * *
(3) * * *
(ii)(A) The first control period after the control period in which
the CSAPR SO2 Group 1 unit commences commercial operation,
for allocations for a control period before 2021; or
(B) The control period containing the deadline for certification of
the CSAPR SO2 Group 1 unit's monitoring systems under Sec.
97.630(b), for allocations for a control period in 2021 or thereafter.
* * * * *
(11) * * *
(ii) For a control period in 2021 or thereafter, the Administrator
will notify the public, through the promulgation of the notices of data
availability described in Sec. 97.611(b)(2)(i), (ii), and (v), of the
amount of CSAPR SO2 Group 1 allowances allocated under
paragraphs (b)(2) through (7), (10), and (12) of this section for such
control period to each CSAPR SO2 Group 1 unit eligible for
such allocation.
(12) Notwithstanding the requirements of paragraphs (b)(2) through
(11) of this section, if the calculations of allocations from an Indian
country new unit set-aside for a control period before 2021 under
paragraph (b)(7) of this section or paragraphs (b)(6) and (b)(9)(iv) of
this section, or for a control period in 2021 or thereafter under
paragraph (b)(7) of this section, would otherwise result in total
allocations from such Indian country new unit set-aside unequal to the
total amount of such Indian country new unit set-aside, then the
Administrator will adjust the results of such calculations as follows.
The Administrator will list the CSAPR SO2 Group 1 units in
descending order based on such units' allocation amounts under
paragraph (b)(7) or (b)(9)(iv) of this section, as applicable, and, in
cases of equal allocation amounts, in alphabetical order of the
relevant sources' names and numerical order of the relevant units'
identification numbers, and will adjust each unit's allocation amount
under such paragraph upward or downward by one CSAPR SO2
Group 1 allowance (but not below zero) in the order in which the units
are listed, and will repeat this adjustment process as necessary, until
the total allocations from such Indian country new unit set-aside equal
the total amount of such Indian country new unit set-aside.
Sec. 97.620 [Amended]
0
71. Amend Sec. 97.620 by:
[[Page 23194]]
0
a. In paragraph (c)(1)(ii)(D), adding ``; and'' after the closing
quotation mark; and
0
b. In paragraph (c)(3)(iii)(B), removing ``to SO2'' and
adding in its place ``to CSAPR SO2''.
0
72. Amend Sec. 97.621 by:
0
a. Redesignating paragraph (f) as paragraph (f)(1) and in the newly
redesignated paragraph, removing ``By July 1, 2019 and July 1 of each
year thereafter,'' and adding in its place ``By July 1, 2019 and July
1, 2020,'';
0
b. Adding paragraph (f)(2);
0
c. Redesignating paragraph (g) as paragraph (g)(1) and in the newly
redesignated paragraph, removing ``By August 1, 2015 and August 1 of
each year thereafter,'' and adding in its place ``By August 1 of each
year from 2015 through 2020,'';
0
d. Adding paragraph (g)(2);
0
e. Redesignating paragraph (h) as paragraph (h)(1) and in the newly
redesignated paragraph, removing ``By August 1, 2015 and August 1 of
each year thereafter,'' and adding in its place ``By August 1 of each
year from 2015 through 2020,'';
0
f. Adding paragraph (h)(2); and
0
g. In paragraphs (i) and (j), removing ``By February 15, 2016 and
February 15 of each year thereafter,'' and adding in its place ``By
February 15 of each year from 2016 through 2021,''.
The additions read as follows:
Sec. 97.621 Recordation of CSAPR SO2 Group 1 allowance allocations
and auction results.
* * * * *
(f) * * *
(2) By July 1, 2022 and July 1 of each year thereafter, the
Administrator will record in each CSAPR SO2 Group 1 source's
compliance account the CSAPR SO2 Group 1 allowances
allocated to the CSAPR SO2 Group 1 units at the source, or
in each appropriate Allowance Management System account the CSAPR
SO2 Group 1 allowances auctioned to CSAPR SO2
Group 1 units, in accordance with Sec. 97.611(a), or with a SIP
revision approved under Sec. 52.39(e) or (f) of this chapter, for the
control period in the third year after the year of the applicable
recordation deadline under this paragraph.
(g) * * *
(2) By May 1, 2022 and May 1 of each year thereafter, the
Administrator will record in each CSAPR SO2 Group 1 source's
compliance account the CSAPR SO2 Group 1 allowances
allocated to the CSAPR SO2 Group 1 units at the source, or
in each appropriate Allowance Management System account the CSAPR
SO2 Group 1 allowances auctioned to CSAPR SO2
Group 1 units, in accordance with Sec. 97.612(a), or with a SIP
revision approved under Sec. 52.39(e) or (f) of this chapter, for the
control period in the year before the year of the applicable
recordation deadline under this paragraph.
(h) * * *
(2) By May 1, 2022 and May 1 of each year thereafter, the
Administrator will record in each CSAPR SO2 Group 1 source's
compliance account the CSAPR SO2 Group 1 allowances
allocated to the CSAPR SO2 Group 1 units at the source in
accordance with Sec. 97.612(b) for the control period in the year
before the year of the applicable recordation deadline under this
paragraph.
* * * * *
0
73. Amend Sec. 97.624 by adding a paragraph heading to paragraph (c)
and revising paragraph (c)(1) to read as follows:
Sec. 97.624 Compliance with CSAPR SO2 Group 1 emissions limitation.
* * * * *
(c) Selection of CSAPR SO2 Group 1 allowances for deduction--(1)
Identification by serial number. The designated representative for a
source may request that specific CSAPR SO2 Group 1
allowances, identified by serial number, in the source's compliance
account be deducted for emissions or excess emissions for a control
period in a given year in accordance with paragraph (b) or (d) of this
section. In order to be complete, such request shall be submitted to
the Administrator by the allowance transfer deadline for such control
period and include, in a format prescribed by the Administrator, the
identification of the CSAPR SO2 Group 1 source and the
appropriate serial numbers.
* * * * *
0
74. Amend Sec. 97.625 by:
0
a. Revising paragraphs (b)(1) introductory text and (b)(1)(ii);
0
b. Removing paragraphs (b)(2) introductory text and (b)(2)(i) and (ii)
and redesignating paragraphs (b)(2)(iii) introductory text and
(b)(2)(iii)(A) and (B) as paragraphs (b)(2) introductory text and
(b)(2)(i) and (ii), respectively;
0
c. In newly redesignated paragraph (b)(2) introductory text, removing
``the notice of data availability required in paragraph (b)(2)(ii) of
this section and the calculations referenced by the relevant notice''
and adding in its place ``each notice'';
0
d. In newly redesignated paragraph (b)(2)(i), removing ``the relevant
notice required under paragraph (b)(1)(ii) of this section and
referenced in the notice required under paragraph (b)(2)(ii) of this
section'' and adding in its place ``such notice'';
0
e. In newly redesignated paragraph (b)(2)(ii), removing
``(b)(2)(iii)(A)'' and adding in its place ``(b)(2)(i)'' each time it
appears, and adding ``results of the'' before ``calculations
incorporating any adjustments'';
0
f. In paragraphs (b)(3), (b)(4)(i), (b)(5), (b)(6) introductory text,
and (b)(6)(i), removing ``(b)(2)(iii)(B)'' and adding in its place
``(b)(2)(ii)'' each time it appears;
0
g. Removing and reserving paragraph (b)(6)(ii); and
0
h. In paragraph (b)(6)(iii) introductory text, removing ``paragraphs
(b)(6)(i) and (ii)'' and adding in its place ``paragraph (b)(6)(i)''.
The revisions read as follows:
Sec. 97.625 Compliance with CSAPR SO2 Group 1 assurance provisions.
* * * * *
(b) * * *
(1) By June 1 of each year from 2018 through 2021 and August 1 of
each year thereafter, the Administrator will:
* * * * *
(ii) For the set of any States (and Indian country within the
borders of such States) for which the results of the calculations
required in paragraph (b)(1)(i) of this section indicate that total
SO2 emissions exceed the respective State assurance levels
for such control period--
(A) Calculate, for each such State (and Indian country within the
borders of such State) and such control period and each common
designated representative for such control period for a group of one or
more CSAPR SO2 Group 1 sources and units in such State (and
such Indian country), the common designated representative's share of
the total SO2 emissions from all CSAPR SO2 Group
1 units at CSAPR SO2 Group 1 sources in such State (and such
Indian country), the common designated representative's assurance
level, and the amount (if any) of CSAPR SO2 Group 1
allowances that the owners and operators of such group of sources and
units must hold in accordance with the calculation formula in Sec.
97.606(c)(2)(i); and
(B) Promulgate a notice of data availability of the results of the
calculations required in paragraphs (b)(1)(i) and (b)(1)(ii)(A) of this
section, including separate calculations of the SO2
emissions from each CSAPR SO2 Group 1 source in each such
State (and Indian country within the borders of such State).
* * * * *
0
75. Amend Sec. 97.626 by:
0
a. In paragraph (b), removing ``Sec. 97.628.'' and adding in its place
[[Page 23195]]
``Sec. 97.628 or paragraph (c) of this section.''; and
0
b. Adding paragraph (c).
The addition reads as follows:
Sec. 97.626 Banking.
* * * * *
(c) At any time after the allowance transfer deadline for the last
control period for which a State SO2 Group 1 trading budget
is set forth in Sec. 97.610(a) for a given State, the Administrator
may record a transfer of any CSAPR SO2 Group 1 allowances
held in the compliance account for a source in such State (or Indian
country within the borders of such State) to a general account
identified or established by the Administrator with the source's
designated representative as the authorized account representative and
with the owners and operators of the source (as indicated on the
certificate of representation for the source) as the persons
represented by the authorized account representative. The Administrator
will notify the designated representative not less than 15 days before
making such a transfer.
Sec. 97.632 [Amended]
0
76. In Sec. 97.632, amend paragraph (a) by removing ``subpart D or
appendix D to part 75'' and adding in its place ``subpart D of, or
appendix D to, part 75''.
Sec. 97.634 [Amended]
0
77. In Sec. 97.634, amend paragraph (d)(3) by removing ``or CSAPR
NOX Ozone Season Group 2 Trading Program,'' and adding in
its place ``CSAPR NOX Ozone Season Group 2 Trading Program,
or CSAPR NOX Ozone Season Group 3 Trading Program,''.
Subpart DDDDD--CSAPR SO2 Group 2 Trading Program
0
78. Amend Sec. 97.702 by:
0
a. Removing the definition of ``Allowable SO2 emission
rate'';
0
b. Revising the definition of ``Allowance transfer deadline'';
0
c. In the definition of ``Biomass'', paragraph (3) introductory text,
removing the semicolon and adding in its place a colon;
0
d. Removing the definition of ``Coal-derived fuel'';
0
e. In the definition of ``Cogeneration unit'', paragraph (2)(i)(B),
removing ``15 percent of total energy output.'' and adding in its place
``15 percent of total energy output; or'';
0
f. In the definition of ``Common designated representative'', removing
``such control period, the same'' and adding in its place ``such a
control period before 2021, or as of July 1 immediately after such
deadline for such a control period in 2021 or thereafter, the same'',
and removing ``located'' before ``in a State'';
0
g. Revising the definitions of ``Common designated representative's
assurance level'' and ``Common designated representative's share'';
0
h. In the definition of ``CSAPR NOX Ozone Season Group 1
Trading Program'', removing ``(b)(3) through (5), and (b)(10) through
(12)'' and adding in its place ``and (b)(3) through (5) and (13)
through (15)'';
0
i. In the definition of ``CSAPR NOX Ozone Season Group 2
Trading Program'', removing ``(b)(2)(i) and (iii), (b)(6) through (11),
and (b)(13)'' and adding in its place ``(b)(2)(iii) and (iv), and
(b)(7) through (9), (13), (14), and (16)'', and removing ``Sec.
52.38(b)(6) or (9)'' and adding in its place ``Sec. 52.38(b)(9)'';
0
j. In the definition of ``Fossil fuel'', paragraph (2), removing ``and
(ii),'' and adding in its place ``and (b)(2)(ii),'';
0
k. Removing the definition of ``Heat rate''; and
0
l. Adding in alphabetical order a definition for ``Nitrogen oxides''.
The revisions and additions read as follows:
Sec. 97.702 Definitions.
* * * * *
Allowance transfer deadline means, for a control period before
2021, midnight of March 1 immediately after such control period or, for
a control period in 2021 or thereafter, midnight of June 1 immediately
after such control period (or if such March 1 or June 1 is not a
business day, midnight of the first business day thereafter) and is the
deadline by which a CSAPR SO2 Group 2 allowance transfer
must be submitted for recordation in a CSAPR SO2 Group 2
source's compliance account in order to be available for use in
complying with the source's CSAPR SO2 Group 2 emissions
limitation for such control period in accordance with Sec. Sec. 97.706
and 97.724.
* * * * *
Common designated representative's assurance level means, with
regard to a specific common designated representative and a State (and
Indian country within the borders of such State) and control period in
a given year for which the State assurance level is exceeded as
described in Sec. 97.706(c)(2)(iii), the amount (rounded to the
nearest allowance) equal to the sum of the total amount of CSAPR
SO2 Group 2 allowances allocated for such control period to
the group of one or more CSAPR SO2 Group 2 units in such
State (and such Indian country) having the common designated
representative for such control period and the total amount of CSAPR
SO2 Group 2 allowances purchased by an owner or operator of
such CSAPR SO2 Group 2 units in an auction for such control
period and submitted by the State or the permitting authority to the
Administrator for recordation in the compliance accounts for such CSAPR
SO2 Group 2 units in accordance with the CSAPR
SO2 Group 2 allowance auction provisions in a SIP revision
approved by the Administrator under Sec. 52.39(h) or (i) of this
chapter, multiplied by the sum of the State SO2 Group 2
trading budget under Sec. 97.710(a) and the State's variability limit
under Sec. 97.710(b) for such control period, and divided by such
State SO2 Group 2 trading budget.
Common designated representative's share means, with regard to a
specific common designated representative for a control period in a
given year and a total amount of SO2 emissions from all
CSAPR SO2 Group 2 units in a State (and Indian country
within the borders of such State) during such control period, the total
tonnage of SO2 emissions during such control period from the
group of one or more CSAPR SO2 Group 2 units in such State
(and such Indian country) having the common designated representative
for such control period.
* * * * *
Nitrogen oxides means all oxides of nitrogen except nitrous oxide
(N2O), reported on an equivalent molecular weight basis as
nitrogen dioxide (NO2).
* * * * *
Sec. 97.704 [Amended]
0
79. In Sec. 97.704, amend paragraph (b) introductory text by removing
``or (2)(i)'' and adding in its place ``or (b)(2)(i)''.
Sec. 97.705 [Amended]
0
80. In Sec. 97.705, amend paragraph (b) by removing the paragraph
heading.
Sec. 97.706 [Amended]
0
81. In Sec. 97.706, amend paragraph (c)(4)(ii) by removing ``and
(2)(i)'' and adding in its place ``and (c)(2)(i)''.
Sec. 97.710 [Amended]
0
82. Amend Sec. 97.710 by:
0
a. In paragraph (a) introductory text, removing ``Group 1 allowances
for the control periods in 2015 and thereafter'' and adding in its
place ``Group 2 allowances for the control periods in the years
indicated'';
0
b. In paragraph (a)(2)(v), removing ``2,711'' and adding in its place
``2,721'';
[[Page 23196]]
0
c. In paragraph (a)(3)(v), removing ``798'' and adding in its place
``801'';
0
d. In paragraph (a)(4)(v), removing ``798'' and adding in its place
``800'';
0
e. In paragraph (a)(5)(v), removing ``2,658'' and adding in its place
``2,662''; and
0
f. Removing and reserving paragraphs (a)(7)(iv) through (vi) and
(b)(7).
0
83. Amend Sec. 97.711 by:
0
a. Redesignating paragraph (b)(1)(i) as paragraph (b)(1)(i)(A), and in
the newly redesignated paragraph removing ``By June 1, 2015 and June 1
of each year thereafter,'' and adding in its place ``By June 1 of each
year from 2015 through 2020,'', and removing ``and (12),'' and adding
in its place ``and (12) and Sec. Sec. 97.706(b)(2) and 97.730 through
97.735,'';
0
b. Adding paragraph (b)(1)(i)(B);
0
c. In paragraph (b)(1)(ii)(A), removing ``Sec. 97.712(a)(2) through
(7) and (12) and Sec. Sec. 97.706(b)(2) and 97.730 through 97.735.''
and adding in its place ``the provisions referenced in paragraph
(b)(1)(i)(A) or (B) of this section, as applicable.'';
0
d. Revising paragraph (b)(1)(ii)(B);
0
e. In paragraph (b)(1)(iii), removing ``such control period contains''
and adding in its place ``a control period before 2021 contains'';
0
f. In paragraphs (b)(1)(iv) introductory text and (b)(1)(iv)(A),
removing ``SO2 annual'' and adding in its place
``SO2 Group 2'';
0
g. In paragraph (b)(1)(v), removing ``of this section,'' and adding in
its place ``of this section for a control period before 2021, or in
paragraph (b)(1)(ii) of this section for a control period in 2021 or
thereafter,'';
0
h. Redesignating paragraph (b)(2)(i) as paragraph (b)(2)(i)(A), and in
the newly redesignated paragraph, removing ``By June 1, 2015 and June 1
of each year thereafter,'' and adding in its place ``By June 1 of each
year from 2015 through 2020,'', and removing ``and (12),'' and adding
in its place ``and (12) and Sec. Sec. 97.706(b)(2) and 97.730 through
97.735,'';
0
i. Adding paragraph (b)(2)(i)(B);
0
j. In paragraph (b)(2)(ii)(A), removing ``Sec. 97.712(b)(2) through
(7) and (12) and Sec. Sec. 97.706(b)(2) and 97.730 through 97.735.''
and adding in its place ``the provisions referenced in paragraph
(b)(2)(i)(A) or (B) of this section, as applicable.'';
0
k. Revising paragraph (b)(2)(ii)(B);
0
l. In paragraph (b)(2)(iii), removing ``such control period contains''
and adding in its place ``a control period before 2021 contains'';
0
m. In paragraphs (b)(2)(iv) introductory text and (b)(2)(iv)(A),
removing ``SO2 annual'' and adding in its place
``SO2 Group 2'';
0
n. In paragraph (b)(2)(v), removing ``of this section,'' and adding in
its place ``of this section for a control period before 2021, or in
paragraph (b)(2)(ii) of this section for a control period in 2021 or
thereafter,'';
0
o. In paragraph (c)(5)(i)(A), adding ``(or a subsequent control
period)'' before ``for the State'';
0
p. In paragraph (c)(5)(i)(B), adding ``(or a subsequent control
period)'' before ``in accordance with such SIP revision'';
0
q. In paragraph (c)(5)(ii)(A), adding ``(or a subsequent control
period)'' before the semicolon at the end of the paragraph;
0
r. In paragraph (c)(5)(ii)(B), adding ``(or a subsequent control
period)'' before ``in accordance with such SIP revision''; and
0
s. In paragraph (c)(5)(iii), adding ``(or a subsequent control
period)'' before the period at the end of the paragraph.
The additions and revisions read as follows:
Sec. 97.711 Timing requirements for CSAPR SO2 Group 2 allowance
allocations.
* * * * *
(b) * * *
(1) * * *
(i) * * *
(B) By March 1, 2022 and March 1 of each year thereafter, the
Administrator will calculate the CSAPR SO2 Group 2 allowance
allocation to each CSAPR SO2 Group 2 unit in a State, in
accordance with Sec. 97.712(a)(2) through (7), (10), and (12) and
Sec. Sec. 97.706(b)(2) and 97.730 through 97.735, for the control
period in the year before the year of the applicable calculation
deadline under this paragraph and will promulgate a notice of data
availability of the results of the calculations.
(ii) * * *
(B) The Administrator will adjust the calculations to the extent
necessary to ensure that they are in accordance with the provisions
referenced in paragraph (b)(1)(i)(A) or (B) of this section, as
applicable. By August 1 immediately after the promulgation of each
notice of data availability required in paragraph (b)(1)(i)(A) of this
section, or by May 1 immediately after the promulgation of each notice
of data availability required in paragraph (b)(1)(i)(B) of this
section, the Administrator will promulgate a notice of data
availability of the results of the calculations incorporating any
adjustments that the Administrator determines to be necessary and the
reasons for accepting or rejecting any objections submitted in
accordance with paragraph (b)(1)(ii)(A) of this section.
* * * * *
(2) * * *
(i) * * *
(B) By March 1, 2022 and March 1 of each year thereafter, the
Administrator will calculate the CSAPR SO2 Group 2 allowance
allocation to each CSAPR SO2 Group 2 unit in Indian country
within the borders of a State, in accordance with Sec. 97.712(b)(2)
through (7), (10), and (12) and Sec. Sec. 97.706(b)(2) and 97.730
through 97.735, for the control period in the year before the year of
the applicable calculation deadline under this paragraph and will
promulgate a notice of data availability of the results of the
calculations.
(ii) * * *
(B) The Administrator will adjust the calculations to the extent
necessary to ensure that they are in accordance with the provisions
referenced in paragraph (b)(2)(i)(A) or (B) of this section, as
applicable. By August 1 immediately after the promulgation of each
notice of data availability required in paragraph (b)(2)(i)(A) of this
section, or by May 1 immediately after the promulgation of each notice
of data availability required in paragraph (b)(2)(i)(B) of this
section, the Administrator will promulgate a notice of data
availability of the results of the calculations incorporating any
adjustments that the Administrator determines to be necessary and the
reasons for accepting or rejecting any objections submitted in
accordance with paragraph (b)(2)(ii)(A) of this section.
* * * * *
0
84. Amend Sec. 97.712 by:
0
a. Adding a paragraph heading to paragraph (a) introductory text;
0
b. In paragraph (a)(1)(i), removing ``Sec. 97.711(a)(1);'' and adding
in its place ``Sec. 97.711(a)(1) and that have deadlines for
certification of monitoring systems under Sec. 97.730(b) not later
than December 31 of the year of the control period;'';
0
c. In paragraph (a)(1)(iii), removing ``control period; or'' and adding
in its place ``control period, for allocations for a control period
before 2021, or that operate during such control period, for
allocations for a control period in 2021 or thereafter; or'';
0
d. In paragraph (a)(3) introductory text, removing ``later'' and adding
in its place ``latest'';
0
e. Revising paragraph (a)(3)(ii);
0
f. In paragraph (a)(3)(iv), removing ``resumes operation.'' and adding
in its place ``resumes operation, for allocations for a control period
before 2021, or the control period in which the unit resumes operation,
for allocations
[[Page 23197]]
for a control period in 2021 or thereafter.'';
0
g. In paragraph (a)(4)(i), removing ``SO2 annual'' and
adding in its place ``SO2 Group 2'', and removing
``preceding control period.'' and adding in its place ``preceding
control period, for allocations for a control period before 2021, or
the unit's total tons of SO2 emissions during the control
period, for allocations for a control period in 2021 or thereafter.'';
0
h. In paragraph (a)(5), adding ``allocation amounts of'' after ``sum of
the'';
0
i. In paragraph (a)(8), removing ``The Administrator'' and adding in
its place ``For a control period before 2021, the Administrator'';
0
j. In paragraph (a)(9) introductory text, removing ``If, after
completion'' and adding in its place ``For a control period before
2021, if, after completion'';
0
k. In paragraph (a)(10), removing ``for such control period, any
unallocated'' and adding in its place ``for a control period before
2021, or under paragraphs (a)(2) through (7) and (12) of this section
for a control period in 2021 or thereafter, any unallocated'';
0
l. Redesignating paragraph (a)(11) as paragraph (a)(11)(i) and in the
newly redesignated paragraph, removing ``The Administrator'' and adding
in its place ``For a control period before 2021, the Administrator'';
0
m. Adding paragraph (a)(11)(ii);
0
n. Revising paragraph (a)(12);
0
o. Adding a paragraph heading to paragraph (b) introductory text and
removing ``located'' before ``in Indian country'';
0
p. In paragraph (b)(1)(i), removing ``Sec. 97.711(a)(1); or'' and
adding in its place ``Sec. 97.711(a)(1) and that have deadlines for
certification of monitoring systems under Sec. 97.730(b) not later
than December 31 of the year of the control period; or'';
0
q. Revising paragraph (b)(3)(ii);
0
r. In paragraph (b)(4)(i), removing ``SO2 annual'' and
adding in its place ``SO2 Group 2'', and removing
``preceding control period.'' and adding in its place ``preceding
control period, for allocations for a control period before 2021, or
the unit's total tons of SO2 emissions during the control
period, for allocations for a control period in 2021 or thereafter.'';
0
s. In paragraph (b)(5), adding ``allocation amounts of'' after ``sum of
the'';
0
t. In paragraph (b)(8), removing ``The Administrator'' and adding in
its place ``For a control period before 2021, the Administrator'';
0
u. In paragraph (b)(9) introductory text, removing ``If, after
completion'' and adding in its place ``For a control period before
2021, if, after completion'';
0
v. In paragraph (b)(10) introductory text, removing ``for such control
period, any unallocated'' and adding in its place ``for a control
period before 2021, or under paragraphs (b)(2) through (7) and (12) of
this section for a control period in 2021 or thereafter, any
unallocated'';
0
w. Redesignating paragraph (b)(11) as paragraph (b)(11)(i) and in the
newly redesignated paragraph, removing ``The Administrator'' and adding
in its place ``For a control period before 2021, the Administrator'';
0
x. Adding paragraph (b)(11)(ii); and
0
y. Revising paragraph (b)(12).
The additions and revisions read as follows:
Sec. 97.712 CSAPR SO2 Group 2 allowance allocations to new units.
(a) Allocations from new unit set-asides. * * *
* * * * *
(3) * * *
(ii)(A) The first control period after the control period in which
the CSAPR SO2 Group 2 unit commences commercial operation,
for allocations for a control period before 2021; or
(B) The control period containing the deadline for certification of
the CSAPR SO2 Group 2 unit's monitoring systems under Sec.
97.730(b), for allocations for a control period in 2021 or thereafter;
* * * * *
(11) * * *
(ii) For a control period in 2021 or thereafter, the Administrator
will notify the public, through the promulgation of the notices of data
availability described in Sec. 97.711(b)(1)(i), (ii), and (v), of the
amount of CSAPR SO2 Group 2 allowances allocated under
paragraphs (a)(2) through (7), (10), and (12) of this section for such
control period to each CSAPR SO2 Group 2 unit eligible for
such allocation.
(12) Notwithstanding the requirements of paragraphs (a)(2) through
(11) of this section, if the calculations of allocations from a new
unit set-aside for a control period before 2021 under paragraph (a)(7)
of this section, paragraphs (a)(6) and (a)(9)(iv) of this section, or
paragraphs (a)(6), (a)(9)(iii), and (a)(10) of this section, or for a
control period in 2021 or thereafter under paragraph (a)(7) of this
section or paragraphs (a)(6) and (10) of this section, would otherwise
result in total allocations from such new unit set-aside unequal to the
total amount of such new unit set-aside, then the Administrator will
adjust the results of such calculations as follows. The Administrator
will list the CSAPR SO2 Group 2 units in descending order
based on such units' allocation amounts under paragraph (a)(7),
(a)(9)(iv), or (a)(10) of this section, as applicable, and, in cases of
equal allocation amounts, in alphabetical order of the relevant
sources' names and numerical order of the relevant units'
identification numbers, and will adjust each unit's allocation amount
under such paragraph upward or downward by one CSAPR SO2
Group 2 allowance (but not below zero) in the order in which the units
are listed, and will repeat this adjustment process as necessary, until
the total allocations from such new unit set-aside equal the total
amount of such new unit set-aside.
(b) Allocations from Indian country new unit set-asides. * * *
* * * * *
(3) * * *
(ii)(A) The first control period after the control period in which
the CSAPR SO2 Group 2 unit commences commercial operation,
for allocations for a control period before 2021; or
(B) The control period containing the deadline for certification of
the CSAPR SO2 Group 2 unit's monitoring systems under Sec.
97.730(b), for allocations for a control period in 2021 or thereafter.
* * * * *
(11) * * *
(ii) For a control period in 2021 or thereafter, the Administrator
will notify the public, through the promulgation of the notices of data
availability described in Sec. 97.711(b)(2)(i), (ii), and (v), of the
amount of CSAPR SO2 Group 2 allowances allocated under
paragraphs (b)(2) through (7), (10), and (12) of this section for such
control period to each CSAPR SO2 Group 2 unit eligible for
such allocation.
(12) Notwithstanding the requirements of paragraphs (b)(2) through
(11) of this section, if the calculations of allocations from an Indian
country new unit set-aside for a control period before 2021 under
paragraph (b)(7) of this section or paragraphs (b)(6) and (b)(9)(iv) of
this section, or for a control period in 2021 or thereafter under
paragraph (b)(7) of this section, would otherwise result in total
allocations from such Indian country new unit set-aside unequal to the
total amount of such Indian country new unit set-aside, then the
Administrator will adjust the results of such calculations as follows.
The Administrator will list the CSAPR SO2 Group 2 units in
descending order based on such units' allocation amounts under
paragraph (b)(7) or (b)(9)(iv) of this section, as applicable, and, in
cases of equal allocation amounts, in
[[Page 23198]]
alphabetical order of the relevant sources' names and numerical order
of the relevant units' identification numbers, and will adjust each
unit's allocation amount under such paragraph upward or downward by one
CSAPR SO2 Group 2 allowance (but not below zero) in the
order in which the units are listed, and will repeat this adjustment
process as necessary, until the total allocations from such Indian
country new unit set-aside equal the total amount of such Indian
country new unit set-aside.
Sec. 97.720 [Amended]
0
85. Amend Sec. 97.720 by:
0
a. In paragraph (c)(1)(ii)(D), adding ``; and'' after the closing
quotation mark; and
0
b. In paragraph (c)(3)(iii)(B), removing ``to SO2'' and
adding in its place ``to CSAPR SO2''.
0
86. Amend Sec. 97.721 by:
0
a. Redesignating paragraph (f) as paragraph (f)(1) and in the newly
redesignated paragraph, removing ``By July 1, 2019 and July 1 of each
year thereafter,'' and adding in its place ``By July 1, 2019 and July
1, 2020,'';
0
b. Adding paragraph (f)(2);
0
c. Redesignating paragraph (g) as paragraph (g)(1) and in the newly
redesignated paragraph, removing ``By August 1, 2015 and August 1 of
each year thereafter,'' and adding in its place ``By August 1 of each
year from 2015 through 2020,'';
0
d. Adding paragraph (g)(2);
0
e. Redesignating paragraph (h) as paragraph (h)(1) and in the newly
redesignated paragraph, removing ``By August 1, 2015 and August 1 of
each year thereafter,'' and adding in its place ``By August 1 of each
year from 2015 through 2020,'';
0
f. Adding paragraph (h)(2); and
0
g. In paragraphs (i) and (j), removing ``By February 15, 2016 and
February 15 of each year thereafter,'' and adding in its place ``By
February 15 of each year from 2016 through 2021,''.
The additions read as follows:
Sec. 97.721 Recordation of CSAPR SO2 Group 2 allowance allocations
and auction results.
* * * * *
(f) * * *
(2) By July 1, 2022 and July 1 of each year thereafter, the
Administrator will record in each CSAPR SO2 Group 2 source's
compliance account the CSAPR SO2 Group 2 allowances
allocated to the CSAPR SO2 Group 2 units at the source, or
in each appropriate Allowance Management System account the CSAPR
SO2 Group 2 allowances auctioned to CSAPR SO2
Group 2 units, in accordance with Sec. 97.711(a), or with a SIP
revision approved under Sec. 52.39(h) or (i) of this chapter, for the
control period in the third year after the year of the applicable
recordation deadline under this paragraph.
(g) * * *
(2) By May 1, 2022 and May 1 of each year thereafter, the
Administrator will record in each CSAPR SO2 Group 2 source's
compliance account the CSAPR SO2 Group 2 allowances
allocated to the CSAPR SO2 Group 2 units at the source, or
in each appropriate Allowance Management System account the CSAPR
SO2 Group 2 allowances auctioned to CSAPR SO2
Group 2 units, in accordance with Sec. 97.712(a), or with a SIP
revision approved under Sec. 52.39(h) or (i) of this chapter, for the
control period in the year before the year of the applicable
recordation deadline under this paragraph.
(h) * * *
(2) By May 1, 2022 and May 1 of each year thereafter, the
Administrator will record in each CSAPR SO2 Group 2 source's
compliance account the CSAPR SO2 Group 2 allowances
allocated to the CSAPR SO2 Group 2 units at the source in
accordance with Sec. 97.712(b) for the control period in the year
before the year of the applicable recordation deadline under this
paragraph.
* * * * *
0
87. Amend Sec. 97.724 by adding a paragraph heading to paragraph (c)
and revising paragraph (c)(1) to read as follows:
Sec. 97.724 Compliance with CSAPR SO2 Group 2 emissions limitation.
* * * * *
(c) Selection of CSAPR SO2 Group 2 allowances for
deduction--(1) Identification by serial number. The designated
representative for a source may request that specific CSAPR
SO2 Group 2 allowances, identified by serial number, in the
source's compliance account be deducted for emissions or excess
emissions for a control period in a given year in accordance with
paragraph (b) or (d) of this section. In order to be complete, such
request shall be submitted to the Administrator by the allowance
transfer deadline for such control period and include, in a format
prescribed by the Administrator, the identification of the CSAPR
SO2 Group 2 source and the appropriate serial numbers.
* * * * *
0
88. Amend Sec. 97.725 by:
0
a. Revising paragraphs (b)(1) introductory text and (b)(1)(ii);
0
b. Removing paragraphs (b)(2) introductory text and (b)(2)(i) and (ii)
and redesignating paragraphs (b)(2)(iii) introductory text and
(b)(2)(iii)(A) and (B) as paragraphs (b)(2) introductory text and
(b)(2)(i) and (ii), respectively;
0
c. In newly redesignated paragraph (b)(2) introductory text, removing
``the notice of data availability required in paragraph (b)(2)(ii) of
this section and the calculations referenced by the relevant notice''
and adding in its place ``each notice'';
0
d. In newly redesignated paragraph (b)(2)(i), removing ``the relevant
notice required under paragraph (b)(1)(ii) of this section and
referenced in the notice required under paragraph (b)(2)(ii) of this
section'' and adding in its place ``such notice'';
0
e. In newly redesignated paragraph (b)(2)(ii), removing
``(b)(2)(iii)(A)'' and adding in its place ``(b)(2)(i)'' each time it
appears, and adding ``results of the'' before ``calculations
incorporating any adjustments'';
0
f. In paragraphs (b)(3), (b)(4)(i), (b)(5), (b)(6) introductory text,
and (b)(6)(i), removing ``(b)(2)(iii)(B)'' and adding in its place
``(b)(2)(ii)'' each time it appears;
0
g. Removing and reserving paragraph (b)(6)(ii); and
0
h. In paragraph (b)(6)(iii) introductory text, removing ``paragraphs
(b)(6)(i) and (ii)'' and adding in its place ``paragraph (b)(6)(i)''.
The revisions read as follows:
Sec. 97.725 Compliance with CSAPR SO2 Group 2 assurance provisions.
* * * * *
(b) * * *
(1) By June 1 of each year from 2018 through 2021 and August 1 of
each year thereafter, the Administrator will:
* * * * *
(ii) For the set of any States (and Indian country within the
borders of such States) for which the results of the calculations
required in paragraph (b)(1)(i) of this section indicate that total
SO2 emissions exceed the respective State assurance levels
for such control period--
(A) Calculate, for each such State (and Indian country within the
borders of such State) and such control period and each common
designated representative for such control period for a group of one or
more CSAPR SO2 Group 2 sources and units in such State (and
such Indian country), the common designated representative's share of
the total SO2 emissions from all CSAPR SO2 Group
2 units at CSAPR SO2 Group 2 sources in such State (and such
Indian country), the common designated representative's assurance
level, and the amount (if any) of CSAPR SO2 Group 2
allowances that the owners and
[[Page 23199]]
operators of such group of sources and units must hold in accordance
with the calculation formula in Sec. 97.706(c)(2)(i); and
(B) Promulgate a notice of data availability of the results of the
calculations required in paragraphs (b)(1)(i) and (b)(1)(ii)(A) of this
section, including separate calculations of the SO2
emissions from each CSAPR SO2 Group 2 source in each such
State (and Indian country within the borders of such State).
* * * * *
0
89. Amend Sec. 97.726 by:
0
a. In paragraph (b), removing ``Sec. 97.728.'' and adding in its place
``Sec. 97.728 or paragraph (c) of this section.''; and
0
b. Adding paragraph (c).
The addition reads as follows:
Sec. 97.726 Banking.
* * * * *
(c) At any time after the allowance transfer deadline for the last
control period for which a State SO2 Group 2 trading budget
is set forth in Sec. 97.710(a) for a given State, the Administrator
may record a transfer of any CSAPR SO2 Group 2 allowances
held in the compliance account for a source in such State (or Indian
country within the borders of such State) to a general account
identified or established by the Administrator with the source's
designated representative as the authorized account representative and
with the owners and operators of the source (as indicated on the
certificate of representation for the source) as the persons
represented by the authorized account representative. The Administrator
will notify the designated representative not less than 15 days before
making such a transfer.
Sec. 97.731 [Amended]
0
90. In Sec. 97.731, amend paragraph (d)(3) introductory text by
removing in the last sentence the word ``with''.
Sec. 97.732 [Amended]
0
91. In Sec. 97.732, amend paragraph (a) by removing ``subpart D or
appendix D to part 75'' and adding in its place ``subpart D of, or
appendix D to, part 75''.
Subpart EEEEE--CSAPR NOX Ozone Season Group 2 Trading Program
0
92. Amend Sec. 97.802 by:
0
a. In the definition of ``Allocate or allocation'', introductory text,
removing ``Sec. 97.526(c),'' and adding in its place ``Sec.
97.526(d),'', and removing ``Sec. 52.38(b)(6), (7), (8), or (9)'' and
adding in its place ``Sec. 52.38(b)(7), (8), or (9)'';
0
b. Removing the definition of ``Allowable NOX emission
rate'';
0
c. Revising the definition of ``Allowance transfer deadline'';
0
d. In the definitions of ``Auction'' and ``Base CSAPR NOX
Ozone Season Group 2 unit'', removing ``Sec. 52.38(b)(6), (8), or
(9)'' and adding in its place ``Sec. 52.38(b)(8) or (9)'';
0
e. In the definition of ``Biomass'', paragraph (3) introductory text,
removing the semicolon and adding in its place a colon;
0
f. Removing the definition of ``Coal-derived fuel'';
0
g. In the definition of ``Cogeneration unit'', paragraph (2)(i)(B),
removing ``15 percent of total energy output.'' and adding in its place
``15 percent of total energy output; or'';
0
h. In the definition of ``Common designated representative'', removing
``such control period, the same'' and adding in its place ``such a
control period before 2021, or as of July 1 immediately after such
deadline for such a control period in 2021 or thereafter, the same'',
and removing ``located'' before ``in a State'';
0
i. Revising the definitions of ``Common designated representative's
assurance level'' and ``Common designated representative's share'';
0
j. Removing the definitions of ``CSAPR NOX Ozone Season
Group 1 allowance'' and ``CSAPR NOX Ozone Season Group 1
Trading Program'';
0
k. In the definition of ``CSAPR NOX Ozone Season Group 2
allowance'', removing ``Sec. 97.526(c),'' and adding in its place
``Sec. 97.526(d),'', and removing ``Sec. 52.38(b)(6), (7), (8), or
(9)'' and adding in its place ``Sec. 52.38(b)(7), (8), or (9)'';
0
l. In the definition of ``CSAPR NOX Ozone Season Group 2
Trading Program'', removing ``(b)(2)(i) and (iii), (b)(6) through (11),
and (b)(13)'' and adding in its place ``(b)(2)(iii) and (iv), and
(b)(7) through (9), (13), (14), and (16)'', and removing ``Sec.
52.38(b)(6) or (9)'' and adding in its place ``Sec. 52.38(b)(9)'';
0
m. Adding in alphabetical order definitions for ``CSAPR NOX
Ozone Season Group 3 allowance'' and ``CSAPR NOX Ozone
Season Group 3 Trading Program'';
0
n. Removing the definition of ``Heat rate'';
0
o. Adding in alphabetical order a definition for ``Nitrogen oxides'';
and
0
p. In the definition of ``State'', removing ``(2)(i) and (iii), (6)
through (11), and (13)'' and adding in its place ``(b)(2)(iii) and
(iv), and (b)(7) through (9), (13), (14), and (16)''.
The revisions and additions read as follows:
Sec. 97.802 Definitions.
* * * * *
Allowance transfer deadline means, for a control period before
2021, midnight of March 1 immediately after such control period or, for
a control period in 2021 or thereafter, midnight of June 1 immediately
after such control period (or if such March 1 or June 1 is not a
business day, midnight of the first business day thereafter) and is the
deadline by which a CSAPR NOX Ozone Season Group 2 allowance
transfer must be submitted for recordation in a CSAPR NOX
Ozone Season Group 2 source's compliance account in order to be
available for use in complying with the source's CSAPR NOX
Ozone Season Group 2 emissions limitation for such control period in
accordance with Sec. Sec. 97.806 and 97.824.
* * * * *
Common designated representative's assurance level means, with
regard to a specific common designated representative and a State (and
Indian country within the borders of such State) and control period in
a given year for which the State assurance level is exceeded as
described in Sec. 97.806(c)(2)(iii):
(1) The amount (rounded to the nearest allowance) equal to the sum
of the total amount of CSAPR NOX Ozone Season Group 2
allowances allocated for such control period to the group of one or
more base CSAPR NOX Ozone Season Group 2 units in such State
(and such Indian country) having the common designated representative
for such control period and the total amount of CSAPR NOX
Ozone Season Group 2 allowances purchased by an owner or operator of
such base CSAPR NOX Ozone Season Group 2 units in an auction
for such control period and submitted by the State or the permitting
authority to the Administrator for recordation in the compliance
accounts for such base CSAPR NOX Ozone Season Group 2 units
in accordance with the CSAPR NOX Ozone Season Group 2
allowance auction provisions in a SIP revision approved by the
Administrator under Sec. 52.38(b)(8) or (9) of this chapter,
multiplied by the sum of the State NOX Ozone Season Group 2
trading budget under Sec. 97.810(a) and the State's variability limit
under Sec. 97.810(b) for such control period, and divided by the
greater of such State NOX Ozone Season Group 2 trading
budget or the sum of all amounts of CSAPR NOX Ozone Season
Group 2 allowances for such control period allocated to or purchased in
the State's auction for all
[[Page 23200]]
such base CSAPR NOX Ozone Season Group 2 units;
(2) Provided that the allocations of CSAPR NOX Ozone
Season Group 2 allowances for any control period taken into account for
purposes of this definition shall exclude any CSAPR NOX
Ozone Season Group 2 allowances allocated for such control period under
Sec. 97.526(d).
Common designated representative's share means, with regard to a
specific common designated representative for a control period in a
given year and a total amount of NOX emissions from all base
CSAPR NOX Ozone Season Group 2 units in a State (and Indian
country within the borders of such State) during such control period,
the total tonnage of NOX emissions during such control
period from the group of one or more base CSAPR NOX Ozone
Season Group 2 units in such State (and such Indian country) having the
common designated representative for such control period.
* * * * *
CSAPR NOX Ozone Season Group 3 allowance means a limited
authorization issued and allocated or auctioned by the Administrator
under subpart GGGGG of this part, Sec. 97.526(d), or Sec. 97.826(d),
or by a State or permitting authority under a SIP revision approved by
the Administrator under Sec. 52.38(b)(10), (11), or (12) of this
chapter, to emit one ton of NOX during a control period of
the specified calendar year for which the authorization is allocated or
auctioned or of any calendar year thereafter under the CSAPR
NOX Ozone Season Group 3 Trading Program.
CSAPR NOX Ozone Season Group 3 Trading Program means a multi-state
NOX air pollution control and emission reduction program
established in accordance with subpart GGGGG of this part and Sec.
52.38(b)(1), (b)(2)(v), and (b)(10) through (14) and (17) of this
chapter (including such a program that is revised in a SIP revision
approved by the Administrator under Sec. 52.38(b)(10) or (11) of this
chapter or that is established in a SIP revision approved by the
Administrator under Sec. 52.38(b)(12) of this chapter), as a means of
mitigating interstate transport of ozone and NOX.
* * * * *
Nitrogen oxides means all oxides of nitrogen except nitrous oxide
(N2O), reported on an equivalent molecular weight basis as
nitrogen dioxide (NO2).
* * * * *
Sec. 97.804 [Amended]
0
93. In Sec. 97.804, amend paragraph (c) introductory text by removing
``Sec. 52.38(b)(6), (8), or (9)'' and adding in its place ``Sec.
52.38(b)(8) or (9)''.
Sec. 97.805 [Amended]
0
94. In Sec. 97.805, amend paragraph (b) by removing the paragraph
heading.
Sec. 97.810 [Amended]
0
95. Amend Sec. 97.810 by:
0
a. In paragraph (a) introductory text, removing ``2017 and thereafter''
and adding in its place ``the years indicated'';
0
b. In paragraphs (a)(1)(i) through (iii), adding ``for 2017 and
thereafter'' before ``is'';
0
c. Removing and reserving paragraph (a)(3);
0
d. In paragraphs (a)(4)(i) and (ii) and (a)(5)(i) and (ii), adding
``for 2017 through 2020'' before ``is'';
0
e. In paragraphs (a)(6)(i) through (iii) and (a)(7)(i) through (iii),
adding ``for 2017 and thereafter'' before ``is'';
0
f. In paragraphs (a)(8)(i) and (ii), (a)(9)(i) through (iii),
(a)(10)(i) and (ii), and (a)(11)(i) through (iii), adding ``for 2017
through 2020'' before ``is'';
0
g. In paragraphs (a)(12)(i) through (iii) and (a)(13)(i) and (ii),
adding ``for 2017 and thereafter'' before ``is'';
0
h. In paragraphs (a)(14)(i) and (ii), (a)(15)(i) through (iii), and
(a)(16)(i) and (ii), adding ``for 2017 through 2020'' before ``is'';
0
i. In paragraphs (a)(17)(i) through (iii), adding ``for 2017 and
thereafter'' before ``is'';
0
j. In paragraphs (a)(18)(i) and (ii), adding ``for 2017 through 2020''
before ``is'';
0
k. In paragraphs (a)(19)(i) and (ii) and (a)(20)(i) through (iii),
adding ``for 2017 and thereafter'' before ``is'';
0
l. In paragraphs (a)(21)(i) and (ii) and (a)(22)(i) and (ii), adding
``for 2017 through 2020'' before ``is'';
0
m. In paragraphs (a)(23)(i) through (iii), adding ``for 2017 and
thereafter'' before ``is'';
0
n. In paragraph (b) introductory text, removing ``2017 and thereafter''
and adding in its place ``the years indicated'';
0
o. In paragraph (b)(1), adding ``for 2017 and thereafter'' before
``is'';
0
p. Removing and reserving paragraph (b)(3);
0
q. In paragraphs (b)(4) and (5), adding ``for 2017 through 2020''
before ``is'';
0
r. In paragraphs (b)(6) and (7), adding ``for 2017 and thereafter''
before ``is'';
0
s. In paragraphs (b)(8) through (11), adding ``for 2017 through 2020''
before ``is'';
0
t. In paragraphs (b)(12) and (13), adding ``for 2017 and thereafter''
before ``is'';
0
u. In paragraphs (b)(14) through (16), adding ``for 2017 through 2020''
before ``is'';
0
v. In paragraph (b)(17), adding ``for 2017 and thereafter'' before
``is'';
0
w. In paragraph (b)(18), adding ``for 2017 through 2020'' before
``is'';
0
x. In paragraphs (b)(19) and (20), adding ``for 2017 and thereafter''
before ``is'';
0
y. In paragraphs (b)(21) and (22), adding ``for 2017 through 2020''
before ``is''; and
0
z. In paragraph (b)(23), adding ``for 2017 and thereafter'' before
``is''.
0
96. Amend Sec. 97.811 by:
0
a. Redesignating paragraph (b)(1)(i) as paragraph (b)(1)(i)(A), and in
the newly redesignated paragraph, removing ``By June 1, 2017 and June 1
of each year thereafter,'' and adding in its place ``By June 1 of each
year from 2017 through 2020,'', and removing `` and (12),'' and adding
in its place ``and (12) and Sec. Sec. 97.806(b)(2) and 97.830 through
97.835,'';
0
b. Adding paragraph (b)(1)(i)(B);
0
c. In paragraph (b)(1)(ii)(A), removing ``Sec. 97.812(a)(2) through
(7) and (12) and Sec. Sec. 97.806(b)(2) and 97.830 through 97.835.''
and adding in its place ``the provisions referenced in paragraph
(b)(1)(i)(A) or (B) of this section, as applicable.'';
0
d. Revising paragraph (b)(1)(ii)(B);
0
e. In paragraph (b)(1)(iii), removing ``such control period contains''
and adding in its place ``a control period before 2021 contains'';
0
f. In paragraph (b)(1)(v), removing ``of this section,'' and adding in
its place ``of this section for a control period before 2021, or in
paragraph (b)(1)(ii) of this section for a control period in 2021 or
thereafter,'';
0
g. Redesignating paragraph (b)(2)(i) as paragraph (b)(2)(i)(A), and in
the newly redesignated paragraph, removing ``By June 1, 2017 and June 1
of each year thereafter,'' and adding in its place ``By June 1 of each
year from 2017 through 2020,'', and removing ``and (12),'' and adding
in its place ``and (12) and Sec. Sec. 97.806(b)(2) and 97.830 through
97.835,'';
0
h. Adding paragraph (b)(2)(i)(B);
0
i. In paragraph (b)(2)(ii)(A), removing ``Sec. 97.812(b)(2) through
(7) and (12) and Sec. Sec. 97.806(b)(2) and 97.830 through 97.835.''
and adding in its place ``the provisions referenced in paragraph
(b)(2)(i)(A) or (B) of this section, as applicable.'';
0
j. Revising paragraph (b)(2)(ii)(B);
0
k. In paragraph (b)(2)(iii), removing ``such control period contains''
and adding in its place ``a control period before 2021 contains'';
[[Page 23201]]
0
l. In paragraph (b)(2)(v), removing ``of this section,'' and adding in
its place ``of this section for a control period before 2021, or in
paragraph (b)(2)(ii) of this section for a control period in 2021 or
thereafter,'';
0
m. In paragraph (c)(1) introductory text, removing ``Sec. 52.38(b)(6),
(7), (8), or (9)'' and adding in its place ``Sec. 52.38(b)(7), (8), or
(9)'', and removing ``Sec. 52.38(b)(6), (8), or (9)'' and adding in
its place ``Sec. 52.38(b)(8) or (9)'';
0
n. In paragraph (c)(1)(i)(A) and (B), removing ``Sec. 52.38(b)(6),
(7), (8), or (9)'' and adding in its place ``Sec. 52.38(b)(7), (8), or
(9)'';
0
o. In paragraph (c)(1)(ii), removing ``Sec. 52.38(b)(6), (8), or (9)''
and adding in its place ``Sec. 52.38(b)(8) or (9)'';
0
p. In paragraph (c)(5)(i)(A), adding ``(or a subsequent control
period)'' before ``for the State'';
0
q. In paragraph (c)(5)(i)(B), removing ``Sec. 52.38(b)(6), (8), or
(9)'' and adding in its place ``Sec. 52.38(b)(8) or (9)'', and adding
``(or a subsequent control period)'' before ``in accordance with such
SIP revision'';
0
r. In paragraph (c)(5)(ii)(A), adding ``(or a subsequent control
period)'' before the semicolon at the end of the paragraph;
0
s. In paragraph (c)(5)(ii)(B), removing ``Sec. 52.38(b)(6), (8), or
(9)'' and adding in its place ``Sec. 52.38(b)(8) or (9)'', and adding
``(or a subsequent control period)'' before ``in accordance with such
SIP revision'';
0
t. In paragraph (c)(5)(iii), adding ``(or a subsequent control
period)'' before the period at the end of the paragraph; and
0
u. Adding paragraph (d).
The additions and revisions read as follows:
Sec. 97.811 Timing requirements for CSAPR NOX Ozone Season Group 2
allowance allocations.
* * * * *
(b) * * *
(1) * * *
(i) * * *
(B) By March 1, 2022 and March 1 of each year thereafter, the
Administrator will calculate the CSAPR NOX Ozone Season
Group 2 allowance allocation to each CSAPR NOX Ozone Season
Group 2 unit in a State, in accordance with Sec. 97.812(a)(2) through
(7), (10), and (12) and Sec. Sec. 97.806(b)(2) and 97.830 through
97.835, for the control period in the year before the year of the
applicable calculation deadline under this paragraph and will
promulgate a notice of data availability of the results of the
calculations.
(ii) * * *
(B) The Administrator will adjust the calculations to the extent
necessary to ensure that they are in accordance with the provisions
referenced in paragraph (b)(1)(i)(A) or (B) of this section, as
applicable. By August 1 immediately after the promulgation of each
notice of data availability required in paragraph (b)(1)(i)(A) of this
section, or by May 1 immediately after the promulgation of each notice
of data availability required in paragraph (b)(1)(i)(B) of this
section, the Administrator will promulgate a notice of data
availability of the results of the calculations incorporating any
adjustments that the Administrator determines to be necessary and the
reasons for accepting or rejecting any objections submitted in
accordance with paragraph (b)(1)(ii)(A) of this section.
* * * * *
(2) * * *
(i) * * *
(B) By March 1, 2022 and March 1 of each year thereafter, the
Administrator will calculate the CSAPR NOX Ozone Season
Group 2 allowance allocation to each CSAPR NOX Ozone Season
Group 2 unit in Indian country within the borders of a State, in
accordance with Sec. 97.812(b)(2) through (7), (10), and (12) and
Sec. Sec. 97.806(b)(2) and 97.830 through 97.835, for the control
period in the year before the year of the applicable calculation
deadline under this paragraph and will promulgate a notice of data
availability of the results of the calculations.
(ii) * * *
(B) The Administrator will adjust the calculations to the extent
necessary to ensure that they are in accordance with the provisions
referenced in paragraph (b)(2)(i)(A) or (B) of this section, as
applicable. By August 1 immediately after the promulgation of each
notice of data availability required in paragraph (b)(2)(i)(A) of this
section, or by May 1 immediately after the promulgation of each notice
of data availability required in paragraph (b)(2)(i)(B) of this
section, the Administrator will promulgate a notice of data
availability of the results of the calculations incorporating any
adjustments that the Administrator determines to be necessary and the
reasons for accepting or rejecting any objections submitted in
accordance with paragraph (b)(2)(ii)(A) of this section.
* * * * *
(d) Recall of CSAPR NOX Ozone Season Group 2 allowances
allocated for control periods after 2020. (1) Notwithstanding any other
provision of this subpart, part 52 of this chapter, or any SIP revision
approved under Sec. 52.38(b) of this chapter, the provisions of this
paragraph and paragraphs (d)(2) through (7) of this section shall apply
with regard to each CSAPR NOX Ozone Season Group 2 allowance
that was allocated for a control period after 2020 to any unit
(including a permanently retired unit qualifying for an exemption under
Sec. 97.805) in a State listed in Sec. 52.38(b)(2)(iv) of this
chapter (or Indian country within the borders of such a State) and that
was initially recorded in the compliance account for the source that
includes the unit, whether such CSAPR NOX Ozone Season Group
2 allowance was allocated pursuant to this subpart or pursuant to a SIP
revision approved under Sec. 52.38(b) of this chapter and whether such
CSAPR NOX Ozone Season Group 2 allowance remains in such
compliance account or has been transferred to another Allowance
Management System account.
(2)(i) For each CSAPR NOX Ozone Season Group 2 allowance
described in paragraph (d)(1) of this section that was allocated for a
given control period and initially recorded in a given source's
compliance account, one CSAPR NOX Ozone Season Group 2
allowance that was allocated for the same or an earlier control period
and initially recorded in the same or any other Allowance Management
System account must be surrendered in accordance with the procedures in
paragraphs (d)(3) and (4) of this section.
(ii)(A) The surrender requirement under paragraph (d)(2)(i) of this
section corresponding to each CSAPR NOX Ozone Season Group 2
allowance described in paragraph (d)(1) of this section initially
recorded in a given source's compliance account shall apply to such
source's current owners and operators, except as provided in paragraph
(d)(2)(ii)(B) of this section.
(B) If the owners and operators of a given source as of a given
date assumed ownership and operational control of the source through a
transaction that did not also provide rights to direct the use or
transfer of a given CSAPR NOX Ozone Season Group 2 allowance
described in paragraph (d)(1) of this section with regard to such
source (whether recordation of such CSAPR NOX Ozone Season
Group 2 allowance in the source's compliance account occurred before
such transaction or was anticipated to occur after such transaction),
then the surrender requirement under paragraph (d)(2)(i) of this
section corresponding to such CSAPR NOX Ozone Season Group 2
allowance shall apply to the most recent former owners and operators of
the source before the occurrence of such a transaction.
(C) The Administrator will not adjudicate any private legal dispute
among the owners and operators of a
[[Page 23202]]
source or among the former owners and operators of a source, including
any disputes relating to the requirements to surrender CSAPR
NOX Ozone Season Group 2 allowances for the source under
paragraph (d)(2)(i) of this section.
(3)(i) As soon as practicable on or after June 29, 2021, the
Administrator will send a notification to the designated representative
for each source described in paragraph (d)(1) of this section
identifying the amounts of CSAPR NOX Ozone Season Group 2
allowances allocated for each control period after 2020 and recorded in
the source's compliance account and the corresponding surrender
requirements for the source under paragraph (d)(2)(i) of this section.
(ii) As soon as practicable on or after July 14, 2021, the
Administrator will deduct from the compliance account for each source
described in paragraph (d)(1) of this section CSAPR NOX
Ozone Season Group 2 allowances eligible to satisfy the surrender
requirements for the source under paragraph (d)(2)(i) of this section
until all such surrender requirements for the source are satisfied or
until no more CSAPR NOX Ozone Season Group 2 allowances
eligible to satisfy such surrender requirements remain in such
compliance account.
(iii) As soon as practicable after completion of the deductions
under paragraph (d)(3)(ii) of this section, the Administrator will
identify for each source described in paragraph (d)(1) of this section
the amounts, if any, of CSAPR NOX Ozone Season Group 2
allowances allocated for each control period after 2020 and recorded in
the source's compliance account for which the corresponding surrender
requirements under paragraph (d)(2)(i) of this section have not been
satisfied and will send a notification concerning such identified
amounts to the designated representative for the source.
(iv) With regard to each source for which unsatisfied surrender
requirements under paragraph (d)(2)(i) of this section remain after the
deductions under paragraph (d)(3)(ii) of this section:
(A) Except as provided in paragraph (d)(3)(iv)(B) of this section,
not later than September 15, 2021, the owners and operators of the
source shall hold sufficient CSAPR NOX Ozone Season Group 2
allowances eligible to satisfy such unsatisfied surrender requirements
under paragraph (d)(2)(i) of this section in the source's compliance
account.
(B) With regard to any portion of such unsatisfied surrender
requirements that apply to former owners and operators of the source
pursuant to paragraph (d)(2)(ii)(B) of this section, not later than
September 15, 2021, such former owners and operators shall hold
sufficient CSAPR NOX Ozone Season Group 2 allowances
eligible to satisfy such portion of the unsatisfied surrender
requirements under paragraph (d)(2)(i) of this section either in the
source's compliance account or in another Allowance Management System
account identified to the Administrator on or before such date in a
submission by the authorized account representative for such account.
(C) As soon as practicable on or after September 15, 2021, the
Administrator will deduct from the Allowance Management System account
identified in accordance with paragraph (d)(3)(iv)(A) or (B) of this
section CSAPR NOX Ozone Season Group 2 allowances eligible
to satisfy the surrender requirements for the source under paragraph
(d)(2)(i) of this section until all such surrender requirements for the
source are satisfied or until no more CSAPR NOX Ozone Season
Group 2 allowances eligible to satisfy such surrender requirements
remain in such account.
(v) When making deductions under paragraph (d)(3)(ii) or (iv) of
this section to address the surrender requirements under paragraph
(d)(2)(i) of this section for a given source:
(A) The Administrator will make deductions to address any surrender
requirements with regard to first the 2021 control period, then the
2022 control period, then the 2023 control period, and finally the 2024
control period.
(B) When making deductions to address the surrender requirements
with regard to a given control period, the Administrator will first
deduct CSAPR NOX Ozone Season Group 2 allowances allocated
for such given control period and will then deduct CSAPR NOX
Ozone Season Group 2 allowances allocated for each successively earlier
control period in sequence.
(C) When deducting CSAPR NOX Ozone Season Group 2
allowances allocated for a given control period from a given Allowance
Management System account, the Administrator will first deduct CSAPR
NOX Ozone Season Group 2 allowances initially recorded in
the account under Sec. 97.821 (if the account is a compliance account)
in the order of recordation and will then deduct CSAPR NOX
Ozone Season Group 2 allowances recorded in the account under Sec.
97.526(d) or Sec. 97.823 in the order of recordation.
(4)(i) To the extent the surrender requirements under paragraph
(d)(2)(i) of this section corresponding to any CSAPR NOX
Ozone Season Group 2 allowances allocated for a control period after
2020 and initially recorded in a given source's compliance account have
not been fully satisfied through the deductions under paragraph (d)(3)
of this section, as soon as practicable on or after November 15, 2021,
the Administrator will deduct such initially recorded CSAPR
NOX Ozone Season Group 2 allowances from any Allowance
Management System accounts in which such CSAPR NOX Ozone
Season Group 2 allowances are held, making such deductions in any order
determined by the Administrator, until all such surrender requirements
for such source have been satisfied or until all such CSAPR
NOX Ozone Season Group 2 allowances have been deducted,
except as provided in paragraph (d)(4)(ii) of this section.
(ii) If no person with an ownership interest in a given CSAPR
NOX Ozone Season Group 2 allowance as of January 31, 2021
was an owner or operator of the source in whose compliance account such
CSAPR NOX Ozone Season Group 2 allowance was initially
recorded, was a direct or indirect parent or subsidiary of an owner or
operator of such source, or was directly or indirectly under common
ownership with an owner or operator of such source, the Administrator
will not deduct such CSAPR NOX Ozone Season Group 2
allowance under paragraph (d)(4)(i) of this section. For purposes of
this paragraph, each owner or operator of a source shall be deemed to
be a person with an ownership interest in any CSAPR NOX
Ozone Season Group 2 allowance held in that source's compliance
account. The limitation established by this paragraph on the
deductibility of certain CSAPR NOX Ozone Season Group 2
allowances under paragraph (d)(4)(i) of this section shall not be
construed as a waiver of the surrender requirements under paragraph
(d)(2)(i) of this section corresponding to such CSAPR NOX
Ozone Season Group 2 allowances.
(iii) Not less than 45 days before the planned date for any
deductions under paragraph (d)(4)(i) of this section, the Administrator
will send a notification to the authorized account representative for
the Allowance Management System account from which such deductions will
be made identifying the CSAPR NOX Ozone Season Group 2
allowances to be deducted and the data upon which the Administrator has
relied and specifying a process for submission of any objections to
such data. Any objections must be submitted to the Administrator not
later than 15 days before the planned date for such
[[Page 23203]]
deductions as indicated in such notification.
(5) To the extent the surrender requirements under paragraph
(d)(2)(i) of this section corresponding to any CSAPR NOX
Ozone Season Group 2 allowances allocated for a control period after
2020 and initially recorded in a given source's compliance account have
not been fully satisfied through the deductions under paragraphs (d)(3)
and (4) of this section:
(i) The persons identified in accordance with paragraph (d)(2)(ii)
of this section with regard to such source and each such CSAPR
NOX Ozone Season Group 2 allowance shall pay any fine,
penalty, or assessment or comply with any other remedy imposed under
the Clean Air Act; and
(ii) Each such CSAPR NOX Ozone Season Group 2 allowance,
and each day in such control period, shall constitute a separate
violation of this subpart and the Clean Air Act.
(6) The Administrator will record in the appropriate Allowance
Management System accounts all deductions of CSAPR NOX Ozone
Season Group 2 allowances under paragraphs (d)(3) and (4) of this
section.
(7)(i) Each submission, objection, or other written communication
from a designated representative, authorized account representative, or
other person to the Administrator under paragraph (d)(2), (3), or (4)
of this section shall be sent electronically to the email address
[email protected]. Each such communication from a designated representative
must contain the certification statement set forth in Sec. 97.814(a),
and each such communication from the authorized account representative
for a general account must contain the certification statement set
forth in Sec. 97.820(c)(2)(ii).
(ii) Each notification from the Administrator to a designated
representative or authorized account representative under paragraph
(d)(3) or (4) of this section will be sent electronically to the email
address most recently received by the Administrator for such
representative. In any such notification, the Administrator may provide
information by means of a reference to a publicly accessible website
where the information is available.
0
98. Amend Sec. 97.812 by:
0
a. Adding a paragraph heading to paragraph (a) introductory text;
0
b. In paragraph (a)(1)(i), removing ``Sec. 97.811(a)(1);'' and adding
in its place ``Sec. 97.811(a)(1) and that have deadlines for
certification of monitoring systems under Sec. 97.830(b) not later
than September 30 of the year of the control period;'';
0
c. In paragraph (a)(1)(iii), removing ``control period; or'' and adding
in its place ``control period, for allocations for a control period
before 2021, or that operate during such control period, for
allocations for a control period in 2021 or thereafter; or'';
0
d. In paragraph (a)(3) introductory text, removing ``later'' and adding
in its place ``latest'';
0
e. Revising paragraph (a)(3)(ii);
0
f. In paragraph (a)(3)(iv), removing ``resumes operation.'' and adding
in its place ``resumes operation, for allocations for a control period
before 2021, or the control period in which the unit resumes operation,
for allocations for a control period in 2021 or thereafter.'';
0
g. In paragraph (a)(4)(i), removing ``preceding control period.'' and
adding in its place ``preceding control period, for allocations for a
control period before 2021, or the unit's total tons of NOX
emissions during the control period, for allocations for a control
period in 2021 or thereafter.'';
0
h. In paragraph (a)(5), adding ``allocation amounts of'' after ``sum of
the'';
0
i. In paragraph (a)(8), removing ``The Administrator'' and adding in
its place ``For a control period before 2021, the Administrator'';
0
j. In paragraph (a)(9) introductory text, removing ``If, after
completion'' and adding in its place ``For a control period before
2021, if, after completion'';
0
k. In paragraph (a)(10), removing ``for such control period, any
unallocated'' and adding in its place ``for a control period before
2021, or under paragraphs (a)(2) through (7) and (12) of this section
for a control period in 2021 or thereafter, any unallocated'';
0
l. Redesignating paragraph (a)(11) as paragraph (a)(11)(i) and in the
newly redesignated paragraph, removing ``The Administrator'' and adding
in its place ``For a control period before 2021, the Administrator'';
0
m. Adding paragraph (a)(11)(ii);
0
n. Revising paragraph (a)(12);
0
o. Adding a paragraph heading to paragraph (b) introductory text and
removing ``located'' before ``in Indian country'';
0
p. In paragraph (b)(1)(i), removing ``Sec. 97.811(a)(1); or'' and
adding in its place ``Sec. 97.811(a)(1) and that have deadlines for
certification of monitoring systems under Sec. 97.830(b) not later
than September 30 of the year of the control period; or'';
0
q. Revising paragraph (b)(3)(ii);
0
r. In paragraph (b)(4)(i), removing ``preceding control period.'' and
adding in its place ``preceding control period, for allocations for a
control period before 2021, or the unit's total tons of NOX
emissions during the control period, for allocations for a control
period in 2021 or thereafter.'';
0
s. In paragraph (b)(5), adding ``allocation amounts of'' after ``sum of
the'';
0
t. In paragraph (b)(8), removing ``The Administrator'' and adding in
its place ``For a control period before 2021, the Administrator'';
0
u. In paragraph (b)(9) introductory text, removing ``If, after
completion'' and adding in its place ``For a control period before
2021, if, after completion'';
0
v. In paragraph (b)(10) introductory text, removing ``for such control
period, any unallocated'' and adding in its place ``for a control
period before 2021, or under paragraphs (b)(2) through (7) and (12) of
this section for a control period in 2021 or thereafter, any
unallocated'';
0
w. In paragraph (b)(10)(ii), removing ``Sec. 52.38(b)(6), (8), or
(9)'' and adding in its place ``Sec. 52.38(b)(8) or (9)'';
0
x. Redesignating paragraph (b)(11) as paragraph (b)(11)(i) and in the
newly redesignated paragraph, removing ``The Administrator'' and adding
in its place ``For a control period before 2021, the Administrator'';
0
y. Adding paragraph (b)(11)(ii); and
0
z. Revising paragraph (b)(12).
The additions and revisions read as follows:
Sec. 97.812 CSAPR NOX Ozone Season Group 2 allowance allocations to
new units.
(a) Allocations from new unit set-asides. * * *
* * * * *
(3) * * *
(ii)(A) The first control period after the control period in which
the CSAPR NOX Ozone Season Group 2 unit commences commercial
operation, for allocations for a control period before 2021; or
(B) The control period containing the deadline for certification of
the CSAPR NOX Ozone Season Group 2 unit's monitoring systems
under Sec. 97.830(b), for allocations for a control period in 2021 or
thereafter;
* * * * *
(11) * * *
(ii) For a control period in 2021 or thereafter, the Administrator
will notify the public, through the promulgation of the notices of data
availability described in Sec. 97.811(b)(1)(i), (ii), and (v), of the
amount of CSAPR NOX Ozone Season Group 2 allowances
allocated under paragraphs (a)(2) through (7), (10), and (12) of this
section for such control period to each CSAPR NOX Ozone
[[Page 23204]]
Season Group 2 unit eligible for such allocation.
(12) Notwithstanding the requirements of paragraphs (a)(2) through
(11) of this section, if the calculations of allocations from a new
unit set-aside for a control period before 2021 under paragraph (a)(7)
of this section, paragraphs (a)(6) and (a)(9)(iv) of this section, or
paragraphs (a)(6), (a)(9)(iii), and (a)(10) of this section, or for a
control period in 2021 or thereafter under paragraph (a)(7) of this
section or paragraphs (a)(6) and (10) of this section, would otherwise
result in total allocations from such new unit set-aside unequal to the
total amount of such new unit set-aside, then the Administrator will
adjust the results of such calculations as follows. The Administrator
will list the CSAPR NOX Ozone Season Group 2 units in
descending order based on such units' allocation amounts under
paragraph (a)(7), (a)(9)(iv), or (a)(10) of this section, as
applicable, and, in cases of equal allocation amounts, in alphabetical
order of the relevant sources' names and numerical order of the
relevant units' identification numbers, and will adjust each unit's
allocation amount under such paragraph upward or downward by one CSAPR
NOX Ozone Season Group 2 allowance (but not below zero) in
the order in which the units are listed, and will repeat this
adjustment process as necessary, until the total allocations from such
new unit set-aside equal the total amount of such new unit set-aside.
(b) Allocations from Indian country new unit set-asides. * * *
* * * * *
(3) * * *
(ii)(A) The first control period after the control period in which
the CSAPR NOX Ozone Season Group 2 unit commences commercial
operation, for allocations for a control period before 2021; or
(B) The control period containing the deadline for certification of
the CSAPR NOX Ozone Season Group 2 unit's monitoring systems
under Sec. 97.830(b), for allocations for a control period in 2021 or
thereafter.
* * * * *
(11) * * *
(ii) For a control period in 2021 or thereafter, the Administrator
will notify the public, through the promulgation of the notices of data
availability described in Sec. 97.811(b)(2)(i), (ii), and (v), of the
amount of CSAPR NOX Ozone Season Group 2 allowances
allocated under paragraphs (b)(2) through (7), (10), and (12) of this
section for such control period to each CSAPR NOX Ozone
Season Group 2 unit eligible for such allocation.
(12) Notwithstanding the requirements of paragraphs (b)(2) through
(11) of this section, if the calculations of allocations from an Indian
country new unit set-aside for a control period before 2021 under
paragraph (b)(7) of this section or paragraphs (b)(6) and (b)(9)(iv) of
this section, or for a control period in 2021 or thereafter under
paragraph (b)(7) of this section, would otherwise result in total
allocations from such Indian country new unit set-aside unequal to the
total amount of such Indian country new unit set-aside, then the
Administrator will adjust the results of such calculations as follows.
The Administrator will list the CSAPR NOX Ozone Season Group
2 units in descending order based on such units' allocation amounts
under paragraph (b)(7) or (b)(9)(iv) of this section, as applicable,
and, in cases of equal allocation amounts, in alphabetical order of the
relevant sources' names and numerical order of the relevant units'
identification numbers, and will adjust each unit's allocation amount
under such paragraph upward or downward by one CSAPR NOX
Ozone Season Group 2 allowance (but not below zero) in the order in
which the units are listed, and will repeat this adjustment process as
necessary, until the total allocations from such Indian country new
unit set-aside equal the total amount of such Indian country new unit
set-aside.
Sec. 97.820 [Amended]
0
98. Amend Sec. 97.820 by:
0
a. In paragraph (c)(1)(ii)(D), adding ``; and'' after the closing
quotation mark; and
0
b. In paragraph (c)(3)(iii)(B), removing ``to NOX'' and
adding in its place ``to CSAPR NOX''.
0
99. Amend Sec. 97.821 by:
0
a. In paragraphs (c), (d), and (e), removing ``Sec. 52.38(b)(6), (8),
or (9)'' and adding in its place ``Sec. 52.38(b)(8) or (9)'';
0
b. In paragraph (f), removing ``By July 1, 2021'' and adding in its
place ``By July 1, 2022'', removing ``Sec. 52.38(b)(6), (8), or (9)''
and adding in its place ``Sec. 52.38(b)(8) or (9)'', and removing ``in
the fourth year'' and adding in its place ``in the third year'';
0
c. Redesignating paragraph (g) as paragraph (g)(1), and in the newly
redesignated paragraph, removing ``By August 1, 2017 and August 1 of
each year thereafter,'' and adding in its place ``By August 1 of each
year from 2017 through 2020,'' and removing ``Sec. 52.38(b)(6), (8),
or (9)'' and adding in its place ``Sec. 52.38(b)(8) or (9)'';
0
d. Adding paragraph (g)(2);
0
e. Redesignating paragraph (h) as paragraph (h)(1) and in the newly
redesignated paragraph, removing ``By August 1, 2017 and August 1 of
each year thereafter,'' and adding in its place ``By August 1 of each
year from 2017 through 2020,'';
0
f. Adding paragraph (h)(2);
0
g. In paragraphs (i) and (j), removing ``By February 15, 2018 and
February 15 of each year thereafter,'' and adding in its place ``By
February 15 of each year from 2018 through 2021,''; and
0
h. In paragraph (k), removing ``Sec. 52.38(b)(6), (8), or (9)'' and
adding in its place ``Sec. 52.38(b)(8) or (9)''.
The additions read as follows:
Sec. 97.821 Recordation of CSAPR NOX Ozone Season Group 2 allowance
allocations and auction results.
* * * * *
(g) * * *
(2) By May 1, 2022 and May 1 of each year thereafter, the
Administrator will record in each CSAPR NOX Ozone Season
Group 2 source's compliance account the CSAPR NOX Ozone
Season Group 2 allowances allocated to the CSAPR NOX Ozone
Season Group 2 units at the source, or in each appropriate Allowance
Management System account the CSAPR NOX Ozone Season Group 2
allowances auctioned to CSAPR NOX Ozone Season Group 2
units, in accordance with Sec. 97.812(a), or with a SIP revision
approved under Sec. 52.38(b)(8) or (9) of this chapter, for the
control period in the year before the year of the applicable
recordation deadline under this paragraph.
(h) * * *
(2) By May 1, 2022 and May 1 of each year thereafter, the
Administrator will record in each CSAPR NOX Ozone Season
Group 2 source's compliance account the CSAPR NOX Ozone
Season Group 2 allowances allocated to the CSAPR NOX Ozone
Season Group 2 units at the source in accordance with Sec. 97.812(b)
for the control period in the year before the year of the applicable
recordation deadline under this paragraph.
* * * * *
0
100. Amend Sec. 97.824 by:
0
a. Adding a paragraph heading to paragraph (c);
0
b. Revising paragraph (c)(1); and
0
c. In paragraph (c)(2)(ii), removing ``Sec. 97.526(c),'' and adding in
its place ``Sec. 97.526(d),''.
The addition and revision read as follows:
Sec. 97.824 Compliance with CSAPR NOX Ozone Season Group 2 emissions
limitation.
* * * * *
[[Page 23205]]
(c) Selection of CSAPR NOX Ozone Season Group 2
allowances for deduction--(1) Identification by serial number. The
designated representative for a source may request that specific CSAPR
NOX Ozone Season Group 2 allowances, identified by serial
number, in the source's compliance account be deducted for emissions or
excess emissions for a control period in a given year in accordance
with paragraph (b) or (d) of this section. In order to be complete,
such request shall be submitted to the Administrator by the allowance
transfer deadline for such control period and include, in a format
prescribed by the Administrator, the identification of the CSAPR
NOX Ozone Season Group 2 source and the appropriate serial
numbers.
* * * * *
0
101. Amend Sec. 97.825 by:
0
a. Revising paragraphs (b)(1) introductory text and (b)(1)(ii);
0
b. Removing paragraphs (b)(2) introductory text and (b)(2)(i) and (ii)
and redesignating paragraphs (b)(2)(iii) introductory text and
(b)(2)(iii)(A) and (B) as paragraphs (b)(2) introductory text and
(b)(2)(i) and (ii), respectively;
0
c. In newly redesignated paragraph (b)(2) introductory text, removing
``the notice of data availability required in paragraph (b)(2)(ii) of
this section and the calculations referenced by the relevant notice''
and adding in its place ``each notice'';
0
d. In newly redesignated paragraph (b)(2)(i), removing ``the relevant
notice required under paragraph (b)(1)(ii) of this section and
referenced in the notice required under paragraph (b)(2)(ii) of this
section'' and adding in its place ``such notice'';
0
e. In newly redesignated paragraph (b)(2)(ii), removing
``(b)(2)(iii)(A)'' and adding in its place ``(b)(2)(i)'' each time it
appears, and adding ``results of the'' before ``calculations
incorporating any adjustments'';
0
f. In paragraphs (b)(3), (b)(4)(i), (b)(5), (b)(6) introductory text,
and (b)(6)(i), removing ``(b)(2)(iii)(B)'' and adding in its place
``(b)(2)(ii)'' each time it appears;
0
g. Removing and reserving paragraph (b)(6)(ii); and
0
h. In paragraph (b)(6)(iii) introductory text, removing ``paragraphs
(b)(6)(i) and (ii)'' and adding in its place ``paragraph (b)(6)(i)''.
The revisions read as follows:
Sec. 97.825 Compliance with CSAPR NOX Ozone Season Group 2 assurance
provisions.
* * * * *
(b) * * *
(1) By June 1 of each year from 2018 through 2021 and August 1 of
each year thereafter, the Administrator will:
* * * * *
(ii) For the set of any States (and Indian country within the
borders of such States) for which the results of the calculations
required in paragraph (b)(1)(i) of this section indicate that total
NOX emissions exceed the respective State assurance levels
for such control period--
(A) Calculate, for each such State (and Indian country within the
borders of such State) and such control period and each common
designated representative for such control period for a group of one or
more base CSAPR NOX Ozone Season Group 2 sources and units
in such State (and such Indian country), the common designated
representative's share of the total NOX emissions from all
base CSAPR NOX Ozone Season Group 2 units at base CSAPR
NOX Ozone Season Group 2 sources in such State (and such
Indian country), the common designated representative's assurance
level, and the amount (if any) of CSAPR NOX Ozone Season
Group 2 allowances that the owners and operators of such group of
sources and units must hold in accordance with the calculation formula
in Sec. 97.806(c)(2)(i); and
(B) Promulgate a notice of data availability of the results of the
calculations required in paragraphs (b)(1)(i) and (b)(1)(ii)(A) of this
section, including separate calculations of the NOX
emissions from each base CSAPR NOX Ozone Season Group 2
source in each such State (and Indian country within the borders of
such State).
* * * * *
0
102. Amend Sec. 97.826 by:
0
a. Revising the section heading;
0
b. In paragraph (b), removing ``Sec. 97.811(c),'' and adding in its
place ``Sec. 97.811(c) or (d),'', and removing ``Sec. 97.828.'' and
adding in its place ``Sec. 97.828 or paragraph (c) or (d) of this
section.''; and
0
c. Adding paragraphs (c), (d), and (e).
The revision and additions read as follows:
Sec. 97.826 Banking and conversion.
* * * * *
(c) At any time after the allowance transfer deadline for the last
control period for which a State NOX Ozone Season Group 2
trading budget is set forth in Sec. 97.810(a) for a given State and
after completion of the procedures under paragraphs (d)(1) and (2) of
this section, the Administrator may record a transfer of any CSAPR
NOX Ozone Season Group 2 allowances held in the compliance
account for a source in such State (or Indian country within the
borders of such State) to a general account identified or established
by the Administrator with the source's designated representative as the
authorized account representative and with the owners and operators of
the source (as indicated on the certificate of representation for the
source) as the persons represented by the authorized account
representative. The Administrator will notify the designated
representative not less than 15 days before making such a transfer.
(d) Notwithstanding any other provision of this subpart, part 52 of
this chapter, or any SIP revision approved under Sec. 52.38(b)(8) or
(9) of this chapter:
(1) By August 13, 2021, the Administrator will temporarily suspend
acceptance of CSAPR NOX Ozone Season Group 2 allowance
transfers submitted under Sec. 97.822 and, before resuming acceptance
of such transfers, will take the following actions:
(i) The Administrator will determine each of the following values:
(A) The total amount of CSAPR NOX Ozone Season Group 2
allowances allocated for the control periods in 2017 through 2020
attributable to the States listed in Sec. 52.38(b)(2)(iv) of this
chapter (and Indian country within the borders of such States),
computed as the sum of the State NOX Ozone Season Group 2
trading budgets under Sec. 97.810(a) for such States for all such
control periods plus the product of 1.5 multiplied by the sum of the
variability limits under Sec. 97.810(b) for such States for the
control period in 2017.
(B) The total tons of NOX emissions reported in
accordance with Sec. Sec. 97.806(b) and 97.830 through 97.835 for all
CSAPR NOX Ozone Season Group 2 units at CSAPR NOX
Ozone Season Group 2 sources in the States listed in Sec.
52.38(b)(2)(iv) of this chapter (and Indian country within the borders
of such States) for the control periods in 2017 through 2020.
(C) The full-season CSAPR NOX Ozone Season Group 3
allowance bank target, computed as the sum for all States listed in
Sec. 52.38(b)(2)(v) of this chapter of the variability limits under
Sec. 97.1010(b) for such States for the control period in 2022.
(D) A conversion factor, computed as the quotient, rounded down to
the nearest whole number, of the remainder of the total amount of CSAPR
NOX Ozone Season Group 2 allowances determined under
paragraph (d)(1)(i)(A) of this section minus the total tons of
NOX emissions determined under paragraph (d)(1)(i)(B) of
this section divided by the full-season CSAPR NOX
[[Page 23206]]
Ozone Season Group 3 allowance bank target determined under paragraph
(d)(1)(i)(C) of this section.
(E) The adjusted CSAPR NOX Ozone Season Group 3
allowance bank target, computed as the product, rounded to the nearest
allowance, of the full-season CSAPR NOX Ozone Season Group 3
allowance bank target determined under paragraph (d)(1)(i)(C) of this
section multiplied by a fraction whose numerator is the number of days
from June 29, 2021 through September 30, 2021, inclusive, and whose
denominator is 153.
(ii) The Administrator will allocate CSAPR NOX Ozone
Season Group 3 allowances for the control period in 2021 to sources in
States listed in Sec. 52.38(b)(2)(v) of this chapter (and Indian
country within the borders of such States) as follows:
(A) The Administrator will determine for each such source the
source's maximum share, computed as the quotient, rounded down to the
nearest whole number, of the amount of CSAPR NOX Ozone
Season Group 2 allowances allocated for control periods before 2021
held in the source's compliance account divided by the conversion
factor determined under paragraph (d)(1)(i)(D) of this section.
(B) The Administrator will determine a source allocation scaling
factor, computed as the lesser of 1.0000 or the quotient, expressed to
four decimal places, of the adjusted CSAPR NOX Ozone Season
Group 3 allowance bank target determined under paragraph (d)(1)(i)(E)
of this section divided by the sum for all such sources of the maximum
shares under paragraph (d)(1)(ii)(A) of this section.
(C) The Administrator will allocate to each such source an amount
of CSAPR NOX Ozone Season Group 3 allowances computed as the
product, rounded to the nearest allowance, of such source's maximum
share under paragraph (d)(1)(ii)(A) of this section multiplied by the
source allocation scaling factor determined under paragraph
(d)(1)(ii)(B) of this section.
(iii) If the sum for all sources of the allocations under paragraph
(d)(1)(ii)(C) of this section is less than the adjusted CSAPR
NOX Ozone Season Group 3 allowance bank target determined
under paragraph (d)(1)(i)(E) of this section, the Administrator will
allocate CSAPR NOX Ozone Season Group 3 allowances for the
control period in 2021 to general accounts as follows:
(A) The Administrator will determine for each general account the
account's maximum share, computed as the quotient, rounded down to the
nearest whole number, of the amount of CSAPR NOX Ozone
Season Group 2 allowances allocated for control periods before 2021
held in the account divided by the conversion factor determined under
paragraph (d)(1)(i)(D) of this section.
(B) The Administrator will determine a general account allocation
scaling factor, computed as the lesser of 1.0000 or the quotient,
expressed to four decimal places, of the remainder of the adjusted
CSAPR NOX Ozone Season Group 3 allowance bank target
determined under paragraph (d)(1)(i)(E) of this section minus the sum
for all sources of the allocations under paragraph (d)(1)(ii)(C) of
this section divided by the sum for all general accounts of the maximum
shares under paragraph (d)(1)(iii)(A) of this section.
(C) The Administrator will allocate to each general account an
amount of CSAPR NOX Ozone Season Group 3 allowances computed
as the product, rounded to the nearest allowance, of such account's
maximum share under paragraph (d)(1)(iii)(A) of this section multiplied
by the general account allocation scaling factor determined under
paragraph (d)(1)(iii)(B) of this section.
(iv) For the compliance account of each source, and for each
general account, to which an amount of CSAPR NOX Ozone
Season Group 3 allowances greater than zero is allocated under
paragraph (d)(1)(ii)(C) or (d)(1)(iii)(C) of this section,
respectively:
(A) The Administrator will determine the amount of CSAPR
NOX Ozone Season Group 2 allowances required to be deducted
from the account, computed as the product of the amount of CSAPR
NOX Ozone Season Group 3 allowances allocated to the source
or general account under paragraph (d)(1)(ii)(C) or (d)(1)(iii)(C) of
this section multiplied by the conversion factor determined under
paragraph (d)(1)(i)(D) of this section. The Administrator will deduct
CSAPR NOX Ozone Season Group 2 allowances allocated for
control periods before 2021 from the account on a first-in, first-out
basis in the order set forth in Sec. 97.824(c)(2)(i) and (ii).
(B) The Administrator will record in the account the allocations of
CSAPR NOX Ozone Season Group 3 allowances under paragraph
(d)(1)(ii)(C) or (d)(1)(iii)(C) of this section and the deductions of
CSAPR NOX Ozone Season Group 2 allowances under paragraph
(d)(1)(iv)(A) of this section.
(2)(i) During the period beginning February 1, 2022 and ending
February 28, 2022, the designated representative for a source in a
State listed in Sec. 52.38(b)(2)(v) of this chapter (or Indian country
within the borders of such a State) may request that the Administrator
allocate additional CSAPR NOX Ozone Season Group 3
allowances for the control period in 2021 to the source pursuant to
paragraph (d)(2)(ii) of this section. Any such request shall be
submitted to the Administrator electronically at the email address
[email protected].
(ii) For each source covered by a request under paragraph (d)(2)(i)
of this section, as soon as practicable on or after March 1, 2022, the
Administrator will deduct from the source's compliance account, on a
first-in, first-out basis in the order set forth in Sec.
97.824(c)(2)(i) and (ii), the maximum number of sets of 18 CSAPR
NOX Ozone Season Group 2 allowances allocated for control
periods before 2021 available in the compliance account. The
Administrator will then allocate to the source one CSAPR NOX
Ozone Season Group 3 allowance for the control period in 2021 for each
set of 18 CSAPR NOX Ozone Season Group 2 allowances
deducted. The Administrator will record the allocations and deductions
under this paragraph in the source's compliance account.
(3) After the Administrator has carried out the procedures set
forth in paragraph (d)(1) of this section, upon any determination that
would otherwise result in the initial recordation of a given number of
CSAPR NOX Ozone Season Group 2 allowances in the compliance
account for a source in a State listed in Sec. 52.38(b)(2)(v) of this
chapter (or Indian country within the borders of such a State), the
Administrator will not record such CSAPR NOX Ozone Season
Group 2 allowances but instead will allocate and record in such account
an amount of CSAPR NOX Ozone Season Group 3 allowances for
the control period in 2021 computed as the quotient, rounded up to the
nearest allowance, of such given number of CSAPR NOX Ozone
Season Group 2 allowances divided by the conversion factor determined
under paragraph (d)(1)(i)(D) of this section.
(e) Notwithstanding any other provision of this subpart or any SIP
revision approved under Sec. 52.38(b)(8) or (9) of this chapter, CSAPR
NOX Ozone Season Group 3 allowances may be used to satisfy
requirements to hold CSAPR NOX Ozone Season Group 2
allowances under this subpart as follows, provided that nothing in this
paragraph alters the time as of which any such allowance holding
requirement must be met or limits any consequence of a failure to
timely meet any such allowance holding requirement:
(1) Except as provided in paragraph (e)(2) of this section, after
the
[[Page 23207]]
Administrator has carried out the procedures set forth in paragraph
(d)(1) of this section, the owner or operator of a CSAPR NOX
Ozone Season Group 2 source in a State listed in Sec. 52.38(b)(2)(iv)
of this chapter (or Indian country within the borders of such a State)
may satisfy a requirement to hold a given number of CSAPR
NOX Ozone Season Group 2 allowances for the control period
in a year from 2017 through 2020 by holding instead, in a general
account established for this sole purpose, an amount of CSAPR
NOX Ozone Season Group 3 allowances for the control period
in 2021 (or any later control period for which the allowance transfer
deadline defined in Sec. 97.1002 has passed) computed as the quotient,
rounded up to the nearest allowance, of such given number of CSAPR
NOX Ozone Season Group 2 allowances divided by the
conversion factor determined under paragraph (d)(1)(i)(D) of this
section.
(2) CSAPR NOX Ozone Season Group 3 allowances may not be
used to satisfy requirements to surrender CSAPR NOX Ozone
Season Group 2 allowances under Sec. 97.811(d).
Sec. 97.831 [Amended]
0
103. In Sec. 97.831, amend paragraph (d)(3) introductory text by
removing in the last sentence the word ``with''.
Subpart FFFFF--Texas SO2 Trading Program
0
104. Amend Sec. 97.902 by:
0
a. Revising the definition of ``Allowance transfer deadline'';
0
b. In the definition of ``Common designated representative'', removing
``April'' and adding in its place ``July'';
0
c. In the definition of ``CSAPR NOX Ozone Season Group 2
Trading Program'', removing ``(b)(2)(i) and (iii), (b)(6) through (11),
and (b)(13)'' and adding in its place ``(b)(2)(iii) and (iv), and
(b)(7) through (9), (13), (14), and (16)'', and removing ``Sec.
52.38(b)(6) or (9)'' and adding in its place ``Sec. 52.38(b)(9)''; and
0
d. Adding in alphabetical order a definition for ``Nitrogen oxides''.
The revision and additions read as follows:
Sec. 97.902 Definitions.
* * * * *
Allowance transfer deadline means, for a control period before
2021, midnight of March 1 immediately after such control period or, for
a control period in 2021 or thereafter, midnight of June 1 immediately
after such control period (or if such March 1 or June 1 is not a
business day, midnight of the first business day thereafter) and is the
deadline by which a Texas SO2 Trading Program allowance
transfer must be submitted for recordation in a Texas SO2
Trading Program source's compliance account in order to be available
for use in complying with the source's Texas SO2 Trading
Program emissions limitation for such control period in accordance with
Sec. Sec. 97.906 and 97.924.
* * * * *
Nitrogen oxides means all oxides of nitrogen except nitrous oxide
(N2O), reported on an equivalent molecular weight basis as
nitrogen dioxide (NO2).
* * * * *
Sec. 97.905 [Amended]
0
105. In Sec. 97.905, amend paragraph (b) by removing the paragraph
heading.
0
106. Amend Sec. 97.911 by:
0
a. Adding a paragraph heading to paragraph (a); and
0
b. In Table 1 to paragraph (a)(1), revising the column headings and the
table entries for ``Big Brown Unit 1'', ``Big Brown Unit 2'', ``Coleto
Creek Unit 1'', Graham Unit 2'', Martin Lake Unit 1'', Martin Lake Unit
2'', Martin Lake Unit 3'', Monticello Unit 1'', ``Monticello Unit 2'',
``Monticello Unit 3'', ``Sandow Unit 4'', and ``Stryker Unit ST2''.
The addition reads as follows:
Sec. 97.911 Texas SO2 Trading Program allowance allocations.
(a) Allocations from the Texas SO2 Trading Program
budget. * * *
* * * * *
Table 1 to Paragraph (a)(1)--Texas SO2 Trading Program Allocations
----------------------------------------------------------------------------------------------------------------
Texas SO2
trading
Texas SO2 trading program units ORIS code program Affiliated ownership group
allocation
(tons)
----------------------------------------------------------------------------------------------------------------
Big Brown Unit 1........................... 3497 8,473 Vistra.
Big Brown Unit 2........................... 3497 8,559 Vistra.
Coleto Creek Unit 1........................ 6178 9,057 Vistra.
* * * * * * *
Graham Unit 2.............................. 3490 226 Vistra.
* * * * * * *
Martin Lake Unit 1......................... 6146 12,024 Vistra.
Martin Lake Unit 2......................... 6146 11,580 Vistra.
Martin Lake Unit 3......................... 6146 12,236 Vistra.
Monticello Unit 1.......................... 6147 8,598 Vistra.
Monticello Unit 2.......................... 6147 8,795 Vistra.
Monticello Unit 3.......................... 6147 12,216 Vistra.
* * * * * * *
Sandow Unit 4.............................. 6648 8,370 Vistra.
* * * * * * *
Stryker Unit ST2........................... 3504 145 Vistra.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
[[Page 23208]]
* * * * *
Sec. 97.912 [Amended]
0
107. Amend Sec. 97.912 by:
0
a. In paragraph (a)(3)(i), removing ``paragraph (b)'' and adding in its
place ``paragraph (d)''; and
0
b. In paragraph (b)(2), removing ``February 15, 2022 and each
subsequent February 15,'' and adding in its place ``May 1, 2022 and May
1 of each year thereafter,''.
Sec. 97.920 [Amended]
0
108. Amend Sec. 97.920 by:
0
a. In paragraph (c)(1)(ii)(D), adding ``; and'' after the closing
quotation mark; and
0
b. In paragraph (d), removing ``paragraphs (a), (b), and (c)'' and
adding in its place ``paragraph (a), (b), or (c)''.
0
109. Amend Sec. 97.921 by:
0
a. Redesignating paragraph (b) as paragraph (b)(1) and in the newly
redesignated paragraph, removing ``By July 1, 2019,'' and adding in its
place ``By July 1, 2019 and July 1, 2020,'';
0
b. Adding paragraph (b)(2); and
0
c. In paragraph (c), removing ``By February 15, 2020 and February 15''
and adding in its place ``By February 15 of 2020 and 2021 and May 1'',
and removing ``control period in the year'' and adding in its place
``control period in the year before the year''.
The addition reads as follows:
Sec. 97.921 Recordation of Texas SO2 Trading Program allowance
allocations.
* * * * *
(b) * * *
(2) By July 1, 2022 and July 1 of each year thereafter, the
Administrator will record in each Texas SO2 Trading Program
source's compliance account the Texas SO2 Trading Program
allowances allocated to the Texas SO2 Trading Program units
at the source in accordance with Sec. 97.911(a) for the control period
in the third year after the year of the applicable recordation deadline
under this paragraph, unless provided otherwise in the Administrator's
approval of a SIP revision replacing the provisions of this subpart.
* * * * *
0
110. Amend Sec. 97.924 by adding a paragraph heading to paragraph (c)
and revising paragraph (c)(1) to read as follows:
Sec. 97.924 Compliance with Texas SO2 Trading Program emissions
limitations.
* * * * *
(c) Selection of Texas SO2 Trading Program allowances for
deduction--(1) Identification by serial number. The designated
representative for a source may request that specific Texas
SO2 Trading Program allowances, identified by serial number,
in the source's compliance account be deducted for emissions or excess
emissions for a control period in a given year in accordance with
paragraph (b) or (d) of this section. In order to be complete, such
request shall be submitted to the Administrator by the allowance
transfer deadline for such control period and include, in a format
prescribed by the Administrator, the identification of the Texas
SO2 Trading Program source and the appropriate serial
numbers.
* * * * *
0
111. Amend Sec. 97.925 by:
0
a. In paragraph (b)(1) introductory text, removing ``June'' and adding
in its place ``August'' each time it appears;
0
b. In paragraph (b)(1)(i), removing ``Sec. 97.906(c)(2)(iii).'' and
adding in its place ``Sec. 97.906(c)(2)(iii); and'';
0
c. Adding paragraph (b)(1)(ii);
0
d. Removing paragraphs (b)(2) introductory text and (b)(2)(i) and (ii)
and redesignating paragraphs (b)(2)(iii) introductory text and
(b)(2)(iii)(A) and (B) as paragraphs (b)(2) introductory text and
(b)(2)(i) and (ii), respectively;
0
e. In newly redesignated paragraph (b)(2) introductory text, removing
``the notice'' and adding in its place ``each notice'', and removing
``(b)(2)(ii)'' and adding in its place ``(b)(1)(ii)'';
0
f. In newly redesignated paragraph (b)(2)(i), removing ``the notice
required under paragraph (b)(2)(ii) of this section'' and adding in its
place ``such notice'';
0
g. In newly redesignated paragraph (b)(2)(ii), removing
``(b)(2)(iii)(A)'' and adding in its place ``(b)(2)(i)'' each time it
appears, and adding ``results of the'' before ``calculations
incorporating any adjustments'';
0
h. In paragraph (b)(3), removing ``the notice'' and adding in its place
``each notice'', and removing ``(b)(2)(iii)(B)'' and adding in its
place ``(b)(2)(ii)''; and
0
i. In paragraphs (b)(4)(i), (b)(5), (b)(6) introductory text, and
(b)(6)(i), removing ``(b)(2)(iii)(B)'' and adding in its place
``(b)(2)(ii)'' each time it appears.
The addition reads as follows:
Sec. 97.925 Compliance with Texas SO2 Trading Program assurance
provisions.
* * * * *
(b) * * *
(1) * * *
(ii) If the results of the calculations required in paragraph
(b)(1)(i) of this section indicate that total SO2 emissions
exceed the State assurance level for such control period--
(A) Calculate, for such control period and each common designated
representative for such control period for a group of one or more Texas
SO2 Trading Program sources and units, the common designated
representative's share of the total SO2 emissions from all
Texas SO2 Trading Program units at Texas SO2
Trading Program sources, the common designated representative's
assurance level, and the amount (if any) of Texas SO2
Trading Program allowances that the owners and operators of such group
of sources and units must hold in accordance with the calculation
formula in Sec. 97.906(c)(2)(i); and
(B) Promulgate a notice of data availability of the results of the
calculations required in paragraphs (b)(1)(i) and (b)(1)(ii)(A) of this
section, including separate calculations of the SO2
emissions from each Texas SO2 Trading Program source.
* * * * *
Sec. 97.932 [Amended]
0
112. In Sec. 97.932, amend paragraph (a) by removing ``subpart D or
appendix D to part 75'' and adding in its place ``subpart D of, or
appendix D to, part 75''.
0
113. Add subpart GGGGG, consisting of Sec. Sec. 97.1001 through
97.1035, to read as follows:
Subpart GGGGG--CSAPR NOX Ozone Season Group 3 Trading Program
Sec.
97.1001 Purpose.
97.1002 Definitions.
97.1003 Measurements, abbreviations, and acronyms.
97.1004 Applicability.
97.1005 Retired unit exemption.
97.1006 Standard requirements.
97.1007 Computation of time.
97.1008 Administrative appeal procedures.
97.1009 [Reserved]
97.1010 State NOX Ozone Season Group 3 trading budgets,
new unit set-asides, Indian country new unit set-asides, and
variability limits.
97.1011 Timing requirements for CSAPR NOX Ozone Season
Group 3 allowance allocations.
97.1012 CSAPR NOX Ozone Season Group 3 allowance
allocations to new units.
97.1013 Authorization of designated representative and alternate
designated representative.
97.1014 Responsibilities of designated representative and alternate
designated representative.
97.1015 Changing designated representative and alternate designated
representative; changes in owners and operators; changes in units at
the source.
97.1016 Certificate of representation.
97.1017 Objections concerning designated representative and
alternate designated representative.
97.1018 Delegation by designated representative and alternate
designated representative.
[[Page 23209]]
97.1019 [Reserved]
97.1020 Establishment of compliance accounts, assurance accounts,
and general accounts.
97.1021 Recordation of CSAPR NOX Ozone Season Group 3
allowance allocations and auction results.
97.1022 Submission of CSAPR NOX Ozone Season Group 3
allowance transfers.
97.1023 Recordation of CSAPR NOX Ozone Season Group 3
allowance transfers.
97.1024 Compliance with CSAPR NOX Ozone Season Group 3
emissions limitation.
97.1025 Compliance with CSAPR NOX Ozone Season Group 3
assurance provisions.
97.1026 Banking.
97.1027 Account error.
97.1028 Administrator's action on submissions.
97.1029 [Reserved]
97.1030 General monitoring, recordkeeping, and reporting
requirements.
97.1031 Initial monitoring system certification and recertification
procedures.
97.1032 Monitoring system out-of-control periods.
97.1033 Notifications concerning monitoring.
97.1034 Recordkeeping and reporting.
97.1035 Petitions for alternatives to monitoring, recordkeeping, or
reporting requirements.
Subpart GGGGG--CSAPR NOX Ozone Season Group 3 Trading Program
Sec. 97.1001 Purpose.
This subpart sets forth the general, designated representative,
allowance, and monitoring provisions for the Cross-State Air Pollution
Rule (CSAPR) NOX Ozone Season Group 3 Trading Program, under
section 110 of the Clean Air Act and Sec. 52.38 of this chapter, as a
means of mitigating interstate transport of ozone and nitrogen oxides.
Sec. 97.1002 Definitions.
The terms used in this subpart shall have the meanings set forth in
this section as follows, provided that any term that includes the
acronym ``CSAPR'' shall be considered synonymous with a term that is
used in a SIP revision approved by the Administrator under Sec. 52.38
or Sec. 52.39 of this chapter and that is substantively identical
except for the inclusion of the acronym ``TR'' in place of the acronym
``CSAPR'':
Acid Rain Program means a multi-state SO2 and
NOX air pollution control and emission reduction program
established by the Administrator under title IV of the Clean Air Act
and parts 72 through 78 of this chapter.
Administrator means the Administrator of the United States
Environmental Protection Agency or the Director of the Clean Air
Markets Division (or its successor determined by the Administrator) of
the United States Environmental Protection Agency, the Administrator's
duly authorized representative under this subpart.
Allocate or allocation means, with regard to CSAPR NOX
Ozone Season Group 3 allowances, the determination by the
Administrator, State, or permitting authority, in accordance with this
subpart, Sec. 97.526(d), Sec. 97.826(d), and any SIP revision
submitted by the State and approved by the Administrator under Sec.
52.38(b)(10), (11), or (12) of this chapter, of the amount of such
CSAPR NOX Ozone Season Group 3 allowances to be initially
credited, at no cost to the recipient, to:
(1) A CSAPR NOX Ozone Season Group 3 unit;
(2) A new unit set-aside;
(3) An Indian country new unit set-aside; or
(4) An entity not listed in paragraphs (1) through (3) of this
definition;
(5) Provided that, if the Administrator, State, or permitting
authority initially credits, to a CSAPR NOX Ozone Season
Group 3 unit qualifying for an initial credit, a credit in the amount
of zero CSAPR NOX Ozone Season Group 3 allowances, the CSAPR
NOX Ozone Season Group 3 unit will be treated as being
allocated an amount (i.e., zero) of CSAPR NOX Ozone Season
Group 3 allowances.
Allowance Management System means the system by which the
Administrator records allocations, auctions, transfers, and deductions
of CSAPR NOX Ozone Season Group 3 allowances under the CSAPR
NOX Ozone Season Group 3 Trading Program. Such allowances
are allocated, auctioned, recorded, held, transferred, or deducted only
as whole allowances.
Allowance Management System account means an account in the
Allowance Management System established by the Administrator for
purposes of recording the allocation, auction, holding, transfer, or
deduction of CSAPR NOX Ozone Season Group 3 allowances.
Allowance transfer deadline means, for a control period in a given
year, midnight of June 1 immediately after such control period (or if
such June 1 is not a business day, midnight of the first business day
thereafter) and is the deadline by which a CSAPR NOX Ozone
Season Group 3 allowance transfer must be submitted for recordation in
a CSAPR NOX Ozone Season Group 3 source's compliance account
in order to be available for use in complying with the source's CSAPR
NOX Ozone Season Group 3 emissions limitation for such
control period in accordance with Sec. Sec. 97.1006 and 97.1024.
Alternate designated representative means, for a CSAPR
NOX Ozone Season Group 3 source and each CSAPR
NOX Ozone Season Group 3 unit at the source, the natural
person who is authorized by the owners and operators of the source and
all such units at the source, in accordance with this subpart, to act
on behalf of the designated representative in matters pertaining to the
CSAPR NOX Ozone Season Group 3 Trading Program. If the CSAPR
NOX Ozone Season Group 3 source is also subject to the Acid
Rain Program, CSAPR NOX Annual Trading Program, or CSAPR
SO2 Group 1 Trading Program, then this natural person shall
be the same natural person as the alternate designated representative
as defined in the respective program.
Assurance account means an Allowance Management System account,
established by the Administrator under Sec. 97.1025(b)(3) for certain
owners and operators of a group of one or more base CSAPR
NOX Ozone Season Group 3 sources and units in a given State
(and Indian country within the borders of such State), in which are
held CSAPR NOX Ozone Season Group 3 allowances available for
use for a control period in a given year in complying with the CSAPR
NOX Ozone Season Group 3 assurance provisions in accordance
with Sec. Sec. 97.1006 and 97.1025.
Auction means, with regard to CSAPR NOX Ozone Season
Group 3 allowances, the sale to any person by a State or permitting
authority, in accordance with a SIP revision submitted by the State and
approved by the Administrator under Sec. 52.38(b)(11) or (12) of this
chapter, of such CSAPR NOX Ozone Season Group 3 allowances
to be initially recorded in an Allowance Management System account.
Authorized account representative means, for a general account, the
natural person who is authorized, in accordance with this subpart, to
transfer and otherwise dispose of CSAPR NOX Ozone Season
Group 3 allowances held in the general account and, for a CSAPR
NOX Ozone Season Group 3 source's compliance account, the
designated representative of the source.
Automated data acquisition and handling system or DAHS means the
component of the continuous emission monitoring system, or other
emissions monitoring system approved for use under this subpart,
designed to interpret and convert individual output signals from
pollutant concentration monitors, flow monitors, diluent gas monitors,
and other component parts of the
[[Page 23210]]
monitoring system to produce a continuous record of the measured
parameters in the measurement units required by this subpart.
Base CSAPR NOX Ozone Season Group 3 source means a source that
includes one or more base CSAPR NOX Ozone Season Group 3
units.
Base CSAPR NOX Ozone Season Group 3 unit means a CSAPR
NOX Ozone Season Group 3 unit, provided that any unit that
would not be a CSAPR NOX Ozone Season Group 3 unit under
Sec. 97.1004(a) and (b) is not a base CSAPR NOX Ozone
Season Group 3 unit notwithstanding the provisions of any SIP revision
approved by the Administrator under Sec. 52.38(b)(11) or (12) of this
chapter.
Biomass means--
(1) Any organic material grown for the purpose of being converted
to energy;
(2) Any organic byproduct of agriculture that can be converted into
energy; or
(3) Any material that can be converted into energy and is
nonmerchantable for other purposes, that is segregated from other
material that is nonmerchantable for other purposes, and that is:
(i) A forest-related organic resource, including mill residues,
precommercial thinnings, slash, brush, or byproduct from conversion of
trees to merchantable material; or
(ii) A wood material, including pallets, crates, dunnage,
manufacturing and construction materials (other than pressure-treated,
chemically-treated, or painted wood products), and landscape or right-
of-way tree trimmings.
Boiler means an enclosed fossil- or other-fuel-fired combustion
device used to produce heat and to transfer heat to recirculating
water, steam, or other medium.
Bottoming-cycle unit means a unit in which the energy input to the
unit is first used to produce useful thermal energy, where at least
some of the reject heat from the useful thermal energy application or
process is then used for electricity production.
Business day means a day that does not fall on a weekend or a
federal holiday.
Certifying official means a natural person who is:
(1) For a corporation, a president, secretary, treasurer, or vice-
president of the corporation in charge of a principal business function
or any other person who performs similar policy- or decision-making
functions for the corporation;
(2) For a partnership or sole proprietorship, a general partner or
the proprietor respectively; or
(3) For a local government entity or State, federal, or other
public agency, a principal executive officer or ranking elected
official.
Clean Air Act means the Clean Air Act, 42 U.S.C. 7401, et seq.
Coal means ``coal'' as defined in Sec. 72.2 of this chapter.
Cogeneration system means an integrated group, at a source, of
equipment (including a boiler, or combustion turbine, and a generator)
designed to produce useful thermal energy for industrial, commercial,
heating, or cooling purposes and electricity through the sequential use
of energy.
Cogeneration unit means a stationary, fossil-fuel-fired boiler or
stationary, fossil-fuel-fired combustion turbine that is a topping-
cycle unit or a bottoming-cycle unit:
(1) Operating as part of a cogeneration system; and
(2) Producing on an annual average basis--
(i) For a topping-cycle unit,
(A) Useful thermal energy not less than 5 percent of total energy
output; and
(B) Useful power that, when added to one-half of useful thermal
energy produced, is not less than 42.5 percent of total energy input,
if useful thermal energy produced is 15 percent or more of total energy
output, or not less than 45 percent of total energy input, if useful
thermal energy produced is less than 15 percent of total energy output;
or
(ii) For a bottoming-cycle unit, useful power not less than 45
percent of total energy input;
(3) Provided that the requirements in paragraph (2) of this
definition shall not apply to a calendar year referenced in paragraph
(2) of this definition during which the unit did not operate at all;
(4) Provided that the total energy input under paragraphs (2)(i)(B)
and (2)(ii) of this definition shall equal the unit's total energy
input from all fuel, except biomass if the unit is a boiler; and
(5) Provided that, if, throughout its operation during the 12-month
period or a calendar year referenced in paragraph (2) of this
definition, a unit is operated as part of a cogeneration system and the
cogeneration system meets on a system-wide basis the requirement in
paragraph (2)(i)(B) or (2)(ii) of this definition, the unit shall be
deemed to meet such requirement during that 12-month period or calendar
year.
Combustion turbine means an enclosed device comprising:
(1) If the device is simple cycle, a compressor, a combustor, and a
turbine and in which the flue gas resulting from the combustion of fuel
in the combustor passes through the turbine, rotating the turbine; and
(2) If the device is combined cycle, the equipment described in
paragraph (1) of this definition and any associated duct burner, heat
recovery steam generator, and steam turbine.
Commence commercial operation means, with regard to a unit:
(1) To have begun to produce steam, gas, or other heated medium
used to generate electricity for sale or use, including test
generation, except as provided in Sec. 97.1005.
(i) For a unit that is a CSAPR NOX Ozone Season Group 3
unit under Sec. 97.1004 on the later of January 1, 2005 or the date
the unit commences commercial operation as defined in the introductory
text of paragraph (1) of this definition and that subsequently
undergoes a physical change or is moved to a new location or source,
such date shall remain the date of commencement of commercial operation
of the unit, which shall continue to be treated as the same unit.
(ii) For a unit that is a CSAPR NOX Ozone Season Group 3
unit under Sec. 97.1004 on the later of January 1, 2005 or the date
the unit commences commercial operation as defined in the introductory
text of paragraph (1) of this definition and that is subsequently
replaced by a unit at the same or a different source, such date shall
remain the replaced unit's date of commencement of commercial
operation, and the replacement unit shall be treated as a separate unit
with a separate date for commencement of commercial operation as
defined in paragraph (1) or (2) of this definition as appropriate.
(2) Notwithstanding paragraph (1) of this definition and except as
provided in Sec. 97.1005, for a unit that is not a CSAPR
NOX Ozone Season Group 3 unit under Sec. 97.1004 on the
later of January 1, 2005 or the date the unit commences commercial
operation as defined in the introductory text of paragraph (1) of this
definition, the unit's date for commencement of commercial operation
shall be the date on which the unit becomes a CSAPR NOX
Ozone Season Group 3 unit under Sec. 97.1004.
(i) For a unit with a date for commencement of commercial operation
as defined in the introductory text of paragraph (2) of this definition
and that subsequently undergoes a physical change or is moved to a
different location or source, such date shall remain the date of
commencement of commercial operation of the unit,
[[Page 23211]]
which shall continue to be treated as the same unit.
(ii) For a unit with a date for commencement of commercial
operation as defined in the introductory text of paragraph (2) of this
definition and that is subsequently replaced by a unit at the same or a
different source, such date shall remain the replaced unit's date of
commencement of commercial operation, and the replacement unit shall be
treated as a separate unit with a separate date for commencement of
commercial operation as defined in paragraph (1) or (2) of this
definition as appropriate.
Common designated representative means, with regard to a control
period in a given year, a designated representative where, as of July 1
immediately after the allowance transfer deadline for such control
period, the same natural person is authorized under Sec. Sec.
97.1013(a) and 97.1015(a) as the designated representative for a group
of one or more base CSAPR NOX Ozone Season Group 3 sources
and units in a State (and Indian country within the borders of such
State).
Common designated representative's assurance level means, with
regard to a specific common designated representative and a State (and
Indian country within the borders of such State) and control period in
a given year for which the State assurance level is exceeded as
described in Sec. 97.1006(c)(2)(iii):
(1) The amount (rounded to the nearest allowance) equal to the sum
of the total amount of CSAPR NOX Ozone Season Group 3
allowances allocated for such control period to the group of one or
more base CSAPR NOX Ozone Season Group 3 units in such State
(and such Indian country) having the common designated representative
for such control period and the total amount of CSAPR NOX
Ozone Season Group 3 allowances purchased by an owner or operator of
such base CSAPR NOX Ozone Season Group 3 units in an auction
for such control period and submitted by the State or the permitting
authority to the Administrator for recordation in the compliance
accounts for such base CSAPR NOX Ozone Season Group 3 units
in accordance with the CSAPR NOX Ozone Season Group 3
allowance auction provisions in a SIP revision approved by the
Administrator under Sec. 52.38(b)(11) or (12) of this chapter,
multiplied by the sum of the State NOX Ozone Season Group 3
trading budget under Sec. 97.1010(a) and the State's variability limit
under Sec. 97.1010(b) for such control period, and divided by the
greater of such State NOX Ozone Season Group 3 trading
budget or the sum of all amounts of CSAPR NOX Ozone Season
Group 3 allowances for such control period allocated to or purchased in
the State's auction for all such base CSAPR NOX Ozone Season
Group 3 units;
(2) Provided that--
(i) The allocations of CSAPR NOX Ozone Season Group 3
allowances for any control period taken into account for purposes of
this definition shall exclude any CSAPR NOX Ozone Season
Group 3 allowances allocated for such control period under Sec.
97.526(d) or Sec. 97.826(d); and
(ii) For purposes of this definition for the control period in 2021
only, for each State the amount of the State NOX Ozone
Season Group 3 trading budget shall be deemed to be increased by the
supplemental amount of CSAPR NOX Ozone Season Group 3
allowances determined for the State under Sec. 97.1010(d) and the
amount of the State's variability limit shall be deemed to be increased
by the product (rounded to the nearest allowance) of 0.21 multiplied by
the supplemental amount of CSAPR NOX Ozone Season Group 3
allowances determined for the State under Sec. 97.1010(d).
Common designated representative's share means, with regard to a
specific common designated representative for a control period in a
given year and a total amount of NOX emissions from all base
CSAPR NOX Ozone Season Group 3 units in a State (and Indian
country within the borders of such State) during such control period,
the total tonnage of NOX emissions during such control
period from the group of one or more base CSAPR NOX Ozone
Season Group 3 units in such State (and such Indian country) having the
common designated representative for such control period.
Common stack means a single flue through which emissions from 2 or
more units are exhausted.
Compliance account means an Allowance Management System account,
established by the Administrator for a CSAPR NOX Ozone
Season Group 3 source under this subpart, in which any CSAPR
NOX Ozone Season Group 3 allowance allocations to the CSAPR
NOX Ozone Season Group 3 units at the source are recorded
and in which are held any CSAPR NOX Ozone Season Group 3
allowances available for use for a control period in a given year in
complying with the source's CSAPR NOX Ozone Season Group 3
emissions limitation in accordance with Sec. Sec. 97.1006 and 97.1024.
Continuous emission monitoring system or CEMS means the equipment
required under this subpart to sample, analyze, measure, and provide,
by means of readings recorded at least once every 15 minutes and using
an automated data acquisition and handling system (DAHS), a permanent
record of NOX emissions, stack gas volumetric flow rate,
stack gas moisture content, and O2 or CO2
concentration (as applicable), in a manner consistent with part 75 of
this chapter and Sec. Sec. 97.1030 through 97.1035. The following
systems are the principal types of continuous emission monitoring
systems:
(1) A flow monitoring system, consisting of a stack flow rate
monitor and an automated data acquisition and handling system and
providing a permanent, continuous record of stack gas volumetric flow
rate, in standard cubic feet per hour (scfh);
(2) A NOX concentration monitoring system, consisting of
a NOX pollutant concentration monitor and an automated data
acquisition and handling system and providing a permanent, continuous
record of NOX emissions, in parts per million (ppm);
(3) A NOX emission rate (or NOX-diluent)
monitoring system, consisting of a NOX pollutant
concentration monitor, a diluent gas (CO2 or O2)
monitor, and an automated data acquisition and handling system and
providing a permanent, continuous record of NOX
concentration, in parts per million (ppm), diluent gas concentration,
in percent CO2 or O2, and NOX emission
rate, in pounds per million British thermal units (lb/mmBtu);
(4) A moisture monitoring system, as defined in Sec. 75.11(b)(2)
of this chapter and providing a permanent, continuous record of the
stack gas moisture content, in percent H2O;
(5) A CO2 monitoring system, consisting of a
CO2 pollutant concentration monitor (or an O2
monitor plus suitable mathematical equations from which the
CO2 concentration is derived) and an automated data
acquisition and handling system and providing a permanent, continuous
record of CO2 emissions, in percent CO2; and
(6) An O2 monitoring system, consisting of an
O2 concentration monitor and an automated data acquisition
and handling system and providing a permanent, continuous record of
O2, in percent O2.
Control period means the period starting May 1 of a calendar year,
except as provided in Sec. 97.1006(c)(3), and ending on September 30
of the same year, inclusive.
CSAPR NOX Annual Trading Program means a multi-state NOX
air pollution control and emission reduction program
[[Page 23212]]
established in accordance with subpart AAAAA of this part and Sec.
52.38(a) of this chapter (including such a program that is revised in a
SIP revision approved by the Administrator under Sec. 52.38(a)(3) or
(4) of this chapter or that is established in a SIP revision approved
by the Administrator under Sec. 52.38(a)(5) of this chapter), as a
means of mitigating interstate transport of fine particulates and
NOX.
CSAPR NOX Ozone Season Group 2 allowance means a limited
authorization issued and allocated or auctioned by the Administrator
under subpart EEEEE of this part or Sec. 97.526(d), or by a State or
permitting authority under a SIP revision approved by the Administrator
under Sec. 52.38(b)(7), (8), or (9) of this chapter, to emit one ton
of NOX during a control period of the specified calendar
year for which the authorization is allocated or auctioned or of any
calendar year thereafter under the CSAPR NOX Ozone Season
Group 2 Trading Program.
CSAPR NOX Ozone Season Group 2 Trading Program means a multi-state
NOX air pollution control and emission reduction program
established in accordance with subpart EEEEE of this part and Sec.
52.38(b)(1), (b)(2)(iii) and (iv), and (b)(7) through (9), (13), (14),
and (16) of this chapter (including such a program that is revised in a
SIP revision approved by the Administrator under Sec. 52.38(b)(7) or
(8) of this chapter or that is established in a SIP revision approved
by the Administrator under Sec. 52.38(b)(9) of this chapter), as a
means of mitigating interstate transport of ozone and NOX.
CSAPR NOX Ozone Season Group 3 allowance means a limited
authorization issued and allocated or auctioned by the Administrator
under this subpart, Sec. 97.526(d), or Sec. 97.826(d), or by a State
or permitting authority under a SIP revision approved by the
Administrator under Sec. 52.38(b)(10), (11), or (12) of this chapter,
to emit one ton of NOX during a control period of the
specified calendar year for which the authorization is allocated or
auctioned or of any calendar year thereafter under the CSAPR
NOX Ozone Season Group 3 Trading Program.
CSAPR NOX Ozone Season Group 3 allowance deduction or deduct CSAPR
NOX Ozone Season Group 3 allowances means the permanent
withdrawal of CSAPR NOX Ozone Season Group 3 allowances by the
Administrator from a compliance account (e.g., in order to account for
compliance with the CSAPR NOX Ozone Season Group 3 emissions
limitation) or from an assurance account (e.g., in order to account for
compliance with the assurance provisions under Sec. Sec. 97.1006 and
97.1025).
CSAPR NOX Ozone Season Group 3 allowances held or hold CSAPR NOX
Ozone Season Group 3 allowances means the CSAPR NOX Ozone
Season Group 3 allowances treated as included in an Allowance
Management System account as of a specified point in time because at
that time they:
(1) Have been recorded by the Administrator in the account or
transferred into the account by a correctly submitted, but not yet
recorded, CSAPR NOX Ozone Season Group 3 allowance transfer
in accordance with this subpart; and
(2) Have not been transferred out of the account by a correctly
submitted, but not yet recorded, CSAPR NOX Ozone Season
Group 3 allowance transfer in accordance with this subpart.
CSAPR NOX Ozone Season Group 3 emissions limitation means, for a
CSAPR NOX Ozone Season Group 3 source, the tonnage of
NOX emissions authorized in a control period in a given year
by the CSAPR NOX Ozone Season Group 3 allowances available
for deduction for the source under Sec. 97.1024(a) for such control
period.
CSAPR NOX Ozone Season Group 3 source means a source that includes
one or more CSAPR NOX Ozone Season Group 3 units.
CSAPR NOX Ozone Season Group 3 Trading Program means a multi-state
NOX air pollution control and emission reduction program
established in accordance with this subpart and Sec. 52.38(b)(1),
(b)(2)(v), and (b)(10) through (14) and (17) of this chapter (including
such a program that is revised in a SIP revision approved by the
Administrator under Sec. 52.38(b)(10) or (11) of this chapter or that
is established in a SIP revision approved by the Administrator under
Sec. 52.38(b)(12) of this chapter), as a means of mitigating
interstate transport of ozone and NOX.
CSAPR NOX Ozone Season Group 3 unit means a unit that is subject to
the CSAPR NOX Ozone Season Group 3 Trading Program.
CSAPR SO2 Group 1 Trading Program means a multi-state
SO2 air pollution control and emission reduction program
established in accordance with subpart CCCCC of this part and Sec.
52.39(a), (b), (d) through (f), and (j) through (l) of this chapter
(including such a program that is revised in a SIP revision approved by
the Administrator under Sec. 52.39(d) or (e) of this chapter or that
is established in a SIP revision approved by the Administrator under
Sec. 52.39(f) of this chapter), as a means of mitigating interstate
transport of fine particulates and SO2.
Designated representative means, for a CSAPR NOX Ozone
Season Group 3 source and each CSAPR NOX Ozone Season Group
3 unit at the source, the natural person who is authorized by the
owners and operators of the source and all such units at the source, in
accordance with this subpart, to represent and legally bind each owner
and operator in matters pertaining to the CSAPR NOX Ozone
Season Group 3 Trading Program. If the CSAPR NOX Ozone
Season Group 3 source is also subject to the Acid Rain Program, CSAPR
NOX Annual Trading Program, or CSAPR SO2 Group 1
Trading Program, then this natural person shall be the same natural
person as the designated representative as defined in the respective
program.
Emissions means air pollutants exhausted from a unit or source into
the atmosphere, as measured, recorded, and reported to the
Administrator by the designated representative, and as modified by the
Administrator:
(1) In accordance with this subpart; and
(2) With regard to a period before the unit or source is required
to measure, record, and report such air pollutants in accordance with
this subpart, in accordance with part 75 of this chapter.
Excess emissions means any ton of emissions from the CSAPR
NOX Ozone Season Group 3 units at a CSAPR NOX
Ozone Season Group 3 source during a control period in a given year
that exceeds the CSAPR NOX Ozone Season Group 3 emissions
limitation for the source for such control period.
Fossil fuel means--
(1) Natural gas, petroleum, coal, or any form of solid, liquid, or
gaseous fuel derived from such material; or
(2) For purposes of applying the limitation on ``average annual
fuel consumption of fossil fuel'' in Sec. 97.1004(b)(2)(i)(B) and
(b)(2)(ii), natural gas, petroleum, coal, or any form of solid, liquid,
or gaseous fuel derived from such material for the purpose of creating
useful heat.
Fossil-fuel-fired means, with regard to a unit, combusting any
amount of fossil fuel in 2005 or any calendar year thereafter.
General account means an Allowance Management System account,
established under this subpart, that is not a compliance account or an
assurance account.
Generator means a device that produces electricity.
Heat input means, for a unit for a specified period of unit
operating time, the product (in mmBtu) of the gross calorific value of
the fuel (in mmBtu/lb) fed into the unit multiplied by the fuel
[[Page 23213]]
feed rate (in lb of fuel/time) and unit operating time, as measured,
recorded, and reported to the Administrator by the designated
representative and as modified by the Administrator in accordance with
this subpart and excluding the heat derived from preheated combustion
air, recirculated flue gases, or exhaust.
Heat input rate means, for a unit, the quotient (in mmBtu/hr) of
the amount of heat input for a specified period of unit operating time
(in mmBtu) divided by unit operating time (in hr) or, for a unit and a
specific fuel, the amount of heat input attributed to the fuel (in
mmBtu) divided by the unit operating time (in hr) during which the unit
combusts the fuel.
Indian country means ``Indian country'' as defined in 18 U.S.C.
1151.
Life-of-the-unit, firm power contractual arrangement means a unit
participation power sales agreement under which a utility or industrial
customer reserves, or is entitled to receive, a specified amount or
percentage of nameplate capacity and associated energy generated by any
specified unit and pays its proportional amount of such unit's total
costs, pursuant to a contract:
(1) For the life of the unit;
(2) For a cumulative term of no less than 30 years, including
contracts that permit an election for early termination; or
(3) For a period no less than 25 years or 70 percent of the
economic useful life of the unit determined as of the time the unit is
built, with option rights to purchase or release some portion of the
nameplate capacity and associated energy generated by the unit at the
end of the period.
Maximum design heat input rate means, for a unit, the maximum
amount of fuel per hour (in Btu/hr) that the unit is capable of
combusting on a steady state basis as of the initial installation of
the unit as specified by the manufacturer of the unit.
Monitoring system means any monitoring system that meets the
requirements of this subpart, including a continuous emission
monitoring system, an alternative monitoring system, or an excepted
monitoring system under part 75 of this chapter.
Nameplate capacity means, starting from the initial installation of
a generator, the maximum electrical generating output (in MWe, rounded
to the nearest tenth) that the generator is capable of producing on a
steady state basis and during continuous operation (when not restricted
by seasonal or other deratings) as of such installation as specified by
the manufacturer of the generator or, starting from the completion of
any subsequent physical change in the generator resulting in an
increase in the maximum electrical generating output that the generator
is capable of producing on a steady state basis and during continuous
operation (when not restricted by seasonal or other deratings), such
increased maximum amount (in MWe, rounded to the nearest tenth) as of
such completion as specified by the person conducting the physical
change.
Natural gas means ``natural gas'' as defined in Sec. 72.2 of this
chapter.
Newly affected CSAPR NOX Ozone Season Group 3 unit means a unit
that was not a CSAPR NOX Ozone Season Group 3 unit when it
began operating but that thereafter becomes a CSAPR NOX
Ozone Season Group 3 unit.
Nitrogen oxides means all oxides of nitrogen except nitrous oxide
(N2O), reported on an equivalent molecular weight basis as
nitrogen dioxide (NO2).
Operate or operation means, with regard to a unit, to combust fuel.
Operator means, for a CSAPR NOX Ozone Season Group 3
source or a CSAPR NOX Ozone Season Group 3 unit at a source
respectively, any person who operates, controls, or supervises a CSAPR
NOX Ozone Season Group 3 unit at the source or the CSAPR
NOX Ozone Season Group 3 unit and shall include, but not be
limited to, any holding company, utility system, or plant manager of
such source or unit.
Owner means, for a CSAPR NOX Ozone Season Group 3 source
or a CSAPR NOX Ozone Season Group 3 unit at a source
respectively, any of the following persons:
(1) Any holder of any portion of the legal or equitable title in a
CSAPR NOX Ozone Season Group 3 unit at the source or the
CSAPR NOX Ozone Season Group 3 unit;
(2) Any holder of a leasehold interest in a CSAPR NOX
Ozone Season Group 3 unit at the source or the CSAPR NOX
Ozone Season Group 3 unit, provided that, unless expressly provided for
in a leasehold agreement, ``owner'' shall not include a passive lessor,
or a person who has an equitable interest through such lessor, whose
rental payments are not based (either directly or indirectly) on the
revenues or income from such CSAPR NOX Ozone Season Group 3
unit; and
(3) Any purchaser of power from a CSAPR NOX Ozone Season
Group 3 unit at the source or the CSAPR NOX Ozone Season
Group 3 unit under a life-of-the-unit, firm power contractual
arrangement.
Permanently retired means, with regard to a unit, a unit that is
unavailable for service and that the unit's owners and operators do not
expect to return to service in the future.
Permitting authority means ``permitting authority'' as defined in
Sec. Sec. 70.2 and 71.2 of this chapter.
Potential electrical output capacity means, for a unit (in MWh/yr),
33 percent of the unit's maximum design heat input rate (in Btu/hr),
divided by 3,413 Btu/kWh, divided by 1,000 kWh/MWh, and multiplied by
8,760 hr/yr.
Receive or receipt of means, when referring to the Administrator,
to come into possession of a document, information, or correspondence
(whether sent in hard copy or by authorized electronic transmission),
as indicated in an official log, or by a notation made on the document,
information, or correspondence, by the Administrator in the regular
course of business.
Recordation, record, or recorded means, with regard to CSAPR
NOX Ozone Season Group 3 allowances, the moving of CSAPR
NOX Ozone Season Group 3 allowances by the Administrator
into, out of, or between Allowance Management System accounts, for
purposes of allocation, auction, transfer, or deduction.
Reference method means any direct test method of sampling and
analyzing for an air pollutant as specified in Sec. 75.22 of this
chapter.
Replacement, replace, or replaced means, with regard to a unit, the
demolishing of a unit, or the permanent retirement and permanent
disabling of a unit, and the construction of another unit (the
replacement unit) to be used instead of the demolished or retired unit
(the replaced unit).
Sequential use of energy means:
(1) The use of reject heat from electricity production in a useful
thermal energy application or process; or
(2) The use of reject heat from a useful thermal energy application
or process in electricity production.
Serial number means, for a CSAPR NOX Ozone Season Group
3 allowance, the unique identification number assigned to each CSAPR
NOX Ozone Season Group 3 allowance by the Administrator.
Solid waste incineration unit means a stationary, fossil-fuel-fired
boiler or stationary, fossil-fuel-fired combustion turbine that is a
``solid waste incineration unit'' as defined in section 129(g)(1) of
the Clean Air Act.
Source means all buildings, structures, or installations located in
one or more contiguous or adjacent properties under common control of
the same person or persons. This definition
[[Page 23214]]
does not change or otherwise affect the definition of ``major source'',
``stationary source'', or ``source'' as set forth and implemented in a
title V operating permit program or any other program under the Clean
Air Act.
State means one of the States that is subject to the CSAPR
NOX Ozone Season Group 3 Trading Program pursuant to Sec.
52.38(b)(1), (b)(2)(v), and (b)(10) through (14) and (17) of this
chapter.
Submit or serve means to send or transmit a document, information,
or correspondence to the person specified in accordance with the
applicable regulation:
(1) In person;
(2) By United States Postal Service; or
(3) By other means of dispatch or transmission and delivery;
(4) Provided that compliance with any ``submission'' or ``service''
deadline shall be determined by the date of dispatch, transmission, or
mailing and not the date of receipt.
Topping-cycle unit means a unit in which the energy input to the
unit is first used to produce useful power, including electricity,
where at least some of the reject heat from the electricity production
is then used to provide useful thermal energy.
Total energy input means, for a unit, total energy of all forms
supplied to the unit, excluding energy produced by the unit. Each form
of energy supplied shall be measured by the lower heating value of that
form of energy calculated as follows:
LHV = HHV-10.55(W + 9H)
Where:
LHV = lower heating value of the form of energy in Btu/lb,
HHV = higher heating value of the form of energy in Btu/lb,
W = weight % of moisture in the form of energy, and
H = weight % of hydrogen in the form of energy.
Total energy output means, for a unit, the sum of useful power and
useful thermal energy produced by the unit.
Unit means a stationary, fossil-fuel-fired boiler, stationary,
fossil-fuel-fired combustion turbine, or other stationary, fossil-fuel-
fired combustion device. A unit that undergoes a physical change or is
moved to a different location or source shall continue to be treated as
the same unit. A unit (the replaced unit) that is replaced by another
unit (the replacement unit) at the same or a different source shall
continue to be treated as the same unit, and the replacement unit shall
be treated as a separate unit.
Unit operating day means, with regard to a unit, a calendar day in
which the unit combusts any fuel.
Unit operating hour or hour of unit operation means, with regard to
a unit, an hour in which the unit combusts any fuel.
Useful power means, with regard to a unit, electricity or
mechanical energy that the unit makes available for use, excluding any
such energy used in the power production process (which process
includes, but is not limited to, any on-site processing or treatment of
fuel combusted at the unit and any on-site emission controls).
Useful thermal energy means thermal energy that is:
(1) Made available to an industrial or commercial process (not a
power production process), excluding any heat contained in condensate
return or makeup water;
(2) Used in a heating application (e.g., space heating or domestic
hot water heating); or
(3) Used in a space cooling application (i.e., in an absorption
chiller).
Utility power distribution system means the portion of an
electricity grid owned or operated by a utility and dedicated to
delivering electricity to customers.
Sec. 97.1003 Measurements, abbreviations, and acronyms.
Measurements, abbreviations, and acronyms used in this subpart are
defined as follows:
Btu--British thermal unit
CO2--carbon dioxide
CSAPR--Cross-State Air Pollution Rule
H2O--water
hr--hour
kWh--kilowatt-hour
lb--pound
mmBtu--million Btu
MWe--megawatt electrical
MWh--megawatt-hour
NOX--nitrogen oxides
O2--oxygen
ppm--parts per million
scfh--standard cubic feet per hour
SIP--State implementation plan
SO2--sulfur dioxide
TR--Transport Rule
yr--year
Sec. 97.1004 Applicability.
(a) Except as provided in paragraph (b) of this section:
(1) The following units in a State (and Indian country within the
borders of such State) shall be CSAPR NOX Ozone Season Group
3 units, and any source that includes one or more such units shall be a
CSAPR NOX Ozone Season Group 3 source, subject to the
requirements of this subpart: Any stationary, fossil-fuel-fired boiler
or stationary, fossil-fuel-fired combustion turbine serving at any
time, on or after January 1, 2005, a generator with nameplate capacity
of more than 25 MWe producing electricity for sale.
(2) If a stationary boiler or stationary combustion turbine that,
under paragraph (a)(1) of this section, is not a CSAPR NOX
Ozone Season Group 3 unit begins to combust fossil fuel or to serve a
generator with nameplate capacity of more than 25 MWe producing
electricity for sale, the unit shall become a CSAPR NOX
Ozone Season Group 3 unit as provided in paragraph (a)(1) of this
section on the first date on which it both combusts fossil fuel and
serves such generator.
(b) Any unit in a State (and Indian country within the borders of
such State) that otherwise is a CSAPR NOX Ozone Season Group
3 unit under paragraph (a) of this section and that meets the
requirements set forth in paragraph (b)(1)(i) or (b)(2)(i) of this
section shall not be a CSAPR NOX Ozone Season Group 3 unit:
(1)(i) Any unit:
(A) Qualifying as a cogeneration unit throughout the later of 2005
or the 12-month period starting on the date the unit first produces
electricity and continuing to qualify as a cogeneration unit throughout
each calendar year ending after the later of 2005 or such 12-month
period; and
(B) Not supplying in 2005 or any calendar year thereafter more than
one-third of the unit's potential electrical output capacity or 219,000
MWh, whichever is greater, to any utility power distribution system for
sale.
(ii) If, after qualifying under paragraph (b)(1)(i) of this section
as not being a CSAPR NOX Ozone Season Group 3 unit, a unit
subsequently no longer meets all the requirements of paragraph
(b)(1)(i) of this section, the unit shall become a CSAPR NOX
Ozone Season Group 3 unit starting on the earlier of January 1 after
the first calendar year during which the unit first no longer qualifies
as a cogeneration unit or January 1 after the first calendar year
during which the unit no longer meets the requirements of paragraph
(b)(1)(i)(B) of this section. The unit shall thereafter continue to be
a CSAPR NOX Ozone Season Group 3 unit.
(2)(i) Any unit:
(A) Qualifying as a solid waste incineration unit throughout the
later of 2005 or the 12-month period starting on the date the unit
first produces electricity and continuing to qualify as a solid waste
incineration unit throughout each calendar year ending
[[Page 23215]]
after the later of 2005 or such 12-month period; and
(B) With an average annual fuel consumption of fossil fuel for the
first 3 consecutive calendar years of operation starting no earlier
than 2005 of less than 20 percent (on a Btu basis) and an average
annual fuel consumption of fossil fuel for any 3 consecutive calendar
years thereafter of less than 20 percent (on a Btu basis).
(ii) If, after qualifying under paragraph (b)(2)(i) of this section
as not being a CSAPR NOX Ozone Season Group 3 unit, a unit
subsequently no longer meets all the requirements of paragraph
(b)(2)(i) of this section, the unit shall become a CSAPR NOX
Ozone Season Group 3 unit starting on the earlier of January 1 after
the first calendar year during which the unit first no longer qualifies
as a solid waste incineration unit or January 1 after the first 3
consecutive calendar years after 2005 for which the unit has an average
annual fuel consumption of fossil fuel of 20 percent or more. The unit
shall thereafter continue to be a CSAPR NOX Ozone Season
Group 3 unit.
(c) A certifying official of an owner or operator of any unit or
other equipment may submit a petition (including any supporting
documents) to the Administrator at any time for a determination
concerning the applicability, under paragraphs (a) and (b) of this
section or a SIP revision approved under Sec. 52.38(b)(11) or (12) of
this chapter, of the CSAPR NOX Ozone Season Group 3 Trading
Program to the unit or other equipment.
(1) Petition content. The petition shall be in writing and include
the identification of the unit or other equipment and the relevant
facts about the unit or other equipment. The petition and any other
documents provided to the Administrator in connection with the petition
shall include the following certification statement, signed by the
certifying official: ``I am authorized to make this submission on
behalf of the owners and operators of the unit or other equipment for
which the submission is made. I certify under penalty of law that I
have personally examined, and am familiar with, the statements and
information submitted in this document and all its attachments. Based
on my inquiry of those individuals with primary responsibility for
obtaining the information, I certify that the statements and
information are to the best of my knowledge and belief true, accurate,
and complete. I am aware that there are significant penalties for
submitting false statements and information or omitting required
statements and information, including the possibility of fine or
imprisonment.''
(2) Response. The Administrator will issue a written response to
the petition and may request supplemental information determined by the
Administrator to be relevant to such petition. The Administrator's
determination concerning the applicability, under paragraphs (a) and
(b) of this section, of the CSAPR NOX Ozone Season Group 3
Trading Program to the unit or other equipment shall be binding on any
State or permitting authority unless the Administrator determines that
the petition or other documents or information provided in connection
with the petition contained significant, relevant errors or omissions.
Sec. 97.1005 Retired unit exemption.
(a)(1) Any CSAPR NOX Ozone Season Group 3 unit that is
permanently retired shall be exempt from Sec. 97.1006(b) and (c)(1),
Sec. 97.1024, and Sec. Sec. 97.1030 through 97.1035.
(2) The exemption under paragraph (a)(1) of this section shall
become effective the day on which the CSAPR NOX Ozone Season
Group 3 unit is permanently retired. Within 30 days of the unit's
permanent retirement, the designated representative shall submit a
statement to the Administrator. The statement shall state, in a format
prescribed by the Administrator, that the unit was permanently retired
on a specified date and will comply with the requirements of paragraph
(b) of this section.
(b)(1) A unit exempt under paragraph (a) of this section shall not
emit any NOX, starting on the date that the exemption takes
effect.
(2) For a period of 5 years from the date the records are created,
the owners and operators of a unit exempt under paragraph (a) of this
section shall retain, at the source that includes the unit, records
demonstrating that the unit is permanently retired. The 5-year period
for keeping records may be extended for cause, at any time before the
end of the period, in writing by the Administrator. The owners and
operators bear the burden of proof that the unit is permanently
retired.
(3) The owners and operators and, to the extent applicable, the
designated representative of a unit exempt under paragraph (a) of this
section shall comply with the requirements of the CSAPR NOX
Ozone Season Group 3 Trading Program concerning all periods for which
the exemption is not in effect, even if such requirements arise, or
must be complied with, after the exemption takes effect.
(4) A unit exempt under paragraph (a) of this section shall lose
its exemption on the first date on which the unit resumes operation.
Such unit shall be treated, for purposes of applying allocation,
monitoring, reporting, and recordkeeping requirements under this
subpart, as a unit that commences commercial operation on the first
date on which the unit resumes operation.
Sec. 97.1006 Standard requirements.
(a) Designated representative requirements. The owners and
operators shall comply with the requirement to have a designated
representative, and may have an alternate designated representative, in
accordance with Sec. Sec. 97.1013 through 97.1018.
(b) Emissions monitoring, reporting, and recordkeeping
requirements. (1) The owners and operators, and the designated
representative, of each CSAPR NOX Ozone Season Group 3
source and each CSAPR NOX Ozone Season Group 3 unit at the
source shall comply with the monitoring, reporting, and recordkeeping
requirements of Sec. Sec. 97.1030 through 97.1035.
(2) The emissions data determined in accordance with Sec. Sec.
97.1030 through 97.1035 shall be used to calculate allocations of CSAPR
NOX Ozone Season Group 3 allowances under Sec. Sec.
97.1011(a)(2) and (b) and 97.1012 and to determine compliance with the
CSAPR NOX Ozone Season Group 3 emissions limitation and
assurance provisions under paragraph (c) of this section, provided
that, for each monitoring location from which mass emissions are
reported, the mass emissions amount used in calculating such
allocations and determining such compliance shall be the mass emissions
amount for the monitoring location determined in accordance with
Sec. Sec. 97.1030 through 97.1035 and rounded to the nearest ton, with
any fraction of a ton less than 0.50 being deemed to be zero.
(c) NOX emissions requirements--(1) CSAPR NOX Ozone Season Group 3
emissions limitation. (i) As of the allowance transfer deadline for a
control period in a given year, the owners and operators of each CSAPR
NOX Ozone Season Group 3 source and each CSAPR
NOX Ozone Season Group 3 unit at the source shall hold, in
the source's compliance account, CSAPR NOX Ozone Season
Group 3 allowances available for deduction for such control period
under Sec. 97.1024(a) in an amount not less than the tons of total
NOX emissions for such control period from all CSAPR
NOX Ozone Season Group 3 units at the source.
[[Page 23216]]
(ii) If total NOX emissions during a control period in a
given year from the CSAPR NOX Ozone Season Group 3 units at
a CSAPR NOX Ozone Season Group 3 source are in excess of the
CSAPR NOX Ozone Season Group 3 emissions limitation set
forth in paragraph (c)(1)(i) of this section, then:
(A) The owners and operators of the source and each CSAPR
NOX Ozone Season Group 3 unit at the source shall hold the
CSAPR NOX Ozone Season Group 3 allowances required for
deduction under Sec. 97.1024(d); and
(B) The owners and operators of the source and each CSAPR
NOX Ozone Season Group 3 unit at the source shall pay any
fine, penalty, or assessment or comply with any other remedy imposed,
for the same violations, under the Clean Air Act, and each ton of such
excess emissions and each day of such control period shall constitute a
separate violation of this subpart and the Clean Air Act.
(2) CSAPR NOX Ozone Season Group 3 assurance provisions. (i) If
total NOX emissions during a control period in a given year
from all base CSAPR NOX Ozone Season Group 3 units at base
CSAPR NOX Ozone Season Group 3 sources in a State (and
Indian country within the borders of such State) exceed the State
assurance level, then the owners and operators of such sources and
units in each group of one or more sources and units having a common
designated representative for such control period, where the common
designated representative's share of such NOX emissions
during such control period exceeds the common designated
representative's assurance level for the State and such control period,
shall hold (in the assurance account established for the owners and
operators of such group) CSAPR NOX Ozone Season Group 3
allowances available for deduction for such control period under Sec.
97.1025(a) in an amount equal to two times the product (rounded to the
nearest whole number), as determined by the Administrator in accordance
with Sec. 97.1025(b), of multiplying--
(A) The quotient of the amount by which the common designated
representative's share of such NOX emissions exceeds the
common designated representative's assurance level divided by the sum
of the amounts, determined for all common designated representatives
for such sources and units in the State (and Indian country within the
borders of such State) for such control period, by which each common
designated representative's share of such NOX emissions
exceeds the respective common designated representative's assurance
level; and
(B) The amount by which total NOX emissions from all
base CSAPR NOX Ozone Season Group 3 units at base CSAPR
NOX Ozone Season Group 3 sources in the State (and Indian
country within the borders of such State) for such control period
exceed the State assurance level.
(ii) The owners and operators shall hold the CSAPR NOX
Ozone Season Group 3 allowances required under paragraph (c)(2)(i) of
this section, as of midnight of November 1 (if it is a business day),
or midnight of the first business day thereafter (if November 1 is not
a business day), immediately after the year of such control period.
(iii) Total NOX emissions from all base CSAPR
NOX Ozone Season Group 3 units at base CSAPR NOX
Ozone Season Group 3 sources in a State (and Indian country within the
borders of such State) during a control period in a given year exceed
the State assurance level if such total NOX emissions exceed
the sum, for such control period, of the State NOX Ozone
Season Group 3 trading budget under Sec. 97.1010(a), the State's
variability limit under Sec. 97.1010(b), and, for the control period
in 2021 only, the product (rounded to the nearest allowance) of 1.21
multiplied by the supplemental amount of CSAPR NOX Ozone
Season Group 3 allowances determined for the State under Sec.
97.1010(d).
(iv) It shall not be a violation of this subpart or of the Clean
Air Act if total NOX emissions from all base CSAPR
NOX Ozone Season Group 3 units at base CSAPR NOX
Ozone Season Group 3 sources in a State (and Indian country within the
borders of such State) during a control period exceed the State
assurance level or if a common designated representative's share of
total NOX emissions from the base CSAPR NOX Ozone
Season Group 3 units at base CSAPR NOX Ozone Season Group 3
sources in a State (and Indian country within the borders of such
State) during a control period exceeds the common designated
representative's assurance level.
(v) To the extent the owners and operators fail to hold CSAPR
NOX Ozone Season Group 3 allowances for a control period in
a given year in accordance with paragraphs (c)(2)(i) through (iii) of
this section:
(A) The owners and operators shall pay any fine, penalty, or
assessment or comply with any other remedy imposed under the Clean Air
Act; and
(B) Each CSAPR NOX Ozone Season Group 3 allowance that
the owners and operators fail to hold for such control period in
accordance with paragraphs (c)(2)(i) through (iii) of this section and
each day of such control period shall constitute a separate violation
of this subpart and the Clean Air Act.
(3) Compliance periods. (i) A CSAPR NOX Ozone Season
Group 3 unit shall be subject to the requirements under paragraph
(c)(1) of this section for the control period starting on the later of
May 1, 2021 or the deadline for meeting the unit's monitor
certification requirements under Sec. 97.1030(b) and for each control
period thereafter.
(ii) A base CSAPR NOX Ozone Season Group 3 unit shall be
subject to the requirements under paragraph (c)(2) of this section for
the control period starting on the later of May 1, 2021 or the deadline
for meeting the unit's monitor certification requirements under Sec.
97.1030(b) and for each control period thereafter.
(4) Vintage of CSAPR NOX Ozone Season Group 3 allowances held for
compliance. (i) A CSAPR NOX Ozone Season Group 3 allowance
held for compliance with the requirements under paragraph (c)(1)(i) of
this section for a control period in a given year must be a CSAPR
NOX Ozone Season Group 3 allowance that was allocated or
auctioned for such control period or a control period in a prior year.
(ii) A CSAPR NOX Ozone Season Group 3 allowance held for
compliance with the requirements under paragraphs (c)(1)(ii)(A) and
(c)(2)(i) through (iii) of this section for a control period in a given
year must be a CSAPR NOX Ozone Season Group 3 allowance that
was allocated or auctioned for a control period in a prior year or the
control period in the given year or in the immediately following year.
(5) Allowance Management System requirements. Each CSAPR
NOX Ozone Season Group 3 allowance shall be held in,
deducted from, or transferred into, out of, or between Allowance
Management System accounts in accordance with this subpart.
(6) Limited authorization. A CSAPR NOX Ozone Season
Group 3 allowance is a limited authorization to emit one ton of
NOX during the control period in one year. Such
authorization is limited in its use and duration as follows:
(i) Such authorization shall only be used in accordance with the
CSAPR NOX Ozone Season Group 3 Trading Program; and
(ii) Notwithstanding any other provision of this subpart, the
Administrator has the authority to terminate or limit the use and
duration of such authorization to the extent the Administrator
determines is necessary
[[Page 23217]]
or appropriate to implement any provision of the Clean Air Act.
(7) Property right. A CSAPR NOX Ozone Season Group 3
allowance does not constitute a property right.
(d) Title V permit requirements. (1) No title V permit revision
shall be required for any allocation, holding, deduction, or transfer
of CSAPR NOX Ozone Season Group 3 allowances in accordance
with this subpart.
(2) A description of whether a unit is required to monitor and
report NOX emissions using a continuous emission monitoring
system (under subpart H of part 75 of this chapter), an excepted
monitoring system (under appendices D and E to part 75 of this
chapter), a low mass emissions excepted monitoring methodology (under
Sec. 75.19 of this chapter), or an alternative monitoring system
(under subpart E of part 75 of this chapter) in accordance with
Sec. Sec. 97.1030 through 97.1035 may be added to, or changed in, a
title V permit using minor permit modification procedures in accordance
with Sec. Sec. 70.7(e)(2) and 71.7(e)(1) of this chapter, provided
that the requirements applicable to the described monitoring and
reporting (as added or changed, respectively) are already incorporated
in such permit. This paragraph explicitly provides that the addition
of, or change to, a unit's description as described in the prior
sentence is eligible for minor permit modification procedures in
accordance with Sec. Sec. 70.7(e)(2)(i)(B) and 71.7(e)(1)(i)(B) of
this chapter.
(e) Additional recordkeeping and reporting requirements. (1) Unless
otherwise provided, the owners and operators of each CSAPR
NOX Ozone Season Group 3 source and each CSAPR
NOX Ozone Season Group 3 unit at the source shall keep on
site at the source each of the following documents (in hardcopy or
electronic format) for a period of 5 years from the date the document
is created. This period may be extended for cause, at any time before
the end of 5 years, in writing by the Administrator.
(i) The certificate of representation under Sec. 97.1016 for the
designated representative for the source and each CSAPR NOX
Ozone Season Group 3 unit at the source and all documents that
demonstrate the truth of the statements in the certificate of
representation; provided that the certificate and documents shall be
retained on site at the source beyond such 5-year period until such
certificate of representation and documents are superseded because of
the submission of a new certificate of representation under Sec.
97.1016 changing the designated representative.
(ii) All emissions monitoring information, in accordance with this
subpart.
(iii) Copies of all reports, compliance certifications, and other
submissions and all records made or required under, or to demonstrate
compliance with the requirements of, the CSAPR NOX Ozone
Season Group 3 Trading Program.
(2) The designated representative of a CSAPR NOX Ozone
Season Group 3 source and each CSAPR NOX Ozone Season Group
3 unit at the source shall make all submissions required under the
CSAPR NOX Ozone Season Group 3 Trading Program, except as
provided in Sec. 97.1018. This requirement does not change, create an
exemption from, or otherwise affect the responsible official submission
requirements under a title V operating permit program in parts 70 and
71 of this chapter.
(f) Liability. (1) Any provision of the CSAPR NOX Ozone
Season Group 3 Trading Program that applies to a CSAPR NOX
Ozone Season Group 3 source or the designated representative of a CSAPR
NOX Ozone Season Group 3 source shall also apply to the
owners and operators of such source and of the CSAPR NOX
Ozone Season Group 3 units at the source.
(2) Any provision of the CSAPR NOX Ozone Season Group 3
Trading Program that applies to a CSAPR NOX Ozone Season
Group 3 unit or the designated representative of a CSAPR NOX
Ozone Season Group 3 unit shall also apply to the owners and operators
of such unit.
(g) Effect on other authorities. No provision of the CSAPR
NOX Ozone Season Group 3 Trading Program or exemption under
Sec. 97.1005 shall be construed as exempting or excluding the owners
and operators, and the designated representative, of a CSAPR
NOX Ozone Season Group 3 source or CSAPR NOX
Ozone Season Group 3 unit from compliance with any other provision of
the applicable, approved State implementation plan, a federally
enforceable permit, or the Clean Air Act.
Sec. 97.1007 Computation of time.
(a) Unless otherwise stated, any time period scheduled, under the
CSAPR NOX Ozone Season Group 3 Trading Program, to begin on
the occurrence of an act or event shall begin on the day the act or
event occurs.
(b) Unless otherwise stated, any time period scheduled, under the
CSAPR NOX Ozone Season Group 3 Trading Program, to begin
before the occurrence of an act or event shall be computed so that the
period ends the day before the act or event occurs.
(c) Unless otherwise stated, if the final day of any time period,
under the CSAPR NOX Ozone Season Group 3 Trading Program, is
not a business day, the time period shall be extended to the next
business day.
Sec. 97.1008 Administrative appeal procedures.
The administrative appeal procedures for decisions of the
Administrator under the CSAPR NOX Ozone Season Group 3
Trading Program are set forth in part 78 of this chapter.
Sec. 97.1009 [Reserved]
Sec. 97.1010 State NOX Ozone Season Group 3 trading budgets, new unit
set-asides, Indian country new unit set-asides, and variability limits.
(a) The State NOX Ozone Season Group 3 trading budgets,
new unit set-asides, and Indian country new unit set-asides for
allocations of CSAPR NOX Ozone Season Group 3 allowances for
the control periods in 2021, 2022, 2023, and 2024 and thereafter are as
indicated in Tables 1, 2, and 3 to this paragraph, respectively:
Table 1 to Paragraph (a)--State NOX Ozone Season Group 3 Trading Budgets by Year
[Tons]
----------------------------------------------------------------------------------------------------------------
2024 and
State 2021 2022 2023 thereafter
----------------------------------------------------------------------------------------------------------------
Illinois........................................ 9,102 9,102 8,179 8,059
Indiana......................................... 13,051 12,582 12,553 9,564
Kentucky........................................ 15,300 14,051 14,051 14,051
Louisiana....................................... 14,818 14,818 14,818 14,818
Maryland........................................ 1,499 1,266 1,266 1,348
Michigan........................................ 12,727 12,290 9,975 9,786
New Jersey...................................... 1,253 1,253 1,253 1,253
New York........................................ 3,416 3,416 3,421 3,403
[[Page 23218]]
Ohio............................................ 9,690 9,773 9,773 9,773
Pennsylvania.................................... 8,379 8,373 8,373 8,373
Virginia........................................ 4,516 3,897 3,980 3,663
West Virginia................................... 13,334 12,884 12,884 12,884
----------------------------------------------------------------------------------------------------------------
Table 2 to Paragraph (a)--New Unit Set-Asides by Year
[Tons]
----------------------------------------------------------------------------------------------------------------
2024 and
State 2021 2022 2023 thereafter
----------------------------------------------------------------------------------------------------------------
Illinois........................................ 265 265 248 244
Indiana......................................... 262 254 249 190
Kentucky........................................ 309 283 283 283
Louisiana....................................... 430 430 430 430
Maryland........................................ 135 115 115 122
Michigan........................................ 500 482 388 382
New Jersey...................................... 27 27 27 27
New York........................................ 168 168 168 167
Ohio............................................ 291 290 290 290
Pennsylvania.................................... 335 339 339 339
Virginia........................................ 185 161 166 150
West Virginia................................... 266 261 261 261
----------------------------------------------------------------------------------------------------------------
Table 3 to Paragraph (a)--Indian Country New Unit Set-Asides by Year
[Tons]
----------------------------------------------------------------------------------------------------------------
2024 and
State 2021 2022 2023 thereafter
----------------------------------------------------------------------------------------------------------------
Illinois........................................
Indiana.........................................
Kentucky........................................
Louisiana....................................... 15 15 15 15
Maryland........................................
Michigan........................................ 13 12 10 10
New Jersey......................................
New York........................................ 3 3 3 3
Ohio............................................
Pennsylvania....................................
Virginia........................................
West Virginia...................................
----------------------------------------------------------------------------------------------------------------
(b) The States' variability limits for the State NOX
Ozone Season Group 3 trading budgets for the control periods in 2021,
2022, 2023, and 2024 and thereafter are as indicated in Table 4 to this
paragraph:
Table 4 to Paragraph (b)--Variability Limits by Year
[Tons]
----------------------------------------------------------------------------------------------------------------
2024 and
State 2021 2022 2023 thereafter
----------------------------------------------------------------------------------------------------------------
Illinois........................................ 1,911 1,911 1,718 1,692
Indiana......................................... 2,741 2,642 2,636 2,008
Kentucky........................................ 3,213 2,951 2,951 2,951
Louisiana....................................... 3,112 3,112 3,112 3,112
Maryland........................................ 315 266 266 283
Michigan........................................ 2,673 2,581 2,095 2,055
New Jersey...................................... 263 263 263 263
New York........................................ 717 717 718 715
Ohio............................................ 2,035 2,052 2,052 2,052
Pennsylvania.................................... 1,760 1,758 1,758 1,758
Virginia........................................ 948 818 836 769
West Virginia................................... 2,800 2,706 2,706 2,706
----------------------------------------------------------------------------------------------------------------
[[Page 23219]]
(c) Each State NOX Ozone Season Group 3 trading budget
in this section includes any tons in a new unit set-aside or Indian
country new unit set-aside but does not include any tons in a
variability limit.
(d) For the control period in 2021 only, the Administrator will
determine for each State a supplemental amount of CSAPR NOX
Ozone Season Group 3 allowances computed as the product (rounded to the
nearest allowance) of the remainder of the State NOX Ozone
Season Group 2 trading budget for the control period in 2020 under
Sec. 97.810(a) minus the State NOX Ozone Season Group 3
trading budget for the control period in 2021 under paragraph (a) of
this section multiplied by a fraction whose numerator is the number of
days from May 1, 2021 through June 28, 2021, inclusive, and whose
denominator is 153.
Sec. 97.1011 Timing requirements for CSAPR NOX Ozone Season Group 3
allowance allocations.
(a) Existing units. (1) CSAPR NOX Ozone Season Group 3
allowances are allocated, for the control periods in 2021 and each year
thereafter, as provided in a notice of data availability issued by the
Administrator. Providing an allocation to a unit in such notice does
not constitute a determination that the unit is a CSAPR NOX
Ozone Season Group 3 unit, and not providing an allocation to a unit in
such notice does not constitute a determination that the unit is not a
CSAPR NOX Ozone Season Group 3 unit. For the control period
in 2021, a unit's allocation under this paragraph will include the
unit's share (if any) of the supplemental amount of CSAPR
NOX Ozone Season Group 3 allowances determined for the State
in which the unit is located under Sec. 97.1010(d).
(2) Notwithstanding paragraph (a)(1) of this section, if a unit
provided an allocation in the notice of data availability issued under
paragraph (a)(1) of this section does not operate, starting after 2020,
during the control period in two consecutive years, such unit will not
be allocated the CSAPR NOX Ozone Season Group 3 allowances
provided in such notice for the unit for the control periods in the
fifth year after the first such year and in each year after that fifth
year. All CSAPR NOX Ozone Season Group 3 allowances that
would otherwise have been allocated to such unit will be allocated to
the new unit set-aside for the State where such unit is located and for
the respective years involved. If such unit resumes operation, the
Administrator will allocate CSAPR NOX Ozone Season Group 3
allowances to the unit in accordance with paragraph (b) of this
section.
(b) New units--(1) New unit set-asides. (i) By March 1, 2022 and
March 1 of each year thereafter, the Administrator will calculate the
CSAPR NOX Ozone Season Group 3 allowance allocation to each
CSAPR NOX Ozone Season Group 3 unit in a State, in
accordance with Sec. 97.1012(a)(2) through (7), (10), and (12) and
Sec. Sec. 97.1006(b)(2) and 97.1030 through 97.1035, for the control
period in the year before the year of the applicable calculation
deadline under this paragraph and will promulgate a notice of data
availability of the results of the calculations.
(ii) For each notice of data availability required in paragraph
(b)(1)(i) of this section, the Administrator will provide an
opportunity for submission of objections to the calculations referenced
in such notice.
(A) Objections shall be submitted by the deadline specified in each
notice of data availability required in paragraph (b)(1)(i) of this
section and shall be limited to addressing whether the calculations
(including the identification of the CSAPR NOX Ozone Season
Group 3 units) are in accordance with the provisions referenced in
paragraph (b)(1)(i) of this section.
(B) The Administrator will adjust the calculations to the extent
necessary to ensure that they are in accordance with the provisions
referenced in paragraph (b)(1)(i) of this section. By May 1 immediately
after the promulgation of each notice of data availability required in
paragraph (b)(1)(i) of this section, the Administrator will promulgate
a notice of data availability of the results of the calculations
incorporating any adjustments that the Administrator determines to be
necessary and the reasons for accepting or rejecting any objections
submitted in accordance with paragraph (b)(1)(ii)(A) of this section.
(iii) [Reserved]
(iv) [Reserved]
(v) To the extent any CSAPR NOX Ozone Season Group 3
allowances are added to the new unit set-aside after promulgation of
each notice of data availability required in paragraph (b)(1)(ii) of
this section, the Administrator will promulgate additional notices of
data availability, as deemed appropriate, of the allocation of such
CSAPR NOX Ozone Season Group 3 allowances in accordance with
Sec. 97.1012(a)(10).
(2) Indian country new unit set-asides. (i) By March 1, 2022 and
March 1 of each year thereafter, the Administrator will calculate the
CSAPR NOX Ozone Season Group 3 allowance allocation to each
CSAPR NOX Ozone Season Group 3 unit in Indian country within
the borders of a State, in accordance with Sec. 97.1012(b)(2) through
(7), (10), and (12) and Sec. Sec. 97.1006(b)(2) and 97.1030 through
97.1035, for the control period in the year before the year of the
applicable calculation deadline under this paragraph and will
promulgate a notice of data availability of the results of the
calculations.
(ii) For each notice of data availability required in paragraph
(b)(2)(i) of this section, the Administrator will provide an
opportunity for submission of objections to the calculations referenced
in such notice.
(A) Objections shall be submitted by the deadline specified in each
notice of data availability required in paragraph (b)(2)(i) of this
section and shall be limited to addressing whether the calculations
(including the identification of the CSAPR NOX Ozone Season
Group 3 units) are in accordance with the provisions referenced in
paragraph (b)(2)(i) of this section.
(B) The Administrator will adjust the calculations to the extent
necessary to ensure that they are in accordance with the provisions
referenced in paragraph (b)(2)(i) of this section. By May 1 immediately
after the promulgation of each notice of data availability required in
paragraph (b)(2)(i) of this section, the Administrator will promulgate
a notice of data availability of the results of the calculations
incorporating any adjustments that the Administrator determines to be
necessary and the reasons for accepting or rejecting any objections
submitted in accordance with paragraph (b)(2)(ii)(A) of this section.
(iii) [Reserved]
(iv) [Reserved]
(v) To the extent any CSAPR NOX Ozone Season Group 3
allowances are added to the Indian country new unit set-aside after
promulgation of each notice of data availability required in paragraph
(b)(2)(ii) of this section, the Administrator will promulgate
additional notices of data availability, as deemed appropriate, of the
allocation of such CSAPR NOX Ozone Season Group 3 allowances
in accordance with Sec. 97.1012(b)(10).
(c) Units incorrectly allocated CSAPR NOX Ozone Season Group 3
allowances. (1) For each control period in 2021 and thereafter, if the
Administrator determines that CSAPR NOX Ozone Season Group 3
allowances were allocated under paragraph (a) of this section, or under
a provision of a SIP revision approved under Sec. 52.38(b)(10), (11),
or (12) of this chapter, where such control period and the recipient
are covered by the provisions of paragraph
[[Page 23220]]
(c)(1)(i) of this section or were allocated under Sec. 97.1012(a)(2)
through (7) and (12) and (b)(2) through (7) and (12), or under a
provision of a SIP revision approved under Sec. 52.38(b)(11) or (12)
of this chapter, where such control period and the recipient are
covered by the provisions of paragraph (c)(1)(ii) of this section, then
the Administrator will notify the designated representative of the
recipient and will act in accordance with the procedures set forth in
paragraphs (c)(2) through (5) of this section:
(i)(A) The recipient is not actually a CSAPR NOX Ozone
Season Group 3 unit under Sec. 97.1004 as of May 1, 2021 and is
allocated CSAPR NOX Ozone Season Group 3 allowances for such
control period or, in the case of an allocation under a provision of a
SIP revision approved under Sec. 52.38(b)(10), (11), or (12) of this
chapter, the recipient is not actually a CSAPR NOX Ozone
Season Group 3 unit as of May 1, 2021 and is allocated CSAPR
NOX Ozone Season Group 3 allowances for such control period
that the SIP revision provides should be allocated only to recipients
that are CSAPR NOX Ozone Season Group 3 units as of May 1,
2021; or
(B) The recipient is not located as of May 1 of the control period
in the State from whose NOX Ozone Season Group 3 trading
budget the CSAPR NOX Ozone Season Group 3 allowances
allocated under paragraph (a) of this section, or under a provision of
a SIP revision approved under Sec. 52.38(b)(10), (11), or (12) of this
chapter, were allocated for such control period.
(ii) The recipient is not actually a CSAPR NOX Ozone
Season Group 3 unit under Sec. 97.1004 as of May 1 of such control
period and is allocated CSAPR NOX Ozone Season Group 3
allowances for such control period or, in the case of an allocation
under a provision of a SIP revision approved under Sec. 52.38(b)(11)
or (12) of this chapter, the recipient is not actually a CSAPR
NOX Ozone Season Group 3 unit as of May 1 of such control
period and is allocated CSAPR NOX Ozone Season Group 3
allowances for such control period that the SIP revision provides
should be allocated only to recipients that are CSAPR NOX
Ozone Season Group 3 units as of May 1 of such control period.
(2) Except as provided in paragraph (c)(3) or (4) of this section,
the Administrator will not record such CSAPR NOX Ozone
Season Group 3 allowances under Sec. 97.1021.
(3) If the Administrator already recorded such CSAPR NOX
Ozone Season Group 3 allowances under Sec. 97.1021 and if the
Administrator makes the determination under paragraph (c)(1) of this
section before making deductions for the source that includes such
recipient under Sec. 97.1024(b) for such control period, then the
Administrator will deduct from the account in which such CSAPR
NOX Ozone Season Group 3 allowances were recorded an amount
of CSAPR NOX Ozone Season Group 3 allowances allocated for
the same or a prior control period equal to the amount of such already
recorded CSAPR NOX Ozone Season Group 3 allowances. The
authorized account representative shall ensure that there are
sufficient CSAPR NOX Ozone Season Group 3 allowances in such
account for completion of the deduction.
(4) If the Administrator already recorded such CSAPR NOX
Ozone Season Group 3 allowances under Sec. 97.1021 and if the
Administrator makes the determination under paragraph (c)(1) of this
section after making deductions for the source that includes such
recipient under Sec. 97.1024(b) for such control period, then the
Administrator will not make any deduction to take account of such
already recorded CSAPR NOX Ozone Season Group 3 allowances.
(5)(i) With regard to the CSAPR NOX Ozone Season Group 3
allowances that are not recorded, or that are deducted as an incorrect
allocation, in accordance with paragraphs (c)(2) and (3) of this
section for a recipient under paragraph (c)(1)(i) of this section, the
Administrator will:
(A) Transfer such CSAPR NOX Ozone Season Group 3
allowances to the new unit set-aside for such control period (or a
subsequent control period) for the State from whose NOX
Ozone Season Group 3 trading budget the CSAPR NOX Ozone
Season Group 3 allowances were allocated; or
(B) If the State has a SIP revision approved under Sec.
52.38(b)(11) or (12) of this chapter covering such control period,
include such CSAPR NOX Ozone Season Group 3 allowances in
the portion of the State NOX Ozone Season Group 3 trading
budget that may be allocated for such control period (or a subsequent
control period) in accordance with such SIP revision.
(ii) With regard to the CSAPR NOX Ozone Season Group 3
allowances that were not allocated from the Indian country new unit
set-aside for such control period and that are not recorded, or that
are deducted as an incorrect allocation, in accordance with paragraphs
(c)(2) and (3) of this section for a recipient under paragraph
(c)(1)(ii) of this section, the Administrator will:
(A) Transfer such CSAPR NOX Ozone Season Group 3
allowances to the new unit set-aside for such control period (or a
subsequent control period); or
(B) If the State has a SIP revision approved under Sec.
52.38(b)(11) or (12) of this chapter covering such control period,
include such CSAPR NOX Ozone Season Group 3 allowances in
the portion of the State NOX Ozone Season Group 3 trading
budget that may be allocated for such control period (or a subsequent
control period) in accordance with such SIP revision.
(iii) With regard to the CSAPR NOX Ozone Season Group 3
allowances that were allocated from the Indian country new unit set-
aside for such control period and that are not recorded, or that are
deducted as an incorrect allocation, in accordance with paragraphs
(c)(2) and (3) of this section for a recipient under paragraph
(c)(1)(ii) of this section, the Administrator will transfer such CSAPR
NOX Ozone Season Group 3 allowances to the Indian country
new unit set-aside for such control period (or a subsequent control
period).
Sec. 97.1012 CSAPR NOX Ozone Season Group 3 allowance allocations to
new units.
(a) Allocations from new unit set-asides. For each control period
in 2021 and thereafter and for the CSAPR NOX Ozone Season
Group 3 units in each State, the Administrator will allocate CSAPR
NOX Ozone Season Group 3 allowances to the CSAPR
NOX Ozone Season Group 3 units as follows:
(1) The CSAPR NOX Ozone Season Group 3 allowances will
be allocated to the following CSAPR NOX Ozone Season Group 3
units, except as provided in paragraph (a)(10) of this section:
(i) CSAPR NOX Ozone Season Group 3 units that are not
allocated an amount of CSAPR NOX Ozone Season Group 3
allowances in the notice of data availability issued under Sec.
97.1011(a)(1) and that have deadlines for certification of monitoring
systems under Sec. 97.1030(b) not later than September 30 of the year
of the control period;
(ii) CSAPR NOX Ozone Season Group 3 units whose
allocation of an amount of CSAPR NOX Ozone Season Group 3
allowances for such control period in the notice of data availability
issued under Sec. 97.1011(a)(1) is covered by Sec. 97.1011(c)(2) or
(3);
(iii) CSAPR NOX Ozone Season Group 3 units that are
allocated an amount of CSAPR NOX Ozone Season Group 3
allowances for such control period in the notice of data availability
issued under Sec. 97.1011(a)(1), which allocation is terminated for
such control period pursuant to Sec. 97.1011(a)(2), and that operate
during such control period; or
(iv) [Reserved]
[[Page 23221]]
(2) The Administrator will establish a separate new unit set-aside
for the State for each such control period. Each such new unit set-
aside will be allocated CSAPR NOX Ozone Season Group 3
allowances in an amount equal to the applicable amount of tons of
NOX emissions as set forth in Sec. 97.1010(a) and will be
allocated additional CSAPR NOX Ozone Season Group 3
allowances (if any) in accordance with Sec. 97.1011(a)(2) and (c)(5)
and paragraph (b)(10) of this section.
(3) The Administrator will determine, for each CSAPR NOX
Ozone Season Group 3 unit described in paragraph (a)(1) of this
section, an allocation of CSAPR NOX Ozone Season Group 3
allowances for the latest of the following control periods and for each
subsequent control period:
(i) The control period in 2021;
(ii) The control period containing the deadline for certification
of the CSAPR NOX Ozone Season Group 3 unit's monitoring
systems under Sec. 97.1030(b);
(iii) For a unit described in paragraph (a)(1)(ii) of this section,
the first control period in which the CSAPR NOX Ozone Season
Group 3 unit operates in the State after operating in another
jurisdiction and for which the unit is not already allocated one or
more CSAPR NOX Ozone Season Group 3 allowances; and
(iv) For a unit described in paragraph (a)(1)(iii) of this section,
the control period in which the unit resumes operation.
(4)(i) The allocation to each CSAPR NOX Ozone Season
Group 3 unit described in paragraphs (a)(1)(i) through (iii) of this
section and for each control period described in paragraph (a)(3) of
this section will be an amount equal to the unit's total tons of
NOX emissions during the control period.
(ii) The Administrator will adjust the allocation amount in
paragraph (a)(4)(i) of this section in accordance with paragraphs
(a)(5) through (7) and (12) of this section.
(5) The Administrator will calculate the sum of the allocation
amounts of CSAPR NOX Ozone Season Group 3 allowances
determined for all such CSAPR NOX Ozone Season Group 3 units
under paragraph (a)(4)(i) of this section in the State for such control
period.
(6) If the amount of CSAPR NOX Ozone Season Group 3
allowances in the new unit set-aside for the State for such control
period is greater than or equal to the sum under paragraph (a)(5) of
this section, then the Administrator will allocate the amount of CSAPR
NOX Ozone Season Group 3 allowances determined for each such
CSAPR NOX Ozone Season Group 3 unit under paragraph
(a)(4)(i) of this section.
(7) If the amount of CSAPR NOX Ozone Season Group 3
allowances in the new unit set-aside for the State for such control
period is less than the sum under paragraph (a)(5) of this section,
then the Administrator will allocate to each such CSAPR NOX
Ozone Season Group 3 unit the amount of the CSAPR NOX Ozone
Season Group 3 allowances determined under paragraph (a)(4)(i) of this
section for the unit, multiplied by the amount of CSAPR NOX
Ozone Season Group 3 allowances in the new unit set-aside for such
control period, divided by the sum under paragraph (a)(5) of this
section, and rounded to the nearest allowance.
(8) [Reserved]
(9) [Reserved]
(10) If, after completion of the procedures under paragraphs (a)(2)
through (7) and (12) of this section for a control period, any
unallocated CSAPR NOX Ozone Season Group 3 allowances remain
in the new unit set-aside for the State for such control period, the
Administrator will allocate to each CSAPR NOX Ozone Season
Group 3 unit that is in the State, is allocated an amount of CSAPR
NOX Ozone Season Group 3 allowances in the notice of data
availability issued under Sec. 97.1011(a)(1), and continues to be
allocated CSAPR NOX Ozone Season Group 3 allowances for such
control period in accordance with Sec. 97.1011(a)(2), an amount of
CSAPR NOX Ozone Season Group 3 allowances equal to the
following: The total amount of such remaining unallocated CSAPR
NOX Ozone Season Group 3 allowances in such new unit set-
aside, multiplied by the unit's allocation under Sec. 97.1011(a) for
such control period, divided by the remainder of the amount of tons in
the applicable State NOX Ozone Season Group 3 trading budget
minus the sum of the amounts of tons in such new unit set-aside and the
Indian country new unit set-aside for the State for such control
period, and rounded to the nearest allowance.
(11) The Administrator will notify the public, through the
promulgation of the notices of data availability described in Sec.
97.1011(b)(1)(i), (ii), and (v), of the amount of CSAPR NOX
Ozone Season Group 3 allowances allocated under paragraphs (a)(2)
through (7), (10), and (12) of this section for such control period to
each CSAPR NOX Ozone Season Group 3 unit eligible for such
allocation.
(12) Notwithstanding the requirements of paragraphs (a)(2) through
(11) of this section, if the calculations of allocations from a new
unit set-aside for a control period in a given year under paragraph
(a)(7) of this section or paragraphs (a)(6) and (10) of this section
would otherwise result in total allocations from such new unit set-
aside unequal to the total amount of such new unit set-aside, then the
Administrator will adjust the results of such calculations as follows.
The Administrator will list the CSAPR NOX Ozone Season Group
3 units in descending order based on such units' allocation amounts
under paragraph (a)(7) or (10) of this section, as applicable, and, in
cases of equal allocation amounts, in alphabetical order of the
relevant sources' names and numerical order of the relevant units'
identification numbers, and will adjust each unit's allocation amount
under such paragraph upward or downward by one CSAPR NOX
Ozone Season Group 3 allowance (but not below zero) in the order in
which the units are listed, and will repeat this adjustment process as
necessary, until the total allocations from such new unit set-aside
equal the total amount of such new unit set-aside.
(b) Allocations from Indian country new unit set-asides. For each
control period in 2021 and thereafter and for the CSAPR NOX
Ozone Season Group 3 units in Indian country within the borders of each
State, the Administrator will allocate CSAPR NOX Ozone
Season Group 3 allowances to the CSAPR NOX Ozone Season
Group 3 units as follows:
(1) The CSAPR NOX Ozone Season Group 3 allowances will
be allocated to the following CSAPR NOX Ozone Season Group 3
units, except as provided in paragraph (b)(10) of this section:
(i) CSAPR NOX Ozone Season Group 3 units that are not
allocated an amount of CSAPR NOX Ozone Season Group 3
allowances in the notice of data availability issued under Sec.
97.1011(a)(1) and that have deadlines for certification of monitoring
systems under Sec. 97.1030(b) not later than September 30 of the year
of the control period; or
(ii) [Reserved]
(2) The Administrator will establish a separate Indian country new
unit set-aside for the State for each such control period. Each such
Indian country new unit set-aside will be allocated CSAPR
NOX Ozone Season Group 3 allowances in an amount equal to
the applicable amount of tons of NOX emissions as set forth
in Sec. 97.1010(a) and will be allocated additional CSAPR
NOX Ozone Season Group 3 allowances (if any) in accordance
with Sec. 97.1011(c)(5).
(3) The Administrator will determine, for each CSAPR NOX
Ozone Season Group 3 unit described in paragraph
[[Page 23222]]
(b)(1) of this section, an allocation of CSAPR NOX Ozone
Season Group 3 allowances for the later of the following control
periods and for each subsequent control period:
(i) The control period in 2021; and
(ii) The control period containing the deadline for certification
of the CSAPR NOX Ozone Season Group 3 unit's monitoring
systems under Sec. 97.1030(b).
(4)(i) The allocation to each CSAPR NOX Ozone Season
Group 3 unit described in paragraph (b)(1)(i) of this section and for
each control period described in paragraph (b)(3) of this section will
be an amount equal to the unit's total tons of NOX emissions
during the control period.
(ii) The Administrator will adjust the allocation amount in
paragraph (b)(4)(i) of this section in accordance with paragraphs
(b)(5) through (7) and (12) of this section.
(5) The Administrator will calculate the sum of the allocation
amounts of CSAPR NOX Ozone Season Group 3 allowances
determined for all such CSAPR NOX Ozone Season Group 3 units
under paragraph (b)(4)(i) of this section in Indian country within the
borders of the State for such control period.
(6) If the amount of CSAPR NOX Ozone Season Group 3
allowances in the Indian country new unit set-aside for the State for
such control period is greater than or equal to the sum under paragraph
(b)(5) of this section, then the Administrator will allocate the amount
of CSAPR NOX Ozone Season Group 3 allowances determined for
each such CSAPR NOX Ozone Season Group 3 unit under
paragraph (b)(4)(i) of this section.
(7) If the amount of CSAPR NOX Ozone Season Group 3
allowances in the Indian country new unit set-aside for the State for
such control period is less than the sum under paragraph (b)(5) of this
section, then the Administrator will allocate to each such CSAPR
NOX Ozone Season Group 3 unit the amount of the CSAPR
NOX Ozone Season Group 3 allowances determined under
paragraph (b)(4)(i) of this section for the unit, multiplied by the
amount of CSAPR NOX Ozone Season Group 3 allowances in the
Indian country new unit set-aside for such control period, divided by
the sum under paragraph (b)(5) of this section, and rounded to the
nearest allowance.
(8) [Reserved]
(9) [Reserved]
(10) If, after completion of the procedures under paragraphs (b)(2)
through (7) and (12) of this section for a control period, any
unallocated CSAPR NOX Ozone Season Group 3 allowances remain
in the Indian country new unit set-aside for the State for such control
period, the Administrator will:
(i) Transfer such unallocated CSAPR NOX Ozone Season
Group 3 allowances to the new unit set-aside for the State for such
control period; or
(ii) If the State has a SIP revision approved under Sec.
52.38(b)(11) or (12) of this chapter covering such control period,
include such unallocated CSAPR NOX Ozone Season Group 3
allowances in the portion of the State NOX Ozone Season
Group 3 trading budget that may be allocated for such control period in
accordance with such SIP revision.
(11) The Administrator will notify the public, through the
promulgation of the notices of data availability described in Sec.
97.1011(b)(2)(i), (ii), and (v), of the amount of CSAPR NOX
Ozone Season Group 3 allowances allocated under paragraphs (b)(2)
through (7), (10), and (12) of this section for such control period to
each CSAPR NOX Ozone Season Group 3 unit eligible for such
allocation.
(12) Notwithstanding the requirements of paragraphs (b)(2) through
(11) of this section, if the calculations of allocations from an Indian
country new unit set-aside for a control period in a given year under
paragraph (b)(7) of this section would otherwise result in total
allocations from such Indian country new unit set-aside unequal to the
total amount of such Indian country new unit set-aside, then the
Administrator will adjust the results of such calculations as follows.
The Administrator will list the CSAPR NOX Ozone Season Group
3 units in descending order based on such units' allocation amounts
under paragraph (b)(7) of this section and, in cases of equal
allocation amounts, in alphabetical order of the relevant sources'
names and numerical order of the relevant units' identification
numbers, and will adjust each unit's allocation amount under such
paragraph upward or downward by one CSAPR NOX Ozone Season
Group 3 allowance (but not below zero) in the order in which the units
are listed, and will repeat this adjustment process as necessary, until
the total allocations from such Indian country new unit set-aside equal
the total amount of such Indian country new unit set-aside.
Sec. 97.1013 Authorization of designated representative and alternate
designated representative.
(a) Except as provided under Sec. 97.1015, each CSAPR
NOX Ozone Season Group 3 source, including all CSAPR
NOX Ozone Season Group 3 units at the source, shall have one
and only one designated representative, with regard to all matters
under the CSAPR NOX Ozone Season Group 3 Trading Program.
(1) The designated representative shall be selected by an agreement
binding on the owners and operators of the source and all CSAPR
NOX Ozone Season Group 3 units at the source and shall act
in accordance with the certification statement in Sec.
97.1016(a)(4)(iii).
(2) Upon and after receipt by the Administrator of a complete
certificate of representation under Sec. 97.1016:
(i) The designated representative shall be authorized and shall
represent and, by his or her representations, actions, inactions, or
submissions, legally bind each owner and operator of the source and
each CSAPR NOX Ozone Season Group 3 unit at the source in
all matters pertaining to the CSAPR NOX Ozone Season Group 3
Trading Program, notwithstanding any agreement between the designated
representative and such owners and operators; and
(ii) The owners and operators of the source and each CSAPR
NOX Ozone Season Group 3 unit at the source shall be bound
by any decision or order issued to the designated representative by the
Administrator regarding the source or any such unit.
(b) Except as provided under Sec. 97.1015, each CSAPR
NOX Ozone Season Group 3 source may have one and only one
alternate designated representative, who may act on behalf of the
designated representative. The agreement by which the alternate
designated representative is selected shall include a procedure for
authorizing the alternate designated representative to act in lieu of
the designated representative.
(1) The alternate designated representative shall be selected by an
agreement binding on the owners and operators of the source and all
CSAPR NOX Ozone Season Group 3 units at the source and shall
act in accordance with the certification statement in Sec.
97.1016(a)(4)(iii).
(2) Upon and after receipt by the Administrator of a complete
certificate of representation under Sec. 97.1016:
(i) The alternate designated representative shall be authorized;
(ii) Any representation, action, inaction, or submission by the
alternate designated representative shall be deemed to be a
representation, action, inaction, or submission by the designated
representative; and
(iii) The owners and operators of the source and each CSAPR
NOX Ozone Season Group 3 unit at the source shall be bound
by any decision or order
[[Page 23223]]
issued to the alternate designated representative by the Administrator
regarding the source or any such unit.
(c) Except in this section, Sec. 97.1002, and Sec. Sec. 97.1014
through 97.1018, whenever the term ``designated representative'' (as
distinguished from the term ``common designated representative'') is
used in this subpart, the term shall be construed to include the
designated representative or any alternate designated representative.
Sec. 97.1014 Responsibilities of designated representative and
alternate designated representative.
(a) Except as provided under Sec. 97.1018 concerning delegation of
authority to make submissions, each submission under the CSAPR
NOX Ozone Season Group 3 Trading Program shall be made,
signed, and certified by the designated representative or alternate
designated representative for each CSAPR NOX Ozone Season
Group 3 source and CSAPR NOX Ozone Season Group 3 unit for
which the submission is made. Each such submission shall include the
following certification statement by the designated representative or
alternate designated representative: ``I am authorized to make this
submission on behalf of the owners and operators of the source or units
for which the submission is made. I certify under penalty of law that I
have personally examined, and am familiar with, the statements and
information submitted in this document and all its attachments. Based
on my inquiry of those individuals with primary responsibility for
obtaining the information, I certify that the statements and
information are to the best of my knowledge and belief true, accurate,
and complete. I am aware that there are significant penalties for
submitting false statements and information or omitting required
statements and information, including the possibility of fine or
imprisonment.''
(b) The Administrator will accept or act on a submission made for a
CSAPR NOX Ozone Season Group 3 source or a CSAPR
NOX Ozone Season Group 3 unit only if the submission has
been made, signed, and certified in accordance with paragraph (a) of
this section and Sec. 97.1018.
Sec. 97.1015 Changing designated representative and alternate
designated representative; changes in owners and operators; changes in
units at the source.
(a) Changing designated representative. The designated
representative may be changed at any time upon receipt by the
Administrator of a superseding complete certificate of representation
under Sec. 97.1016. Notwithstanding any such change, all
representations, actions, inactions, and submissions by the previous
designated representative before the time and date when the
Administrator receives the superseding certificate of representation
shall be binding on the new designated representative and the owners
and operators of the CSAPR NOX Ozone Season Group 3 source
and the CSAPR NOX Ozone Season Group 3 units at the source.
(b) Changing alternate designated representative. The alternate
designated representative may be changed at any time upon receipt by
the Administrator of a superseding complete certificate of
representation under Sec. 97.1016. Notwithstanding any such change,
all representations, actions, inactions, and submissions by the
previous alternate designated representative before the time and date
when the Administrator receives the superseding certificate of
representation shall be binding on the new alternate designated
representative, the designated representative, and the owners and
operators of the CSAPR NOX Ozone Season Group 3 source and
the CSAPR NOX Ozone Season Group 3 units at the source.
(c) Changes in owners and operators. (1) In the event an owner or
operator of a CSAPR NOX Ozone Season Group 3 source or a
CSAPR NOX Ozone Season Group 3 unit at the source is not
included in the list of owners and operators in the certificate of
representation under Sec. 97.1016, such owner or operator shall be
deemed to be subject to and bound by the certificate of representation,
the representations, actions, inactions, and submissions of the
designated representative and any alternate designated representative
of the source or unit, and the decisions and orders of the
Administrator, as if the owner or operator were included in such list.
(2) Within 30 days after any change in the owners and operators of
a CSAPR NOX Ozone Season Group 3 source or a CSAPR
NOX Ozone Season Group 3 unit at the source, including the
addition or removal of an owner or operator, the designated
representative or any alternate designated representative shall submit
a revision to the certificate of representation under Sec. 97.1016
amending the list of owners and operators to reflect the change.
(d) Changes in units at the source. Within 30 days of any change in
which units are located at a CSAPR NOX Ozone Season Group 3
source (including the addition or removal of a unit), the designated
representative or any alternate designated representative shall submit
a certificate of representation under Sec. 97.1016 amending the list
of units to reflect the change.
(1) If the change is the addition of a unit that operated (other
than for purposes of testing by the manufacturer before initial
installation) before being located at the source, then the certificate
of representation shall identify, in a format prescribed by the
Administrator, the entity from whom the unit was purchased or otherwise
obtained (including name, address, telephone number, and facsimile
number (if any)), the date on which the unit was purchased or otherwise
obtained, and the date on which the unit became located at the source.
(2) If the change is the removal of a unit, then the certificate of
representation shall identify, in a format prescribed by the
Administrator, the entity to which the unit was sold or that otherwise
obtained the unit (including name, address, telephone number, and
facsimile number (if any)), the date on which the unit was sold or
otherwise obtained, and the date on which the unit became no longer
located at the source.
Sec. 97.1016 Certificate of representation.
(a) A complete certificate of representation for a designated
representative or an alternate designated representative shall include
the following elements in a format prescribed by the Administrator:
(1) Identification of the CSAPR NOX Ozone Season Group 3
source, and each CSAPR NOX Ozone Season Group 3 unit at the
source, for which the certificate of representation is submitted,
including source name, source category and NAICS code (or, in the
absence of a NAICS code, an equivalent code), State, plant code,
county, latitude and longitude, unit identification number and type,
identification number and nameplate capacity (in MWe, rounded to the
nearest tenth) of each generator served by each such unit, actual or
projected date of commencement of commercial operation, and a statement
of whether such source is located in Indian country. If a projected
date of commencement of commercial operation is provided, the actual
date of commencement of commercial operation shall be provided when
such information becomes available;
(2) The name, address, email address (if any), telephone number,
and facsimile transmission number (if any) of the designated
representative and any alternate designated representative;
(3) A list of the owners and operators of the CSAPR NOX
Ozone Season Group
[[Page 23224]]
3 source and of each CSAPR NOX Ozone Season Group 3 unit at
the source;
(4) The following certification statements by the designated
representative and any alternate designated representative--
(i) ``I certify that I was selected as the designated
representative or alternate designated representative, as applicable,
by an agreement binding on the owners and operators of the source and
each CSAPR NOX Ozone Season Group 3 unit at the source.'';
(ii) ``I certify that I have all the necessary authority to carry
out my duties and responsibilities under the CSAPR NOX Ozone
Season Group 3 Trading Program on behalf of the owners and operators of
the source and of each CSAPR NOX Ozone Season Group 3 unit
at the source and that each such owner and operator shall be fully
bound by my representations, actions, inactions, or submissions and by
any decision or order issued to me by the Administrator regarding the
source or unit.''; and
(iii) ``Where there are multiple holders of a legal or equitable
title to, or a leasehold interest in, a CSAPR NOX Ozone
Season Group 3 unit, or where a utility or industrial customer
purchases power from a CSAPR NOX Ozone Season Group 3 unit
under a life-of-the-unit, firm power contractual arrangement, I certify
that: I have given a written notice of my selection as the `designated
representative' or `alternate designated representative', as
applicable, and of the agreement by which I was selected to each owner
and operator of the source and of each CSAPR NOX Ozone
Season Group 3 unit at the source; and CSAPR NOX Ozone
Season Group 3 allowances and proceeds of transactions involving CSAPR
NOX Ozone Season Group 3 allowances will be deemed to be
held or distributed in proportion to each holder's legal, equitable,
leasehold, or contractual reservation or entitlement, except that, if
such multiple holders have expressly provided for a different
distribution of CSAPR NOX Ozone Season Group 3 allowances by
contract, CSAPR NOX Ozone Season Group 3 allowances and
proceeds of transactions involving CSAPR NOX Ozone Season
Group 3 allowances will be deemed to be held or distributed in
accordance with the contract.''; and
(5) The signature of the designated representative and any
alternate designated representative and the dates signed.
(b) Unless otherwise required by the Administrator, documents of
agreement referred to in the certificate of representation shall not be
submitted to the Administrator. The Administrator shall not be under
any obligation to review or evaluate the sufficiency of such documents,
if submitted.
(c) A certificate of representation under this section, Sec.
97.516, or Sec. 97.816 that complies with the provisions of paragraph
(a) of this section except that it contains the phrase ``TR
NOX Ozone Season'' or the phrase ``CSAPR NOX
Ozone Season Group 2'' in place of the phrase ``CSAPR NOX
Ozone Season Group 3'' in the required certification statements will be
considered a complete certificate of representation under this section,
and the certification statements included in such certificate of
representation will be interpreted for purposes of this subpart as if
the phrase ``CSAPR NOX Ozone Season Group 3'' appeared in
place of the phrase ``TR NOX Ozone Season'' or the phrase
``CSAPR NOX Ozone Season Group 2''.
Sec. 97.1017 Objections concerning designated representative and
alternate designated representative.
(a) Once a complete certificate of representation under Sec.
97.1016 has been submitted and received, the Administrator will rely on
the certificate of representation unless and until a superseding
complete certificate of representation under Sec. 97.1016 is received
by the Administrator.
(b) Except as provided in paragraph (a) of this section, no
objection or other communication submitted to the Administrator
concerning the authorization, or any representation, action, inaction,
or submission, of a designated representative or alternate designated
representative shall affect any representation, action, inaction, or
submission of the designated representative or alternate designated
representative or the finality of any decision or order by the
Administrator under the CSAPR NOX Ozone Season Group 3
Trading Program.
(c) The Administrator will not adjudicate any private legal dispute
concerning the authorization or any representation, action, inaction,
or submission of any designated representative or alternate designated
representative, including private legal disputes concerning the
proceeds of CSAPR NOX Ozone Season Group 3 allowance
transfers.
Sec. 97.1018 Delegation by designated representative and alternate
designated representative.
(a) A designated representative may delegate, to one or more
natural persons, his or her authority to make an electronic submission
to the Administrator provided for or required under this subpart.
(b) An alternate designated representative may delegate, to one or
more natural persons, his or her authority to make an electronic
submission to the Administrator provided for or required under this
subpart.
(c) In order to delegate authority to a natural person to make an
electronic submission to the Administrator in accordance with paragraph
(a) or (b) of this section, the designated representative or alternate
designated representative, as appropriate, must submit to the
Administrator a notice of delegation, in a format prescribed by the
Administrator, that includes the following elements:
(1) The name, address, email address, telephone number, and
facsimile transmission number (if any) of such designated
representative or alternate designated representative;
(2) The name, address, email address, telephone number, and
facsimile transmission number (if any) of each such natural person
(referred to in this section as an ``agent'');
(3) For each such natural person, a list of the type or types of
electronic submissions under paragraph (a) or (b) of this section for
which authority is delegated to him or her; and
(4) The following certification statements by such designated
representative or alternate designated representative:
(i) ``I agree that any electronic submission to the Administrator
that is made by an agent identified in this notice of delegation and of
a type listed for such agent in this notice of delegation and that is
made when I am a designated representative or alternate designated
representative, as appropriate, and before this notice of delegation is
superseded by another notice of delegation under 40 CFR 97.1018(d)
shall be deemed to be an electronic submission by me.''; and
(ii) ``Until this notice of delegation is superseded by another
notice of delegation under 40 CFR 97.1018(d), I agree to maintain an
email account and to notify the Administrator immediately of any change
in my email address unless all delegation of authority by me under 40
CFR 97.1018 is terminated.''
(d) A notice of delegation submitted under paragraph (c) of this
section shall be effective, with regard to the designated
representative or alternate designated representative identified in
such notice, upon receipt of such notice by the Administrator and until
receipt by the Administrator of a superseding notice of delegation
submitted by such designated representative or alternate designated
representative, as
[[Page 23225]]
appropriate. The superseding notice of delegation may replace any
previously identified agent, add a new agent, or eliminate entirely any
delegation of authority.
(e) Any electronic submission covered by the certification in
paragraph (c)(4)(i) of this section and made in accordance with a
notice of delegation effective under paragraph (d) of this section
shall be deemed to be an electronic submission by the designated
representative or alternate designated representative submitting such
notice of delegation.
(f) A notice of delegation submitted under paragraph (c) of this
section, Sec. 97.518(c), or Sec. 97.818(c) that complies with the
provisions of paragraph (c) of this section except that it contains the
terms ``40 CFR 97.518(d)'' and ``40 CFR 97.518'' or the terms ``40 CFR
97.818(d)'' and ``40 CFR 97.818'' in place of the terms ``40 CFR
97.1018(d)'' and ``40 CFR 97.1018'', respectively, in the required
certification statements will be considered a valid notice of
delegation submitted under paragraph (c) of this section, and the
certification statements included in such notice of delegation will be
interpreted for purposes of this subpart as if the terms ``40 CFR
97.1018(d)'' and ``40 CFR 97.1018'' appeared in place of the terms ``40
CFR 97.518(d)'' and ``40 CFR 97.518'' or the terms ``40 CFR 97.818(d)''
and ``40 CFR 97.818'', respectively.
Sec. 97.1019 [Reserved]
Sec. 97.1020 Establishment of compliance accounts, assurance
accounts, and general accounts.
(a) Compliance accounts. Upon receipt of a complete certificate of
representation under Sec. 97.1016, the Administrator will establish a
compliance account for the CSAPR NOX Ozone Season Group 3
source for which the certificate of representation was submitted,
unless the source already has a compliance account. The designated
representative and any alternate designated representative of the
source shall be the authorized account representative and the alternate
authorized account representative respectively of the compliance
account.
(b) Assurance accounts. The Administrator will establish assurance
accounts for certain owners and operators and States in accordance with
Sec. 97.1025(b)(3).
(c) General accounts--(1) Application for general account. (i) Any
person may apply to open a general account, for the purpose of holding
and transferring CSAPR NOX Ozone Season Group 3 allowances,
by submitting to the Administrator a complete application for a general
account. Such application shall designate one and only one authorized
account representative and may designate one and only one alternate
authorized account representative who may act on behalf of the
authorized account representative.
(A) The authorized account representative and alternate authorized
account representative shall be selected by an agreement binding on the
persons who have an ownership interest with respect to CSAPR
NOX Ozone Season Group 3 allowances held in the general
account.
(B) The agreement by which the alternate authorized account
representative is selected shall include a procedure for authorizing
the alternate authorized account representative to act in lieu of the
authorized account representative.
(ii) A complete application for a general account shall include the
following elements in a format prescribed by the Administrator:
(A) Name, mailing address, email address (if any), telephone
number, and facsimile transmission number (if any) of the authorized
account representative and any alternate authorized account
representative;
(B) An identifying name for the general account;
(C) A list of all persons subject to a binding agreement for the
authorized account representative and any alternate authorized account
representative to represent their ownership interest with respect to
the CSAPR NOX Ozone Season Group 3 allowances held in the
general account;
(D) The following certification statement by the authorized account
representative and any alternate authorized account representative: ``I
certify that I was selected as the authorized account representative or
the alternate authorized account representative, as applicable, by an
agreement that is binding on all persons who have an ownership interest
with respect to CSAPR NOX Ozone Season Group 3 allowances
held in the general account. I certify that I have all the necessary
authority to carry out my duties and responsibilities under the CSAPR
NOX Ozone Season Group 3 Trading Program on behalf of such
persons and that each such person shall be fully bound by my
representations, actions, inactions, or submissions and by any decision
or order issued to me by the Administrator regarding the general
account.''; and
(E) The signature of the authorized account representative and any
alternate authorized account representative and the dates signed.
(iii) Unless otherwise required by the Administrator, documents of
agreement referred to in the application for a general account shall
not be submitted to the Administrator. The Administrator shall not be
under any obligation to review or evaluate the sufficiency of such
documents, if submitted.
(iv) An application for a general account under paragraph (c)(1) of
this section, Sec. 97.520(c)(1), or Sec. 97.820(c)(1) that complies
with the provisions of paragraph (c)(1) of this section except that it
contains the phrase ``TR NOX Ozone Season'' or the phrase
``CSAPR NOX Ozone Season Group 2'' in place of the phrase
``CSAPR NOX Ozone Season Group 3'' in the required
certification statement will be considered a complete application for a
general account under paragraph (c)(1) of this section, and the
certification statement included in such application for a general
account will be interpreted for purposes of this subpart as if the
phrase ``CSAPR NOX Ozone Season Group 3'' appeared in place
of the phrase ``TR NOX Ozone Season'' or the phrase ``CSAPR
NOX Ozone Season Group 2''.
(2) Authorization of authorized account representative and
alternate authorized account representative. (i) Upon receipt by the
Administrator of a complete application for a general account under
paragraph (c)(1) of this section, the Administrator will establish a
general account for the person or persons for whom the application is
submitted, and upon and after such receipt by the Administrator:
(A) The authorized account representative of the general account
shall be authorized and shall represent and, by his or her
representations, actions, inactions, or submissions, legally bind each
person who has an ownership interest with respect to CSAPR
NOX Ozone Season Group 3 allowances held in the general
account in all matters pertaining to the CSAPR NOX Ozone
Season Group 3 Trading Program, notwithstanding any agreement between
the authorized account representative and such person.
(B) Any alternate authorized account representative shall be
authorized, and any representation, action, inaction, or submission by
any alternate authorized account representative shall be deemed to be a
representation, action, inaction, or submission by the authorized
account representative.
(C) Each person who has an ownership interest with respect to CSAPR
NOX Ozone Season Group 3 allowances held in the general
account shall be bound by any decision or order
[[Page 23226]]
issued to the authorized account representative or alternate authorized
account representative by the Administrator regarding the general
account.
(ii) Except as provided in paragraph (c)(5) of this section
concerning delegation of authority to make submissions, each submission
concerning the general account shall be made, signed, and certified by
the authorized account representative or any alternate authorized
account representative for the persons having an ownership interest
with respect to CSAPR NOX Ozone Season Group 3 allowances
held in the general account. Each such submission shall include the
following certification statement by the authorized account
representative or any alternate authorized account representative: ``I
am authorized to make this submission on behalf of the persons having
an ownership interest with respect to the CSAPR NOX Ozone
Season Group 3 allowances held in the general account. I certify under
penalty of law that I have personally examined, and am familiar with,
the statements and information submitted in this document and all its
attachments. Based on my inquiry of those individuals with primary
responsibility for obtaining the information, I certify that the
statements and information are to the best of my knowledge and belief
true, accurate, and complete. I am aware that there are significant
penalties for submitting false statements and information or omitting
required statements and information, including the possibility of fine
or imprisonment.''
(iii) Except in this section, whenever the term ``authorized
account representative'' is used in this subpart, the term shall be
construed to include the authorized account representative or any
alternate authorized account representative.
(iv) A certification statement submitted in accordance with
paragraph (c)(2)(ii) of this section that contains the phrase ``TR
NOX Ozone Season'' or the phrase ``CSAPR NOX
Ozone Season Group 2'' will be interpreted for purposes of this subpart
as if the phrase ``CSAPR NOX Ozone Season Group 3'' appeared
in place of the phrase ``TR NOX Ozone Season'' or the phrase
``CSAPR NOX Ozone Season Group 2''.
(3) Changing authorized account representative and alternate
authorized account representative; changes in persons with ownership
interest. (i) The authorized account representative of a general
account may be changed at any time upon receipt by the Administrator of
a superseding complete application for a general account under
paragraph (c)(1) of this section. Notwithstanding any such change, all
representations, actions, inactions, and submissions by the previous
authorized account representative before the time and date when the
Administrator receives the superseding application for a general
account shall be binding on the new authorized account representative
and the persons with an ownership interest with respect to the CSAPR
NOX Ozone Season Group 3 allowances in the general account.
(ii) The alternate authorized account representative of a general
account may be changed at any time upon receipt by the Administrator of
a superseding complete application for a general account under
paragraph (c)(1) of this section. Notwithstanding any such change, all
representations, actions, inactions, and submissions by the previous
alternate authorized account representative before the time and date
when the Administrator receives the superseding application for a
general account shall be binding on the new alternate authorized
account representative, the authorized account representative, and the
persons with an ownership interest with respect to the CSAPR
NOX Ozone Season Group 3 allowances in the general account.
(iii)(A) In the event a person having an ownership interest with
respect to CSAPR NOX Ozone Season Group 3 allowances in the
general account is not included in the list of such persons in the
application for a general account, such person shall be deemed to be
subject to and bound by the application for a general account, the
representation, actions, inactions, and submissions of the authorized
account representative and any alternate authorized account
representative of the account, and the decisions and orders of the
Administrator, as if the person were included in such list.
(B) Within 30 days after any change in the persons having an
ownership interest with respect to CSAPR NOX Ozone Season
Group 3 allowances in the general account, including the addition or
removal of a person, the authorized account representative or any
alternate authorized account representative shall submit a revision to
the application for a general account amending the list of persons
having an ownership interest with respect to the CSAPR NOX
Ozone Season Group 3 allowances in the general account to include the
change.
(4) Objections concerning authorized account representative and
alternate authorized account representative. (i) Once a complete
application for a general account under paragraph (c)(1) of this
section has been submitted and received, the Administrator will rely on
the application unless and until a superseding complete application for
a general account under paragraph (c)(1) of this section is received by
the Administrator.
(ii) Except as provided in paragraph (c)(4)(i) of this section, no
objection or other communication submitted to the Administrator
concerning the authorization, or any representation, action, inaction,
or submission of the authorized account representative or any alternate
authorized account representative of a general account shall affect any
representation, action, inaction, or submission of the authorized
account representative or any alternate authorized account
representative or the finality of any decision or order by the
Administrator under the CSAPR NOX Ozone Season Group 3
Trading Program.
(iii) The Administrator will not adjudicate any private legal
dispute concerning the authorization or any representation, action,
inaction, or submission of the authorized account representative or any
alternate authorized account representative of a general account,
including private legal disputes concerning the proceeds of CSAPR
NOX Ozone Season Group 3 allowance transfers.
(5) Delegation by authorized account representative and alternate
authorized account representative. (i) An authorized account
representative of a general account may delegate, to one or more
natural persons, his or her authority to make an electronic submission
to the Administrator provided for or required under this subpart.
(ii) An alternate authorized account representative of a general
account may delegate, to one or more natural persons, his or her
authority to make an electronic submission to the Administrator
provided for or required under this subpart.
(iii) In order to delegate authority to a natural person to make an
electronic submission to the Administrator in accordance with paragraph
(c)(5)(i) or (ii) of this section, the authorized account
representative or alternate authorized account representative, as
appropriate, must submit to the Administrator a notice of delegation,
in a format prescribed by the Administrator, that includes the
following elements:
(A) The name, address, email address, telephone number, and
facsimile transmission number (if any) of such authorized account
representative or
[[Page 23227]]
alternate authorized account representative;
(B) The name, address, email address, telephone number, and
facsimile transmission number (if any) of each such natural person
(referred to in this section as an ``agent'');
(C) For each such natural person, a list of the type or types of
electronic submissions under paragraph (c)(5)(i) or (ii) of this
section for which authority is delegated to him or her;
(D) The following certification statement by such authorized
account representative or alternate authorized account representative:
``I agree that any electronic submission to the Administrator that is
made by an agent identified in this notice of delegation and of a type
listed for such agent in this notice of delegation and that is made
when I am an authorized account representative or alternate authorized
account representative, as appropriate, and before this notice of
delegation is superseded by another notice of delegation under 40 CFR
97.1020(c)(5)(iv) shall be deemed to be an electronic submission by
me.''; and
(E) The following certification statement by such authorized
account representative or alternate authorized account representative:
``Until this notice of delegation is superseded by another notice of
delegation under 40 CFR 97.1020(c)(5)(iv), I agree to maintain an email
account and to notify the Administrator immediately of any change in my
email address unless all delegation of authority by me under 40 CFR
97.1020(c)(5) is terminated.''
(iv) A notice of delegation submitted under paragraph (c)(5)(iii)
of this section shall be effective, with regard to the authorized
account representative or alternate authorized account representative
identified in such notice, upon receipt of such notice by the
Administrator and until receipt by the Administrator of a superseding
notice of delegation submitted by such authorized account
representative or alternate authorized account representative, as
appropriate. The superseding notice of delegation may replace any
previously identified agent, add a new agent, or eliminate entirely any
delegation of authority.
(v) Any electronic submission covered by the certification in
paragraph (c)(5)(iii)(D) of this section and made in accordance with a
notice of delegation effective under paragraph (c)(5)(iv) of this
section shall be deemed to be an electronic submission by the
authorized account representative or alternate authorized account
representative submitting such notice of delegation.
(vi) A notice of delegation submitted under paragraph (c)(5)(iii)
of this section, Sec. 97.520(c)(5)(iii), or Sec. 97.820(c)(5)(iii)
that complies with the provisions of paragraph (c)(5)(iii) of this
section except that it contains the terms ``40 CFR 97.520(c)(5)(iv)''
and ``40 CFR 97.520(c)(5)'' or the terms ``40 CFR 97.820(c)(5)(iv)''
and ``40 CFR 97.820(c)(5)'' in place of the terms ``40 CFR
97.1020(c)(5)(iv)'' and ``40 CFR 97.1020(c)(5)'', respectively, in the
required certification statements will be considered a valid notice of
delegation submitted under paragraph (c)(5)(iii) of this section, and
the certification statements included in such notice of delegation will
be interpreted for purposes of this subpart as if the terms ``40 CFR
97.1020(c)(5)(iv)'' and ``40 CFR 97.1020(c)(5)'' appeared in place of
the terms ``40 CFR 97.520(c)(5)(iv)'' and ``40 CFR 97.520(c)(5)'' or
the terms ``40 CFR 97.820(c)(5)(iv)'' and ``40 CFR 97.820(c)(5)'',
respectively.
(6) Closing a general account. (i) The authorized account
representative or alternate authorized account representative of a
general account may submit to the Administrator a request to close the
account. Such request shall include a correctly submitted CSAPR
NOX Ozone Season Group 3 allowance transfer under Sec.
97.1022 for any CSAPR NOX Ozone Season Group 3 allowances in
the account to one or more other Allowance Management System accounts.
(ii) If a general account has no CSAPR NOX Ozone Season
Group 3 allowance transfers to or from the account for a 12-month
period or longer and does not contain any CSAPR NOX Ozone
Season Group 3 allowances, the Administrator may notify the authorized
account representative for the account that the account will be closed
after 30 days after the notice is sent. The account will be closed
after the 30-day period unless, before the end of the 30-day period,
the Administrator receives a correctly submitted CSAPR NOX
Ozone Season Group 3 allowance transfer under Sec. 97.1022 to the
account or a statement submitted by the authorized account
representative or alternate authorized account representative
demonstrating to the satisfaction of the Administrator good cause as to
why the account should not be closed.
(d) Account identification. The Administrator will assign a unique
identifying number to each account established under paragraph (a),
(b), or (c) of this section.
(e) Responsibilities of authorized account representative and
alternate authorized account representative. After the establishment of
a compliance account or general account, the Administrator will accept
or act on a submission pertaining to the account, including, but not
limited to, submissions concerning the deduction or transfer of CSAPR
NOX Ozone Season Group 3 allowances in the account, only if
the submission has been made, signed, and certified in accordance with
Sec. Sec. 97.1014(a) and 97.1018 or paragraphs (c)(2)(ii) and (c)(5)
of this section.
Sec. 97.1021 Recordation of CSAPR NOX Ozone Season Group 3 allowance
allocations and auction results.
(a) By July 29, 2021, the Administrator will record in each CSAPR
NOX Ozone Season Group 3 source's compliance account the
CSAPR NOX Ozone Season Group 3 allowances allocated to the
CSAPR NOX Ozone Season Group 3 units at the source in
accordance with Sec. 97.1011(a) for the control period in 2021.
(b) By July 29, 2021, the Administrator will record in each CSAPR
NOX Ozone Season Group 3 source's compliance account the
CSAPR NOX Ozone Season Group 3 allowances allocated to the
CSAPR NOX Ozone Season Group 3 units at the source in
accordance with Sec. 97.1011(a) for the control period in 2022, unless
the State in which the source is located notifies the Administrator in
writing by June 29, 2021 of the State's intent to submit to the
Administrator a complete SIP revision by September 1, 2021 meeting the
requirements of Sec. 52.38(b)(10)(i) through (iv) of this chapter.
(1) If, by September 1, 2021 the State does not submit to the
Administrator such complete SIP revision, the Administrator will record
by September 15, 2021 in each CSAPR NOX Ozone Season Group 3
source's compliance account the CSAPR NOX Ozone Season Group
3 allowances allocated to the CSAPR NOX Ozone Season Group 3
units at the source in accordance with Sec. 97.1011(a) for the control
period in 2022.
(2) If the State submits to the Administrator by September 1, 2021
and the Administrator approves by March 1, 2022 such complete SIP
revision, the Administrator will record by March 1, 2022 in each CSAPR
NOX Ozone Season Group 3 source's compliance account the
CSAPR NOX Ozone Season Group 3 allowances allocated to the
CSAPR NOX Ozone Season Group 3 units at the source as
provided in such approved, complete SIP revision for the control period
in 2022.
(3) If the State submits to the Administrator by September 1, 2021
and the Administrator does not approve by March 1, 2022 such complete
SIP
[[Page 23228]]
revision, the Administrator will record by March 1, 2022 in each CSAPR
NOX Ozone Season Group 3 source's compliance account the
CSAPR NOX Ozone Season Group 3 allowances allocated to the
CSAPR NOX Ozone Season Group 3 units at the source in
accordance with Sec. 97.1011(a) for the control period in 2022.
(c) By July 1, 2022, the Administrator will record in each CSAPR
NOX Ozone Season Group 3 source's compliance account the
CSAPR NOX Ozone Season Group 3 allowances allocated to the
CSAPR NOX Ozone Season Group 3 units at the source, or in
each appropriate Allowance Management System account the CSAPR
NOX Ozone Season Group 3 allowances auctioned to CSAPR
NOX Ozone Season Group 3 units, in accordance with Sec.
97.1011(a), or with a SIP revision approved under Sec. 52.38(b)(11) or
(12) of this chapter, for the control periods in 2023 and 2024.
(d) By July 1, 2023, the Administrator will record in each CSAPR
NOX Ozone Season Group 3 source's compliance account the
CSAPR NOX Ozone Season Group 3 allowances allocated to the
CSAPR NOX Ozone Season Group 3 units at the source, or in
each appropriate Allowance Management System account the CSAPR
NOX Ozone Season Group 3 allowances auctioned to CSAPR
NOX Ozone Season Group 3 units, in accordance with Sec.
97.1011(a), or with a SIP revision approved under Sec. 52.38(b)(11) or
(12) of this chapter, for the control periods in 2025 and 2026.
(e) [Reserved]
(f) By July 1, 2024 and July 1 of each year thereafter, the
Administrator will record in each CSAPR NOX Ozone Season
Group 3 source's compliance account the CSAPR NOX Ozone
Season Group 3 allowances allocated to the CSAPR NOX Ozone
Season Group 3 units at the source, or in each appropriate Allowance
Management System account the CSAPR NOX Ozone Season Group 3
allowances auctioned to CSAPR NOX Ozone Season Group 3
units, in accordance with Sec. 97.1011(a), or with a SIP revision
approved under Sec. 52.38(b)(11) or (12) of this chapter, for the
control period in the third year after the year of the applicable
recordation deadline under this paragraph.
(g) By May 1, 2022 and May 1 of each year thereafter, the
Administrator will record in each CSAPR NOX Ozone Season
Group 3 source's compliance account the CSAPR NOX Ozone
Season Group 3 allowances allocated to the CSAPR NOX Ozone
Season Group 3 units at the source, or in each appropriate Allowance
Management System account the CSAPR NOX Ozone Season Group 3
allowances auctioned to CSAPR NOX Ozone Season Group 3
units, in accordance with Sec. 97.1012(a), or with a SIP revision
approved under Sec. 52.38(b)(11) or (12) of this chapter, for the
control period in the year before the year of the applicable
recordation deadline under this paragraph.
(h) By May 1, 2022 and May 1 of each year thereafter, the
Administrator will record in each CSAPR NOX Ozone Season
Group 3 source's compliance account the CSAPR NOX Ozone
Season Group 3 allowances allocated to the CSAPR NOX Ozone
Season Group 3 units at the source in accordance with Sec. 97.1012(b)
for the control period in the year before the year of the applicable
recordation deadline under this paragraph.
(i) [Reserved]
(j) [Reserved]
(k) By the date 15 days after the date on which any allocation or
auction results, other than an allocation or auction results described
in paragraphs (a) through (h) of this section, of CSAPR NOX
Ozone Season Group 3 allowances to a recipient is made by or are
submitted to the Administrator in accordance with Sec. 97.1011 or
Sec. 97.1012 or with a SIP revision approved under Sec. 52.38(b)(11)
or (12) of this chapter, the Administrator will record such allocation
or auction results in the appropriate Allowance Management System
account.
(l) When recording the allocation or auction of CSAPR
NOX Ozone Season Group 3 allowances to a CSAPR
NOX Ozone Season Group 3 unit or other entity in an
Allowance Management System account, the Administrator will assign each
CSAPR NOX Ozone Season Group 3 allowance a unique
identification number that will include digits identifying the year of
the control period for which the CSAPR NOX Ozone Season
Group 3 allowance is allocated or auctioned.
(m) Notwithstanding any other provision of this subpart, if, as of
the otherwise applicable deadline for recording any CSAPR
NOX Ozone Season Group 3 allowances in any CSAPR
NOX Ozone Season Group 3 source's compliance account under
any other provision of this section, the Administrator has not
completed all deductions of CSAPR NOX Ozone Season Group 2
allowances required for the source under Sec. 97.811(d), such
otherwise applicable deadline shall not apply, and the Administrator
instead will record such CSAPR NOX Ozone Season Group 3
allowances in the source's compliance account as expeditiously as
practicable after the Administrator has completed all deductions of
CSAPR NOX Ozone Season Group 2 allowances required for the
source under Sec. 97.811(d).
Sec. 97.1022 Submission of CSAPR NOX Ozone Season Group 3 allowance
transfers.
(a) An authorized account representative seeking recordation of a
CSAPR NOX Ozone Season Group 3 allowance transfer shall
submit the transfer to the Administrator.
(b) A CSAPR NOX Ozone Season Group 3 allowance transfer
shall be correctly submitted if:
(1) The transfer includes the following elements, in a format
prescribed by the Administrator:
(i) The account numbers established by the Administrator for both
the transferor and transferee accounts;
(ii) The serial number of each CSAPR NOX Ozone Season
Group 3 allowance that is in the transferor account and is to be
transferred; and
(iii) The name and signature of the authorized account
representative of the transferor account and the date signed; and
(2) When the Administrator attempts to record the transfer, the
transferor account includes each CSAPR NOX Ozone Season
Group 3 allowance identified by serial number in the transfer.
Sec. 97.1023 Recordation of CSAPR NOX Ozone Season Group 3 allowance
transfers.
(a) Within 5 business days (except as provided in paragraph (b) of
this section) of receiving a CSAPR NOX Ozone Season Group 3
allowance transfer that is correctly submitted under Sec. 97.1022, the
Administrator will record a CSAPR NOX Ozone Season Group 3
allowance transfer by moving each CSAPR NOX Ozone Season
Group 3 allowance from the transferor account to the transferee account
as specified in the transfer.
(b) A CSAPR NOX Ozone Season Group 3 allowance transfer
to or from a compliance account that is submitted for recordation after
the allowance transfer deadline for a control period and that includes
any CSAPR NOX Ozone Season Group 3 allowances allocated or
auctioned for any control period before such allowance transfer
deadline will not be recorded until after the Administrator completes
the deductions from such compliance account under Sec. 97.1024 for the
control period immediately before such allowance transfer deadline.
(c) Where a CSAPR NOX Ozone Season Group 3 allowance
transfer is not correctly submitted under Sec. 97.1022, the
Administrator will not record such transfer.
(d) Within 5 business days of recordation of a CSAPR NOX
Ozone
[[Page 23229]]
Season Group 3 allowance transfer under paragraphs (a) and (b) of the
section, the Administrator will notify the authorized account
representatives of both the transferor and transferee accounts.
(e) Within 10 business days of receipt of a CSAPR NOX
Ozone Season Group 3 allowance transfer that is not correctly submitted
under Sec. 97.1022, the Administrator will notify the authorized
account representatives of both accounts subject to the transfer of:
(1) A decision not to record the transfer; and
(2) The reasons for such non-recordation.
Sec. 97.1024 Compliance with CSAPR NOX Ozone Season Group 3 emissions
limitation.
(a) Availability for deduction for compliance. CSAPR NOX
Ozone Season Group 3 allowances are available to be deducted for
compliance with a source's CSAPR NOX Ozone Season Group 3
emissions limitation for a control period in a given year only if the
CSAPR NOX Ozone Season Group 3 allowances:
(1) Were allocated or auctioned for such control period or a
control period in a prior year; and
(2) Are held in the source's compliance account as of the allowance
transfer deadline for such control period.
(b) Deductions for compliance. After the recordation, in accordance
with Sec. 97.1023, of CSAPR NOX Ozone Season Group 3
allowance transfers submitted by the allowance transfer deadline for a
control period in a given year, the Administrator will deduct from each
source's compliance account CSAPR NOX Ozone Season Group 3
allowances available under paragraph (a) of this section in order to
determine whether the source meets the CSAPR NOX Ozone
Season Group 3 emissions limitation for such control period, as
follows:
(1) Until the amount of CSAPR NOX Ozone Season Group 3
allowances deducted equals the number of tons of total NOX
emissions from all CSAPR NOX Ozone Season Group 3 units at
the source for such control period; or
(2) If there are insufficient CSAPR NOX Ozone Season
Group 3 allowances to complete the deductions in paragraph (b)(1) of
this section, until no more CSAPR NOX Ozone Season Group 3
allowances available under paragraph (a) of this section remain in the
compliance account.
(c) Selection of CSAPR NOX Ozone Season Group 3 allowances for
deduction--(1) Identification by serial number. The designated
representative for a source may request that specific CSAPR
NOX Ozone Season Group 3 allowances, identified by serial
number, in the source's compliance account be deducted for emissions or
excess emissions for a control period in a given year in accordance
with paragraph (b) or (d) of this section. In order to be complete,
such request shall be submitted to the Administrator by the allowance
transfer deadline for such control period and include, in a format
prescribed by the Administrator, the identification of the CSAPR
NOX Ozone Season Group 3 source and the appropriate serial
numbers.
(2) First-in, first-out. The Administrator will deduct CSAPR
NOX Ozone Season Group 3 allowances under paragraph (b) or
(d) of this section from the source's compliance account in accordance
with a complete request under paragraph (c)(1) of this section or, in
the absence of such request or in the case of identification of an
insufficient amount of CSAPR NOX Ozone Season Group 3
allowances in such request, on a first-in, first-out accounting basis
in the following order:
(i) Any CSAPR NOX Ozone Season Group 3 allowances that
were recorded in the compliance account pursuant to Sec. 97.1021 and
not transferred out of the compliance account, in the order of
recordation; and then
(ii) Any other CSAPR NOX Ozone Season Group 3 allowances
that were transferred to and recorded in the compliance account
pursuant to this subpart or that were recorded in the compliance
account pursuant to Sec. 97.526(d) or Sec. 97.826(d), in the order of
recordation.
(d) Deductions for excess emissions. After making the deductions
for compliance under paragraph (b) of this section for a control period
in a year in which the CSAPR NOX Ozone Season Group 3 source
has excess emissions, the Administrator will deduct from the source's
compliance account an amount of CSAPR NOX Ozone Season Group
3 allowances, allocated or auctioned for a control period in a prior
year or the control period in the year of the excess emissions or in
the immediately following year, equal to two times the number of tons
of the source's excess emissions.
(e) Recordation of deductions. The Administrator will record in the
appropriate compliance account all deductions from such an account
under paragraphs (b) and (d) of this section.
Sec. 97.1025 Compliance with CSAPR NOX Ozone Season Group 3 assurance
provisions.
(a) Availability for deduction. CSAPR NOX Ozone Season
Group 3 allowances are available to be deducted for compliance with the
CSAPR NOX Ozone Season Group 3 assurance provisions for a
control period in a given year by the owners and operators of a group
of one or more base CSAPR NOX Ozone Season Group 3 sources
and units in a State (and Indian country within the borders of such
State) only if the CSAPR NOX Ozone Season Group 3
allowances:
(1) Were allocated or auctioned for a control period in a prior
year or the control period in the given year or in the immediately
following year; and
(2) Are held in the assurance account, established by the
Administrator for such owners and operators of such group of base CSAPR
NOX Ozone Season Group 3 sources and units in such State
(and Indian country within the borders of such State) under paragraph
(b)(3) of this section, as of the deadline established in paragraph
(b)(4) of this section.
(b) Deductions for compliance. The Administrator will deduct CSAPR
NOX Ozone Season Group 3 allowances available under
paragraph (a) of this section for compliance with the CSAPR
NOX Ozone Season Group 3 assurance provisions for a State
for a control period in a given year in accordance with the following
procedures:
(1) By August 1, 2022 and August 1 of each year thereafter, the
Administrator will:
(i) Calculate, for each State (and Indian country within the
borders of such State), the total NOX emissions from all
base CSAPR NOX Ozone Season Group 3 units at base CSAPR
NOX Ozone Season Group 3 sources in the State (and Indian
country within the borders of such State) during the control period in
the year before the year of this calculation deadline and the amount,
if any, by which such total NOX emissions exceed the State
assurance level as described in Sec. 97.1006(c)(2)(iii); and
(ii) For the set of any States (and Indian country within the
borders of such States) for which the results of the calculations
required in paragraph (b)(1)(i) of this section indicate that total
NOX emissions exceed the respective State assurance levels
for such control period--
(A) Calculate, for each such State (and Indian country within the
borders of such State) and such control period and each common
designated representative for such control period for a group of one or
more base CSAPR NOX Ozone Season Group 3 sources and units
in such State (and such Indian country), the common designated
representative's share of the total NOX emissions from all
base CSAPR NOX Ozone Season Group 3 units at base CSAPR
NOX
[[Page 23230]]
Ozone Season Group 3 sources in such State (and such Indian country),
the common designated representative's assurance level, and the amount
(if any) of CSAPR NOX Ozone Season Group 3 allowances that
the owners and operators of such group of sources and units must hold
in accordance with the calculation formula in Sec. 97.1006(c)(2)(i);
and
(B) Promulgate a notice of data availability of the results of the
calculations required in paragraphs (b)(1)(i) and (b)(1)(ii)(A) of this
section, including separate calculations of the NOX
emissions from each base CSAPR NOX Ozone Season Group 3
source in each such State (and Indian country within the borders of
such State).
(2) The Administrator will provide an opportunity for submission of
objections to the calculations referenced by each notice of data
availability required in paragraph (b)(1)(ii) of this section.
(i) Objections shall be submitted by the deadline specified in such
notice and shall be limited to addressing whether the calculations
referenced in such notice are in accordance with Sec.
97.1006(c)(2)(iii), Sec. Sec. 97.1006(b) and 97.1030 through 97.1035,
the definitions of ``common designated representative'', ``common
designated representative's assurance level'', and ``common designated
representative's share'' in Sec. 97.1002, and the calculation formula
in Sec. 97.1006(c)(2)(i).
(ii) The Administrator will adjust the calculations to the extent
necessary to ensure that they are in accordance with the provisions
referenced in paragraph (b)(2)(i) of this section. By October 1
immediately after the promulgation of such notice, the Administrator
will promulgate a notice of data availability of the results of the
calculations incorporating any adjustments that the Administrator
determines to be necessary and the reasons for accepting or rejecting
any objections submitted in accordance with paragraph (b)(2)(i) of this
section.
(3) For any State (and Indian country within the borders of such
State) referenced in each notice of data availability required in
paragraph (b)(2)(ii) of this section as having base CSAPR
NOX Ozone Season Group 3 units with total NOX
emissions exceeding the State assurance level for a control period in a
given year, the Administrator will establish one assurance account for
each set of owners and operators referenced, in the notice of data
availability required under paragraph (b)(2)(ii) of this section, as
all of the owners and operators of a group of base CSAPR NOX
Ozone Season Group 3 sources and units in the State (and Indian country
within the borders of such State) having a common designated
representative for such control period and as being required to hold
CSAPR NOX Ozone Season Group 3 allowances.
(4)(i) As of midnight of November 1 immediately after the
promulgation of each notice of data availability required in paragraph
(b)(2)(ii) of this section, the owners and operators described in
paragraph (b)(3) of this section shall hold in the assurance account
established for them and for the appropriate base CSAPR NOX
Ozone Season Group 3 sources, base CSAPR NOX Ozone Season
Group 3 units, and State (and Indian country within the borders of such
State) under paragraph (b)(3) of this section a total amount of CSAPR
NOX Ozone Season Group 3 allowances, available for deduction
under paragraph (a) of this section, equal to the amount such owners
and operators are required to hold with regard to such sources, units
and State (and Indian country within the borders of such State) as
calculated by the Administrator and referenced in such notice.
(ii) Notwithstanding the allowance-holding deadline specified in
paragraph (b)(4)(i) of this section, if November 1 is not a business
day, then such allowance-holding deadline shall be midnight of the
first business day thereafter.
(5) After November 1 (or the date described in paragraph (b)(4)(ii)
of this section) immediately after the promulgation of each notice of
data availability required in paragraph (b)(2)(ii) of this section and
after the recordation, in accordance with Sec. 97.1023, of CSAPR
NOX Ozone Season Group 3 allowance transfers submitted by
midnight of such date, the Administrator will determine whether the
owners and operators described in paragraph (b)(3) of this section
hold, in the assurance account for the appropriate base CSAPR
NOX Ozone Season Group 3 sources, base CSAPR NOX
Ozone Season Group 3 units, and State (and Indian country within the
borders of such State) established under paragraph (b)(3) of this
section, the amount of CSAPR NOX Ozone Season Group 3
allowances available under paragraph (a) of this section that the
owners and operators are required to hold with regard to such sources,
units, and State (and Indian country within the borders of such State)
as calculated by the Administrator and referenced in the notice
required in paragraph (b)(2)(ii) of this section.
(6) Notwithstanding any other provision of this subpart and any
revision, made by or submitted to the Administrator after the
promulgation of the notice of data availability required in paragraph
(b)(2)(ii) of this section for a control period in a given year, of any
data used in making the calculations referenced in such notice, the
amounts of CSAPR NOX Ozone Season Group 3 allowances that
the owners and operators are required to hold in accordance with Sec.
97.1006(c)(2)(i) for such control period shall continue to be such
amounts as calculated by the Administrator and referenced in such
notice required in paragraph (b)(2)(ii) of this section, except as
follows:
(i) If any such data are revised by the Administrator as a result
of a decision in or settlement of litigation concerning such data on
appeal under part 78 of this chapter of such notice, or on appeal under
section 307 of the Clean Air Act of a decision rendered under part 78
of this chapter on appeal of such notice, then the Administrator will
use the data as so revised to recalculate the amounts of CSAPR
NOX Ozone Season Group 3 allowances that owners and
operators are required to hold in accordance with the calculation
formula in Sec. 97.1006(c)(2)(i) for such control period with regard
to the base CSAPR NOX Ozone Season Group 3 sources, base
CSAPR NOX Ozone Season Group 3 units, and State (and Indian
country within the borders of such State) involved, provided that such
litigation under part 78 of this chapter, or the proceeding under part
78 of this chapter that resulted in the decision appealed in such
litigation under section 307 of the Clean Air Act, was initiated no
later than 30 days after promulgation of such notice required in
paragraph (b)(2)(ii) of this section.
(ii) [Reserved]
(iii) If the revised data are used to recalculate, in accordance
with paragraph (b)(6)(i) of this section, the amount of CSAPR
NOX Ozone Season Group 3 allowances that the owners and
operators are required to hold for such control period with regard to
the base CSAPR NOX Ozone Season Group 3 sources, base CSAPR
NOX Ozone Season Group 3 units, and State (and Indian
country within the borders of such State) involved--
(A) Where the amount of CSAPR NOX Ozone Season Group 3
allowances that the owners and operators are required to hold increases
as a result of the use of all such revised data, the Administrator will
establish a new, reasonable deadline on which the owners and operators
shall hold the additional amount of CSAPR NOX Ozone Season
Group 3 allowances in the assurance account established by the
[[Page 23231]]
Administrator for the appropriate base CSAPR NOX Ozone
Season Group 3 sources, base CSAPR NOX Ozone Season Group 3
units, and State (and Indian country within the borders of such State)
under paragraph (b)(3) of this section. The owners' and operators'
failure to hold such additional amount, as required, before the new
deadline shall not be a violation of the Clean Air Act. The owners' and
operators' failure to hold such additional amount, as required, as of
the new deadline shall be a violation of the Clean Air Act. Each CSAPR
NOX Ozone Season Group 3 allowance that the owners and
operators fail to hold as required as of the new deadline, and each day
in such control period, shall be a separate violation of the Clean Air
Act.
(B) For the owners and operators for which the amount of CSAPR
NOX Ozone Season Group 3 allowances required to be held
decreases as a result of the use of all such revised data, the
Administrator will record, in all accounts from which CSAPR
NOX Ozone Season Group 3 allowances were transferred by such
owners and operators for such control period to the assurance account
established by the Administrator for the appropriate base CSAPR
NOX Ozone Season Group 3 sources, base CSAPR NOX
Ozone Season Group 3 units, and State (and Indian country within the
borders of such State) under paragraph (b)(3) of this section, a total
amount of the CSAPR NOX Ozone Season Group 3 allowances held
in such assurance account equal to the amount of the decrease. If CSAPR
NOX Ozone Season Group 3 allowances were transferred to such
assurance account from more than one account, the amount of CSAPR
NOX Ozone Season Group 3 allowances recorded in each such
transferor account will be in proportion to the percentage of the total
amount of CSAPR NOX Ozone Season Group 3 allowances
transferred to such assurance account for such control period from such
transferor account.
(C) Each CSAPR NOX Ozone Season Group 3 allowance held
under paragraph (b)(6)(iii)(A) of this section as a result of
recalculation of requirements under the CSAPR NOX Ozone
Season Group 3 assurance provisions for such control period must be a
CSAPR NOX Ozone Season Group 3 allowance allocated for a
control period in a year before or the year immediately following, or
in the same year as, the year of such control period.
Sec. 97.1026 Banking.
(a) A CSAPR NOX Ozone Season Group 3 allowance may be
banked for future use or transfer in a compliance account or a general
account in accordance with paragraph (b) of this section.
(b) Any CSAPR NOX Ozone Season Group 3 allowance that is
held in a compliance account or a general account will remain in such
account unless and until the CSAPR NOX Ozone Season Group 3
allowance is deducted or transferred under Sec. 97.1011(c), Sec.
97.1023, Sec. 97.1024, Sec. 97.1025, Sec. 97.1027, or Sec. 97.1028
or paragraph (c) of this section.
(c) At any time after the allowance transfer deadline for the last
control period for which a State NOX Ozone Season Group 3
trading budget is set forth in Sec. 97.1010(a) for a given State, the
Administrator may record a transfer of any CSAPR NOX Ozone
Season Group 3 allowances held in the compliance account for a source
in such State (or Indian country within the borders of such State) to a
general account identified or established by the Administrator with the
source's designated representative as the authorized account
representative and with the owners and operators of the source (as
indicated on the certificate of representation for the source) as the
persons represented by the authorized account representative. The
Administrator will notify the designated representative not less than
15 days before making such a transfer.
Sec. 97.1027 Account error.
The Administrator may, at his or her sole discretion and on his or
her own motion, correct any error in any Allowance Management System
account. Within 10 business days of making such correction, the
Administrator will notify the authorized account representative for the
account.
Sec. 97.1028 Administrator's action on submissions.
(a) The Administrator may review and conduct independent audits
concerning any submission under the CSAPR NOX Ozone Season
Group 3 Trading Program and make appropriate adjustments of the
information in the submission.
(b) The Administrator may deduct CSAPR NOX Ozone Season
Group 3 allowances from or transfer CSAPR NOX Ozone Season
Group 3 allowances to a compliance account or an assurance account,
based on the information in a submission, as adjusted under paragraph
(a) of this section, and record such deductions and transfers.
Sec. 97.1029 [Reserved]
Sec. 97.1030 General monitoring, recordkeeping, and reporting
requirements.
The owners and operators, and to the extent applicable, the
designated representative, of a CSAPR NOX Ozone Season Group
3 unit, shall comply with the monitoring, recordkeeping, and reporting
requirements as provided in this subpart and subpart H of part 75 of
this chapter. For purposes of applying such requirements, the
definitions in Sec. 97.1002 and in Sec. 72.2 of this chapter shall
apply, the terms ``affected unit,'' ``designated representative,'' and
``continuous emission monitoring system'' (or ``CEMS'') in part 75 of
this chapter shall be deemed to refer to the terms ``CSAPR
NOX Ozone Season Group 3 unit,'' ``designated
representative,'' and ``continuous emission monitoring system'' (or
``CEMS'') respectively as defined in Sec. 97.1002, and the term
``newly affected unit'' shall be deemed to mean ``newly affected CSAPR
NOX Ozone Season Group 3 unit''. The owner or operator of a
unit that is not a CSAPR NOX Ozone Season Group 3 unit but
that is monitored under Sec. 75.72(b)(2)(ii) of this chapter shall
comply with the same monitoring, recordkeeping, and reporting
requirements as a CSAPR NOX Ozone Season Group 3 unit.
(a) Requirements for installation, certification, and data
accounting. The owner or operator of each CSAPR NOX Ozone
Season Group 3 unit shall:
(1) Install all monitoring systems required under this subpart for
monitoring NOX mass emissions and individual unit heat input
(including all systems required to monitor NOX emission
rate, NOX concentration, stack gas moisture content, stack
gas flow rate, CO2 or O2 concentration, and fuel
flow rate, as applicable, in accordance with Sec. Sec. 75.71 and 75.72
of this chapter);
(2) Successfully complete all certification tests required under
Sec. 97.1031 and meet all other requirements of this subpart and part
75 of this chapter applicable to the monitoring systems under paragraph
(a)(1) of this section; and
(3) Record, report, and quality-assure the data from the monitoring
systems under paragraph (a)(1) of this section.
(b) Compliance deadlines. Except as provided in paragraph (e) of
this section, the owner or operator of a CSAPR NOX Ozone
Season Group 3 unit shall meet the monitoring system certification and
other requirements of paragraphs (a)(1) and (2) of this section on or
before the latest of the following dates and shall record, report, and
quality-assure the data from the
[[Page 23232]]
monitoring systems under paragraph (a)(1) of this section on and after
the latest of the following dates:
(1) May 1, 2021;
(2) 180 calendar days after the date on which the unit commences
commercial operation; or
(3) Where data for the unit are reported on a control period basis
under Sec. 97.1034(d)(1)(ii)(B), and where the compliance date under
paragraph (b)(2) of this section is not in a month from May through
September, May 1 immediately after the compliance date under paragraph
(b)(2) of this section.
(4) The owner or operator of a CSAPR NOX Ozone Season
Group 3 unit for which construction of a new stack or flue or
installation of add-on NOX emission controls is completed
after the applicable deadline under paragraph (b)(1), (2), or (3) of
this section shall meet the requirements of Sec. 75.4(e)(1) through
(4) of this chapter, except that:
(i) Such requirements shall apply to the monitoring systems
required under Sec. 97.1030 through Sec. 97.1035, rather than the
monitoring systems required under part 75 of this chapter;
(ii) NOX emission rate, NOX concentration,
stack gas moisture content, stack gas volumetric flow rate, and
O2 or CO2 concentration data shall be determined
and reported, rather than the data listed in Sec. 75.4(e)(2) of this
chapter; and
(iii) Any petition for another procedure under Sec. 75.4(e)(2) of
this chapter shall be submitted under Sec. 97.1035, rather than Sec.
75.66 of this chapter.
(c) Reporting data. The owner or operator of a CSAPR NOX
Ozone Season Group 3 unit that does not meet the applicable compliance
date set forth in paragraph (b) of this section for any monitoring
system under paragraph (a)(1) of this section shall, for each such
monitoring system, determine, record, and report maximum potential (or,
as appropriate, minimum potential) values for NOX
concentration, NOX emission rate, stack gas flow rate, stack
gas moisture content, fuel flow rate, and any other parameters required
to determine NOX mass emissions and heat input in accordance
with Sec. 75.31(b)(2) or (c)(3) of this chapter, section 2.4 of
appendix D to part 75 of this chapter, or section 2.5 of appendix E to
part 75 of this chapter, as applicable.
(d) Prohibitions. (1) No owner or operator of a CSAPR
NOX Ozone Season Group 3 unit shall use any alternative
monitoring system, alternative reference method, or any other
alternative to any requirement of this subpart without having obtained
prior written approval in accordance with Sec. 97.1035.
(2) No owner or operator of a CSAPR NOX Ozone Season
Group 3 unit shall operate the unit so as to discharge, or allow to be
discharged, NOX to the atmosphere without accounting for all
such NOX in accordance with the applicable provisions of
this subpart and part 75 of this chapter.
(3) No owner or operator of a CSAPR NOX Ozone Season
Group 3 unit shall disrupt the continuous emission monitoring system,
any portion thereof, or any other approved emission monitoring method,
and thereby avoid monitoring and recording NOX mass
discharged into the atmosphere or heat input, except for periods of
recertification or periods when calibration, quality assurance testing,
or maintenance is performed in accordance with the applicable
provisions of this subpart and part 75 of this chapter.
(4) No owner or operator of a CSAPR NOX Ozone Season
Group 3 unit shall retire or permanently discontinue use of the
continuous emission monitoring system, any component thereof, or any
other approved monitoring system under this subpart, except under any
one of the following circumstances:
(i) During the period that the unit is covered by an exemption
under Sec. 97.1005 that is in effect;
(ii) The owner or operator is monitoring emissions from the unit
with another certified monitoring system approved, in accordance with
the applicable provisions of this subpart and part 75 of this chapter,
by the Administrator for use at that unit that provides emission data
for the same pollutant or parameter as the retired or discontinued
monitoring system; or
(iii) The designated representative submits notification of the
date of certification testing of a replacement monitoring system for
the retired or discontinued monitoring system in accordance with Sec.
97.1031(d)(3)(i).
(e) Long-term cold storage. The owner or operator of a CSAPR
NOX Ozone Season Group 3 unit is subject to the applicable
provisions of Sec. 75.4(d) of this chapter concerning units in long-
term cold storage.
Sec. 97.1031 Initial monitoring system certification and
recertification procedures.
(a) The owner or operator of a CSAPR NOX Ozone Season
Group 3 unit shall be exempt from the initial certification
requirements of this section for a monitoring system under Sec.
97.1030(a)(1) if the following conditions are met:
(1) The monitoring system has been previously certified in
accordance with part 75 of this chapter; and
(2) The applicable quality-assurance and quality-control
requirements of Sec. 75.21 of this chapter and appendices B, D, and E
to part 75 of this chapter are fully met for the certified monitoring
system described in paragraph (a)(1) of this section.
(b) The recertification provisions of this section shall apply to a
monitoring system under Sec. 97.1030(a)(1) that is exempt from initial
certification requirements under paragraph (a) of this section.
(c) If the Administrator has previously approved a petition under
Sec. 75.17(a) or (b) of this chapter for apportioning the
NOX emission rate measured in a common stack or a petition
under Sec. 75.66 of this chapter for an alternative to a requirement
in Sec. 75.12 or Sec. 75.17 of this chapter, the designated
representative shall resubmit the petition to the Administrator under
Sec. 97.1035 to determine whether the approval applies under the CSAPR
NOX Ozone Season Group 3 Trading Program.
(d) Except as provided in paragraph (a) of this section, the owner
or operator of a CSAPR NOX Ozone Season Group 3 unit shall
comply with the following initial certification and recertification
procedures for a continuous monitoring system (i.e., a continuous
emission monitoring system and an excepted monitoring system under
appendices D and E to part 75 of this chapter) under Sec.
97.1030(a)(1). The owner or operator of a unit that qualifies to use
the low mass emissions excepted monitoring methodology under Sec.
75.19 of this chapter or that qualifies to use an alternative
monitoring system under subpart E of part 75 of this chapter shall
comply with the procedures in paragraph (e) or (f) of this section
respectively.
(1) Requirements for initial certification. The owner or operator
shall ensure that each continuous monitoring system under Sec.
97.1030(a)(1) (including the automated data acquisition and handling
system) successfully completes all of the initial certification testing
required under Sec. 75.20 of this chapter by the applicable deadline
in Sec. 97.1030(b). In addition, whenever the owner or operator
installs a monitoring system to meet the requirements of this subpart
in a location where no such monitoring system was previously installed,
initial certification in accordance with Sec. 75.20 of this chapter is
required.
(2) Requirements for recertification. Whenever the owner or
operator makes a replacement, modification, or change in any certified
continuous emission monitoring system under Sec. 97.1030(a)(1) that
may significantly affect the ability of the system to accurately
measure or
[[Page 23233]]
record NOX mass emissions or heat input rate or to meet the
quality-assurance and quality-control requirements of Sec. 75.21 of
this chapter or appendix B to part 75 of this chapter, the owner or
operator shall recertify the monitoring system in accordance with Sec.
75.20(b) of this chapter. Furthermore, whenever the owner or operator
makes a replacement, modification, or change to the flue gas handling
system or the unit's operation that may significantly change the stack
flow or concentration profile, the owner or operator shall recertify
each continuous emission monitoring system whose accuracy is
potentially affected by the change, in accordance with Sec. 75.20(b)
of this chapter. Examples of changes to a continuous emission
monitoring system that require recertification include replacement of
the analyzer, complete replacement of an existing continuous emission
monitoring system, or change in location or orientation of the sampling
probe or site. Any fuel flowmeter system, and any excepted
NOX monitoring system under appendix E to part 75 of this
chapter, under Sec. 97.1030(a)(1) are subject to the recertification
requirements in Sec. 75.20(g)(6) of this chapter.
(3) Approval process for initial certification and recertification.
For initial certification of a continuous monitoring system under Sec.
97.1030(a)(1), paragraphs (d)(3)(i) through (v) of this section apply.
For recertifications of such monitoring systems, paragraphs (d)(3)(i)
through (iv) of this section and the procedures in Sec. 75.20(b)(5)
and (g)(7) of this chapter (in lieu of the procedures in paragraph
(d)(3)(v) of this section) apply, provided that in applying paragraphs
(d)(3)(i) through (iv) of this section, the words ``certification'' and
``initial certification'' are replaced by the word ``recertification''
and the word ``certified'' is replaced by the word ``recertified''.
(i) Notification of certification. The designated representative
shall submit to the appropriate EPA Regional Office and the
Administrator written notice of the dates of certification testing, in
accordance with Sec. 97.1033.
(ii) Certification application. The designated representative shall
submit to the Administrator a certification application for each
monitoring system. A complete certification application shall include
the information specified in Sec. 75.63 of this chapter.
(iii) Provisional certification date. The provisional certification
date for a monitoring system shall be determined in accordance with
Sec. 75.20(a)(3) of this chapter. A provisionally certified monitoring
system may be used under the CSAPR NOX Ozone Season Group 3
Trading Program for a period not to exceed 120 days after receipt by
the Administrator of the complete certification application for the
monitoring system under paragraph (d)(3)(ii) of this section. Data
measured and recorded by the provisionally certified monitoring system,
in accordance with the requirements of part 75 of this chapter, will be
considered valid quality-assured data (retroactive to the date and time
of provisional certification), provided that the Administrator does not
invalidate the provisional certification by issuing a notice of
disapproval within 120 days of the date of receipt of the complete
certification application by the Administrator.
(iv) Certification application approval process. The Administrator
will issue a written notice of approval or disapproval of the
certification application to the owner or operator within 120 days of
receipt of the complete certification application under paragraph
(d)(3)(ii) of this section. In the event the Administrator does not
issue such a notice within such 120-day period, each monitoring system
that meets the applicable performance requirements of part 75 of this
chapter and is included in the certification application will be deemed
certified for use under the CSAPR NOX Ozone Season Group 3
Trading Program.
(A) Approval notice. If the certification application is complete
and shows that each monitoring system meets the applicable performance
requirements of part 75 of this chapter, then the Administrator will
issue a written notice of approval of the certification application
within 120 days of receipt.
(B) Incomplete application notice. If the certification application
is not complete, then the Administrator will issue a written notice of
incompleteness that sets a reasonable date by which the designated
representative must submit the additional information required to
complete the certification application. If the designated
representative does not comply with the notice of incompleteness by the
specified date, then the Administrator may issue a notice of
disapproval under paragraph (d)(3)(iv)(C) of this section.
(C) Disapproval notice. If the certification application shows that
any monitoring system does not meet the performance requirements of
part 75 of this chapter or if the certification application is
incomplete and the requirement for disapproval under paragraph
(d)(3)(iv)(B) of this section is met, then the Administrator will issue
a written notice of disapproval of the certification application. Upon
issuance of such notice of disapproval, the provisional certification
is invalidated by the Administrator and the data measured and recorded
by each uncertified monitoring system shall not be considered valid
quality-assured data beginning with the date and hour of provisional
certification (as defined under Sec. 75.20(a)(3) of this chapter).
(D) Audit decertification. The Administrator may issue a notice of
disapproval of the certification status of a monitor in accordance with
Sec. 97.1032(b).
(v) Procedures for loss of certification. If the Administrator
issues a notice of disapproval of a certification application under
paragraph (d)(3)(iv)(C) of this section or a notice of disapproval of
certification status under paragraph (d)(3)(iv)(D) of this section,
then:
(A) The owner or operator shall substitute the following values,
for each disapproved monitoring system, for each hour of unit operation
during the period of invalid data specified under Sec.
75.20(a)(4)(iii), Sec. 75.20(g)(7), or Sec. 75.21(e) of this chapter
and continuing until the applicable date and hour specified under Sec.
75.20(a)(5)(i) or (g)(7) of this chapter:
(1) For a disapproved NOX emission rate (i.e.,
NOX-diluent) system, the maximum potential NOX
emission rate, as defined in Sec. 72.2 of this chapter.
(2) For a disapproved NOX pollutant concentration
monitor and disapproved flow monitor, respectively, the maximum
potential concentration of NOX and the maximum potential
flow rate, as defined in sections 2.1.2.1 and 2.1.4.1 of appendix A to
part 75 of this chapter.
(3) For a disapproved moisture monitoring system and disapproved
diluent gas monitoring system, respectively, the minimum potential
moisture percentage and either the maximum potential CO2
concentration or the minimum potential O2 concentration (as
applicable), as defined in sections 2.1.5, 2.1.3.1, and 2.1.3.2 of
appendix A to part 75 of this chapter.
(4) For a disapproved fuel flowmeter system, the maximum potential
fuel flow rate, as defined in section 2.4.2.1 of appendix D to part 75
of this chapter.
(5) For a disapproved excepted NOX monitoring system
under appendix E to part 75 of this chapter, the fuel-specific maximum
potential NOX emission rate, as defined in Sec. 72.2 of
this chapter.
(B) The designated representative shall submit a notification of
certification retest dates and a new
[[Page 23234]]
certification application in accordance with paragraphs (d)(3)(i) and
(ii) of this section.
(C) The owner or operator shall repeat all certification tests or
other requirements that were failed by the monitoring system, as
indicated in the Administrator's notice of disapproval, no later than
30 unit operating days after the date of issuance of the notice of
disapproval.
(e) The owner or operator of a unit qualified to use the low mass
emissions (LME) excepted methodology under Sec. 75.19 of this chapter
shall meet the applicable certification and recertification
requirements in Sec. Sec. 75.19(a)(2) and 75.20(h) of this chapter. If
the owner or operator of such a unit elects to certify a fuel flowmeter
system for heat input determination, the owner or operator shall also
meet the certification and recertification requirements in Sec.
75.20(g) of this chapter.
(f) The designated representative of each unit for which the owner
or operator intends to use an alternative monitoring system approved by
the Administrator under subpart E of part 75 of this chapter shall
comply with the applicable notification and application procedures of
Sec. 75.20(f) of this chapter.
Sec. 97.1032 Monitoring system out-of-control periods.
(a) General provisions. Whenever any monitoring system fails to
meet the quality-assurance and quality-control requirements or data
validation requirements of part 75 of this chapter, data shall be
substituted using the applicable missing data procedures in subpart D
or subpart H of, or appendix D or appendix E to, part 75 of this
chapter.
(b) Audit decertification. Whenever both an audit of a monitoring
system and a review of the initial certification or recertification
application reveal that any monitoring system should not have been
certified or recertified because it did not meet a particular
performance specification or other requirement under Sec. 97.1031 or
the applicable provisions of part 75 of this chapter, both at the time
of the initial certification or recertification application submission
and at the time of the audit, the Administrator will issue a notice of
disapproval of the certification status of such monitoring system. For
the purposes of this paragraph, an audit shall be either a field audit
or an audit of any information submitted to the Administrator or any
State or permitting authority. By issuing the notice of disapproval,
the Administrator revokes prospectively the certification status of the
monitoring system. The data measured and recorded by the monitoring
system shall not be considered valid quality-assured data from the date
of issuance of the notification of the revoked certification status
until the date and time that the owner or operator completes
subsequently approved initial certification or recertification tests
for the monitoring system. The owner or operator shall follow the
applicable initial certification or recertification procedures in Sec.
97.1031 for each disapproved monitoring system.
Sec. 97.1033 Notifications concerning monitoring.
The designated representative of a CSAPR NOX Ozone
Season Group 3 unit shall submit written notice to the Administrator in
accordance with Sec. 75.61 of this chapter.
Sec. 97.1034 Recordkeeping and reporting.
(a) General provisions. The designated representative shall comply
with all recordkeeping and reporting requirements in paragraphs (b)
through (e) of this section, the applicable recordkeeping and reporting
requirements under Sec. 75.73 of this chapter, and the requirements of
Sec. 97.1014(a).
(b) Monitoring plans. The owner or operator of a CSAPR
NOX Ozone Season Group 3 unit shall comply with the
requirements of Sec. 75.73(c) and (e) of this chapter.
(c) Certification applications. The designated representative shall
submit an application to the Administrator within 45 days after
completing all initial certification or recertification tests required
under Sec. 97.1031, including the information required under Sec.
75.63 of this chapter.
(d) Quarterly reports. The designated representative shall submit
quarterly reports, as follows:
(1)(i) If a CSAPR NOX Ozone Season Group 3 unit is
subject to the Acid Rain Program or the CSAPR NOX Annual
Trading Program or if the owner or operator of such unit chooses to
report on an annual basis under this subpart, then the designated
representative shall meet the requirements of subpart H of part 75 of
this chapter (concerning monitoring of NOX mass emissions)
for such unit for the entire year and report the NOX mass
emissions data and heat input data for such unit for the entire year.
(ii) If a CSAPR NOX Ozone Season Group 3 unit is not
subject to the Acid Rain Program or the CSAPR NOX Annual
Trading Program, then the designated representative shall either:
(A) Meet the requirements of subpart H of part 75 of this chapter
for such unit for the entire year and report the NOX mass
emissions data and heat input data for such unit for the entire year in
accordance with paragraph (d)(1)(i) of this section; or
(B) Meet the requirements of subpart H of part 75 of this chapter
(including the requirements in Sec. 75.74(c) of this chapter) for such
unit for the control period and report the NOX mass
emissions data and heat input data (including the data described in
Sec. 75.74(c)(6) of this chapter) for such unit only for the control
period of each year.
(2) The designated representative shall report the NOX
mass emissions data and heat input data for a CSAPR NOX
Ozone Season Group 3 unit, in an electronic quarterly report in a
format prescribed by the Administrator, for each calendar quarter
indicated under paragraph (d)(1) of this section beginning by the
latest of:
(i) The calendar quarter covering May 1, 2021 through June 30,
2021;
(ii) The calendar quarter corresponding to the earlier of the date
of provisional certification or the applicable deadline for initial
certification under Sec. 97.1030(b); or
(iii) For a unit that reports on a control period basis under
paragraph (d)(1)(ii)(B) of this section, if the calendar quarter under
paragraph (d)(2)(ii) of this section does not include a month from May
through September, the calendar quarter covering May 1 through June 30
immediately after the calendar quarter under paragraph (d)(2)(ii) of
this section.
(3) The designated representative shall submit each quarterly
report to the Administrator within 30 days after the end of the
calendar quarter covered by the report. Quarterly reports shall be
submitted in the manner specified in Sec. 75.73(f) of this chapter.
(4) For CSAPR NOX Ozone Season Group 3 units that are
also subject to the Acid Rain Program, CSAPR NOX Annual
Trading Program, or CSAPR SO2 Group 1 Trading Program,
quarterly reports shall include the applicable data and information
required by subparts F through H of part 75 of this chapter as
applicable, in addition to the NOX mass emission data, heat
input data, and other information required by this subpart.
(5) The Administrator may review and conduct independent audits of
any quarterly report in order to determine whether the quarterly report
meets the requirements of this subpart and part 75 of this chapter,
including the requirement to use substitute data.
[[Page 23235]]
(i) The Administrator will notify the designated representative of
any determination that the quarterly report fails to meet any such
requirements and specify in such notification any corrections that the
Administrator believes are necessary to make through resubmission of
the quarterly report and a reasonable time period within which the
designated representative must respond. Upon request by the designated
representative, the Administrator may specify reasonable extensions of
such time period. Within the time period (including any such
extensions) specified by the Administrator, the designated
representative shall resubmit the quarterly report with the corrections
specified by the Administrator, except to the extent the designated
representative provides information demonstrating that a specified
correction is not necessary because the quarterly report already meets
the requirements of this subpart and part 75 of this chapter that are
relevant to the specified correction.
(ii) Any resubmission of a quarterly report shall meet the
requirements applicable to the submission of a quarterly report under
this subpart and part 75 of this chapter, except for the deadline set
forth in paragraph (d)(3) of this section.
(e) Compliance certification. The designated representative shall
submit to the Administrator a compliance certification (in a format
prescribed by the Administrator) in support of each quarterly report
based on reasonable inquiry of those persons with primary
responsibility for ensuring that all of the unit's emissions are
correctly and fully monitored. The certification shall state that:
(1) The monitoring data submitted were recorded in accordance with
the applicable requirements of this subpart and part 75 of this
chapter, including the quality assurance procedures and specifications;
(2) For a unit with add-on NOX emission controls and for
all hours where NOX data are substituted in accordance with
Sec. 75.34(a)(1) of this chapter, the add-on emission controls were
operating within the range of parameters listed in the quality
assurance/quality control program under appendix B to part 75 of this
chapter and the substitute data values do not systematically
underestimate NOX emissions; and
(3) For a unit that is reporting on a control period basis under
paragraph (d)(1)(ii)(B) of this section, the NOX emission
rate and NOX concentration values substituted for missing
data under subpart D of part 75 of this chapter are calculated using
only values from a control period and do not systematically
underestimate NOX emissions.
Sec. 97.1035 Petitions for alternatives to monitoring, recordkeeping,
or reporting requirements.
(a) The designated representative of a CSAPR NOX Ozone
Season Group 3 unit may submit a petition under Sec. 75.66 of this
chapter to the Administrator, requesting approval to apply an
alternative to any requirement of Sec. Sec. 97.1030 through 97.1034.
(b) A petition submitted under paragraph (a) of this section shall
include sufficient information for the evaluation of the petition,
including, at a minimum, the following information:
(1) Identification of each unit and source covered by the petition;
(2) A detailed explanation of why the proposed alternative is being
suggested in lieu of the requirement;
(3) A description and diagram of any equipment and procedures used
in the proposed alternative;
(4) A demonstration that the proposed alternative is consistent
with the purposes of the requirement for which the alternative is
proposed and with the purposes of this subpart and part 75 of this
chapter and that any adverse effect of approving the alternative will
be de minimis; and
(5) Any other relevant information that the Administrator may
require.
(c) Use of an alternative to any requirement referenced in
paragraph (a) of this section is in accordance with this subpart only
to the extent that the petition is approved in writing by the
Administrator and that such use is in accordance with such approval.
[FR Doc. 2021-05705 Filed 4-23-21; 8:45 am]
BILLING CODE 6560-50-P