[Federal Register Volume 88, Number 47 (Friday, March 10, 2023)]
[Rules and Regulations]
[Pages 14918-14920]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-04959]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 60
[EPA-HQ-OAR-2017-0355; FRL-10477-01-OAR]
RIN 2060-AV88
Delay of Submittal Date for State Plans Required Under the
Affordable Clean Energy Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule; delay of state plan submittal dates.
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SUMMARY: This action extends until April 15, 2024, the deadline for
state plans required to be submitted under the Clean Air Act (CAA) in
accordance with the Affordable Clean Energy (ACE) rule.
DATES: This regulation is effective March 10, 2023.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OAR-2017-0355. All documents in the docket are
listed on the https://www.regulations.gov/ website. Although listed,
some information is not publicly available, e.g., Confidential Business
Information (CBI) 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 https://www.regulations.gov/.
FOR FURTHER INFORMATION CONTACT: For questions about this document
contact Mr. Nicholas Swanson, Sector Policies and Programs Division
(D243-02), Office of Air Quality Planning and Standards, U.S.
Environmental Protection Agency, Research Triangle Park, North Carolina
27711; telephone number: (919) 541-4080; email address:
[email protected].
SUPPLEMENTARY INFORMATION: The EPA is taking this final action without
providing an opportunity for public comment, based on the good cause
exception in section 553(b)(3)(B) of the Administrative Procedure Act
(APA). The Agency has determined that seeking public comment is
impracticable, unnecessary, or contrary to the public interest. The
deadline for state plan submission has already passed, which
necessitates an extension, and it is important that the EPA grant that
extension as soon as possible to avoid confusion and uncertainty among
states and regulated industry as to what their obligations are.
I. Background and Extension of Deadlines
On July 8, 2019, the EPA promulgated the Affordable Clean Energy
(ACE) rule, under CAA section 111(d) (84 FR 32520, July 8, 2019). The
ACE rule is an emissions guideline that directs states to develop plans
that establish standards of performance for carbon dioxide
(CO2) emissions from existing coal-fired electricity
generating units. The ACE rule repealed and replaced the Clean Power
Plan, which the EPA had promulgated in 2015 (80 FR 64662, October 23,
2015).
Under CAA section 111(d)(1), the standards of performance in such a
state plan are required to achieve an amount of emission reduction that
the EPA determines can be achieved through application by the sources
of what the EPA determines to be the ``best system of emission
reduction . . . adequately demonstrated'' (BSER) for reducing emissions
of the pollutant in question from the sources in question. CAA section
111(a)(1). The ACE rule required states to submit plans to the EPA that
establish standards of performance within three years of the date that
the rule was published, that is, by July 8, 2022 (40 CFR 60.5745a).
Numerous state and municipal governments, power utilities,
renewable energy trade associations, public health and environmental
advocacy groups, and other parties filed petitions to review the ACE
rule before the United States Court of Appeals for the District of
Columbia Circuit (D.C. Circuit).
On January 19, 2021, following briefing and oral argument, the D.C.
Circuit issued a decision vacating the ACE rule. American Lung Ass'n v.
EPA, 985 F.3d 914 (D.C. Cir. 2021). The court based the vacatur on its
holding that the ACE rule's underlying legal interpretation, which was
that CAA
[[Page 14919]]
section 111(a)(1) and (d)(1) limited the BSER to control measures that
can be applied at and to the source to reduce emissions at the source,
is incorrect. Id. at 944-51. In light of this holding, the court did
not find it necessary to address, and did not address, other legal and
factual issues that petitioners raised concerning the ACE rule. The
court issued a partial mandate concerning this part of its decision on
March 5, 2021. American Lung Ass'n v. EPA, No. 19-1140, Order, Doc. Id.
No. 1888579 (D.C. Cir. March 5, 2021).
On October 2021, the U.S. Supreme Court granted petitions for
certiorari filed by several parties to the case, and, on June 30, 2022,
issued a decision reversing the D.C. Circuit on other grounds. West
Virginia v. EPA, 142 S.Ct. 2587 (2022). Specifically, the Court
reversed the D.C. Circuit's vacatur of the ACE rule's repeal of the
Clean Power Plan, holding that the Clean Power Plan was invalid under
the major questions doctrine. Id. at 2615-16.
On October 27, 2022, the D.C. Circuit responded to the Supreme
Court decision by issuing an order that, in relevant part, withdrew the
above-noted mandate, thereby reinstating the ACE rule. Because the EPA
had informed the court that it is presently undertaking a rulemaking
process to replace the ACE rule with a new rule governing greenhouse
gas emissions from existing fossil-fuel-fired power plants, the court
placed the case in abeyance pending completion of that rulemaking,
rather than proceed to consider the remaining factual and legal issues
raised by petitioners with respect to the ACE rule.
Thus, the ACE rule was vacated for the last 536 days of the three-
year period for state plan submittal, beginning on January 19, 2021,
and extending through July 8, 2022. The rule remained vacated through
October 26, 2022, and then was reinstated on October 27, 2022. Because
the ACE rule has been reinstated, states are once again under an
obligation to submit the state plans required under the rule. However,
because the rule's July 8, 2022, deadline has passed, and because
states had no reason to continue to work on their plans during the
period when the ACE rule was vacated, it is necessary to extend the
deadline for state plan submittal.
Accordingly, in this action, the EPA is extending the date of state
plan submittal by 536 days from the October 27, 2022, reinstatement of
the ACE rule. Thus, the ACE rule state plans are now due on April 15,
2024. As just noted, this 536-day period is the length of time that the
ACE rule was vacated from the January 19, 2021, D.C. Circuit decision
in American Lung Ass'n v. EPA to the rule's July 8, 2022, state plan
submittal due date.
The EPA is taking this final action without providing an
opportunity for public comment, based on the good cause exception in
section 553(b)(3)(B) of the Administrative Procedure Act (APA). The
Agency has determined that seeking public comment is impracticable,
unnecessary, or contrary to the public interest. The deadline for state
plan submission has already passed, which necessitates an extension,
and it is important that the EPA grant that extension as soon as
possible to avoid confusion and uncertainty among states and regulated
industry as to what their obligations are. In addition, granting the
extension as soon as possible is consistent with the public's interest
in timely implementation of public health and environmental
protections. See generally Wisconsin v. EPA, 933 F.3d 303, 312-20 (D.C.
Cir. 2019) (invalidating EPA rule for granting upwind states a period
of time that exceeded statutory limitations to reduce air pollutants
that contribute significantly to air quality problems in downwind
states). Although the ACE rule would achieve little emission reduction
(85 FR 32561 & table 3) the extended deadline provides certainty to the
public as to the timeline for submittal and implementation of state
plans to achieve those reductions and preserves the original, three-
year period for submittal as of the date of reinstatement of the rule.
Moreover, an extension equal to the number of days from when the
ACE rule was vacated to the rule's submittal date is logical and is
consistent with recent actions in which the D.C. Circuit granted a
compliance date extension for a rule that had been stayed or vacated
for a period of time. Michigan v. EPA, No. 98-1497, Order, Doc. Id. No.
540209 (D.C. Cir. Aug. 30, 2000) (extending the date for sources to
implement state implementation plan (SIP) revisions required under
EPA's NOX SIP call rule by the number of days the D.C.
Circuit had stayed the rule, so that sources will have the same number
of days for developing the SIP revisions as provided in the original
rule); ``Rulemaking To Amend Dates in Federal Implementation Plans
Addressing Interstate Transport of Ozone and Fine Particulate Matter:
Interim final rule with request for comment,'' 79 FR 71663 (December 3,
2014) (amending the Code of Federal Regulations to correctly reflect
the deadlines for sources to comply with the Cross-State Air Pollution
Rule, which deadlines were revised by the D.C. Circuit when it lifted
the previous stay of the rule and, accordingly, delayed the compliance
deadlines by three years).
For the same reasons, the EPA is also making today's action
effective immediately upon publication in the Federal Register. Section
553(d) of the APA provides that rules generally may not take effect
until 30 days after they are published in the Federal Register. The
purpose of this APA provision is to ``give affected parties a
reasonable time to adjust their behavior before the final rule takes
effect.'' Omnipoint Corp. v. Fed. Commc'n Comm'n, 78 F.3d 620, 630
(D.C. Cir. 1996); see also United States v. Gavrilovic, 551 F.2d 1099,
1104 (8th Cir. 1977) (quoting legislative history). However, when an
agency grants or recognizes an exemption or relieves a restriction,
affected parties do not need a reasonable time to adjust because the
effect is not adverse. Thus, APA section 553(d) allows an effective
date less than 30 days after publication for any rule that ``grants or
recognizes an exemption or relieves a restriction'' (see 5 U.S.C.
553(d)(1)). An accelerated effective date may also be appropriate for
``good cause'' pursuant to APA section 553(d)(3) where an agency can
``balance the necessity for immediate implementation against principles
of fundamental fairness which require that all affected persons be
afforded a reasonable amount of time to prepare for the effective date
of its ruling.'' Gavrilovic, 551 F.2d at 1105. The EPA has determined
that the state plan submittal date extension is effective upon
publication because it relieves a restriction, thereby providing
obligated parties with additional time to comply with the ACE rule's
requirements. There is additionally good cause for immediate
implementation of these requirements to avoid confusion and uncertainty
among states and regulated industry regarding the timing of their
compliance obligations.
It should be noted that the EPA has initiated a rulemaking process
to repeal the ACE rule and replace it with another emissions guideline
under CAA section 111(d) that would direct states to develop plans that
establish standards of performance for CO2 emissions from
existing coal-fired electricity generating units. The EPA expects to
propose this repeal and replacement rulemaking in the spring of 2023.
If finalized, states would no longer be required to submit state plans
to meet the requirements of ACE rule, and instead would be required to
submit state plans to meet the requirements of the replacement
emissions guideline, on the schedule established by that guideline.
[[Page 14920]]
II. Statutory and Executive Order Reviews
Additional information about these statutes and executive orders
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 action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.
B. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the PRA. In this action, the EPA is extending the date of state plan
submittal by the time that was lost due to the ACE rule being vacated.
Any burden for information collection requests is consistent with the
original ACE rule.
C. Regulatory Flexibility Act (RFA)
This action is not subject to the RFA. The RFA applies only to
rules subject to notice and comment rulemaking requirements under the
Administrative Procedure Act (APA), 5 U.S.C. 553, or any other statute
a ``rule for which the agency publishes a general notice of proposed
rulemaking pursuant to section 553(b) of this title, or any other law.
. . .'' 5 U.S.C. 601(2). The EPA is not publishing a notice of proposed
rulemaking for this rule because it is invoking the APA ``good cause''
exemption under 5 U.S.C. 553(b).
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain an unfunded mandate of $100 million or
more as described in UMRA, 2 U.S.C. 1531-1538, and does not
significantly or uniquely affect small governments.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It 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 does not have tribal implications as specified in
Executive Order 13175. In this action, the EPA is extending the date of
state plan submittal by the time that was lost due to the ACE rule
being vacated. Thus, Executive Order 13175 does not apply to this
action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
The EPA interprets Executive Order 13045 as applying 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 does not concern an environmental
health risk or safety risk.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act (NTTAA) and 1 CFR
Part 51
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629, February 16, 1994) directs
federal agencies, to the greatest extent practicable and permitted by
law, to make environmental justice part of their mission by identifying
and addressing, as appropriate, disproportionately high and adverse
human health or environmental effects of their programs, policies, and
activities on minority populations (people of color) and low-income
populations.
The EPA believes that this type of action does not concern human
health or environmental conditions and therefore cannot be evaluated
with respect to potentially disproportionate and adverse effects on
people of color, low-income populations and/or Indigenous peoples. In
this action, the EPA is extending the date of state plan submittal by
the time that was lost due to the ACE rule being vacated.
K. Congressional Review Act (CRA)
This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
III. Statutory Authority
The statutory authority for this action is provided by sections
111, 301, and 302 of the CAA as amended (42 U.S.C. 7411, 7601, 7602).
This action is also subject to section 553(b)(3)(B) of the APA (5
U.S.C. 553(b)(3)(B).
List of Subjects in 40 CFR Part 60
Environmental protection, Administrative practice and procedures,
Air pollution control, Reporting and recordkeeping requirements,
Greenhouse gases.
Michael Regan,
Administrator.
For the reasons set forth in the preamble, 40 CFR chapter I is
amended as follows:
PART 60--STANDARDS OF PERFORMANCE FOR NEW STATIONARY SOURCES
0
1. The authority citation for part 60 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart UUUUa--Emission Guidelines for Greenhouse Gas Emissions
From Existing Electric Utility Generating Units
0
2. Revise Sec. 60.5745a to read as follows:
Sec. 60.5745a What are the timing requirements for submitting my
plan?
You must submit a plan with the information required under Sec.
60.5740a by April 15, 2024.
[FR Doc. 2023-04959 Filed 3-9-23; 8:45 am]
BILLING CODE 6560-50-P