[Federal Register Volume 88, Number 145 (Monday, July 31, 2023)]
[Rules and Regulations]
[Pages 49295-49309]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-14180]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 97
[EPA-HQ-OAR-2021-0668; FRL-8670.2-03-OAR]
Federal ``Good Neighbor Plan'' for the 2015 Ozone National
Ambient Air Quality Standards; Response to Judicial Stays of SIP
Disapproval Action for Certain States
AGENCY: Environmental Protection Agency (EPA).
ACTION: Interim final rule; request for comment.
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SUMMARY: The Environmental Protection Agency (EPA) is taking interim
final action to stay, for emissions sources in Arkansas, Kentucky,
Louisiana, Mississippi, Missouri, and Texas only, the effectiveness of
the federal implementation plan (FIP) requirements established to
address the obligations of these and other states to mitigate
interstate air pollution with respect to the 2015 national ambient air
quality standards (NAAQS) for ozone (the Good Neighbor Plan). The EPA
is also revising certain other regulations to ensure that sources in
these states will continue to be subject to previously established
requirements to mitigate interstate air pollution with respect to other
ozone NAAQS while the Good Neighbor Plan's requirements are stayed.
These revisions will also ensure that the stay is limited to
requirements for which the EPA does not currently have authority to
implement a FIP pending judicial review. The stay and the associated
revisions to other regulations are being issued in response to judicial
orders that partially stay, pending judicial review, a separate,
earlier EPA action which disapproved certain state implementation plan
(SIP) revisions submitted by these and other states. Finally, for
states for which the Good Neighbor Plan's requirements are not being
stayed, the EPA is revising three near-term deadlines that are
incorrect as published in the Good Neighbor Plan.
DATES: This interim final rule is effective on August 4, 2023. Comments
on this rule must be received on or before August 30, 2023.
ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OAR-2021-0668, by any of the following methods:
Federal eRulemaking portal: https://www.regulations.gov
(our preferred method). Follow the online instructions for submitting
comments.
Mail: U.S. Environmental Protection Agency, EPA Docket
Center, Air and Radiation Docket, Mail Code 28221T, 1200 Pennsylvania
Avenue NW, Washington, DC 20460.
Hand delivery or courier: EPA Docket Center, WJC West
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004.
The Docket Center's hours of operations are 8:30 a.m.-4:30 p.m.,
Monday-Friday (except federal holidays).
Comments received may be posted without change to https://www.regulations.gov, including any personal information provided. For
detailed instructions on sending comments, see the ``Public
Participation'' heading of the SUPPLEMENTARY INFORMATION section of
this document.
FOR FURTHER INFORMATION CONTACT: David Lifland, Clean Air Markets
Division, Office of Atmospheric Protection, Office of Air and
Radiation, U.S. Environmental Protection Agency, Mail Code 6204A, 1200
Pennsylvania Avenue NW, Washington, DC 20460; telephone: 202-343-9151;
email: [email protected].
SUPPLEMENTARY INFORMATION:
I. General
A. Public Participation
Submit your written comments, identified by Docket ID No. EPA-HQ-
OAR-2021-0668, at https://www.regulations.gov (our preferred method),
or by the other methods identified in the ADDRESSES section. Once
submitted, comments cannot be edited or removed from the docket. The
EPA may publish any comment received to its public docket. Do not
submit to the EPA's docket at https://www.regulations.gov any
information you consider to be Confidential Business Information (CBI),
Proprietary Business Information (PBI), or other information whose
disclosure is restricted by statute. Multimedia submissions (audio,
video, etc.) must be accompanied by a written comment. The written
comment is considered the official comment and should include
discussion of all points you wish to make. The EPA will generally not
consider comments or comment contents located outside of the primary
submission (i.e., on the web, cloud, or other file sharing system).
Please visit https://www.epa.gov/dockets/commenting-epa-dockets for
additional submission methods; the full EPA public comment policy;
information about CBI, PBI, or multimedia submissions; and general
guidance on making effective comments.
B. Potentially Affected Entities
This action revises on an interim basis the Good Neighbor Plan,
which applies to electricity generating units (EGUs) and non-EGU
industrial sources. This action also revises other allowance trading
program regulations that apply to EGUs but not to non-EGU industrial
sources. The affected emissions sources are generally in the following
industry groups:
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North American
Industry
Industry group Classification
System (NAICS)
code
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Fossil Fuel Electric Power Generation................ 221112
Pipeline Transportation of Natural Gas............... 4862
Cement and Concrete Product Manufacturing............ 3273
Iron and Steel Mills and Ferroalloy Manufacturing.... 3311
Glass and Glass Product Manufacturing................ 3272
Basic Chemical Manufacturing......................... 3251
Petroleum and Coal Products Manufacturing............ 3241
Pulp, Paper, and Paperboard Mills.................... 3221
Metal Ore Mining..................................... 2122
Solid Waste Combustors and Incinerators.............. 562213
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The Good Neighbor Plan applies to emissions sources in Alabama,
Arkansas, California, Illinois, Indiana, Kentucky, Louisiana, Maryland,
Michigan, Minnesota, Mississippi, Missouri, Nevada, New Jersey, New
York, Ohio, Oklahoma, Pennsylvania, Texas, Utah, Virginia, West
Virginia, and Wisconsin. The portions of this action staying the Good
Neighbor Plan's requirements and revising other allowance trading
program regulations apply to sources in Arkansas, Kentucky, Louisiana,
Mississippi, Missouri, and Texas. The portions of this action revising
certain near-term deadlines under the Good Neighbor Plan apply to
emissions sources in the other listed states, for which the Good
Neighbor Plan's requirements are not being stayed.
The information provided in this section on potentially affected
entities is not intended to be exhaustive. If you have questions
regarding the applicability of this action to a
[[Page 49296]]
particular entity, consult the person listed in the FOR FURTHER
INFORMATION CONTACT section.
C. Statutory Authority
Statutory authority to issue the amendments finalized in this
action is provided by the same Clean Air Act (CAA) provisions that
provided authority to issue the regulations being amended: CAA section
110(a) and (c), 42 U.S.C. 7410(a) and (c) (SIP and FIP requirements,
including requirements for mitigation of interstate air pollution), and
CAA section 301, 42 U.S.C. 7601 (general rulemaking authority).
Statutory authority for the rulemaking procedures followed in this
action is provided by Administrative Procedure Act (APA) section 553, 5
U.S.C. 553.
II. Regulatory Revisions
A. Response to Stay Orders
1. Background and Summary
CAA section 110(a)(2)(D)(i)(I), also known as the ``good neighbor''
provision, requires each state's SIP to 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].'' The EPA often refers to
the emissions reduction requirements under this provision as ``good
neighbor obligations'' and submissions addressing these requirements as
``good neighbor SIPs.''
CAA section 110(c)(1) requires the EPA Administrator to promulgate
a FIP at any time within two years after the Administrator: (i) finds
that a state has failed to make a required SIP submission; (ii) finds a
SIP submission to be incomplete pursuant to CAA section 110(k)(1)(C);
or (iii) 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.
On February 13, 2023, the EPA published a final action fully or
partially disapproving good neighbor SIPs submitted by 21 states with
respect to the 2015 ozone NAAQS (the SIP Disapproval action).\1\
Consistent with the requirements of CAA section 110(c)(1), following
the SIP Disapproval action, on March 15, 2023, the EPA Administrator
signed a separate final action promulgating a FIP, which is referred to
here as the ``Good Neighbor Plan'' or the ``Rule.'' \2\ The Good
Neighbor Plan requires EGUs and non-EGU industrial sources in the 21
states whose good neighbor SIPs the EPA had disapproved in the SIP
Disapproval action (as well as two other states for which the EPA had
previously made findings of failure to submit good neighbor SIPs) to
reduce their emissions of nitrogen oxides (NOX) during the
May-September ``ozone season'' to address the states' good neighbor
obligations with respect to the 2015 ozone NAAQS.\3\ The Good Neighbor
Plan was published in the Federal Register on June 5, 2023, and its
requirements will be phased in over several years starting on the
Rule's August 4, 2023, effective date.
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\1\ Air Plan Disapprovals; Interstate Transport of Air Pollution
for the 2015 8-Hour Ozone National Ambient Air Quality Standards, 88
FR 9336 (February 13, 2023).
\2\ Federal ``Good Neighbor Plan'' for the 2015 Ozone National
Ambient Air Quality Standards, 88 FR 36654 (June 5, 2023).
\3\ See generally id. The Good Neighbor Plan's requirements for
EGUs apply in 22 of the 23 covered states, while the requirements
for non-EGU industrial sources apply in 20 of the 23 covered states.
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To implement the required emissions reductions from EGUs, the Good
Neighbor Plan uses an emissions allowance trading program. The EPA has
previously established three successive allowance trading programs for
EGUs' seasonal NOX emissions to address states' good
neighbor obligations with respect to the 1997 and 2008 ozone NAAQS--
referred to here as the CSAPR NOX Ozone Season ``Group 1,''
``Group 2,'' and ``Group 3'' trading programs--in the Cross-State Air
Pollution Rule (CSAPR),\4\ the CSAPR Update,\5\ and the Revised CSAPR
Update,\6\ respectively. The Good Neighbor Plan does not establish a
new emissions trading program, but instead modifies the Group 3 trading
program initially established in the Revised CSAPR Update and expands
the program to apply to EGUs in the additional states included in the
Good Neighbor Plan.
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\4\ Federal Implementation Plans: Interstate Transport of Fine
Particulate Matter and Ozone and Correction of SIP Approvals, 76 FR
48208 (August 8, 2011). CSAPR addressed states' good neighbor
obligations with respect to the 1997 ozone NAAQS, as well as the
1997 and 2006 NAAQS for fine particulate matter.
\5\ Cross-State Air Pollution Rule Update for the 2008 Ozone
NAAQS, 81 FR 74504 (October 26, 2016). The CSAPR Update addressed
states' good neighbor obligations with respect to the 2008 ozone
NAAQS.
\6\ Revised Cross-State Air Pollution Rule Update for the 2008
Ozone NAAQS, 86 FR 23054 (April 30, 2021). The Revised CSAPR Update
readdressed states' good neighbor obligations with respect to the
2008 ozone NAAQS in response to the remand of the CSAPR Update in
Wisconsin v. EPA, 938 F.3d 303 (D.C. Cir. 2019).
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In each of the successive rulemakings to address good neighbor
obligations with respect to an ozone NAAQS, the EPA has coordinated
compliance requirements by allowing the participation of a state's EGUs
in the most recent seasonal NOX trading program to also
satisfy any requirements to participate in a previous seasonal
NOX trading program established to address the state's good
neighbor obligations with respect to a less protective NAAQS.\7\
Because of the EPA's coordination efforts, for 19 of the states covered
by the Good Neighbor Plan as signed, including Arkansas, Kentucky,
Louisiana, Mississippi, Missouri, and Texas, participation of the
state's EGUs in the Group 3 trading program not only serves as the
mechanism for partially addressing the states' good neighbor
obligations with respect to the 2015 ozone NAAQS, but also serves as
the mechanism for addressing the states' good neighbor obligations with
respect to the 2008 ozone NAAQS.\8\ For eight of the states, including
Arkansas, Kentucky, Louisiana, Mississippi, and Missouri, participation
of the states' EGUs in the Group 3 trading program serves as the
mechanism for addressing the states' good neighbor obligations with
respect to the 1997 ozone NAAQS as well.\9\
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\7\ See, e.g., 81 FR 74509; 86 FR 23122.
\8\ See 88 FR 36844.
\9\ See id.
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Petitioners challenging the SIP Disapproval action have filed
motions in several courts for partial stays of that action with respect
to the SIPs submitted by particular states. Subsequent to the Good
Neighbor Plan's signature date, courts have granted some of these
motions. On May 1 and June 8, 2023, the U.S. Court of Appeals for the
Fifth Circuit issued orders staying the SIP Disapproval action with
respect to Louisiana, Mississippi, and Texas pending judicial review on
the merits.\10\ On May 25 and 26, 2023, the U.S. Court of Appeals for
the Eighth Circuit issued orders staying the SIP Disapproval action
with respect to Arkansas and Missouri pending judicial review on the
merits.\11\ On May 31, 2023, the U.S. Court of Appeals for the Sixth
Circuit issued an order administratively staying the SIP Disapproval
action with respect
[[Page 49297]]
to Kentucky pending review of Kentucky's stay motion.\12\
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\10\ Order, Texas v. EPA, No. 23-60069 (5th Cir. May 1, 2023);
Order, Texas v. EPA, No. 23-60069 (5th Cir. June 8, 2023). The
orders are available in the docket.
\11\ Order, Arkansas v. EPA, No. 23-1320 (8th Cir. May 25,
2023); Order, Missouri v. EPA, No. 23-1719 (8th Cir. May 26, 2023);
Order, Union Electric Co. v. EPA, No. 23-1751 (8th Cir. May 26,
2023). The orders are available in the docket.
\12\ Order, Kentucky v. EPA, No. 23-3216 (6th Cir. May 31,
2023), available in the docket.
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The EPA's authority under CAA section 110(c)(1) to establish the
Good Neighbor Plan's FIP requirements for the sources in a given state
is triggered by either the EPA's disapproval of the state's good
neighbor SIP with respect to the 2015 ozone NAAQS or the EPA's finding
of the state's failure to submit such a SIP. Accordingly, as a result
of the orders partially staying the SIP Disapproval action, the EPA
must act to ensure that the Good Neighbor Plan's requirements that were
issued to address good neighbor obligations with respect to the 2015
ozone NAAQS and that apply to either EGUs or non-EGU industrial sources
in each of the states for which a stay order has been issued will not
take effect while the stay of the SIP Disapproval action as to that
state remains in place. To ensure full compliance with the stay orders,
the EPA is also staying these requirements for sources in Indian
country located within the borders of a state covered by a stay order,
including areas of Indian country not subject to the state's SIP
authority.\13\ However, as noted earlier in this section, the Group 3
trading program is also the mechanism to implement requirements
previously established for EGUs in most of the covered states to
address the states' good neighbor obligations with respect to the 2008
ozone NAAQS and, in some cases, the 1997 ozone NAAQS. The SIP
Disapproval action was not a basis for the authority relied on by the
EPA in the previous rulemakings to establish emissions reduction
requirements with respect to the 2008 or 1997 ozone NAAQS, and the stay
orders do not affect these pre-existing requirements. The EPA's
authority for the rulemakings addressing the 2008 and 1997 ozone NAAQS
remains in place. Implementing the stay orders therefore requires the
EPA not only to stay the new requirements established for EGUs and non-
EGU industrial sources in the Good Neighbor Plan to address their
states' good neighbor obligations with respect to the 2015 ozone NAAQS,
but also to preserve status quo requirements established in previous
rulemakings to address their states' good neighbor obligations with
respect to the 2008 and 1997 ozone NAAQS.
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\13\ For sources in areas of Indian country not subject to the
SIP authority of the states within whose borders the areas of Indian
country are located, the EPA issued the Good Neighbor Plan's
requirements not under authority of CAA section 110(c)(1) but under
authority of CAA section 301(d)(4). See 88 FR 36690-92. However,
because the EPA exercised its authority under CAA section 301(d)(4)
only with respect to areas of Indian country within the borders of
states for which requirements were being issued under CAA section
110(c)(1), id. at 36692, these areas of Indian country are
indirectly implicated by the orders partially staying the SIP
Disapproval action for the respective states.
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Thus, the EPA in this action is revising the Good Neighbor Plan FIP
requirements and the regulations for the Group 2 trading program to
require the EGUs in each state covered by a stay order for the SIP
Disapproval action to participate in the Group 2 trading program
instead of the Group 3 trading program while the stay for that state
remains in place. A small number of conforming revisions are also being
made to the regulations for the Group 1 and Group 3 trading programs.
Together, the revisions preserve the status quo by making the trading
program requirements that will apply to the EGUs in each state for
which the SIP Disapproval action has been stayed substantively
identical to the trading program requirements that would have applied
to the EGUs in that state if the state had not been covered by the Good
Neighbor Plan. The revisions to the trading program regulations are
summarized in the remainder of this section and are discussed in detail
in section II.A.2 of this document.\14\
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\14\ The EPA has included documents in the docket that show all
the regulatory revisions being adopted in this action in redline-
strikeout format.
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First, for EGUs in Arkansas, Mississippi, Missouri, and Texas,
which before the Good Neighbor Plan were covered by the Group 2 trading
program as promulgated in the CSAPR Update rather than the Group 3
trading program, the revisions in this action restore the state
emissions budgets, unit-level allowance allocation provisions, and
banked allowance holdings that would have been in effect for the EGUs
in these states under the Group 2 trading program in the absence of the
Good Neighbor Plan.
Second, for EGUs in Kentucky and Louisiana, which before the Good
Neighbor Plan were already covered by the Group 3 trading program as
promulgated in the Revised CSAPR Update, the revisions in this action
modify the Group 2 and Group 3 trading program regulations so as to
establish under the Group 2 trading program the state emissions
budgets, unit-level allowance allocation provisions, and banked
allowance holdings that would have been in effect for the EGUs in these
states under the Group 3 trading program in the absence of the Good
Neighbor Plan.
Finally, for EGUs in all states that will now be covered by the
Group 2 trading program, the revisions in this action establish two
non-interchangeable subtypes of Group 2 allowances: CSAPR
NOX Ozone Season Original Group 2 allowances and CSAPR
NOX Ozone Season Expanded Group 2 allowances.\15\ EGUs in
Arkansas, Mississippi, Missouri, and Texas, which would have been
covered by the Group 2 trading program in the absence of the Good
Neighbor Plan, will use Original Group 2 allowances for compliance (as
will EGUs in Iowa, Kansas, and Tennessee, which are not covered by the
Good Neighbor Plan and remain in the Group 2 trading program). EGUs in
Kentucky and Louisiana, which would have been covered by the Group 3
trading program in the absence of the Good Neighbor Plan, will use
Expanded Group 2 allowances for compliance. The requirements to use
different subtypes of Group 2 allowances will preserve the status quo
distinction between these two sets of EGUs that already existed before
the Good Neighbor Plan and that continues to exist with the stay of the
Good Neighbor Plan as to these states, because the allowances that EGUs
in Kentucky and Louisiana have used for compliance under the Group 3
trading program as promulgated in the Revised CSAPR Update are not
interchangeable with the allowances that EGUs in the other states have
used for compliance under the Group 2 trading program.
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\15\ The non-interchangeability will be automatically enforced
through the use of different codes for the two subtypes of Group 2
allowances in the EPA's Allowance Management System, where all
allowance allocations, transfers, and deductions under the Group 2
trading program are recorded.
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The amendments to the regulatory requirements for EGUs and non-EGU
industrial sources that the EPA is finalizing in this action in
response to the stay orders are being made on an interim basis and will
remain in place while the judicial proceedings in which the stay orders
were issued remain pending. After the courts have reached final
determinations on the merits in those proceedings, the EPA will take
further action consistent with the final determinations. At the time of
this rulemaking, the EPA cannot predict how the Agency's future action
may affect the amendments being finalized in this action.
2. Specific Regulatory Revisions
The regulatory revisions to 40 CFR part 52 that are being adopted
in this action to implement the orders staying the SIP Disapproval
action for non-EGU industrial sources in Arkansas, Kentucky, Louisiana,
Mississippi, Missouri, and Texas and Indian country
[[Page 49298]]
within the borders of those states include the addition of text at
Sec. 52.40(c)(4) to stay the effectiveness of the Good Neighbor Plan's
requirements for non-EGU industrial sources at Sec. Sec. 52.41 through
52.46 and the remainder of Sec. 52.40 for states covered by stay
orders and the addition of parallel text in the state-specific subparts
of part 52 for each of the states.\16\
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\16\ See Sec. Sec. 52.184(b)(2) (Arkansas), 52.940(c)(2)
(Kentucky), 52.984(e)(2) (Louisiana), 52.1284(b)(2) (Mississippi),
52.1326(c)(2) (Missouri), and 52.2283(e)(2) (Texas).
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The regulatory revisions to 40 CFR parts 52 and 97 that are being
adopted in this action to implement the orders staying the SIP
Disapproval action for EGUs in Arkansas, Kentucky, Louisiana,
Mississippi, Missouri, and Texas and Indian country within the borders
of those states while ensuring continued implementation of requirements
established to address good neighbor obligations under rules
promulgated before the Good Neighbor Plan include the following:
The addition of text at Sec. 52.38(b)(2)(iii)(D) to stay
the effectiveness of the Good Neighbor Plan's requirements at Sec.
52.38(b)(2)(iii)(A) and (B) for EGUs to participate in the enhanced
Group 3 trading program for control periods after 2022 for states
covered by stay orders, the addition of text at Sec.
52.38(b)(2)(ii)(D) to require those EGUs to participate in the Group 2
trading program while that stay remains in place, and the addition of
parallel text in the state-specific subparts of part 52 for each of the
states.\17\
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\17\ See Sec. Sec. 52.184(a)(6) (Arkansas), 52.940(b)(6)
(Kentucky), 52.984(d)(6) (Louisiana), 52.1284(a)(6) (Mississippi),
52.1326(b)(6) (Missouri), and 52.2283(d)(6) (Texas).
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The revision of text at Sec. 52.38(b)(16)(ii)(B) to
provide for continued administration by the EPA after 2022, for states
covered by stay orders, of state Group 2 trading programs integrated
with the federal Group 2 trading program under approved SIP
revisions.\18\
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\18\ This revision ensures that Missouri's good neighbor
obligations with respect to the 2008 and 1997 NAAQS can continue to
be met through the participation of the state's EGUs in the state
Group 2 trading program adopted by the state and included in the SIP
revision that was approved by the EPA at 84 FR 66316 (December 4,
2019).
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The revision and addition of text at Sec. 97.802 to
define ``Original'' and ``Expanded'' subtypes of CSAPR NOX
Ozone Season Group 2 allowances, with conforming revisions and
additions at Sec. Sec. 97.502, 97.1002, 97.811(d) and (e), 97.821(e),
97.526(d) and (e), 97.826(d) through (f), and 52.38(b)(14).
The revision of text at Sec. Sec. 97.806(c), 97.824(a)
and (d), and 97.825(a) to provide for EGUs in states covered by stay
orders and covered by the Group 3 trading program before 2023 to use
Expanded Group 2 allowances for compliance and for EGUs in other states
covered by the Group 2 trading program to use Original Group 2
allowances for compliance, with conforming revisions at Sec.
52.38(b)(14).
The revision of text at Sec. 97.810(a) and (b) to provide
EGUs in states covered by stay orders the same amounts for state
emissions budgets, new unit set-asides, Indian country new unit set-
asides, and variability limits that would have applied under the Group
2 trading program or the Group 3 trading program, as applicable for the
state, in the absence of the Good Neighbor Plan.
The revision of text at Sec. 97.811(a)(2) and Sec.
97.821(e) to provide EGUs in states covered by stay orders the same
unit-level allocation and recordation provisions that would have
applied under the Group 2 trading program or the Group 3 trading
program, as applicable for the state, in the absence of the Good
Neighbor Plan.\19\
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\19\ For sources in states that were not covered by the Group 3
trading program before the Good Neighbor Plan, the applicable notice
of data availability (NODA) referenced in revised Sec.
97.811(a)(2)(i) as identifying the unit-level allocations of
Original Group 2 allowances to existing units will be the NODA
published at 81 FR 67190 (September 30, 2016) to implement the CSAPR
Update. For sources in states that were covered by the Group 3
trading program before the Good Neighbor Plan, the applicable NODA
referenced in revised Sec. 97.811(a)(2)(ii) as identifying the
unit-level allocations of Expanded Group 2 allowances to existing
units will be the NODA published at 86 FR 26719 (May 17, 2021) to
implement the Revised CSAPR Update.
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The revision of text at Sec. Sec. 97.830(b)(1) and
97.834(d)(2)(i) to provide EGUs in states that were covered by the
Group 3 trading program before 2023 the same deadlines for commencement
of monitoring and reporting activities that would have applied in the
absence of the Good Neighbor Plan.
The addition of text at Sec. 97.1026(e) to provide for
the conversion of banked 2021-2022 Group 3 allowances held by EGUs in
states that that were covered by the Group 3 trading program before
2023 into Expanded Group 2 allowances, with conforming revisions at
Sec. Sec. 97.502, 97.802, 97.1002, 97.824(c), and 52.38(b)(14).
The revision of text at Sec. Sec. 97.811(e)(1) and
97.826(e)(1) to exclude EGUs in states covered by stay orders from the
Good Neighbor Plan's provisions converting banked 2017-2022 Original
Group 2 allowances into Group 3 allowances and recalling previously
allocated 2023-2024 Original Group 2 allowances.
The revision of text at Sec. Sec. 97.816(c), 97.818(f),
and 97.820(c)(1)(iv), (c)(2)(iv), and (c)(5)(vi) to include the
transition of states from the Group 3 trading program to the Group 2
trading program in the provisions that allow the EPA to treat certain
certifications, applications, and notices of delegation as valid
despite the use of terminology intended for use under a different
trading program.
The revision of text at Sec. Sec. 97.526(e) and 97.826(f)
and the addition of text at Sec. 97.1026(f) to include the transition
of states from the Group 3 trading program to the Group 2 trading
program in the provisions that specify when and how an EGU in a state
that has moved between trading programs may use allowances from a later
trading program to meet surrender requirements for past control periods
under a previous trading program, with conforming revisions at Sec.
52.38(b)(14).
The revision of text at Sec. 97.526(d)(2)(ii) and
97.826(d)(3) to include the conversion of Group 3 allowances to
Expanded Group 2 allowances in the provisions that address future
conversions of allowances that were allocated for past control periods
under a given trading program to an EGU in a state no longer covered by
that trading program, where the allowances would have been included in
a previous conversion to a different type of allowances if the
allocations had been recorded before the previous conversion took
place.
B. Deadline Corrections
In addition to the regulatory revisions described in section II.A
of this document that are being made on an interim basis in response to
judicial stay orders, in this action the EPA is also permanently
revising three near-term deadlines that are incorrect in the Good
Neighbor Plan as published in the Federal Register. Unlike the
revisions described in section II.A of this document, these revisions
apply to emissions sources in the states whose coverage under the Good
Neighbor Plan is not affected by a stay order.
The first deadline correction concerns a quarterly reporting
deadline applicable to EGUs in states that were already covered by the
Group 2 trading program or the Group 3 trading program before the 2023
ozone season. As explained in the Good Neighbor Plan preamble, these
EGUs will participate in the revised Group 3 trading program for the
entire 2023 ozone season, subject to transitional provisions ensuring
that the only substantive new regulatory
[[Page 49299]]
requirements in 2023--specifically, the emissions control stringencies
reflected in the revised Group 3 trading program's state emissions
budgets and assurance levels--will take effect only after the Rule's
effective date.\20\ The Group 3 trading program's deadline for EGUs to
submit quarterly reports of emissions and operating data for the first
two months of the May-September ozone season in 2023 would normally
have been July 31, 2023 (the first business day at least 30 days after
the end of the second calendar quarter), but the timing of publication
in the Federal Register caused the Good Neighbor Plan's effective date
to fall four days after this date, on August 4, 2023. Accordingly, the
EPA is extending the deadline in 40 CFR 97.1034(d)(3) by which EGUs
subject to the Group 3 trading program must submit quarterly reports
for this calendar quarter to August 4, 2023.\21\ Further, because the
quarterly reports required under the Group 3 trading program are
consolidated with the quarterly reports required under several other
EPA programs, the EPA is also amending 40 CFR 97.1034(d)(4) to
similarly extend these EGUs' reporting deadlines under the other
programs.
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\20\ See 88 FR 36775-76; 88 FR 36811-13.
\21\ All the EGUs that are required under the Good Neighbor Plan
to submit quarterly reports for the second calendar quarter of 2023
already participate in either the Group 2 trading program or the
Group 3 trading program and therefore have already installed and
certified the necessary monitoring systems. The data elements of the
quarterly reports that these EGUs are required to submit under the
Group 3 trading program for their ozone season emissions in 2023 are
identical to the data elements of the quarterly reports that the
EGUs were required to submit under the Group 2 trading program or
Group 3 trading program for their ozone season emissions in 2022 and
previous years.
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The second deadline correction concerns a quarterly reporting
deadline applicable to EGUs in states that were not already covered by
the Group 2 trading program or the Group 3 trading program before the
2023 ozone season. EGUs in these states will begin to participate in
the Group 3 trading program as of the Good Neighbor Plan's effective
date, and the regulations as published in the Rule correctly provide
that most of these EGUs will be subject to the program's monitoring and
reporting requirements for emissions occurring on and after August 4,
2023.\22\ However, a separate regulatory provision incorrectly
identifies the ending date of the first calendar quarter for which
these EGUs must submit quarterly reports under the Group 3 trading
program as June 30, 2023. The EPA is amending 40 CFR
97.1034(d)(2)(i)(C) to indicate the correct quarterly ending date of
September 30, 2023. The deadline for EGUs to submit quarterly reports
for this calendar quarter will be October 30, 2023.
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\22\ See 40 CFR 97.1030(b)(1)(iii). Most EGUs covered under the
Good Neighbor Plan that do not already participate in the Group 2
trading program or the Group 3 trading program are already subject
to closely related monitoring and reporting requirements under other
EPA programs and consequently have already installed and certified
the monitoring systems necessary to monitor and report under the
Group 3 trading program. For the small number of EGUs in these
states that have not already been required to install and certify
the necessary monitoring systems under another EPA program, the
deadline to begin monitoring and reporting under the Group 3 trading
program will be either January 31, 2024 (180 days after the Rule's
effective date), for units that report on a year-round basis, or May
1, 2024, for units that report on an ozone season-only basis. See 40
CFR 97.1030(b)(1)(iv) and (b)(3).
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The third deadline correction concerns a deadline for submission of
initial notifications applicable to furnaces in the Glass and Glass
Product Manufacturing industry that are subject to requirements under
the Good Neighbor Plan. Because of a typographical error in the
document submitted for publication in the Federal Register,the Rule as
published incorrectly specifies a submission deadline of June 23, 2023
(the first business day at least 18 days after the Rule's publication
date). The EPA is amending 40 CFR 52.44(j)(2) to specify the intended
submission deadline of December 4, 2023 (the first business day at
least 180 days after the Rule's publication date).
III. Rulemaking Procedures and Findings of Good Cause
As noted in section I.C of this document, the EPA's authority for
the rulemaking procedures followed in this action is provided by APA
section 553.\23\ In general, an agency issuing a rule under the
procedures in APA section 553 must provide prior notice and an
opportunity for public comment, but APA section 553(b)(B) includes an
exemption from notice-and-comment requirements ``when the agency for
good cause finds (and incorporates the finding and a brief statement of
reasons therefor in the rule issued) that notice and public procedure
thereon are impracticable, unnecessary, or contrary to the public
interest.'' This action is being issued as an interim final rule
without prior notice or opportunity for public comment because the EPA
finds that the APA ``good cause'' exemption from notice-and-comment
requirements applies here.
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\23\ Under CAA section 307(d)(1)(B), the EPA's revision of a FIP
under CAA section 110(c) would normally be subject to the rulemaking
procedural requirements of CAA section 307(d), including notice-and-
comment procedures, but CAA section 307(d) does not apply ``in the
case of any rule or circumstance referred to in subparagraphs (A) or
(B) of [APA section 553(b)].'' CAA section 307(d)(1).
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The EPA finds good cause to forgo notice-and-comment procedures
because such procedures are both impracticable and unnecessary for this
action. First, following notice-and-comment procedures is impracticable
for the portions of this action responding to the stay orders because
such procedures would require more time than is available. The earliest
stay order to which the EPA must respond in this action was issued on
May 1, 2023, just over three months before the Good Neighbor Plan's
upcoming effective date on August 4, 2023, which is the date by which
this action responding to the stay order must be effective. The most
recent of the subsequent stay orders to which the EPA's action must
also respond was issued less than two months before the Rule's upcoming
effective date. The EPA does not consider even the maximum three-month
period sufficient time in which to conduct a notice-and-comment
rulemaking encompassing the time to, at a minimum, evaluate possible
actions for responding to the stay orders, prepare and publish a
proposal describing the action identified through that evaluation, wait
for comments on the proposal, review the comments received, and prepare
and publish a final rule and response to comments. It is not possible
for all of these steps to be completed within a three-month period for
this action.
Second, following notice-and-comment procedures is unnecessary for
this action. With respect to the portions of this action that respond
to the stay orders, the EPA has no discretion as to the regulatory
revisions that stay the effectiveness of the Good Neighbor Plan's
requirements for sources in the states covered by stay orders. While
some superficial discretion exists concerning the specific design of
the regulatory revisions that provide an alternate mechanism for EGUs
in states covered by the stay orders to continue to address the states'
good neighbor obligations with respect to the 2008 and 1997 NAAQS, no
discretion exists as to the function of that design, which is to
maintain the status quo by implementing requirements that are
substantively identical to the pre-existing requirements that would
have continued to apply in the absence of the Good Neighbor Plan. The
EPA's design for the regulatory revisions in this action accomplishes
this function. Taking comment on the portions of the action that
respond to the stay orders so as to allow the public to advocate for
not staying the Good Neighbor Plan's requirements, not adopting
regulatory
[[Page 49300]]
revisions needed to implement requirements that are substantively
identical to the requirements that would have applied in the absence of
the Good Neighbor Plan, or adopting superficially different regulatory
revisions to accomplish the same function would serve no purpose and is
therefore unnecessary.\24\
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\24\ To illustrate, the EPA could in theory preserve the status
quo for EGUs in Kentucky and Louisiana by promulgating an entire set
of trading program regulations under 40 CFR part 97 replicating the
entire set of Group 3 trading program regulations as promulgated in
the Revised CSAPR Update without the subsequent revisions
promulgated in the Good Neighbor Plan to address states' good
neighbor obligations with respect to the 2015 ozone NAAQS. However,
the outcome would be substantively identical to the approach the EPA
is taking here.
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With respect to the portions of this action that correct deadlines,
each of the deadlines that is incorrect as published in the Good
Neighbor Plan precedes the Rule's actual effective date and therefore
could not be implemented as published. In the cases of the two
deadlines that were incorrect as published because of the timing of the
Rule's publication, the amended deadlines of August 4, 2023, and
September 30, 2023, are the earliest possible revised deadlines that
are both feasible in light of the Good Neighbor Plan's actual effective
date and also consistent with the normal timing and sequence of
monitoring and reporting activities under the Group 3 trading program
regulations. In the case of the deadline that was incorrect as
published because of a typographical error, the amended deadline of
December 4, 2023, is the same deadline that has already been published
in parallel provisions of the Good Neighbor Plan's regulations for
other non-EGU industrial sources.\25\ Because both the need for the
corrections and the specific corrections that should be made are clear,
taking comment to allow the public to advocate for not correcting the
deadlines or for making different corrections would serve no purpose
and is therefore unnecessary.
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\25\ See 40 CFR 52.42(g)(2); 40 CFR 52.43(h)(2).
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The regulatory revisions made in this action will take effect on
August 4, 2023, the effective date of the Good Neighbor Plan. In
general, an agency issuing a rule under APA section 553 must provide
for a period of at least 30 days between the rule's dates of
publication and effectiveness, but APA section 553(d) includes several
exceptions. Under APA section 553(d)(1), an exception applies to a rule
that ``grants or recognizes an exemption or relieves a restriction.''
Because the portions of this action that stay the effectiveness of the
Good Neighbor Plan's requirements for the sources in certain states
grant an exemption (on an interim basis while the stay remains in
place), the normal 30-day minimum period between this action's dates of
publication and effectiveness is not required. The EPA is making these
portions of the action effective as of the Good Neighbor Plan's
effective date to comply with the stay orders.
Under APA section 553(d)(3), the normal 30-day minimum period
between a rule's dates of publication and effectiveness does not apply
``as otherwise provided by the agency for good cause found and
published with the rule.'' With respect to the portions of this action
that provide an alternate mechanism for EGUs in states covered by the
stay orders to continue to address the states' good neighbor
obligations under rules issued before the Good Neighbor Plan and the
portions of this action that correct certain deadlines, the EPA finds
good cause to make the regulatory revisions effective on August 4,
2023, the effective date of the Good Neighbor Plan, even though that
date is less than 30 days after the publication date of this action,
for the following reasons. First, the regulatory revisions that
facilitate continued implementation of requirements addressing good
neighbor obligations under previous rules benefit the public by
avoiding the possibility that interruption of the requirements would
cause air quality degradation. Second, both these regulatory revisions
and the regulatory revisions that correct deadlines benefit the
regulated community by clarifying the regulatory requirements that
apply in light of the stay orders and the timing of publication of the
Good Neighbor Plan. Finally, making the regulatory revisions effective
less than 30 days after this action's publication date does not violate
the purpose of the normal requirement for a 30-day minimum period,
which is ``to give affected parties a reasonable time to adjust their
behavior before the final rule takes effect.'' \26\ The regulatory
revisions in this action facilitating continued implementation of
previously applicable requirements impose no requirements on any source
that differ substantively from the requirements that would have applied
to that source in the absence of the Good Neighbor Plan, and the
deadline corrections in this action extend the deadlines in the Rule as
published. Thus, no affected party needs time to adjust its behavior in
preparation for these regulatory revisions.
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\26\ Omnipoint Corp. v. FCC, 78 F.3d 620, 630 (D.C. Cir. 1996).
---------------------------------------------------------------------------
IV. Request for Comment
As explained in section III of this document, the EPA finds good
cause to take this interim final action without prior notice or
opportunity for public comment. However, the EPA is providing an
opportunity for comment on the content of the amendments. The EPA
requests comment on this rule. The EPA is not reopening for comment any
provisions of the Good Neighbor Plan, 40 CFR part 52, or 40 CFR part 97
other than the specific provisions that are expressly added or amended
in this rule.
V. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at www.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review, as Amended by
Executive Order 14094: Modernizing Regulatory Review
This action is not a significant regulatory action as defined in
Executive Order 12866, as amended by Executive Order 14094, and was
therefore not subject to a requirement for Executive Order 12866
review.
B. Paperwork Reduction Act (PRA)
This action does not impose any new information collection burden
under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. The
Office of Management and Budget (OMB) has previously approved the
information collection activities that will apply to the EGUs affected
by this action and has assigned OMB control numbers 2060-0258 and 2060-
0667. Additional information collection activities that will apply to
EGUs and non-EGU industrial sources under the Good Neighbor Plan have
been submitted to OMB for approval in conjunction with that rulemaking.
This action makes no changes to the information collection activities
under the previously approved information collection requests (ICRs) or
the additional information collection activities for which approval has
been requested in the Good Neighbor Plan's ICRs.
C. Regulatory Flexibility Act (RFA)
This action is not subject to the Regulatory Flexibility Act (RFA),
5.U.S.C. 601-612. 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. This rule is not subject to
notice-and-comment requirements because the
[[Page 49301]]
Agency has invoked the APA ``good cause'' exemption under 5 U.S.C.
553(b).
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
the Unfunded Mandates Reform Act (UMRA), 2 U.S.C. 1531-1538, and does
not significantly or uniquely affect small governments. This action
imposes no enforceable duty on any state, local, or tribal governments
or the private sector. This action simply stays the effectiveness of
certain regulatory requirements for certain sources on an interim basis
in response to procedural court orders while ensuring that previously
applicable regulatory requirements remain in effect.
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. This action simply stays the effectiveness of
certain regulatory requirements for certain sources on an interim basis
in response to procedural court orders while ensuring that previously
applicable regulatory requirements remain in effect. 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 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 responds to court
orders issued by the U.S. Courts of Appeals for the Fifth, Sixth, and
Eighth Circuits and the EPA lacks discretion to deviate from those
orders. The EPA's assessment of health and safety risks for the action
establishing the requirements that are being stayed is discussed in
Chapter 5 of the regulatory impact analysis for the Good Neighbor
Plan.\27\
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\27\ See Regulatory Impact Analysis for the Final Federal Good
Neighbor Plan Addressing Regional Ozone Transport for the 2015 Ozone
National Ambient Air Quality Standard (March 2023) at 197-257,
available in the docket.
---------------------------------------------------------------------------
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)
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/or Indigenous
peoples) and low-income populations.
This action responds to court orders issued by the U.S. Courts of
Appeals for the Fifth, Sixth, and Eighth Circuits and the EPA lacks
discretion to deviate from those orders. The EPA's assessment of
environmental justice considerations for the action establishing the
requirements that are being stayed is discussed in section VII of the
Good Neighbor Plan preamble.\28\
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\28\ See 88 FR 36844-46.
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K. Congressional Review Act (CRA)
This action is subject to the Congressional Review Act (CRA), 5
U.S.C. 801-808, and the EPA will submit a rule report to each House of
the Congress and to the Comptroller General of the United States. The
CRA allows the issuing agency to make a rule effective sooner than
otherwise provided by the CRA if the agency makes a good cause finding
that notice and comment rulemaking procedures are impracticable,
unnecessary, or contrary to the public interest (5 U.S.C. 808(2)). The
EPA has made a good cause finding for this rule as discussed in section
III of this document, including the basis for that finding.
L. Judicial Review
CAA section 307(b)(1) governs judicial review of final actions by
the EPA. This section provides, in part, that petitions for review must
be filed in the U.S. Court of Appeals for the District of Columbia
Circuit (D.C. Circuit): (i) when the agency action consists of
``nationally applicable regulations promulgated, or final actions
taken, by the Administrator,'' or (ii) when such action is locally or
regionally applicable, but ``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
determination.'' For locally or regionally applicable final actions,
the CAA reserves to the EPA complete discretion to decide whether to
invoke the exception in (ii).\29\
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\29\ Sierra Club v. EPA, 47 F.4th 738, 745 (D.C. Cir. 2022)
(``EPA's decision whether to make and publish a finding of
nationwide scope or effect is committed to the agency's discretion
and thus is unreviewable''); Texas v. EPA, 983 F.3d 826, 834-35 (5th
Cir. 2020).
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This rulemaking is ``nationally applicable'' within the meaning of
CAA section 307(b)(1). In this action, in response to court orders, the
EPA is amending on an interim basis the Good Neighbor Plan,\30\ which
the EPA developed by applying a uniform legal interpretation and
common, nationwide analytical methods to address the requirements of
CAA section 110(a)(2)(D)(i)(I) concerning interstate transport of
pollution (i.e., ``good neighbor'' requirements) for the 2015 ozone
NAAQS. Based on that nationwide analysis, the Good Neighbor Plan
established FIP requirements for sources in 23 states located across
eight EPA Regions and ten federal judicial circuits. Given that this
action amends an action implementing the good neighbor requirements of
CAA section 110(a)(2)(D)(i)(I) in a large number of states located
across the country and given the interdependent nature of interstate
pollution transport and the common core of knowledge and analysis
involved in promulgating the FIP requirements, this is a ``nationally
applicable'' action within the meaning of CAA section 307(b)(1).
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\30\ The Good Neighbor Plan is nationally applicable or based on
a determination of nationwide scope or effect found and published by
the EPA. See 88 FR 36859-60.
---------------------------------------------------------------------------
In the alternative, to the extent a court finds this action to be
locally or regionally applicable, the Administrator is exercising the
complete discretion afforded to him under the CAA to make and publish a
finding that this action is based on a determination of
[[Page 49302]]
``nationwide scope or effect'' within the meaning of CAA section
307(b)(1). In this action, in response to court orders, the EPA is
amending on an interim basis the Good Neighbor Plan, an action in which
the EPA interpreted and applied section 110(a)(2)(D)(i)(I) of the CAA
for the 2015 ozone NAAQS based on a common core of nationwide policy
judgments and technical analysis concerning the interstate transport of
pollutants throughout the continental United States. Based on that
nationwide analysis, the Good Neighbor Plan established FIP
requirements for sources in 23 states located across eight EPA Regions
and ten federal judicial circuits. This action adjusts temporarily the
scope and operation of the Good Neighbor Plan for six states in
response to court orders, and also implements necessary measures to
ensure the status quo is maintained with respect to existing
obligations under previously issued regulations (that were themselves
nationally applicable or based on a determination of nationwide scope
or effect found and published by the EPA \31\). This action also
adjusts certain deadlines for all states that remain covered by the
Good Neighbor Plan.
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\31\ See 86 FR 23163-64; 81 FR 74585-86.
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The Administrator finds that, like the Good Neighbor Plan which it
amends, this action is a matter on which national uniformity in
judicial resolution of any petitions for review is desirable, to take
advantage of the D.C. Circuit's administrative law expertise, and to
facilitate the orderly development of the basic law under the Act. The
Administrator also finds that consolidated review of this action in the
D.C. Circuit will avoid piecemeal litigation in the regional circuits,
further judicial economy, and eliminate the risk of inconsistent
results for different states, and that a nationally consistent approach
to the CAA's mandate concerning interstate transport of ozone pollution
constitutes the best use of Agency resources.
For these reasons, this final action is nationally applicable or,
alternatively, the Administrator is exercising the complete discretion
afforded to him by the CAA and finds that this final action is based on
a determination of nationwide scope or effect for purposes of CAA
section 307(b)(1) and is publishing that finding in the Federal
Register. Under CAA section 307(b)(1), petitions for judicial review of
this action must be filed in the D.C. Circuit by September 29, 2023.
List of Subjects
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 97
Environmental protection, Administrative practice and procedure,
Air pollution control, Electric power plants, Nitrogen oxides, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Sulfur
dioxide.
Michael S. Regan,
Administrator.
For the reasons stated in the preamble, parts 52 and 97 of title 40
of the Code of Federal Regulations are amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart A--General Provisions
0
2. Amend Sec. 52.38 by:
0
a. Adding paragraphs (b)(2)(ii)(D) and (b)(2)(iii)(D);
0
b. In paragraph (b)(11)(iii)(D), removing ``and'' after the semicolon;
0
c. In paragraph (b)(14)(i)(F), removing ``and'' after the semicolon;
0
d. Revising paragraph (b)(14)(i)(G);
0
e. Adding paragraph (b)(14)(i)(H);
0
f. Revising paragraphs (b)(14)(iii) introductory text and
(b)(14)(iii)(B);
0
g. In paragraph (b)(14)(iii)(C), adding ``Original'' before ``Group 2
allowances'' each time it appears; and
0
h. In paragraph (b)(16)(ii)(B), adding ``and not listed in paragraph
(b)(2)(ii)(D)(2) of this section'' before ``and any control period''.
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?
* * * * *
(b) * * *
(2) * * *
(ii) * * *
(D) Notwithstanding any other provision of this part:
(1) While a stay under paragraph (b)(2)(iii)(D)(1) of this section
is in effect for the sources in a State and Indian country located
within the borders of such State with regard to emissions occurring in
a control period in a given year--
(i) The provisions of subpart EEEEE of part 97 of this chapter (as
modified in any approval of a SIP revision for such State by the
Administrator under paragraph (b)(8) of this section) or the provisions
of a SIP revision approved for such State by the Administrator under
paragraph (b)(9) of this section, if any, shall apply to the sources in
such State and areas of Indian country within the borders of such State
subject to the State's SIP authority, and the provisions of subpart
EEEEE of part 97 of this chapter shall apply to the sources in areas of
Indian country within the borders of such State not subject to the
State's SIP authority, with regard to emissions occurring in such
control period; and
(ii) Such State shall be deemed to be listed in this paragraph
(b)(2)(ii)(D)(1) for purposes of this part and part 97 of this chapter.
(2) While a stay under paragraph (b)(2)(iii)(D)(2) of this section
is in effect for the sources in a State and Indian country located
within the borders of such State with regard to emissions occurring in
a control period in a given year--
(i) The provisions of subpart EEEEE of part 97 of this chapter (as
modified in any approval of a SIP revision for such State by the
Administrator under paragraph (b)(8) of this section) or the provisions
of a SIP revision approved for such State by the Administrator under
paragraph (b)(9) of this section, if any, shall apply to the sources in
such State and areas of Indian country within the borders of such State
subject to the State's SIP authority, and the provisions of subpart
EEEEE of part 97 of this chapter shall apply to the sources in areas of
Indian country within the borders of such State not subject to the
State's SIP authority, with regard to emissions occurring in such
control period; and
(ii) Such State shall be deemed to be listed in this paragraph
(b)(2)(ii)(D)(2) for purposes of this part and part 97 of this chapter.
(iii) * * *
(D) Notwithstanding any other provision of this part:
(1) The effectiveness of paragraph (b)(2)(iii)(A) of this section
is stayed for sources in Kentucky and Louisiana and Indian country
located within the borders of such States with regard to emissions
occurring in 2023 and thereafter. While a stay under this paragraph
(b)(2)(iii)(D)(1) is in effect for a State, such State shall be deemed
not
[[Page 49303]]
to be listed in paragraph (b)(2)(iii)(A) of this section for purposes
of part 97 of this chapter for a control period after 2022.
(2) The effectiveness of paragraph (b)(2)(iii)(B) of this section
is stayed for sources in Arkansas, Mississippi, Missouri, and Texas and
Indian country located within the borders of such States with regard to
emissions occurring in 2023 and thereafter. While a stay under this
paragraph (b)(2)(iii)(D)(2) is in effect for a State, such State shall
be deemed not to be listed in paragraph (b)(2)(iii)(B) of this section
for purposes of part 97 of this chapter.
* * * * *
(14) * * *
(i) * * *
(G) The provisions in Sec. 97.526(e) of this chapter or Sec.
97.826(f) of this chapter (concerning the use of CSAPR NOX
Ozone Season Original Group 2 allowances, CSAPR NOX Ozone
Season Expanded 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 Expanded Group 2 allowances or CSAPR
NOX Ozone Season Group 3 allowances to satisfy requirements
to hold CSAPR NOX Ozone Season Original Group 2 allowances);
and
(H) The provisions in Sec. Sec. 97.806(c), 97.824(a) and (d), and
97.825(a) of this chapter (concerning the situations for which
compliance requirements are defined in terms of either CSAPR
NOX Ozone Season Original Group 2 allowances or CSAPR
NOX Ozone Season Expanded Group 2 allowances).
* * * * *
(iii) Notwithstanding any discontinuation pursuant to paragraphs
(b)(2)(i)(B), (b)(2)(ii)(B) or (C), (b)(2)(iii)(D)(1), or (b)(13)(i) of
this section of the applicability of subpart BBBBB, EEEEE, or GGGGG of
part 97 of this chapter to the sources in a State and areas of Indian
country within the borders of the State subject to the State's SIP
authority with regard to emissions occurring in any control period, the
following provisions shall continue to apply with regard to all CSAPR
NOX Ozone Season Group 1 allowances, CSAPR NOX
Ozone Season Group 2 allowances, and CSAPR NOX Ozone Season
Group 3 allowances at any time allocated for any control period to any
source or other entity in the State and areas of Indian country within
the borders of the State subject to the State's SIP authority and shall
apply to all entities, wherever located, that at any time held or hold
such allowances:
* * * * *
(B) The provisions of Sec. Sec. 97.526(d), 97.826(d) and (e), and
97.1026(e) of this chapter (concerning the conversion of unused CSAPR
NOX Ozone Season Group 1 allowances allocated for specified
control periods to different amounts of CSAPR NOX Ozone
Season Original Group 2 allowances or CSAPR NOX Ozone Season
Group 3 allowances, the conversion of unused CSAPR NOX Ozone
Season Original Group 2 allowances allocated for specified control
periods to different amounts of CSAPR NOX Ozone Season Group
3 allowances, and the conversion of unused CSAPR NOX Ozone
Season Group 3 allowances allocated for specified control periods to
CSAPR NOX Ozone Season Expanded Group 2 allowances); and
* * * * *
0
3. Amend Sec. 52.40 by adding paragraph (c)(4) to read as follows:
Sec. 52.40 What are the requirements of the Federal Implementation
Plans (FIPs) relating to ozone season emissions of nitrogen oxides from
sources not subject to the CSAPR ozone season trading program?
* * * * *
(c) * * *
(4) Notwithstanding any other provision of this part, the
effectiveness of paragraphs (a) and (b), (c)(1) through (3), and (d)
through (g) of this section and Sec. Sec. 52.41, 52.42, 52.43, 52.44,
52.45, and 52.46 is stayed for sources located in Arkansas, Kentucky,
Louisiana, Mississippi, Missouri, and Texas, including Indian country
located within the borders of such States.
* * * * *
Sec. 52.44 [Amended]
0
4. Amend Sec. 52.44(j)(2) by removing ``June 23, 2023'' and adding in
its place ``December 4, 2023''.
Subpart E--Arkansas
0
5. Amend Sec. 52.184 by:
0
a. Adding paragraph (a)(6); and
0
b. Redesignating paragraph (b) as paragraph (b)(1) and adding paragraph
(b)(2).
The additions read as follows:
Sec. 52.184 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
(a) * * *
(6) Notwithstanding any other provision of this part, the
effectiveness of paragraph (a)(3) of this section is stayed with regard
to emissions occurring in 2023 and thereafter, provided that while such
stay remains in effect, the provisions of paragraph (a)(2) of this
section shall apply with regard to such emissions.
(b) * * *
(2) Notwithstanding any other provision of this part, the
effectiveness of paragraph (b)(1) of this section is stayed.
Subpart S--Kentucky
0
6. Amend Sec. 52.940 by:
0
a. Adding paragraph (b)(6); and
0
b. Redesignating paragraph (c) as paragraph (c)(1) and adding paragraph
(c)(2).
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) * * *
(6) Notwithstanding any other provision of this part, the
effectiveness of paragraph (b)(3) of this section is stayed with regard
to emissions occurring in 2023 and thereafter, provided that while such
stay remains in effect, the provisions of paragraph (b)(2) of this
section shall apply with regard to such emissions.
(c) * * *
(2) Notwithstanding any other provision of this part, the
effectiveness of paragraph (c)(1) of this section is stayed.
Subpart T--Louisiana
0
7. Amend Sec. 52.984 by:
0
a. Adding paragraph (d)(6); and
0
b. Redesignating paragraph (e) as paragraph (e)(1) and adding paragraph
(e)(2).
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) * * *
(6) Notwithstanding any other provision of this part, the
effectiveness of paragraph (d)(3) of this section is stayed with regard
to emissions occurring in 2023 and thereafter, provided that while such
stay remains in effect, the provisions of paragraph (d)(2) of this
section shall apply with regard to such emissions.
(e) * * *
(2) Notwithstanding any other provision of this part, the
effectiveness of paragraph (e)(1) of this section is stayed.
[[Page 49304]]
Subpart Z--Mississippi
0
8. Amend Sec. 52.1284 by:
0
a. Adding paragraph (a)(6); and
0
b. Redesignating paragraph (b) as paragraph (b)(1) and adding paragraph
(b)(2).
The additions read as follows:
Sec. 52.1284 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
(a) * * *
(6) Notwithstanding any other provision of this part, the
effectiveness of paragraph (a)(3) of this section is stayed with regard
to emissions occurring in 2023 and thereafter, provided that while such
stay remains in effect, the provisions of paragraph (a)(2) of this
section shall apply with regard to such emissions.
(b) * * *
(2) Notwithstanding any other provision of this part, the
effectiveness of paragraph (b)(1) of this section is stayed.
Subpart AA--Missouri
0
9. Amend Sec. 52.1326 by:
0
a. Adding paragraph (b)(6); and
0
b. Redesignating paragraph (c) as paragraph (c)(1) and adding paragraph
(c)(2).
The additions read as follows:
Sec. 52.1326 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
* * * * *
(b) * * *
(6) Notwithstanding any other provision of this part, the
effectiveness of paragraph (b)(3) of this section is stayed with regard
to emissions occurring in 2023 and thereafter, provided that while such
stay remains in effect, the provisions of paragraph (b)(2) of this
section shall apply with regard to such emissions.
(c) * * *
(2) Notwithstanding any other provision of this part, the
effectiveness of paragraph (c)(1) of this section is stayed.
Subpart SS--Texas
0
10. Amend Sec. 52.2283 by:
0
a. Adding paragraph (d)(6); and
0
b. Redesignating paragraph (e) as paragraph (e)(1) and adding paragraph
(e)(2).
The additions read as follows:
Sec. 52.2283 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
* * * * *
(d) * * *
(6) Notwithstanding any other provision of this part, the
effectiveness of paragraph (d)(3) of this section is stayed with regard
to emissions occurring in 2023 and thereafter, provided that while such
stay remains in effect, the provisions of paragraph (d)(2) of this
section shall apply with regard to such emissions.
(e) * * *
(2) Notwithstanding any other provision of this part, the
effectiveness of paragraph (e)(1) of this section is stayed.
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
11. 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 BBBBB--CSAPR NOX Ozone Season Group 1 Trading Program
0
12. Amend Sec. 97.502 by:
0
a. Adding in alphabetical order a definition of ``CSAPR NOX
Ozone Season Expanded Group 2 allowance'';
0
b. Revising the definition of ``CSAPR NOX Ozone Season Group
2 allowance''; and
0
c. Adding in alphabetical order a definition of ``CSAPR NOX
Ozone Season Original Group 2 allowance''.
The revision and additions read as follows:
Sec. 97.502 Definitions.
* * * * *
CSAPR NOX Ozone Season Expanded Group 2 allowance means a CSAPR
NOX Ozone Season Group 2 allowance allocated for a control
period after 2022 under subpart EEEEE of this part, Sec. 97.526(d), or
Sec. 97.1026(e) to a unit in a State listed in Sec.
52.38(b)(2)(ii)(D)(1) of this chapter (and Indian country within the
borders of such a State) or allocated or auctioned for a control period
after 2022 in accordance with the provisions of a SIP revision approved
for such a State by the Administrator under Sec. 52.38(b)(7), (8), or
(9) of this chapter.
* * * * *
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, Sec. 97.526(d), or Sec. 97.1026(e),
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, where each CSAPR
NOX Ozone Season Group 2 allowance is either a CSAPR
NOX Ozone Season Original Group 2 allowance or a CSAPR
NOX Ozone Season Expanded Group 2 allowance.
* * * * *
CSAPR NOX Ozone Season Original Group 2 allowance means a CSAPR
NOX Ozone Season Group 2 allowance other than a CSAPR
NOX Ozone Season Expanded Group 2 allowance.
* * * * *
0
13. Amend Sec. 97.526 by:
0
a. In paragraphs (d)(1)(iii) and (iv) and (d)(2)(i), adding
``Original'' before ``Group 2 allowances'' each time it appears;
0
b. Redesignating paragraph (d)(2)(ii) as paragraph (d)(2)(ii)(A);
0
c. In newly redesignated paragraph (d)(2)(ii)(A), removing ``After the
Administrator'' and adding in its place ``Except as provided in
paragraph (d)(2)(ii)(B) of this section, after the Administrator'';
0
d. Adding paragraph (d)(2)(ii)(B);
0
e. Revising paragraph (e) introductory text;
0
f. In paragraph (e)(1), adding ``Original'' before ``Group 2
allowances'';
0
g. Redesignating paragraph (e)(2) as paragraph (e)(2)(i);
0
h. In newly redesignated paragraph (e)(2)(i), removing ``After the
Administrator'' and adding in its place ``Except as provided in
paragraph (e)(2)(ii) of this section, after the Administrator''; and
0
i. Adding paragraph (e)(2)(ii).
The additions and revision read as follows:
Sec. 97.526 Banking and conversion.
* * * * *
(d) * * *
(2) * * *
(ii) * * *
(B) After the Administrator has carried out the procedures set
forth in paragraph (d)(1) of this section and Sec. Sec. 97.826(d)(1)
and 97.1026(e), 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
[[Page 49305]]
compliance account for a source in a State listed in Sec.
52.38(b)(2)(ii)(D)(1) of this chapter (and 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 Expanded Group 2 allowances for the control period in 2023
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 Original Group 2 allowances, CSAPR
NOX Ozone Season Expanded 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 (e) 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:
* * * * *
(2) * * *
(ii) After the Administrator has carried out the procedures set
forth in paragraph (d)(1) of this section and Sec. Sec. 97.826(d)(1)
and 97.1026(e), the owner or operator of a CSAPR NOX Ozone
Season Group 1 source in a State listed in Sec. 52.38(b)(2)(ii)(D)(1)
of this chapter (and 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
Expanded Group 2 allowances for the control period in 2021 (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 and further divided by the
conversion factor determined under Sec. 97.826(d)(1)(i)(D).
* * * * *
Subpart EEEEE--CSAPR NOX Ozone Season Group 2 Trading Program
0
14. Amend Sec. 97.802 by:
0
a. In the definition of ``Allocate or allocation'', removing ``Sec.
97.526(d), and'' and adding in its place ``Sec. Sec. 97.526(d),
97.826(d), and 97.1026(e), and'';
0
b. In the definition of ``Common designated representative's assurance
level'', paragraph (2), removing ``Sec. 97.526(d)'' and adding in its
place ``Sec. 97.526(d), Sec. 97.826(d), or Sec. 97.1026(e)'';
0
c. Adding in alphabetical order a definition of ``CSAPR NOX
Ozone Season Expanded Group 2 allowance'';
0
d. Revising the definition of ``CSAPR NOX Ozone Season Group
2 allowance''; and
0
e. Adding in alphabetical order a definition of ``CSAPR NOX
Ozone Season Original Group 2 allowance''.
The additions and revision read as follows:
Sec. 97.802 Definitions.
* * * * *
CSAPR NOX Ozone Season Expanded Group 2 allowance means a CSAPR
NOX Ozone Season Group 2 allowance allocated for a control
period after 2022 under this subpart, Sec. 97.526(d), or Sec.
97.1026(e) to a unit in a State listed in Sec. 52.38(b)(2)(ii)(D)(1)
of this chapter (and Indian country within the borders of such a State)
or allocated or auctioned for a control period after 2022 in accordance
with the provisions of a SIP revision approved for such a State by the
Administrator under Sec. 52.38(b)(7), (8), or (9) of this chapter.
* * * * *
CSAPR NOX Ozone Season Group 2 allowance means a limited
authorization issued and allocated or auctioned by the Administrator
under this subpart, Sec. 97.526(d), or Sec. 97.1026(e), 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, where each CSAPR NOX Ozone
Season Group 2 allowance is either a CSAPR NOX Ozone Season
Original Group 2 allowance or a CSAPR NOX Ozone Season
Expanded Group 2 allowance.
* * * * *
CSAPR NOX Ozone Season Original Group 2 allowance means a CSAPR
NOX Ozone Season Group 2 allowance other than a CSAPR
NOX Ozone Season Expanded Group 2 allowance.
* * * * *
0
15. Amend Sec. 97.806 by:
0
a. In paragraph (c)(1)(i), adding ``for such source'' after ``available
for deduction'';
0
b. In paragraph (c)(2)(i) introductory text, adding ``for such group''
after ``available for deduction'';
0
c. In paragraph (c)(4), amend the paragraph heading by adding ``and
type'' after ``Vintage''; and
0
d. Adding paragraphs (c)(4)(iii) and (iv).
The additions read as follows:
Sec. 97.806 Standard requirements.
* * * * *
(c) * * *
(4) * * *
(iii) Except as provided in paragraph (c)(4)(iv) of this section, a
CSAPR NOX Ozone Season Group 2 allowance held for compliance
with the requirements under paragraphs (c)(1)(i), (c)(1)(ii)(A), and
(c)(2)(i) through (iii) of this section must be a CSAPR NOX
Ozone Season Original Group 2 allowance.
(iv) A CSAPR NOX Ozone Season Group 2 allowance held for
compliance with the requirements under paragraphs (c)(1)(i),
(c)(1)(ii)(A), and (c)(2)(i) through (iii) of this section for a source
or group of sources in a State listed in Sec. 52.38(b)(2)(ii)(D)(1) of
this chapter (or Indian country within the borders of such a State) for
a control period after 2022 must be a CSAPR NOX Ozone Season
Expanded Group 2 allowance.
* * * * *
0
16. Amend Sec. 97.810 by:
0
a. In paragraphs (a)(2)(i) and (ii), removing ``through 2022'' and
adding in its place ``and thereafter'';
0
b. Adding paragraphs (a)(8)(iv) through (vi) and (a)(9)(iv) through
(vi);
0
c. In paragraphs (a)(12)(i) through (iii), (a)(13)(i) and (ii),
(a)(20)(i) through (iii), and (b)(2), removing ``through 2022'' and
adding in its place ``and thereafter'';
0
d. Redesignating paragraph (b)(8) as paragraph (b)(8)(i) and adding
paragraph (b)(8)(ii);
0
e. Redesignating paragraph (b)(9) as paragraph (b)(9)(i) and adding
paragraph (b)(9)(ii); and
0
f. In paragraphs (b)(12), (b)(13), and (b)(20), removing ``through
2022'' and adding in its place ``and thereafter''.
The additions read as follows:
Sec. 97.810 State NOX Ozone Season Group 2 trading budgets, new unit
set-asides, Indian country new unit set-asides, and variability limits.
(a) * * *
[[Page 49306]]
(8) * * *
(iv) The NOX Ozone Season Group 2 trading budget for
2023 and thereafter is 14,051 tons.
(v) The new unit set-aside for 2023 and thereafter is 283 tons.
(vi) [Reserved]
(9) * * *
(iv) The NOX Ozone Season Group 2 trading budget for
2023 and thereafter is 14,818 tons.
(v) The new unit set-aside for 2023 and thereafter is 430 tons.
(vi) The Indian country new unit set-aside for 2023 and thereafter
is 15 tons.
* * * * *
(b) * * *
(8) * * *
(ii) The variability limit for Kentucky for 2023 and thereafter is
2,951 tons.
(9) * * *
(ii) The variability limit for Louisiana for 2023 and thereafter is
3,112 tons.
* * * * *
0
17. Amend Sec. 97.811 by:
0
a. Revising paragraph (a)(2);
0
b. In paragraphs (d)(1), (d)(2)(i), (d)(2)(ii)(A) through (C),
(d)(3)(i) through (iii), (d)(3)(iv)(A) through (C), (d)(3)(v)(B) and
(C), (d)(4)(i) through (iii), (d)(5) introductory text, (d)(5)(i) and
(ii), and (d)(6), adding ``Original'' before ``Group 2'' each time it
appears;
0
c. In paragraph (e)(1):
0
i. Adding ``and not listed in Sec. 52.38(b)(2)(ii)(D)(2) of this
chapter'' before ``(and Indian country''; and
0
ii. Adding ``Original'' before ``Group 2'' each time it appears; and
0
d. In paragraphs (e)(2)(i), (e)(2)(ii)(A) through (C), (e)(3)(i)
through (iii), (e)(3)(iv)(A) through (C), (e)(3)(v)(B) and (C),
(e)(4)(i) through (iii), (e)(5) introductory text, (e)(5)(i) and (ii),
and (e)(6), adding ``Original'' before ``Group 2'' each time it
appears.
The revision reads as follows:
Sec. 97.811 Timing requirements for CSAPR NOX Ozone Season Group 2
allowance allocations.
(a) * * *
(2) Notwithstanding paragraph (a)(1) of this section:
(i) If a unit provided an allocation of CSAPR NOX Ozone
Season Original Group 2 allowances in the applicable notice of data
availability issued under paragraph (a)(1) of this section does not
operate, starting after 2016, during the control period in two
consecutive years, such unit will not be allocated the CSAPR
NOX Ozone Season Original Group 2 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.
(ii) If a unit provided an allocation of CSAPR NOX Ozone
Season Expanded Group 2 allowances in the applicable 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 Expanded Group 2 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.
(iii) All CSAPR NOX Ozone Season Group 2 allowances that
would otherwise have been allocated to a unit described in paragraph
(a)(2)(i) or (ii) of this section 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 2
allowances to the unit in accordance with paragraph (b) of this
section.
* * * * *
0
18. Amend Sec. 97.816 by revising paragraph (c) to read as follows:
Sec. 97.816 Certificate of representation.
* * * * *
(c) A certificate of representation under this section, Sec.
97.516, or Sec. 97.1016 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 3'' in place of the phrase ``CSAPR NOX
Ozone Season Group 2'' 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 2'' appeared in
place of the phrase ``TR NOX Ozone Season'' or the phrase
``CSAPR NOX Ozone Season Group 3''.
0
19. Amend Sec. 97.818 by redesignating paragraph (f) as paragraph
(f)(1) and adding paragraph (f)(2) to read as follows:
Sec. 97.818 Delegation by designated representative and alternate
designated representative.
* * * * *
(f) * * *
(2) A notice of delegation submitted under paragraph (c) of this
section or Sec. 97.1018(c) that complies with the provisions of
paragraph (c) of this section except that it contains the terms ``40
CFR 97.1018(d)'' and ``40 CFR 97.1018'' in place of the terms ``40 CFR
97.818(d)'' and ``40 CFR 97.818'', 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
97.818(d)'' and ``40 CFR 97.818'' appeared in place of the terms ``40
CFR 97.1018(d)'' and ``40 CFR 97.1018'', respectively.
0
20. Amend Sec. 97.820 by:
0
a. Revising paragraphs (c)(1)(iv) and (c)(2)(iv); and
0
b. Redesignating paragraph (c)(5)(vi) as paragraph (c)(5)(vi)(A) and
adding paragraph (c)(5)(vi)(B).
The revisions and addition read as follows:
Sec. 97.820 Establishment of compliance accounts, assurance accounts,
and general accounts.
* * * * *
(c) * * *
(1) * * *
(iv) An application for a general account under paragraph (c)(1) of
this section, Sec. 97.520(c)(1), or Sec. 97.1020(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 3'' in place of the phrase
``CSAPR NOX Ozone Season Group 2'' 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 2'' appeared in place
of the phrase ``TR NOX Ozone Season'' or the phrase ``CSAPR
NOX Ozone Season Group 3''.
(2) * * *
(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 3'' will be interpreted for purposes of this subpart
as if the phrase ``CSAPR NOX Ozone Season Group 2'' appeared
in place of the phrase ``TR NOX Ozone Season'' or the phrase
``CSAPR NOX Ozone Season Group 3''.
* * * * *
(5) * * *
(vi) * * *
(B) A notice of delegation submitted under paragraph (c)(5)(iii) of
this section or Sec. 97.1020(c)(5)(iii) that complies with the
provisions of paragraph (c)(5)(iii) of
[[Page 49307]]
this section except that it contains the terms ``40 CFR
97.1020(c)(5)(iv)'' and ``40 CFR 97.1020(c)(5)'' in place of the terms
``40 CFR 97.820(c)(5)(iv)'' and ``40 CFR 97.820(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 97.820(c)(5)(iv)'' and ``40 CFR 97.820(c)(5)'' appeared
in place of the terms ``40 CFR 97.1020(c)(5)(iv)'' and ``40 CFR
97.1020(c)(5)'', respectively.
* * * * *
0
21. Amend Sec. 97.821 by:
0
a. Redesignating paragraph (e) as paragraph (e)(1);
0
b. In newly redesignated paragraph (e)(1), adding ``Original'' before
``Group 2 allowances'' each time it appears; and
0
c. Adding paragraph (e)(2).
The addition reads as follows:
Sec. 97.821 Recordation of CSAPR NOX Ozone Season Group 2 allowance
allocations and auction results.
* * * * *
(e) * * *
(2) By September 5, 2023, the Administrator will record in each
CSAPR NOX Ozone Season Group 2 source's compliance account
the CSAPR NOX Ozone Season Expanded Group 2 allowances
allocated to the CSAPR NOX Ozone Season Group 2 units at the
source in accordance with Sec. 97.811(a) for the control periods in
2023 and 2024.
* * * * *
0
22. Amend Sec. 97.824 by:
0
a. In paragraph (a)(1), removing ``and'' after the semicolon;
0
b. Adding paragraphs (a)(3) and (4);
0
c. In paragraph (c)(2)(ii), removing ``Sec. 97.526(d), in'' and adding
in its place ``Sec. 97.526(d), Sec. 97.826(d), or Sec. 97.1026(e),
in''; and
0
d. Revising paragraph (d).
The additions and revision read as follows:
Sec. 97.824 Compliance with CSAPR NOX Ozone Season Group 2 emissions
limitation.
(a) * * *
(3) Are CSAPR NOX Ozone Season Original Group 2
allowances, if the deductions are not for compliance with the CSAPR
NOX Ozone Season Group 2 emissions limitation of a source in
a State listed in Sec. 52.38(b)(2)(ii)(D)(1) of this chapter (and
Indian country within the borders of such a State) for a control period
after 2022; and
(4) Are CSAPR NOX Ozone Season Expanded Group 2
allowances, if the deductions are for compliance with the CSAPR
NOX Ozone Season Group 2 emissions limitation of a source in
a State listed in Sec. 52.38(b)(2)(ii)(D)(1) of this chapter (and
Indian country within the borders of such a State) for a control period
after 2022.
* * * * *
(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 2 source
has excess emissions, the Administrator will deduct from the source's
compliance account an amount of CSAPR NOX Ozone Season Group
2 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, provided that--
(1) The allowances deducted shall be CSAPR NOX Ozone
Season Original Group 2 allowances, if the excess emissions are not
from a source in a State listed in Sec. 52.38(b)(2)(ii)(D)(1) of this
chapter (and Indian country within the borders of such a State) for a
control period after 2022; and
(2) The allowances deducted shall be CSAPR NOX Ozone
Season Expanded Group 2 allowances, if the excess emissions are from a
source in a State listed in Sec. 52.38(b)(2)(ii)(D)(1) of this chapter
(and Indian country within the borders of such a State) for a control
period after 2022.
* * * * *
0
23. Amend Sec. 97.825 by:
0
a. In paragraph (a)(1), removing ``and'' after the semicolon; and
0
b. Adding paragraphs (a)(3) and (4).
The additions read as follows:
Sec. 97.825 Compliance with CSAPR NOX Ozone Season Group 2 assurance
provisions.
(a) * * *
(3) Are CSAPR NOX Ozone Season Original Group 2
allowances, if the deductions are not for compliance with the CSAPR
NOX Ozone Season Group 2 assurance provisions by the owners
and operators of a group of sources in a State listed in Sec.
52.38(b)(2)(ii)(D)(1) of this chapter (and Indian country within the
borders of such a State) for a control period after 2022; and
(4) Are CSAPR NOX Ozone Season Expanded Group 2
allowances, if the deductions are for compliance with the CSAPR
NOX Ozone Season Group 2 assurance provisions by the owners
and operators of a group of sources in a State listed in Sec.
52.38(b)(2)(ii)(D)(1) of this chapter (and Indian country within the
borders of such a State) for a control period after 2022.
* * * * *
0
24. Amend Sec. 97.826 by:
0
a. In paragraphs (d)(1)(i)(A) and (D), (d)(1)(ii)(A), (d)(1)(iii)(A),
(d)(1)(iv)(A) and (B), and (d)(2)(ii), adding ``Original'' before
``Group 2 allowances'' each time it appears;
0
b. Redesignating paragraph (d)(3) as paragraph (d)(3)(i);
0
c. In newly redesignated paragraph (d)(3)(i):
0
i. Removing ``After the Administrator'' and adding in its place
``Except as provided in paragraph (d)(3)(ii) of this section, after the
Administrator''; and
0
ii. Adding ``Original'' before ``Group 2 allowances'' each time it
appears;
0
d. Adding paragraph (d)(3)(ii);
0
e. In paragraph (e)(1) introductory text, adding ``or (D)'' before ``of
this chapter'';
0
f. In paragraphs (e)(1)(i), (e)(1)(ii)(A), (e)(1)(iii) and (iv),
(e)(1)(v)(B), and (e)(2), adding ``Original'' before ``Group 2
allowances'' each time it appears;
0
g. Revising paragraph (f) introductory text;
0
h. Redesignating paragraph (f)(1) as paragraph (f)(1)(i);
0
i. In newly redesignated paragraph (f)(1)(i):
0
i. Removing ``After the Administrator'' and adding in its place
``Except as provided in paragraph (f)(1)(ii) of this section, after the
Administrator''; and
0
ii. Adding ``Original'' before ``Group 2 allowances'' each time it
appears;
0
j. Adding paragraph (f)(1)(ii); and
0
k. In paragraph (f)(2):
0
i. Adding ``and not listed in Sec. 52.38(b)(ii)(D)(2) of this
chapter'' before ``(and Indian country''; and
0
ii. Adding ``Original'' before ``Group 2 allowances'' each time it
appears.
The additions and revision read as follows:
Sec. 97.826 Banking and conversion.
* * * * *
(d) * * *
(3) * * *
(ii) After the Administrator has carried out the procedures set
forth in paragraph (d)(1) of this section and Sec. 97.1026(e), upon
any determination that would otherwise result in the initial
recordation of a given number of CSAPR NOX Ozone Season
Original Group 2 allowances in the compliance account for a source in a
State listed in Sec. 52.38(b)(2)(ii)(D)(1) of this chapter (and Indian
country within the borders of such a State), the Administrator will not
record such CSAPR NOX Ozone Season Original Group 2
allowances but
[[Page 49308]]
instead will allocate and record in such account an amount of CSAPR
NOX Ozone Season Expanded Group 2 allowances for the control
period in 2023 computed as the quotient, rounded up to the nearest
allowance, of such given number of CSAPR NOX Ozone Season
Original Group 2 allowances divided by the conversion factor determined
under paragraph (d)(1)(i)(D) of this section.
* * * * *
(f) 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 Expanded Group 2 allowances or CSAPR
NOX Ozone Season Group 3 allowances may be used to satisfy
requirements to hold CSAPR NOX Ozone Season Original Group 2
allowances under this subpart as follows, provided that nothing in this
paragraph (f) 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) * * *
(ii) After the Administrator has carried out the procedures set
forth in paragraph (d)(1) of this section and Sec. 97.1026(e), the
owner or operator of a CSAPR NOX Ozone Season Group 2 source
in a State listed in Sec. 52.38(b)(2)(ii)(D)(1) of this chapter (and
Indian country within the borders of such a State) may satisfy a
requirement to hold a given number of CSAPR NOX Ozone Season
Original Group 2 allowances for a control period in 2017 through 2020
by holding instead, in a general account established for this sole
purpose, an amount of CSAPR NOX Ozone Season Expanded Group
2 allowances for the control period in 2023 (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
Original Group 2 allowances divided by the conversion factor determined
under paragraph (d)(1)(i)(D) of this section.
* * * * *
0
25. Amend Sec. 97.830 by revising paragraph (b)(1) to read as follows:
Sec. 97.830 General monitoring, recordkeeping, and reporting
requirements.
* * * * *
(b) * * *
(1)(i) May 1, 2017, for a unit other than a unit described in
paragraph (b)(1)(ii) of this section;
(ii) May 1, 2023, for a unit that did not commence commercial
operation at least 180 calendar days before September 30, 2020 and that
is located in a State listed in Sec. 52.38(b)(2)(ii)(D)(1) of this
chapter (and Indian country within the borders of such a State);
* * * * *
0
26. Amend Sec. 97.834 by revising paragraph (d)(2)(i) to read as
follows:
Sec. 97.834 Recordkeeping and reporting.
* * * * *
(d) * * *
(2) * * *
(i)(A) The calendar quarter covering May 1, 2017 through June 30,
2017, for a unit other than a unit described in paragraph (d)(2)(i)(B)
of this section;
(B) The calendar quarter covering May 1, 2023 through June 30,
2023, for a unit that did not commence commercial operation at least
180 calendar days before September 30, 2020 and that is located in a
State listed in Sec. 52.38(b)(2)(ii)(D)(1) of this chapter (and Indian
country within the borders of such a State);
* * * * *
Subpart GGGGG--CSAPR NOX Ozone Season Group 3 Trading Program
0
27. Amend Sec. 97.1002 by:
0
a. Adding in alphabetical order a definition of ``CSAPR NOX
Ozone Season Expanded Group 2 allowance'';
0
b. Revising the definition of ``CSAPR NOX Ozone Season Group
2 allowance''; and
0
c. Adding in alphabetical order a definition of ``CSAPR NOX
Ozone Season Original Group 2 allowance''.
The additions and revision read as follows:
Sec. 97.1002 Definitions.
* * * * *
CSAPR NOX Ozone Season Expanded Group 2 allowance means a CSAPR
NOX Ozone Season Group 2 allowance allocated for a control
period after 2022 under subpart EEEEE of this part, Sec. 97.526(d), or
Sec. 97.1026(e) to a unit in a State listed in Sec.
52.38(b)(2)(ii)(D)(1) of this chapter (and Indian country within the
borders of such a State) or allocated or auctioned for a control period
after 2022 in accordance with the provisions of a SIP revision approved
for such a State by the Administrator under Sec. 52.38(b)(7), (8), or
(9) of this chapter.
* * * * *
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, Sec. 97.526(d), or Sec. 97.1026(e),
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, where each CSAPR
NOX Ozone Season Group 2 allowance is either a CSAPR
NOX Ozone Season Original Group 2 allowance or a CSAPR
NOX Ozone Season Expanded Group 2 allowance.
* * * * *
CSAPR NOX Ozone Season Original Group 2 allowance means a CSAPR
NOX Ozone Season Group 2 allowance other than a CSAPR
NOX Ozone Season Expanded Group 2 allowance.
* * * * *
0
28. Amend Sec. 97.1026 by:
0
a. Revising the section heading; and
0
b. Adding paragraphs (e) and (f).
The revision and additions read as follows:
Sec. 97.1026 Banking and conversion; bank recalibration.
* * * * *
(e) Notwithstanding any other provision of this subpart, by
September 18, 2023, the Administrator will temporarily suspend
acceptance of CSAPR NOX Ozone Season Group 3 allowance
transfers submitted under Sec. 97.1022 and, before resuming acceptance
of such transfers, will take the actions in paragraphs (e)(1) and (2)
of this section with regard to every compliance account for a CSAPR
NOX Ozone Season Group 3 source in a State listed in Sec.
52.38(b)(2)(ii)(D)(1) of this chapter (and Indian country within the
borders of such a State):
(1) The Administrator will deduct all CSAPR NOX Ozone
Season Group 3 allowances allocated for the control periods in 2021 and
2022 from each such compliance account.
(2) For each CSAPR NOX Ozone Season Group 3 allowance
deducted from a given source's compliance account under paragraph
(e)(1) of this section, the Administrator will allocate to the source
and record in the source's compliance account one CSAPR NOX
Ozone Season Expanded Group 2 allowance for the control period in 2023.
(f) Notwithstanding any other provision of this subpart, CSAPR
NOX Ozone Season Expanded Group 2 allowances may be used to
satisfy requirements to hold CSAPR NOX Ozone Season Group 3
allowances under this subpart as follows, provided that nothing in this
paragraph (f) alters the time as of which any such allowance
[[Page 49309]]
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 (e) of this section, the owner or operator of a
CSAPR NOX Ozone Season Group 3 source in a State listed in
Sec. 52.38(b)(2)(ii)(D)(1) of this chapter (and Indian country within
the borders of such a State) may satisfy a requirement to hold a given
number of CSAPR NOX Ozone Season Group 3 allowances for the
control period in 2021 or 2022 by holding instead, in a general account
established for this sole purpose, an equal amount of CSAPR
NOX Ozone Season Expanded Group 2 allowances for the control
period in 2023 (or any later control period for which the allowance
transfer deadline defined in Sec. 97.802 has passed).
(2) [Reserved]
0
29. Amend Sec. 97.1034 by:
0
a. In paragraph (d)(2)(i)(C), removing ``June'' and adding in its place
``September'';
0
b. In paragraph (d)(3), revising the first sentence; and
0
c. In paragraph (d)(4), adding a second sentence.
The revision and addition read as follows:
Sec. 97.1034 Recordkeeping and reporting.
* * * * *
(d) * * *
(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, except that quarterly reports
required for the calendar quarter covering May 1, 2023, through June
30, 2023, shall be submitted by August 4, 2023. * * *
(4) * * * Notwithstanding the provisions of Sec. Sec. 75.64(a),
75.73(f)(1), 97.434(d)(2), 97.634(d)(2), and 97.734(d)(2), the deadline
for the designated representative of such a unit to submit the
quarterly reports required under such additional programs for the
calendar quarter covering May 1, 2023, through June 30, 2023, shall be
August 4, 2023.
* * * * *
[FR Doc. 2023-14180 Filed 7-28-23; 8:45 am]
BILLING CODE 6560-50-P