[Federal Register Volume 88, Number 188 (Friday, September 29, 2023)]
[Rules and Regulations]
[Pages 67102-67108]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-21040]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 97

[EPA-HQ-OAR-2021-0668; FRL-8670.3-01-OAR]


Federal ``Good Neighbor Plan'' for the 2015 Ozone National 
Ambient Air Quality Standards; Response to Additional 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 Alabama, Minnesota, 
Nevada, Oklahoma, Utah, and West Virginia 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 the continued 
implementation of previously established requirements to mitigate 
interstate air pollution with respect to other ozone NAAQS while the 
Good Neighbor Plan's requirements are stayed. 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 EPA action which disapproved certain State Implementation Plan 
(SIP) revisions submitted by these and other States.

DATES: This interim final rule is effective on September 29, 2023. 
Comments on this rule must be received on or before October 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 electric 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

[[Page 67103]]

 
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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    As signed in March 2023, 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 Good Neighbor 
Plan's requirements for emissions sources in Arkansas, Kentucky, 
Louisiana, Mississippi, Missouri, and Texas were stayed in a previous 
action. This action stays the Good Neighbor Plan's requirements for 
emissions sources in Alabama, Minnesota, Nevada, Oklahoma, Utah, and 
West Virginia.
    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 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

    In a previous action (referred to here as the First Interim Final 
Rule),\1\ the EPA stayed on an interim basis, for EGUs and non-EGU 
industrial sources in Arkansas, Kentucky, Louisiana, Mississippi, 
Missouri, and Texas, the effectiveness of the FIP requirements 
established to address the obligations of these and other States to 
mitigate interstate air pollution with respect to the 2015 ozone NAAQS 
(referred to here as the Good Neighbor Plan).\2\ To ensure the 
continued implementation of previously established requirements to 
mitigate interstate air pollution with respect to other ozone NAAQS, 
the First Interim Final Rule also required EGUs in these States to 
participate in the Cross-State Air Pollution Rule (CSAPR) 
NOX Ozone Season ``Group 2'' Trading Program while the Good 
Neighbor Plan's requirements for these EGUs to participate in the CSAPR 
NOX Ozone Season ``Group 3'' Trading Program are stayed. The 
stay and the associated revisions to other regulations were issued in 
response to judicial orders that partially stay, pending judicial 
review, a separate EPA action which disapproved certain SIP revisions 
submitted by these and other States (the SIP Disapproval action).\3\
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    \1\ Federal ``Good Neighbor Plan'' for the 2015 Ozone National 
Ambient Air Quality Standards; Response to Judicial Stays of SIP 
Disapproval Action for Certain States, 88 FR 49295 (July 31, 2023).
    \2\ Federal ``Good Neighbor Plan'' for the 2015 Ozone National 
Ambient Air Quality Standards, 88 FR 36654 (June 5, 2023).
    \3\ 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).
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    Since the EPA submitted the First Interim Final Rule for 
publication in the Federal Register, courts have issued orders granting 
partial stays of the SIP Disapproval action as to several additional 
States. The U.S. Courts of Appeals for the Eighth, Ninth, and Eleventh 
Circuits granted judicial stays pending review on the merits as to 
Minnesota,\4\ Nevada,\5\ and Alabama,\6\ respectively, and the U.S. 
Court of Appeals for the Tenth Circuit did the same as to Oklahoma and 
Utah.\7\ In addition, the U.S. Court of Appeals for the Fourth Circuit 
issued an administrative stay as to West Virginia pending oral argument 
on West Virginia's motion to stay and the EPA's motion to transfer 
venue or dismiss.\8\ Finally, the U.S. Court of Appeals for the Sixth 
Circuit granted a judicial stay pending review on the merits as to 
Kentucky which supersedes the administrative stay previously in effect 
as to that State.\9\
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    \4\ Order, Allete, Inc. v. EPA, No. 23-1776 (8th Cir. July 5, 
2023), available in the docket.
    \5\ Order, Nevada Cement Co. v. EPA, No. 23-682 (9th Cir. July 
3, 2023), available in the docket.
    \6\ Order, Alabama v. EPA, No. 23-11173, and Alabama Power Co. 
v. EPA, No. 11196 (11th Cir. August 17, 2023), available in the 
docket.
    \7\ Order, Utah v. EPA, No. 23-9509, PacifiCorp v. EPA, No. 23-
9512, Utah Associated Municipal Power Systems v. EPA, No. 23-9520, 
Oklahoma v. EPA, No. 23-9514, Oklahoma Gas & Electric Co. v. EPA, 
No. 23-9521, Tulsa Cement LLC v. EPA, No. 23-9533, and Western 
Farmers Electric Cooperative v. EPA, No. 23-9534 (10th Cir. July 27, 
2023), available in the docket.
    \8\ Order, West Virginia v. EPA, No. 23-1418 (4th Cir. August 
10, 2023), available in the docket. Oral argument on the motions is 
scheduled for October 27, 2023.
    \9\ Order, Kentucky v. EPA, No. 23-3216, and Kentucky Energy and 
Environment Cabinet v. EPA, No. 23-3225 (6th Cir. July 25, 2023) 
(judicial stay order); see also Order, Kentucky v. EPA, No. 23-3216 
(6th Cir. May 31, 2023) (administrative stay order). (Both orders 
are available in the docket.) The EPA's response to the 
administrative stay order in the First Interim Final Rule also 
serves as a complete response to the more recent judicial stay 
order, with the consequence that no additional response to the 
judicial stay order as to Kentucky is necessary in this action.
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    To respond to the stay orders as to the additional States, in this 
action the EPA is modifying and supplementing the regulatory revisions 
adopted in the First Interim Final Rule. The effect of this action is 
that emissions sources in Alabama, Minnesota, Nevada, Oklahoma, 
Utah,\10\ and West Virginia (and Indian country within the borders of 
the States) will not be subject to the Good Neighbor Plan's 
requirements promulgated to address the States' good neighbor 
obligations with respect to the 2015 ozone NAAQS while the stay orders 
covering the States remain in place (i.e., at least for the 2023 ozone 
season and possibly longer). After the courts have reached final 
determinations on the merits in these proceedings (or possibly in the 
case of West Virginia, a final determination to deny the stay motion or 
to grant the motion to transfer venue or dismiss), 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. However, for 
these States, as well as the States covered by the First Interim Final 
Rule, the EPA generally anticipates that any future action bringing the 
Good Neighbor Plan's requirements into effect after a stay would phase 
in the requirements so as to provide lead times

[[Page 67104]]

to implement the Good Neighbor Plan's identified emissions control 
strategies comparable to the lead times that the Good Neighbor Plan 
would have provided in the absence of the stay, thereby giving parties 
sufficient time to prepare for implementation.
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    \10\ The EPA's authority to implement the Good Neighbor Plan's 
FIP requirements as to emissions sources in Utah has two independent 
statutory bases: first, the Agency's finding of the state's failure 
to submit a good neighbor SIP for the 2015 ozone NAAQS, 84 FR 66612 
(December 5, 2019), and second, the Agency's disapproval of the 
state's subsequently submitted SIP in the SIP Disapproval action. 
See CAA section 110(c)(1). However, the order staying the SIP 
Disapproval action as to Utah includes the statement that ``EPA may 
not enforce its Federal Good Neighbor Plan for the 2015 ozone NAAQS 
against . . . Utah while the stay remains in place.'' Order, supra 
note 7, at 4. To comply with the order, the EPA is therefore staying 
the effectiveness of the Good Neighbor Plan's requirements as to 
emissions sources in Utah notwithstanding the Agency's independent 
basis for FIP authority arising from the finding of Utah's failure 
to submit a good neighbor SIP.
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    The remainder of this section describes the specific regulatory 
revisions being adopted in this action.\11\ For further background and 
discussion of the basis for the regulatory revisions, see the First 
Interim Final Rule at 88 FR 49296-97.
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    \11\ The EPA has included a document in the docket that shows 
all the regulatory revisions being adopted in this action in 
redline-strikeout format.
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    To implement the stay orders with respect to non-EGU industrial 
sources in Nevada, Oklahoma, Utah, and West Virginia (and Indian 
country within the borders of the States), the EPA is adding these 
States to the list of States covered by the stay provision for non-EGU 
industrial sources adopted in the First Interim Final Rule at 40 CFR 
52.40(c)(4) and is adding parallel text in the State-specific subpart 
of 40 CFR part 52 for each of the States.\12\ No equivalent stay 
provisions are necessary for Alabama or Minnesota because the Good 
Neighbor Plan's requirements for non-EGU industrial sources do not 
apply to emissions sources in Alabama or Minnesota.
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    \12\ See Sec. Sec.  52.1492(b)(2) (Nevada), 52.1930(b)(2) 
(Oklahoma), 52.2356(b)(2) (Utah), 52.2540(c)(2) (West Virginia).
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    To implement the stay orders with respect to EGUs in Alabama, 
Oklahoma, and West Virginia (and Indian country within the borders of 
the States), the EPA is adding these States to the lists of States 
covered by the stay provisions for EGUs adopted in the First Interim 
Final Rule at 40 CFR 52.38(b)(2)(iii)(D)(1) (West Virginia) and 40 CFR 
52.38(b)(2)(iii)(D)(2) (Alabama and Oklahoma) and is adding parallel 
text in the state-specific subparts of 40 CFR part 52 for each of the 
States.\13\ In combination with other provisions adopted in the First 
Interim Final Rule at 40 CFR 52.38(b)(2)(ii)(D), the revisions will 
require the EGUs in each of these States to participate in the Group 2 
trading program instead of the Group 3 trading program while a stay for 
the State remains in effect.\14\ The EPA is also revising the Group 2 
trading program regulations at 40 CFR 97.810 and 97.821 and the Group 3 
trading program regulations at 40 CFR 97.1026 to continue to provide 
the same amounts for State emissions budgets, variability limits, unit-
level allowance allocations, and banked allowance holdings that would 
have applied for these States in the absence of the Good Neighbor Plan.
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    \13\ See Sec. Sec.  52.54(b)(6) (Alabama), 52.1930(a)(6) 
(Oklahoma), 52.2540(b)(6) (West Virginia).
    \14\ Like EGUs in Arkansas, Mississippi, Missouri, and Texas, 
EGUs in Alabama and Oklahoma were covered by the Group 2 trading 
program before the Good Neighbor Plan and therefore will use 
``Original Group 2'' allowances for compliance. Like EGUs in 
Kentucky and Louisiana, EGUs in West Virginia were already covered 
by the Group 3 trading program before the Good Neighbor Plan and 
therefore will use ``Expanded Group 2'' allowances for compliance. 
For further discussion of the regulatory provisions relating to 
Original Group 2 and Expanded Group 2 allowances, see the First 
Interim Final Rule at 88 FR 49297-98.
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    To implement the stay orders with respect to EGUs in Minnesota, 
Nevada, and Utah (and Indian country within the borders of the States), 
the EPA is adding a new stay provision for EGUs in these States at 40 
CFR 52.38(b)(2)(iii)(D)(3) and is adding parallel text in the state-
specific subparts of 40 CFR part 52 for each of the States.\15\ Unlike 
the stay provisions adopted in the First Interim Final Rule for EGUs in 
Arkansas, Kentucky, Louisiana, Mississippi, Missouri, and Texas and 
extended in this action to EGUs in Alabama, Oklahoma, and West 
Virginia, the stay provision for EGUs in Minnesota, Nevada, and Utah is 
not accompanied by requirements under 40 CFR 52.38(b)(2)(ii)(D) to 
participate in the Group 2 trading program while the stay for a State 
is in effect, because EGUs in Minnesota, Nevada, and Utah are not 
subject to previously established requirements to mitigate interstate 
air pollution with respect to other ozone NAAQS.
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    \15\ See Sec. Sec.  52.1240(d)(3) (Minnesota), 52.1492(a)(3) 
(Nevada), 52.2356(a)(3) (Utah).
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    Finally, the EPA is making stay-related revisions to two cross-
references in the Group 2 and Group 3 trading program regulations. 
First, a revision at 40 CFR 97.826(e)(1) clarifies that, like EGUs in 
other States covered by stay orders, EGUs in Minnesota, Nevada, and 
Utah will be excluded from the one-time procedures converting Group 2 
allowances into an initial bank of Group 3 allowances. Second, a 
revision at 40 CFR 97.1026(d)(2)(ii) clarifies that emissions budgets 
for States covered by stay orders will be excluded from calculations of 
the allowance bank target amounts used in the Group 3 trading program's 
annual bank recalibration procedure.

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.\16\ 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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    \16\ 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 basis for the finding of good cause is that following notice-
and-comment procedures is unnecessary for this action. The EPA has no 
discretion as to whether to stay the effectiveness of the Good Neighbor 
Plan's requirements for emissions sources in the States covered by the 
additional 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 other ozone 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 so as to allow 
the public to advocate for not staying the Good Neighbor Plan's 
requirements, not adopting regulatory 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.
    The regulatory revisions made in this action will take effect 
immediately upon publication of the action in the Federal Register. In 
general, an agency issuing a rule under APA section 553 must

[[Page 67105]]

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 emissions 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 action's publication 
date to comply with the stay orders in a timely manner.
    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 the States covered by 
the stay orders to continue to address the States' good neighbor 
obligations under rules issued before the Good Neighbor Plan, the EPA 
finds good cause to make the regulatory revisions effective as of the 
action's publication date for the following reasons. First, these 
regulatory revisions benefit the public by avoiding the possibility 
that interruption of the previously established requirements would 
cause air quality degradation. Second, these regulatory revisions 
benefit the regulated community by clarifying the regulatory 
requirements that apply in light of the stay orders. Finally, making 
these 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.'' \17\ The regulatory revisions in this action 
facilitating continued implementation of previously established 
requirements impose no requirements on any emissions source that differ 
substantively from the requirements that would have applied to that 
source in the absence of the Good Neighbor Plan. Thus, no affected 
party needs time to adjust its behavior in preparation for these 
regulatory revisions.
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    \17\ Omnipoint Corp. v. FCC, 78 F.3d 620, 630 (D.C. Cir. 1996).
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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 and 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 APA section 553 or any other 
statute. This rule is not subject to notice-and-comment requirements 
because the 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 emissions 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 emissions 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 several U.S. Courts of Appeals 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

[[Page 67106]]

impact analysis for the Good Neighbor Plan.\18\
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    \18\ 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.
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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 several U.S. Courts of Appeals 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.\19\
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    \19\ 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).\20\
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    \20\ 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,\21\ 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 emissions 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).
---------------------------------------------------------------------------

    \21\ 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 ``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 
emissions 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 \22\).
---------------------------------------------------------------------------

    \22\ See 86 FR 23163-64; 81 FR 74585-86.
---------------------------------------------------------------------------

    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 November 28, 2023.

[[Page 67107]]

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. In paragraph (b)(2)(iii)(D)(1), removing ``Kentucky and Louisiana'' 
and adding in its place ``Kentucky, Louisiana, and West Virginia'';
0
b. In paragraph (b)(2)(iii)(D)(2), removing ``Arkansas, Mississippi, 
Missouri, and Texas'' and adding in its place ``Alabama, Arkansas, 
Mississippi, Missouri, Oklahoma, and Texas''; and
0
c. Adding paragraph (b)(2)(iii)(D)(3).
    The addition reads 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) * * *
    (iii) * * *
    (D) * * *
    (3) The effectiveness of paragraph (b)(2)(iii)(C) of this section 
is stayed for sources in Minnesota, Nevada, and Utah 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)(3) is in effect for a State, such State shall be deemed 
not to be listed in paragraph (b)(2)(iii)(C) of this section for 
purposes of part 97 of this chapter.
* * * * *


Sec.  52.40  [Amended]

0
3. Amend Sec.  52.40 in paragraph (c)(4) by removing ``Missouri, and 
Texas'' and adding in its place ``Missouri, Nevada, Oklahoma, Texas, 
Utah, and West Virginia''.

Subpart B--Alabama

0
4. Amend Sec.  52.54 by adding paragraph (b)(6) to read as follows:


Sec.  52.54  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.

Subpart Y--Minnesota

0
5. Amend Sec.  52.1240 by adding paragraph (d)(3) to read as follows:


Sec.  52.1240  Interstate pollutant transport provisions; What are the 
FIP requirements for decreases in emissions of nitrogen oxides?

* * * * *
    (d) * * *
    (3) Notwithstanding any other provision of this part, the 
effectiveness of paragraph (d)(1) of this section is stayed with regard 
to emissions occurring in 2023 and thereafter.

Subpart DD--Nevada

0
6. Amend Sec.  52.1492 by:
0
a. Adding paragraph (a)(3); and
0
b. Redesignating paragraph (b) as paragraph (b)(1) and adding paragraph 
(b)(2).
    The additions read as follows:


Sec.  52.1492  Interstate pollutant transport provisions; What are the 
FIP requirements for decreases in emissions of nitrogen oxides?

    (a) * * *
    (3) Notwithstanding any other provision of this part, the 
effectiveness of paragraph (a)(1) of this section is stayed with regard 
to emissions occurring in 2023 and thereafter.
    (b) * * *
    (2) Notwithstanding any other provision of this part, the 
effectiveness of paragraph (b)(1) of this section is stayed.

Subpart LL--Oklahoma

0
7. Amend Sec.  52.1930 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.  52.1930   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 TT--Utah

0
8. Amend Sec.  52.2356 by:
0
a. Adding paragraph (a)(3); and
0
b. Redesignating paragraph (b) as paragraph (b)(1) and adding paragraph 
(b)(2).
    The additions read as follows:


Sec.  52.2356  Interstate pollutant transport provisions; What are the 
FIP requirements for decreases in emissions of nitrogen oxides?

    (a) * * *
    (3) Notwithstanding any other provision of this part, the 
effectiveness of paragraph (a)(1) of this section is stayed with regard 
to emissions occurring in 2023 and thereafter.
    (b) * * *
    (2) Notwithstanding any other provision of this part, the 
effectiveness of paragraph (b)(1) of this section is stayed.

Subpart XX--West Virginia

0
9. Amend Sec.  52.2540 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.  52.2540   Interstate pollutant transport provisions; What are the 
FIP requirements for decreases in emissions of nitrogen oxides?

* * * * *

[[Page 67108]]

    (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.

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
10. 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 EEEEE--CSAPR NOX Ozone Season Group 2 Trading Program

0
11. Amend Sec.  97.810 by:
0
a. Revising paragraphs (a)(1)(i) through (iii) and (a)(17)(i) through 
(iii);
0
b. Adding paragraphs (a)(22)(iv) through (vi);
0
c. Revising paragraphs (b)(1) and (17); and
0
d. Redesignating paragraph (b)(22) as paragraph (b)(22)(i) and adding 
paragraph (b)(22)(ii).
    The revisions and 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) * * *
    (1) * * *
    (i) The NOX Ozone Season Group 2 trading budget for 2017 
and thereafter is 13,211 tons.
    (ii) The new unit set-aside for 2017 and thereafter is 255 tons.
    (iii) The Indian country new unit set-aside for 2017 and thereafter 
is 13 tons.
* * * * *
    (17) * * *
    (i) The NOX Ozone Season Group 2 trading budget for 2017 
and thereafter is 11,641 tons.
    (ii) The new unit set-aside for 2017 and thereafter is 221 tons.
    (iii) The Indian country new unit set-aside for 2017 and thereafter 
is 12 tons.
* * * * *
    (22) * * *
    (iv) The NOX Ozone Season Group 2 trading budget for 
2023 and thereafter is 12,884 tons.
    (v) The new unit set-aside for 2023 and thereafter is 261 tons.
    (vi) [Reserved]
* * * * *
    (b) * * *
    (1) The variability limit for Alabama for 2017 and thereafter is 
2,774 tons.
* * * * *
    (17) The variability limit for Oklahoma for 2017 and thereafter is 
2,445 tons.
* * * * *
    (22) * * *
    (ii) The variability limit for West Virginia for 2023 and 
thereafter is 2,706 tons.
* * * * *


Sec.  97.821  [Amended]

0
12. Amend Sec.  97.821 in paragraph (e)(2) by removing ``By September 
5, 2023, the Administrator'' and adding in its place ``By September 5, 
2023, or, with regard to sources in West Virginia, as soon as 
practicable on or after September 29, 2023, the Administrator''.


Sec.  97.824  [Amended]

0
13. Amend Sec.  97.824 in paragraph (a)(2) by removing the period at 
the end of the paragraph and adding a semicolon in its place.


Sec.  97.825   [Amended]

0
14. Amend Sec.  97.825 in paragraph (a)(2) by removing the period at 
the end of the paragraph and adding a semicolon in its place.


Sec.  97.826  [Amended]

0
15. Amend Sec.  97.826 in paragraph (e)(1) introductory text by 
removing ``Sec.  52.38(b)(2)(ii)(A) or (D)'' and adding in its place 
``Sec.  52.38(b)(2)(ii)(A) or (b)(2)(iii)(D)''.

Subpart GGGGG--CSAPR NOX Ozone Season Group 3 Trading Program


Sec.  97.1026  [Amended]

0
16. Amend Sec.  97.1026:
0
a. In paragraph (d)(2)(ii) introductory text, by removing ``Sec.  
52.38(b)(2)(iii)'' and adding in its place ``Sec.  52.38(b)(2)(iii)(A) 
through (C)''; and
0
b. In paragraph (e) introductory text, by removing ``by September 18, 
2023, the Administrator'' and adding in its place ``by September 18, 
2023, or, with regard to sources in West Virginia, as soon as 
practicable on or after September 29, 2023, the Administrator''.

[FR Doc. 2023-21040 Filed 9-28-23; 8:45 am]
BILLING CODE 6560-50-P