[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).
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\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.
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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\).
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\22\ 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 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