[Federal Register Volume 89, Number 66 (Thursday, April 4, 2024)]
[Rules and Regulations]
[Pages 23526-23527]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-06912]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52, 75, 78, and 97
[EPA-HQ-OAR-2021-0668; FRL-11810-01-OAR]
Partial Denial of Petitions for Reconsideration: Federal ``Good
Neighbor Plan'' for the 2015 Ozone National Ambient Air Quality
Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notification of action partially denying petitions for
reconsideration and administrative stays.
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SUMMARY: The Environmental Protection Agency (EPA) is providing notice
that it has responded to petitions for reconsideration and
administrative stay of a final action under the ``good neighbor'' or
``interstate transport'' provision of the Clean Air Act (CAA) published
in the Federal Register on June 5, 2023, titled ``Federal `Good
Neighbor Plan' for the 2015 Ozone National Ambient Air Quality
Standards'' (``Good Neighbor Plan''). In August 2023, the EPA received
the four petitions addressed by this action, which seek reconsideration
of the Good Neighbor Plan in part on the basis of stays pending
judicial review as to certain States issued after the Good Neighbor
Plan was promulgated. The EPA is partially denying these four petitions
as to this basis. The basis for EPA's action is set out fully in an
enclosure accompanying the response letters, available in the docket
for this action. Because the EPA is denying the reconsideration
requests, the EPA is also denying associated requests to stay the Good
Neighbor Plan filed by two of the four petitioners. At this time, the
EPA is not addressing other grounds for reconsideration of the Good
Neighbor Plan that have been raised by these or other petitioners.
DATES: April 4, 2024.
FOR FURTHER INFORMATION CONTACT: Mr. Thomas Uher, U.S. Environmental
Protection Agency, Office of Air Quality Planning and Standards, Air
Quality Policy Division, 109 T.W. Alexander Drive, Mail Code C539-04,
Research Triangle Park, NC 27711; phone number: (919) 541-5534; email
address: [email protected].
SUPPLEMENTARY INFORMATION:
I. Where can I get copies of this document and other related
information?
A copy of this Federal Register document, the petitions,\1\ the
letters denying the four petitions and the accompanying enclosure \2\
describing the full basis for the partial denial of these petitions and
associated stay requests, and other materials related to this action
are available in the docket that the EPA established for the Good
Neighbor Plan rulemaking, under Docket ID No. EPA-HQ-OAR-2021-0668.
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\1\ The four petitions are styled respectively as: Petition for
Reconsideration and Stay of the Final Rule: Federal ``Good Neighbor
Plan'' for the 2015 Ozone National Ambient Air Quality Standards
submitted on behalf of United States Steel Corporation; Petition for
Reconsideration and Stay of the Final Rule: Federal ``Good Neighbor
Plan'' for the 2015 Ozone National Ambient Air Quality Standards
submitted on behalf of ALLETE, Inc. d/b/a Minnesota Power; Northern
States Power Company--Minnesota; Great River Energy; Southern
Minnesota Municipal Power Agency; Cleveland-Cliffs, Inc.; and United
States Steel Corporation (collectively the ``Minnesota Good Neighbor
Coalition''); Petition for Reconsideration of the Final Rule for the
Promulgation of Air Quality Implementation Plans; State of Arkansas;
Federal ``Good Neighbor Plan'' for the 2015 8-Hour Ozone National
Ambient Air Quality Standards submitted on behalf of the Arkansas
Department of Energy & Environment, Division of Environmental
Quality (DEQ); and Administrative Petition for Reconsideration of
the Federal ``Good Neighbor Plan'' for the 2015 Ozone National
Ambient Air Quality Standards submitted on behalf of Hybar LLC.
\2\ See ``The EPA's Basis for Partially Denying Petitions for
Reconsideration of the Good Neighbor Plan On Grounds Related to
Judicial Stays of the SIP Disapproval Action as to 12 States.''
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All documents in the docket are listed at https://www.regulations.gov. Some information may not be publicly available,
i.e., Confidential Business Information or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically at https://www.regulations.gov or in hard copy at the U.S. Environmental
Protection Agency, EPA Docket Center, William Jefferson Clinton West
Building, Room 3334, 1301 Constitution Ave. NW, Washington, DC. The
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is (202) 566-1744, and the telephone number for the Office
of Air and Radiation Docket is (202) 566-1742.
II. Description of Action
On March 15, 2023, the EPA promulgated the Good Neighbor Plan,
which established Federal implementation plan (FIP) requirements for
sources in 23 States to address ``good neighbor'' obligations under CAA
section 110(a)(2)(D)(i)(I) for the 2015 ozone NAAQS. Following the
finalization and publication of the Good Neighbor Plan, several parties
filed petitions with the EPA seeking reconsideration and/or an
administrative stay of the Good Neighbor Plan, pursuant to either the
Administrative Procedure Act, 5 U.S.C. 705, or CAA Act section 307, 42
U.S.C. 7607. Four of these petitions expressly sought reconsideration
by the Agency specifically on grounds related to the issuance of
partial judicial stay orders of the separate State implementation plan
(SIP) disapproval action (88 FR 9336; Feb. 13, 2023) that had been
entered as to several of the States covered by the Good Neighbor Plan.
In the denial letters, the EPA explains that it is partially
denying these four petitions for reconsideration, because the
objections are not ``centrally relevant'' to the Good Neighbor Plan in
the sense that, having considered the two issues raised in relation to
the judicial stays, the EPA found they provide no basis on which the
Good Neighbor Plan should be modified or withdrawn. The enclosure to
the denial letters articulates the rationale for the EPA's final
response and is available in the docket for this action.
III. Judicial Review
This final action may be challenged in the United States Court of
Appeals for the District of Columbia Circuit. Pursuant to CAA section
307(b)(1), petitions for judicial review of this action must be filed
in that court within 60 days after the date notice of this final action
is published in the Federal Register.
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 D.C. Circuit: (1) when the Agency action consists of
``nationally applicable regulations promulgated, or final actions
taken, by the Administrator,'' or (2) when the Agency action is locally
or regionally applicable, if ``such action is based on a determination
of nationwide scope or effect and if in taking such action the
Administrator finds and publishes that such action is based on such a
determination.'' Numerous petitions for review of the Good Neighbor
Plan are currently proceeding
[[Page 23527]]
before the D.C. Circuit. For the same reasons that the D.C. Circuit is
the appropriate venue for challenges to the Good Neighbor Plan, it is
also the appropriate venue for any challenges to this final action.
This action is ``nationally applicable'' within the meaning of CAA
section 307(b)(1) because it denies petitions to reconsider and stay
the Good Neighbor Plan, which is itself a nationally applicable action.
88 FR 36654 at 36860; see also Order, Kentucky Energy and Environment
Cabinet v. EPA, No. 23-3605 (6th Cir. Nov. 9, 2023). On its face, the
Good Neighbor Plan is nationally applicable because it applies
nationally consistent standards and uniform methodologies to 23 States
located in ten of the eleven regional Federal judicial circuits across
the Nation. 88 FR 36654 at 36860. Although the Good Neighbor Plan is
temporarily stayed in 12 States as a result of pending litigation, see
notes 4 and 5 supra, these temporary stays do not alter the rule's
national applicability.\3\ This denial is likewise nationally
applicable because the result of this partial denial of the four
petitions identified herein is that the existing Good Neighbor Plan
remains in place and undisturbed--and because any judicial order
disturbing the EPA's reasoning herein would impact sources, states, and
other parties across multiple judicial circuits.
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\3\ Upon the conclusion of the separate supplemental rulemaking,
the Good Neighbor Plan may also apply in up to five additional
States. See 89 FR 12666 (Feb. 24, 2024).
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In the alternative, to the extent a court finds this action or a
relevant portion thereof to be locally or regionally applicable, the
Administrator hereby makes and publishes a finding that the action is
based on several determinations of ``nationwide scope or effect''
within the meaning of CAA section 307(b)(1). These determinations,
which lie at the core of this action and are the primary aspects of the
Good Neighbor Plan that petitioners ask the EPA to reconsider, include:
the determination that the Good Neighbor Plan is lawful and
implementable as applied in any individual state even if it is not in
effect for any other particular State or group of States; the
determination that the Good Neighbor Plan is premised on a series of
national-scale analyses that are not limited in scope to any particular
geography or group of States; and the determination that the Good
Neighbor Plan need not be reconsidered as to any group of sources or
States on the basis that publication of the Good Neighbor Plan in the
Federal Register occurred following the issuance of preliminary
judicial stay orders as to several States.
Michael S. Regan,
Administrator.
[FR Doc. 2024-06912 Filed 4-3-24; 8:45 am]
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