Emergency Application — Kinder Morgan, Inc., et al., Applicants v. Environmental Protection Agency, et al.

No. 23AIn the

Supreme Court of the United States

KINDER MORGAN, INC.; ENBRIDGE (U.S.) INC.; TRANSCANADA

PIPELINE USA LTD.; INTERSTATE NATURAL GAS ASSOCIATION OF

AMERICA; AMERICAN PETROLEUM INSTITUTE,

Applicants,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

On Emergency A pplication for Stay to the

Honorable John G. Roberts, Jr., Chief Justice and Circuit Justice

for the U.S. Court of A ppeals for the District of Columbia Circuit

EMERGENCY APPLICATION FOR STAY OF FINAL AGENCY

ACTION DURING PENDENCY OF PETITIONS FOR REVIEW

A na M. Gutiérrez

Michael D. Miller

Womble Bond Dickinson (US) LLP

2001 K Street, NW

Washington, DC 20006

Catherine E. Stetson

Counsel of Record

Hogan Lovells US LLP

555 Thirteenth Street, NW

Washington, DC 20004

(202) 637-5600

cate.stetson@hoganlovells.com

Counsel for Kinder Morgan, Inc.

Additional Counsel listed on Inside Cover

October 13, 2023

324648

A

(800) 274-3321 • (800) 359-6859

Eric D. McA rthur

Sidley Austin LLP

1501 K Street, NW

Washington, DC 20005

Counsel for the Interstate

Natural Gas Association

of America and American

Petroleum Institute

Laura K. McA fee

(D.C. Cir. Bar No. 62386)

Beveridge & Diamond, PC

201 North Charles Street,

Suite 2200

Baltimore, MD 21201

Counsel for Enbridge

(U.S.) Inc.

Brittany M. Pemberton

Bracewell LLP

2001 M Street, NW,

Suite 900

Washington, DC 20036

Counsel for TransCanada

PipeLine USA Ltd.

RULE 29.6 STATEMENT

Kinder Morgan is a publicly held corporation. Kinder Morgan does not have a parent

corporation, and no publicly held corporation holds 10% or more of Kinder Morgan’s stock.

Enbridge (U.S.) Inc. is a wholly-owned subsidiary of Enbridge Inc., a diversified energy company headquartered in Calgary, Canada. Enbridge (U.S.) Inc.’s holdings include natural gas pipelines regulated by the Federal Energy Regulatory Commission. Enbridge Inc. is

a publicly traded company that trades on the New York and Toronto stock exchanges.

Enbridge, Inc. has no parent companies, and no publicly held company owns a 10 percent or

greater interest in Enbridge, Inc.

TransCanada PipeLine USA Ltd. is an indirectly owned subsidiary of TC Energy Corporation. TC Energy Corporation is a federally registered Canadian corporation, with its

headquarters in Calgary, Alberta. TC Energy Corporation is a publicly held corporation with

no parent corporation. No entity (whether publicly or privately held) has an ownership interest in TC Energy Corporation of 10% or more.

Interstate Natural Gas Association of America (“INGAA”) hereby states that INGAA is

a national trade association that represents interstate natural gas transmission pipeline

companies. INGAA has no parent corporation, and no publicly held corporation has a 10%

or greater ownership in INGAA.

American Petroleum Institute (“API”) hereby states that API is a national trade association that represents all segments of America’s natural gas and oil industry. API has no

parent corporation, and no publicly held corporation has a 10% or greater ownership in API.

i

PARTIES TO THE PROCEEDINGS

The parties to D.C. Circuit Case No. 23-1157 (lead case), consolidated with Case Nos.

23-1181, 23-1183, 23-1190, 23-1191, 23-1193, 23-1195, 23-1199, 23-1200, 23-1201, 231202, 23-1203, 23-1205, 23-1206, 23-1207, 23-1208, 23-1209, and 23-1211 are listed below:

Applicant Kinder Morgan, Inc. is Petitioner in Case No. 23-1181; Applicants Interstate Natural Gas Association of America and American Petroleum Institute are Petitioners

in Case No. 23-1193; Applicant Enbridge (U.S.) Inc. is Petitioner in Case No. 23-1202; and

Applicant TransCanada PipeLine USA Ltd. is Petitioner in Case No. 23-1205.

Respondent State of Utah is Petitioner in Case No. 23-1157.

Respondents States of Ohio, Indiana, and West Virginia are Petitioners in Case No.

23-1183.

Respondent American Forest and Paper Association is Petitioner in Case No.

23-1190.

Respondent Midwest Ozone Group is Petitioner in Case No. 23-1191.

Respondents Associated Electric Cooperative, Inc.; Ohio Valley Electric Corporation;

Wabash Valley Power Association, Inc. d/b/a Wabash Valley Power Alliance; America’s

Power; National Rural Electrification Cooperative Association; and Portland Cement Association are Petitioners in Case No. 23-1195.

Respondent National Mining Association is Petitioner in Case No. 23-1199.

Respondent American Iron and Steel Institute is Petitioner in Case No. 23-1200.

Respondent State of Wisconsin is Petitioner in Case No. 23-1201.

Respondent American Chemistry Council is Petitioner in Case No. 23-1203.

ii

Respondent Hybar LLC is Petitioner in Case No. 23-1206.

Respondent U.S. Steel Corporation is Petitioner in Case No. 23-1207.

Respondent Union Electric Company d/b/a Ameren Missouri is Petitioner in Case

No. 23-1208.

Respondent State of Nevada is Petitioner in Case No. 23-1209.

Respondent Arkansas League of Good Neighbors is Petitioner in Case No. 23-1211.

Respondent City Utilities of Springfield, Missouri is Intervenor for Petitioners in the

consolidated cases.

Respondents the United States Environmental Protection Agency and Michael S. Regan, Administrator U.S. EPA, are Respondents in all consolidated cases listed above.

Respondents City of New York; Commonwealth of Massachusetts; Commonwealth of

Pennsylvania; District of Columbia; Harris County, Texas; State of Connecticut; State of Delaware; State of Illinois; State of Maryland; State of New Jersey; State of New York; State of

Wisconsin; Air Alliance Houston; Appalachian Mountain Club; Center for Biological Diversity; Chesapeake Bay Foundation; Citizens for Pennsylvania’s Future; Clean Air Council;

Clean Wisconsin; Downwinders at Risk; Environmental Defense Fund; Louisiana Environmental Action Network; Sierra Club; Southern Utah Wilderness Alliance; and Utah Physicians for a Healthy Environment are Intervenors for Respondent, U.S. EPA.

iii

TABLE OF CONTENTS

Page

RULE 29.6 STATEMENT ......................................................................................................................................... i

PARTIES TO THE PROCEEDINGS ...................................................................................................................... ii

TABLE OF AUTHORITIES ...................................................................................................................................... v

INTRODUCTION ........................................................................................................................................................ 1

STATEMENT ............................................................................................................................................................... 4

A. Statutory And Regulatory Background ............................................................................................ 4

B. Procedural History .................................................................................................................................... 9

REASONS FOR GRANTING THE APPLICATION ........................................................................................ 10

I. APPLICANTS ARE LIKELY TO SUCCEED ON THE MERITS........................................................... 11

A. The Legal Predicate For The Rule Is Undermined By Stays Across Seven Circuits ... 11

B. EPA Failed To Identify Emissions “Amounts” From Non-EGU Sources That

Contribute Significantly To Nonattainment, Failed To Explain Its Departure From

Past Practice, And Failed To Justify Its Conclusions ................................................................ 13

C. EPA’s Compliance Timeline Failed To Consider Natural Gas Reliability Impacts ...... 17

D. EPA’s 1,000-Horsepower Applicability Criterion For Pipeline Engines Is Unlawful .21

II. ABSENT A STAY, PIPELINE OPERATORS—AND THEIR CUSTOMERS—WILL BE

IRREPARABLY HARMED ............................................................................................................................. 23

III. THE BALANCE OF HARMS AND THE PUBLIC INTEREST WEIGH HEAVILY IN FAVOR OF

A STAY ............................................................................................................................................................... 29

CONCLUSION ........................................................................................................................................................... 29

iv

TABLE OF AUTHORITIES

Page(s)

Cases

Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs.,

141 S. Ct. 2485 (2021) ................................................................................................................ 24, 29

Ass’n of Oil Pipe Lines v. FERC,

281 F.3d 239 (D.C. Cir. 2002) ......................................................................................................... 17

Balt. Gas & Elec. Co. v. FERC,

954 F.3d 279 (D.C. Cir. 2020) ......................................................................................................... 23

Does 1-3 v. Mills,

954 F.3d 279 (D.C. Cir. 2020) .........................................................................................................11

EPA v. EME Homer City Generation, L.P.,

572 U.S. 489 (2014) ............................................................................................ 4, 5, 12, 13, 14, 22

Encino Motorcars, LLC v. Navarro,

579 U.S. 211 (2016) ........................................................................................................................... 16

FCC v. Fox Television Stations, Inc.,

556 U.S. 502 (2009) ........................................................................................................................... 16

Hollingsworth v. Perry,

558 U.S. 183 (2010) ............................................................................................................................ 10

In re Musical Instruments & Equip. Antitrust Litig.,

798 F.3d 1186 (9th Cir. 2015) ....................................................................................................... 19

League of Women Voters of United States v. Newby,

838 F.3d 1 (D.C. Cir. 2016) .............................................................................................................. 29

MD/DC/DE Broadcasters Ass’n v. FCC,

236 F.3d 13 (D.C. Cir. 2001) .................................................................................................... 12, 13

Maryland v. EPA,

958 F.3d 1185 (D.C. Cir. 2020) ........................................................................................ 14-15, 21

Memphis Light, Gas & Water Div. v. Craft,

436 U.S. 1 (1978) ................................................................................................................................ 18

Minnesota v. Mille Lacs Band of Chippewa Indians,

526 U.S. 172 (1999) ........................................................................................................................... 13

v

TABLE OF AUTHORITIES—Continued

Page(s)

Michigan v. EPA,

213 F.3d 663 (2000) .......................................................................................................................... 14

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co.,

463 U.S. 29 (1983) ................................................................................................................ 16, 20, 22

Nat’l Fed. of Indep. Bus. v. Dep’t of Labor,

142 S.Ct. 661 (2022) ........................................................................................................................... 11

Nken v. Holder,

556 U.S. 418 (2009) ........................................................................................................................... 10

Reno v. ACLU,

521 U.S. 844 (1997) ........................................................................................................................... 12

Shell Oil Co. v. EPA,

950 F.2d 741 (D.C. Cir. 1991) ......................................................................................................... 16

Small Refiner Lead Phase-Down Task Force v. EPA,

705 F.2d 506 (D.C. Cir. 1983) ......................................................................................................... 20

Thunder Basin Coal Co. v. Reich,

510 U.S. 200 (1994) ........................................................................................................................... 24

Train v. Nat. Res. Def. Council, Inc.,

421 U.S. 60 (1975) ................................................................................................................................. 4

Window Covering Mfrs. Ass’n v. Consumer Prod. Safety Comm’n,

No. 22-1300, 2023 WL 5918899 (D.C. Cir. Sept. 12, 2023) ................................................ 17

Worldcom, Inc. v. FCC,

238 F.3d 449 (D.C. Cir. 2001) ......................................................................................................... 23

Statutes and Regulations

42 U.S.C.

§ 7407(a) ................................................................................................................................................ 11

§ 7409(a) ................................................................................................................................................... 4

§ 7410(a)(2)(C) ...................................................................................................................................... 4

§ 7410(a)(2)(D)(i) .......................................................................................................................... 4, 23

§ 7410(a)(2)(D)(i)(I) ........................................................................................................................ 14

§ 7410(c)(1) ...................................................................................................................................... 4, 11

vi

TABLE OF AUTHORITIES—Continued

Page(s)

§ 7410(c)(1)(B) ................................................................................................................................... 11

40 C.F.R.

§ 52.40(d)(3) .................................................................................................................................... 8, 27

§ 52.40(e) .................................................................................................................................................. 8

§ 52.40(e)(2)(B) .................................................................................................................................. 16

§ 52.41(b) ................................................................................................................................................. 7

§ 52.41(c) .................................................................................................................................................. 7

§ 52.41(d) ................................................................................................................................................. 8

§ 52.45(b)(1) ......................................................................................................................................... 23

§ 52.45(b)(2) ......................................................................................................................................... 23

Federal Register

Rule To Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean

Air Interstate Rule); Revisions to Acid Rain Program; Revisions to the NOXSIP

Call,

70 Fed. Reg. 25,162 (May 12, 2005) .......................................................................................................15

Federal Implementation Plans: Interstate Transport of Fine Particulate Matter and

Ozone and Correction of SIP Approvals,

76 Fed. Reg. 48,208 (Aug. 8, 2011) ...........................................................................................................15

Cross-State Air Pollution Rule Update for the 2008 Ozone NAAQS,

81 Fed. Reg. 74,504, 74,509 (Oct. 26, 2016) ..........................................................................................15

Federal Implementation Plan Addressing Regional Ozone Transport for the 2015

Ozone National Ambient Air Quality Standard,

87 Fed. Reg. 20,036 (proposed Apr. 6, 2022) ....................................................................... 13, 15, 21

Air Plan Disapprovals; Interstate Transport of Air Pollution for the 2015 8-Hour

Ozone National Ambient Air Quality Standards,

88 Fed. Reg. 9,336 (Feb. 13, 2023) ............................................................................................................. 6

Federal “Good Neighbor Plan’’ for the 2015 Ozone National Ambient Air Quality

Standards,

88 Fed Reg. 36,654 (June 5, 2023) .... 1, 4, 5, 6, 7, 11, 12, 13, 14, 15, 16, 17, 20, 21, 22, 23, 26

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 Fed. Reg. 49,295 (July 31, 2023) ............................................................................................................ 9

vii

TO THE HONORABLE JOHN G. ROBERTS, JR.,

CHIEF JUSTICE OF THE SUPREME COURT AND

CIRCUIT JUSTICE FOR THE D.C. CIRCUIT:

Applicants Kinder Morgan, Inc., Enbridge (U.S.) Inc., TransCanada PipeLine USA Ltd.,

Interstate Natural Gas Association of America, and American Petroleum Institute, respectfully ask this Court to immediately stay the effectiveness of the final rule (Rule) of the United

States Environmental Protection Agency (EPA) entitled Federal “Good Neighbor Plan’’ for the

2015 Ozone National Ambient Air Quality Standards, 88 Fed Reg. 36,654 (June 5, 2023) as it

applies to engines used for pipeline transportation of natural gas. The Applicants have petitioned for review of the Rule in the United States Court of Appeals for the District of Columbia

Circuit and filed stay motions in that court requesting that the Rule’s applicability to pipeline

engines be stayed pending judicial review. In a split decision, the D.C. Circuit denied these

and other stay motions on September 25, 2023.

INTRODUCTION

In the Rule, EPA established a uniform, federal program to enforce stringent emissions limits for 23 States that may be contributing to increased pollution levels in nearby

States. Consistent with similar past rulemakings, the Rule requires operators of power

plants within those States to implement control technologies to reduce emissions. The Rule

also, for the first time, reaches into 20 states to regulate gas-fired reciprocating internal combustion engines (pipeline engines) used to efficiently transport natural gas along pipelines

across the United States.

The Applicants and their members own and operate hundreds of thousands of miles

of natural gas pipelines and transport the vast majority of natural gas consumed in the

1

United States. The Rule requires that thousands of pipeline engines achieve certain emission-rates limits by May 1, 2026. This date is flat-out impossible for all subject pipeline engines to achieve. Indeed, even to make progress on achieving compliance by that date, operators must significantly impair their ability to serve residential and commercial natural gas

and electric power demand across the United States in the short term—making it all the

more remarkable that EPA made no effort to even discuss the impacts of its Rule with the

Federal Energy Regulatory Commission, the agency charged with ensuring the safe and reliable transportation of natural gas.

Applicants are entitled to a stay pending appeal because: they are likely to succeed on

the merits; they will suffer irreparable injury absent a stay; and the balance of harms and

public interest favors a stay.

As a threshold matter, EPA had to disapprove over 20 state implementation plans

before the agency could adopt its national Rule. EPA’s disapprovals of those state plans are

currently under challenge in seven federal circuits, and every one of those courts has stayed

EPA’s disapproval of the underlying state plans. Yet EPA continues to implement the Rule—

no longer a uniform, national rule—despite it being stayed in a majority of the states in which

it was meant to apply.

On top of this foundational flaw, EPA violated the Clean Air Act and the Administrative

Procedure Act by: failing to identify the “amounts” of emissions from pipeline engines under

the Clean Air Act that significantly contribute to nonattainment or interfere with maintenance in a downwind state; failing to comport with past practice; and failing to justify its

2

approach. And on top of that, EPA adopted an overly broad applicability criterion for pipeline engines that is inconsistent with its own definition of sources that “significantly contribute.”

Taken together, this Rule’s fundamental predicate and substantive particulars are

lacking. If this Rule is not arbitrary and capricious, no rule is.

If this Court does not stay the Rule, there will be natural gas supply interruptions

while the courts consider the legality of the Rule and operators struggle to bring pipeline

engines into compliance with an arbitrary standard. Add the enormous compliance costs of

nearly one billion dollars that Applicants will bear over that period, and the Rule causes the

exact type of irreparable injury that merits a stay.

Finally, the public interest favors a stay. An agency’s compliance with the law is always in the public interest. And, unless stayed, EPA’s unlawful rule threatens disruption to

a reliable supply of natural gas for customers throughout the country, including for heating

and cooking in homes and businesses, as a fuel for electric power generation, and as a critical

input in industrial processes.

Applicants support sensible emissions regulations of pipeline engines; but EPA’s arbitrary and capricious Rule leaves pipeline engine operators only two choices: (1) be out of

compliance with EPA’s Rule; or (2) restrict transportation of natural gas, at grave costs to

the public. Applicants urge this Court to stay the Rule so they can continue to reliably serve

this country’s natural gas demand.

3

STATEMENT

A.

Statutory And Regulatory Background

1. The Clean Air Act is a fundamentally federalist statute: it tasks EPA with setting

national air quality standards and tasks states with implementing those standards in the first

instance through state implementation plans. See 42 U.S.C. §§ 7409(a), 7410(a)(2)(C). As

“long as the ultimate effect of a State’s choice of emission limitations is compliance with the

national standards, the State is at liberty to adopt whatever mix of emission limitations it

deems best suited to its particular situation.” Train v. Nat. Res. Def. Council, Inc., 421 U.S. 60,

79 (1975). If—and only if—a State declines to submit a plan, or if the State’s plan does not

satisfy the federal standards, EPA promulgates a federal plan in its stead. Id. § 7410(c)(1).

Relevant here, the Act requires state plans to prohibit sources “within the State from emitting any air pollutant in amounts” that will “contribute significantly” to another State’s nonattainment, or interfere with maintenance, of the national standards. Id. § 7410(a)(2)(D)(i).

This statutory requirement has been referred to as the “good neighbor” provision, or the

“transport” provision.

To implement this directive, EPA uses modeling and data from “receptors” that monitor air quality throughout the country to identify the downwind States expected to have

problems attaining or maintaining the national standards, and the upwind States that contribute emissions to those downwind receptors. See 88 Fed. Reg. at 36,659; EPA v. EME

Homer City Generation, L.P., 572 U.S. 489, 500 (2014). To determine which upwind emissions

must be eliminated because they “contribute significantly” to downwind nonattainment, EPA

considers the cost of reducing the emissions and the impact it will have on downwind air

quality. 88 Fed. Reg. at 36,660. “EPA’s task is to reduce upwind pollution, but only in

4

‘amounts’ that push a downwind State’s pollution concentrations above the relevant [air

quality standard].” EME Homer City Generation, 572 U.S. at 514; see also 88 Fed. Reg. at

36,676 (EPA defining “amounts” to mean the “amount of emissions that is in excess of the

emissions control strategies that EPA has deemed cost-effective”). Identifying a specific

“amounts” threshold is therefore imperative to comply with the transport provision.

In an earlier transport rule, see 88 Fed. Reg. at 36,668–69, EPA determined that an

upwind State’s emissions “‘contribute[d] significantly’ to downwind nonattainment to the

extent its exported pollution both (1) produced one percent or more of a[n] [air-quality

standard] in at least one downwind State”; and “(2) could be eliminated most cost-effectively

as determined by EPA.” EME Homer, 572 U.S. at 502–503. Thus, “[a]s EPA interprets the

statute, upwind emissions rank as ‘amounts [that] . . . contribute significantly to nonattainment’ if they . . . can be eliminated under the cost threshold set by the Agency.” Id. at 518.

This Court upheld that approach, concluding that eliminating “amounts that can cost-effectively be reduced is an efficient and equitable solution to the allocation problem the Good

Neighbor Provision requires the Agency to address.” Id. at 519.

This Court made clear, however, that EPA cannot “require a State to reduce its output

of pollution by more than is necessary to achieve attainment in every downwind State or at

odds with the one-percent threshold the Agency has set.” Id. at 521. If EPA were to engage

in such “over-control,” it “will have overstepped its authority.” Id. at 521–22.

2. In October 2015, EPA promulgated a new, more stringent national air-quality

standard for ozone. See 88 Fed. Reg. at 36,656. The new ozone standard triggered a duty on

5

upwind States to revise their state plans to restrict NOx emissions, a precursor to ozone.1

Under the Clean Air Act, states then had three years to submit their state plans to EPA for

approval—meaning the state plans needed to be submitted in 2018. Many states submitted

their plans by this deadline or soon thereafter.

EPA did not act expeditiously on the state plans submitted to it by that 2018 statutory

deadline: It was not until February 2023—nearly five years later—that the agency announced its decision to disapprove those submissions. Air Plan Disapprovals; Interstate

Transport of Air Pollution for the 2015 8‐Hour Ozone National Ambient Air Quality Standards,

88 Fed. Reg. 9,336 (Feb. 13, 2023). EPA concluded that 23 States did not adequately discharge their obligations under the transport provision of the Act. 88 Fed. Reg. at 36,656.

Then, a few months later, EPA issued the Rule establishing its own federal plan to restrict

NOx emissions from sources in all 23 States. Id.2

As relevant here, and for the first time, the Rule directly regulates reciprocating internal combustion engines used in pipeline transportation of natural gas. 88 Fed. Reg. at

36,659.3 For pipeline engines, EPA imposed emissions limits after examining the available

emissions-control technologies and allegedly selected the “cost threshold” that it found “in

Nitrogen oxides—“NOx”—are a type of pollutant formed by atmospheric nitrogen during

combustion. NOx can combine with other pollutants in the presence of sunlight to form

ozone.

1

2 The Rule is provided in the Appendix at 1a. Notably, EPA proposed the Rule well before it

even disapproved the state plans. See Federal Implementation Plan Addressing Regional

Ozone Transport for the 2015 Ozone National Ambient Air Quality Standard, 87 Fed. Reg.

20,036 (proposed Apr. 6, 2022).

The Rule also regulates electric generating units (EGUs) and certain industrial sources

(non-EGUs), of which pipeline engines are one.

3

6

general, maximized cost-effectiveness—i.e., that achieved a reasonable balance of incremental NOx reduction potential and corresponding downwind air quality improvements” relative to other possible reductions. Id. at 36,678. “Taken together,” the agency stated, the

Rule’s emissions limits “will fully eliminate the amount of emissions that constitute the covered states’ significant contribution to nonattainment and interference with maintenance in

downwind states for purposes of the 2015 ozone [standard].” Id. at 36,657. But EPA abandoned its cost threshold in the final Rule while nonetheless requiring the same emission control strategies for industrial sources resulting from that abandoned cost analysis.

The Rule now limits emissions from pipeline engines with a “nameplate rating” of

1,000 horsepower or greater. 40 C.F.R. § 52.41(b). The specific limitations vary based on

the type of engine, but each caps the grams of NOx that can be emitted per horsepower-hour.

Id. § 52.41(c). In arriving at the 1,000-horsepower applicability criterion for pipeline engines, EPA deviated from its approach for several other industrial sources, where EPA used

actual emissions amounts exceeding 100 tons per year. Despite wide variance in actual emissions from pipeline engines greater than 1,000 horsepower, EPA contends that the horsepower criterion “reasonably approximates” the 100-ton-per-year applicability criterion that

EPA used for other industrial sources. 88 Fed. Reg. at 36,820.

The Rule also sets an impossible compliance deadline given the scale and scope of

requirements for pipeline engines. All regulated pipeline engines are required to meet the

applicable emissions rate limits by May 1, 2026, less than three years after the Rule’s effective date. EPA rationalized this compliance date in part by contending that the proposed rule

had provided “roughly an additional year of notice.” Id. at 36,755.

7

Tacitly acknowledging the Rule’s overly broad application, costly requirements, and

impossible compliance timeline, EPA tacked on provisions (not proposed at the draft stage)

purportedly allowing for one-off exceptions or limited flexibility. Operators may attempt to

seek EPA’s discretionary approval, on “a case-by-case” basis, for a higher emissions limit for

an engine that cannot comply with the applicable limit “due to technical impossibility or extreme economic hardship.” 40 C.F.R. § 52.40(e). Operators also may attempt to seek EPA

approval for a “Facility-Wide Averaging Plan as an alternative means of compliance,” provided that the “total emissions reductions” for all the engines in the facility are “equivalent

to or greater than those” that would be achieved if each engine hit its individual limit. Id.

§ 52.41(d). For pipeline engines, EPA may grant a case-by-case compliance extension for

units that cannot meet the applicable compliance date “due to circumstances entirely beyond

the owner or operator’s control” if the owner or operator demonstrates it “has taken all steps

possible to install the controls necessary for compliance . . . by the applicable compliance

date.” Id. § 52.40(d)(3).

3. EPA’s disapproval of the state plans—the predicate for the nationwide Rule—has

been challenged in seven different federal circuit courts. All seven have stayed EPA’s underlying state plan disapprovals.4 Acknowledging these stays, EPA has issued two “interim final

Order, Texas v. EPA, No. 23-60069, ECF 269-1 (5th Cir. May 1, 2023); Order, Arkansas v.

EPA, No. 23-1320, ECF 5280996 (8th Cir. May 25, 2023); Order, Missouri v. EPA, No. 23-1719,

ECF 5281126 (8th Cir. May 26, 2023); Order, Texas v. EPA, No. 23-60069, ECF 359-2 (5th Cir.

June 8, 2023); Order, Nevada Cement Co. v. EPA, No. 23-682, ECF 27.1 (9th Cir. July 3, 2023);

Order, ALLETE, Inc. v. EPA, No. 23-1776 (8th Cir. July 5, 2023); Order, Kentucky v. EPA, No.

23-3216, ECF 39-2 (6th Cir. July 25, 2023); Order, Utah v. EPA, No. 23-9509, ECF

010110895101 (10th Cir. July 27, 2023); Interim Stay Order, West Virginia v. EPA, No. 2301418, ECF 39 (4th Cir. Aug. 10, 2023); Order, Alabama v. EPA, No. 23-11173 (11th Cir. Aug.

17, 2023). This uniform response from the federal courts of appeals reinforces the primacy

4

8

rules” to stay the Rule within the twelve states where the state plan disapprovals have been

stayed. See 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 Fed. Reg.

49,295 (July 31, 2023) (First Interim Final Rule)5; 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, 88 Fed. Reg. 67,102, 67,103 (Sept. 29, 2023) (Second

Interim Final Rule). EPA has not expressly extended the compliance deadline for pipeline

engines in states with stays, however, creating yet more regulatory uncertainty for operators

attempting to manage an already impossible timeline. See 88 Fed. Reg. at 67,103–04 (stating

only that EPA “generally anticipates” that lead times would be “comparable” if/when state

SIP disapproval stays are lifted).

B.

Procedural History

The States of Indiana, Ohio, Utah, and West Virginia, along with members of multiple

affected industries, timely petitioned for review of the Rule in the D.C. Circuit. See D.C. Circuit

Lead Case No. 23-1157. The following relevant motions to stay the Rule were then filed:

of States’ roles in achieving air quality standards under the Clean Air Act’s cooperative federalism approach, and confirms the extent of EPA’s overreach. See Order, Texas v. EPA, No.

23-60069, ECF 269-1, at 17 (“In sum, because the EPA’s lack of deference to the States inverts

the agency’s ‘ministerial function’ in this system of ‘cooperative federalism,’ Stay Petitioners

have made a strong showing that the EPA acted unlawfully.”) (cleaned up). EPA’s overly

muscular approach to Clean Air Act regulation, coupled with the immense costs to industry,

also implicate the Major Questions Doctrine. See Br. for Enbridge (U.S.) Inc. 12–13, No. 231157 (D.C. Cir. Aug. 4, 2023) (arguing that EPA’s action in universally disapproving state

plans in favor of a federal plan “runs roughshod over” cooperative federalism and implicates

the Major Questions Doctrine).

One of the Applicants has challenged the First Interim Final Rule in the D.C. Circuit. See

Kinder Morgan v. EPA, D.C. Cir. No. 23-1279 (Sept. 29, 2023).

5

9



Utah moved to stay on July 7, 2023;6



Indiana, Ohio, and West Virginia moved jointly to stay on July 19, 2023;



Kinder Morgan moved to stay on July 27, 2023;



API and INGAA moved to stay on July 27, 2023,



American Forest & Paper Association, Midwest Ozone Group, America's

Power, Associated Electric Cooperative, Inc., Deseret Generation & Transmission Co-Operative, National Rural Electric Cooperative Association, Ohio Valley Electric Corporation, Portland Cement Association, Wabash Valley Power

Association, Inc., and the National Mining Association moved to stay on August

2, 2023.



Enbridge moved to stay on August 4, 2023.



TC Energy moved to stay on August 8, 2023.

A divided panel of the D.C. Circuit denied the stay motions on September 25, 2023.

Order, Utah v. EPA, No. 23-1157 (D.C. Cir. Sept. 25, 2023) (266a). Judge Walker dissented.

Id.

REASONS FOR GRANTING THE APPLICATION

Applicants are entitled to a stay if they can establish that (1) they are likely to succeed

on the merits; (2) they will be irreparably injured absent a stay; (3) a stay will not substantially injure other parties; and (4) a stay serves the public interest. Nken v. Holder, 556 U.S.

418, 434 (2009). The third and fourth factors merge when the government is the opposing

party. Id. at 435. These Applicants satisfy each factor.7

6 Utah subsequently moved to hold the briefing for its motion in abeyance because the Tenth

Circuit stayed EPA’s disapproval of Utah’s state plan; the D.C. Circuit granted Utah’s request.

Applicants do not need to meet the standard in Hollingsworth v. Perry, 558 U.S. 183, 190

(2010), where the Court analyzes likelihood of granting certiorari and the prospect of reversal. In Hollingsworth, this Court considered an application for a stay of a lower court or7

10

I.

APPLICANTS ARE LIKELY TO SUCCEED ON THE MERITS.

A.

The Legal Predicate For The Rule Is Undermined By Stays Across Seven

Circuits.

As an exercise of cooperative federalism, the Clean Air Act assigns to the States the

“primary responsibility for assuring air quality.” 42 U.S.C. § 7407(a). As such, EPA only has

authority to issue a federal plan if a state plan does not comply with the Act. See id.

§ 7410(c)(1). But seven circuit courts—all circuits presented with a request to date—have

stayed EPA’s disapproval of 12 separate state plans. Thus, a majority of the 20 states where

the Rule applies to pipeline engines have now had their state plan disapprovals stayed, eliminating the legal predicate for the Rule in those states. Id. § 7410(c)(1)(B).

That state of affairs fundamentally undermines the Rule. EPA itself states that the

Rule is based on the “combined effect of the entire program across all linked upwind states,”

88 Fed. Reg. at 36,749 (emphasis added), so the many judicial stays of the state plan disapprovals have profoundly altered the nature and scope of the multi-state Rule EPA proposed,

received comments on, analyzed for emissions impacts, and promulgated. The data tells the

story: of EPA’s total estimated emissions reductions, only 22 percent remain from the states

where EPA continues to have authority to enforce the Rule. Appendix at 649a. By sector,

only 11 percent of total EGU emissions reductions remain, and only 40 percent of total nonEGU emissions reductions remain. Id.

der pending the filing of petitions for certiorari and mandamus. Id. at 185. Here, by contrast, Applicants seek a stay of a federal rule that the D.C. Circuit’s motions panel refused to

stay. See Nat’l Fed’n of Ind. Bus. v. Dep’t of Labor, 142 S.Ct. 661 (2022) (per curiam) (applying traditional Nken factors and granting stay in analogous posture). Even if Hollingsworth

applied, however, see Does 1–3 v. Mills, 142 S. Ct. 17, 18 (2021) (Barrett, J., concurring) (understanding Nken’s first factor to encompass the Hollingsworth standard), Applicants

would still satisfy that standard given the importance of the issues and the Rule’s significant legal flaws.

11

Given this data, EPA’s own rationale for the Rule disintegrates. EPA itself emphasized

that the Rule is meant to address interstate ozone transport “on a national scale” and that

“consistency in rule requirements across all jurisdictions is vital in ensuring the remedy for

ozone transport is ‘efficient and equitable.’” 88 Fed. Reg. at 36,691 (quoting EME Homer, 572

U.S. at 519). Now, the Rule no longer applies on a “national scale” and imposes inconsistent

requirements among states. Similarly, EPA stated that the Rule depends on “a uniform level

of emissions reduction . . . the linked upwind states can achieve,” id. at 36,676, but the Rule

is not “uniform” when it applies to less than half the states EPA originally intended.

On top of that, the Rule’s ozone-reduction rationale no longer applies. EPA concluded

that “the collective application of these mitigation measures and emissions reductions are

projected to deliver meaningful downwind air quality improvements” of 0.66 parts per billion (ppb) of ozone reduction on average. Id. at 36,748 (emphasis added). In proposing and

promulgating the Rule, EPA also emphasized that an individual state’s contribution may be

relatively small, but the “collective contribution resulting from multiple upwind states” may

not. Id. at 36,678 (emphasis added). With 78 percent of the “collective” emission reductions

now stayed, it is unclear what, if any, ozone benefit would result; EPA did not analyze the

effect of a partial rule.

EPA may respond that it considers the Rule severable. See id. at 36,693 (“[S]hould a

court find any discrete aspect of this document invalid, the Agency believes that the remaining aspects of this rule can and should be implemented to the extent possible.”). But severability depends on whether the provisions at issue are actually severable, Reno v. ACLU, 521

U.S. 844, 882–83 (1997), meaning whether “the remainder of the regulation could function

sensibly without the stricken provision.” MD/DC/DE Broadcasters Ass’n v. FCC, 236 F.3d 13,

12

22 (D.C. Cir.), aff’d on reh’g, 253 F.3d 732, 734 (D.C. Cir. 2001) (en banc); see also Minnesota

v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 194 (1999) (entirety of order inseverable, “embodying as it did one coherent policy”). Where severance would “severely distort

the [agency’s] program and produce a rule strikingly different from any the [agency] has ever

considered or promulgated,” as here, the regulation cannot be severed. MD/DC/DE Broad‐

casters, 236 F.3d at 23. EPA’s own statements in briefing on venue drive this home: “[The

Rule] depends on the continuing operation of ‘interdependent’ interstate mechanisms.”

Tulsa Cement et al. v. EPA, EPA’s Motion to Dismiss or Transfer Petitions for Improper Venue

16, No. 23-9551 (10th Cir. July 20, 2023). With these interdependencies dissolved by the

stays spanning 12 states, and with the Rule’s striking difference from the one considered and

promulgated, the whole Rule falls apart.

This procedural and substantive mess is compounded by the foundational legal issues

with the Rule itself, which we discuss in turn.

B.

EPA Failed To Identify Emissions “Amounts” From Non‐EGU Sources That

Contribute Significantly to Nonattainment, Failed to Explain its Depar‐

ture From Past Practice, and Failed to Justify its Conclusions.

In its proposed rule, and applying its “uniform cost” framework upheld by EME

Homer, 88 Fed. Reg. at 36,719, EPA used a “marginal cost threshold of $7,500 per ton” of

emissions as the threshold for the “amounts” of emissions to be eliminated for non-EGU

sources, including pipeline engines, 87 Fed. Reg. at 20,083. After pipeline companies identified critical flaws in EPA’s cost data and analysis during the comment period (including that

the Rule would apply to more than three times the number of engines that EPA assumed),

EPA jettisoned that threshold as “not reflect[ing] the full range of cost-effectiveness values

13

that are likely present across the many different types of non-EGU industries and emissions

units assessed.” 88 Fed. Reg. at 36,740, 36,746.

But EPA then made a critical error: it never adopted (or even analyzed) a revised cost

threshold reflecting the “amount of emissions that is in excess of the emissions control strategies that EPA has deemed cost-effective.” 88 Fed. Reg. at 36,676. Instead, it continued to

require the same emissions controls identified at the proposal stage that were not reflective

of the full range of cost-effectiveness values pipeline engines would face. EPA’s flawed Rule

thus requires emissions reductions on engines that vastly exceed $7,500 per ton. See TC

Energy Comment 5 (noting total costs of Rule of $900 million for engines that operate infrequently) (603a); Kinder Morgan Comment 21–26 (noting costs above $100,000/ton and

even above $684,169/ton) (543a–548a). EPA’s approach runs afoul of the Clean Air Act—

and this Court’s prior precedent—and arbitrarily and capriciously departs from its own past

practice.

First, the Clean Air Act requires EPA to define the “amounts” of pollutants to be reduced. 42 U.S.C. § 7410(a)(2)(D)(i)(I). As the D.C. Circuit has explained, “[i]nterstate contributions cannot be assumed out of thin air.” Michigan v. EPA, 213 F.3d 663, 684 (2000). Rather, they must be grounded in an “amount.” EPA definitively decided to define this amount

in this Rule using a cost-effectiveness criterion, where “upwind emissions rank as ‘amounts

[that] . . . contribute significantly to nonattainment’ if they . . . can be eliminated under the

cost threshold set by the Agency.” EME Homer, 572 U.S. at 518; 88 Fed. Reg. at 36,719. EPA

maintains that the Rule “continues to apply the same approach as the prior three [interstate

transport] rulemakings” for evaluating “amounts” of “significant contribution,” which are

“represented by cost thresholds.” 88 Fed. Reg. at 36,678; see Maryland v. EPA, 958 F.3d 1185,

14

1192 (D.C. Cir. 2020). EPA is wrong. In discarding its proposed cost-effectiveness threshold

in the final Rule without ever defining an alternative, EPA failed to determine the statutory

“amounts” of emissions required to be eliminated.8

Second, EPA’s failure to define “amounts” as “represented by a cost threshold” also

departs from its own long-held approach. In past ozone transport rules, EPA required industries to install only those control technologies that are cost-effective, based on a defined

threshold. See, e.g., 76 Fed. Reg. 48,208, 48,248 (Aug. 8, 2011) (“defin[ing] each state’s . . .

contribution . . . as the emission reductions available at a particular cost threshold in a specific

upwind state.” (emphasis added)). And when EPA found a cost threshold unrepresentative,

it did not require reductions. See, e.g., 70 Fed. Reg. 25,162, 25,214 (May 12, 2005) (“EPA

believes it is necessary to have . . . better control cost information for [non-EGUs] before assuming reductions from them.”); 81 Fed. Reg. 74,504, 74,508 (Oct. 26, 2016) (“Our analysis

shows that there is uncertainty regarding whether or not meaningful, cost-effective non-EGU

emission reductions are achievable . . . . Therefore, non-EGU reductions are not included in

the final rule.”).

Despite admitting that the $7,500 threshold did “not reflect the full range of cost-effectiveness values that are likely present across the many different types of non-EGU industries and emissions units assessed,” EPA is still forcing companies to install those same controls it proposed. 88 Fed. Reg. at 36,746. EPA also did not explain why it was departing from

EPA may argue in response that the $7,500 threshold was never supposed to be a fixed

cost threshold above which emissions reductions would not be required. But the agency's

own record belies that claim. EPA said at proposal that it “believes that . . . engines subject to

this proposed [rule] can achieve the emissions limit of 1.5 g/hp-hr with the installation and

operation” of specified “control technologies at the marginal cost threshold of $7,500 per ton.”

87 Fed. Reg. at 20,142–43 (emphasis added).

8

15

its past practice in defining a cost-effectiveness threshold above which emissions reductions

are not required. See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515–16 (2009) (reasoned explanation required when agency departs from past practice). Even worse, EPA

changed its interpretation in a final rule, without the opportunity for notice and comment.

See Shell Oil Co. v. EPA, 950 F.2d 741, 747 (D.C. Cir. 1991). Indeed, one commenter noted that

“[i]t is unclear how EPA could make the necessary findings for a final rule given the inaccurate data it relies upon.” Kinder Morgan Comment 3 (525a). EPA’s failure to provide a reasoned explanation “for disregarding facts and circumstances that underlay or were engendered by the prior policy” was arbitrary and capricious. Encino Motorcars, LLC v. Navarro,

579 U.S. 211, 222 (2016) (quoting Fox Television, 556 U.S. at 515–16).

For the Clean Air Act’s requirements to have any meaning, EPA cannot be allowed to

choose to define a source’s “significant contribution” in terms of whether the source can

make cost-effective emissions reductions, identify a threshold for assessing cost-effectiveness, and then deem cost-effectiveness irrelevant by finalizing a Rule that imposes costs

vastly exceeding the threshold. See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co.,

463 U.S. 29, 43 (1983) (agency must “articulate a satisfactory explanation for its action,” including “a rational connection between the facts found and the choice made.”).

EPA likely will respond that the Rule provides a limited exemption process for “certain individual facilities and emissions units [that] may face extreme hardship,” 88 Fed. Reg.

at 36,747 n.250. But that process is no panacea. First, whether to grant an exemption is

committed to EPA’s sole discretion. See 40 C.F.R. §52.40(e)(2)(B) (demonstration of extreme

economic hardship must be to EPA’s “satisfaction”). Thus, pipeline companies have no assurance that even an engine with emission-reduction costs far in excess of $7,500/ton would

16

be granted an exemption. Second, to be granted this discretionary cost-based exemption,

companies must demonstrate “extreme economic hardship”—a standard EPA has never used

and has yet to define as a fixed cost-per-ton threshold. Id. (emphasis added). And third, by

limiting exemptions to “individual facilities and emissions units” on a case-by-case basis, it

is unlikely that EPA will grant widespread exemptions even though widespread exemptions

will inevitably be necessary.9 The theoretical availability of occasional exemptions does not

save this deeply flawed Rule. See Ass’n of Oil Pipe Lines v. FERC, 281 F.3d 239, 244 (D.C. Cir.

2002) (“safety valve” could not “rescue [agency’s rule] from systemic errors, for then the

exception would swallow the rule”).

C.

EPA’s Compliance Timeline Failed To Consider Natural Gas Reliability

Impacts.

The Rule requires the pipeline transportation sector to implement complex control

technologies by May 1, 2026—an impossible deadline for pipeline engines. 88 Fed. Reg. at

36,756. 10 These emissions requirements apply to over three thousand pipeline engines

across the country, id. at 36,824, but a retrofit on a single engine “requires between 1 and 2

½ years to complete (from inception to completion of commissioning),” INGAA Comment 36

There are only two vendors nationwide with the necessary equipment and experience to

retrofit most pipeline engines, and those contractors have never processed the scale and

magnitude of requests that the Rule forces. See Kinder Morgan Comment 28 (550a); NOx Emis‐

sions Control Technology Installation Report Timing for Non‐EGU Sources, Final Report, EPAHQ-OAR-2021-0668-1077, 68, A-1−A-3 (Mar. 14, 2023) (Timing Report) (454a, 456a–

458a). EPA ignored these logistical impediments as well.

9

10 EPA contends that “the publication of the proposal” also “provided roughly an additional

year of notice.” Id. That contention is meritless. See Window Covering Mfrs. Ass’n v. Consumer

Prod. Safety Comm’n, No. 22-1300, 2023 WL 5918899, at *13 (D.C. Cir. Sept. 12, 2023) (rejecting agency’s assertion that the proposed rule gave additional notice to the regulated industry in concluding agency’s chosen effective date was arbitrary and capricious).

17

(500a).11 EPA’s refusal to provide a feasible compliance deadline jeopardizes the safe and

reliable transportation of natural gas in the United States. See id. at 34–42 (explaining impossibility of EPA’s proposed compliance date for pipeline engines and noting that EPA had

not evaluated pipeline reliability impacts of its proposed compliance date) (498a–506a);

Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 18 (1978) (recognizing “utility service”

as a “necessity of modern life”). Notwithstanding the gravity of this concern, EPA failed to

consider the adverse impacts to natural gas reliability when setting the compliance deadline,

which will result in natural gas and electric power service interruptions during the times of

year when downstream users, including homes, businesses, institutions (such as schools and

hospitals), and electric power plants, need fuel the most.

With over three thousand regulated engines, basic math dictates that pipeline companies will need to take numerous pipeline engines offline simultaneously (for months each,

once the operator secures the permits, contractor, and parts) to even attempt to meet the

2026 deadline. These outages will in turn cause a “large-scale reduction in output of natural

gas,” Kinder Morgan Comment 29, 36–37 (551a, 558a–559a), and “prevent[] [natural gas]

shippers from transporting as much gas as their users require,” INGAA Comment 42 (506a).

Despite the importance of natural gas reliability and industry comments, EPA offers scant

discussion on—and no meaningful support for—its conclusion that the Rule would not cause

supply shortages.

This is in part because pipeline engines are a far cry from the small engines in cars and

trucks. Pipeline engines typically weigh at least 100,000 pounds and can weigh as much as

365,000 pounds, and they are highly complex and integrated machines. Kinder Morgan

Comment 28 (550a).

11

18

First, EPA relies on a cursory report it commissioned, and which it did not publish

until the final Rule, which suggests that operators could simply “coordinate outages” of pipeline engines to minimize natural gas reliability concerns and service disruptions. EPA, NOx

Emissions Control Technology Installation Report Timing for Non‐EGU Sources, Final Report,

EPA-HQ-OAR-2021-0668-1077, ES-8 (Mar. 14, 2023) (Timing Report) (385a). That rationale is both misplaced and unsupported. Pipelines are linear. Pipeline engines are spread

every 40 to 100 miles along the pipeline network to ensure sufficient flow of natural gas. If

one engine is taken offline for retrofits, there is limited ability for an engine immediately

ahead or behind it to substitute for its capacity at high demand, and there is no ability to

substitute engine capacity across different pipelines. Further, even if such coordination were

physically possible, EPA does not consider that pipeline capacity cannot be coordinated

among different pipeline operators, given that pipeline companies are competitors—meaning agreements between them to allocate capacity would trigger serious antitrust concerns.12

And each pipeline operator can have unique delivery points to distribution companies, gasfired electric generators, or industrial customers that no other operator can access, eliminating any opportunity for coordination. EPA’s proposed solution is thus no solution at all.

Second, the Timing Report expressly states that its authors “were not able to complete

an evaluation of” the reliability concerns raised during the comment period. Timing Report

at ES-8 (385a). Given that the Timing Report represents EPA’s only analysis of pipeline reliability concerns at all, EPA admits that it “failed to consider [this] important aspect of the

12 See In re Musical Instruments & Equip. Antitrust Litig., 798 F.3d 1186, 1191 (9th Cir. 2015)

(“[A]greements among competitors to fix prices, divide markets, and refuse to deal . . . [are]

inherently anticompetitive horizontal agreements [that] violate the Sherman Act per se.”).

19

problem.” State Farm, 463 U.S. at 43. EPA’s lack of consideration for natural gas reliability

is especially stark in contrast with the lengthy electric-sector reliability evaluation (where

the agency at least paid lip service to the issue for EGUs), particularly where gas-fired power

plants themselves rely on pipelines for fuel. See 88 Fed. Reg. at 36,772 n.301 (noting report

EPA prepared to evaluate electric-sector reliability).

EPA’s failure to consider these adverse impacts drew ire from a Federal Energy Regulatory Commissioner, who observed with respect to the Rule that “[a]lthough EPA responds

to arguments regarding how the EGU portion of its rule affects electric reliability, . . . EPA

[did] not ever consider the impacts that the timeline for compliance for non-EGUs would

have on electric reliability or residential uses.” Commissioner James Danly, Response to Ques‐

tions for the Record for June 13, 2023 House Energy & Commerce Oversight Hearing 23–24,

https://perma.cc/C757-3DD3 (637a–638a). Quite so.

The Rule’s unrealistic compliance timeline cannot be saved by the fact that the Rule

allows an operator to request a case-by-case extension in exceptional circumstances. Indeed,

for the reasons discussed above, extensions will almost certainly be required across the

board, rather than only in one-off or exceptional cases.

EPA thus “entirely failed to consider an important aspect of the problem” when adopting the compliance timeline—namely, the widespread impacts to natural gas reliability—

and the Rule is arbitrary and capricious as a result. State Farm, 463 U.S. at 43; see Small

Refiner Lead Phase‐Down Task Force v. EPA, 705 F.2d 506, 544−545, 552 (D.C. Cir. 1983) (vacating EPA’s gasoline lead standard under the Clean Air Act in part for lack of record evidence

that compliance timeline was achievable).

20

D.

EPA’s 1,000‐Horsepower Applicability Criterion For Pipeline Engines Is

Unlawful.

EPA also erred by adopting an initial applicability criterion that captures many pipeline engines whose emissions are far below the threshold EPA used to screen out sources

that do not “contribute significantly.”

In determining which sources to regulate, and before applying the marginal cost

threshold discussed above, EPA “focused on assessing emission units that emit > 100 [tons

per year] of NOx.” EPA, Screening Assessment of Potential Emissions Reductions, Air Quality

Impacts, and Costs from Non‐EGU Emissions Units for 2026 at 3 (Feb. 28, 2022) (736a). EPA’s

decision to screen out sources that emit less than that amount necessarily represents a determination that those sources do not “significantly contribute” to downwind nonattainment. Maryland, 958 F.3d at 1204.

For some other non-EGU sources, EPA used 100 tons per year of actual emissions as

a threshold for the applicability criterion. See 88 Fed. Reg. at 36,825 (cement and concrete

product manufacturing); id. at 36,827 (iron and steel mills and ferroalloy manufacturing); id.

at 36,829 (glass and glass product manufacturing). For pipeline engines, by contrast, EPA

did not. Instead, it implemented the 100-tons-per-year threshold by using a horsepowerbased proxy, lumping in all pipeline engines with a design capacity of 1,000 horsepower or

greater and asserting that this criterion “reasonably approximates” the 100-tons-per-year

threshold. 88 Fed. Reg. at 36,820; see also 87 Fed. Reg. 20,036, 20,142 (proposed Apr. 6,

2022).

At the proposal stage, EPA projected that its horsepower proxy would cover only 307

engines nationwide. 87 Fed. Reg. at 20,090. And it projected that a significant majority of

those engines would exceed the 100-tons-per-year threshold: EPA estimated that “over 200

21

engines” out of 307 “emitted greater than 100 [tons per year].” EPA, Technical Support Doc‐

ument (TSD) for the Final Rule: Final Non‐EGU Sectors TSD at 4 (Mar. 2023) (271a).

Commenters demonstrated that EPA had wildly underestimated the proposed rule’s

reach. See INGAA Comment 8–9 (472a–473a (stating that INGAA’s members alone operate

1,380 units that would be regulated, contrasting with EPA’s estimate of 307 engines in total).

In the Final Rule, EPA admitted that the 1,000-horsepower criterion had “captured more

units than the EPA intended,” including “low-use units and some units with emissions of less

than 100 tons per year.” 88 Fed. Reg. at 36,819, 36,821. That was an understatement: EPA

now projects that 3,005 units are subject to the Rule—almost ten times its initial projection.

Id. at 36,824. Yet EPA continued to project that fewer than 300 units would meet the 100tons-per-year threshold for coverage under the Rule. See EPA, Non‐EGU Facilities and

Units.xlsx

(Mar.

2023)

(listing

about

260

engines

above

the

threshold),

https://perma.cc/UDK9-LRKU (downloads file).

EPA nonetheless persisted in its plan to regulate all units with a 1,000-horsepower

rating, refusing to adjust its applicability criterion to address the mismatch of actual emissions as compared to potential emissions. 88 Fed. Reg. at 36,819–21. This was unlawful.

First, EPA’s applicability criterion results in regulation of a significant number of engines that, by EPA’s own logic, do not “contribute significantly.” That exceeds EPA’s authority

under the statute: EPA may not require emissions reductions “at odds with the . . . threshold

the Agency has set.” EME Homer, 572 U.S. at 521.

Second, EPA’s finding that a 1,000-horsepower rating “reasonably approximates” the

100-tons-per-year threshold, 88 Fed. Reg. at 36,820, “runs counter to the evidence before

the agency,” State Farm Mut. Auto. Ins. Co., 463 U.S. at 43. EPA’s own data shows that fewer

22

than one in ten of the units subject to the rule meet the 100-tons-per-year threshold. The

rest are collateral damage. A “reasonable approximation” is one that fairly, if inexactly, captures the target group. Cf. Worldcom, Inc. v. FCC, 238 F.3d 449, 459 (D.C. Cir. 2001). Rather

than a “reasonable approximation,” the Rule amounts to a tenfold expansion of EPA’s regulatory reach beyond sources that “contribute significantly.”

Third, EPA’s reasons for declining to adjust the applicability criterion are arbitrary

and capricious. Balt. Gas & Elec. Co. v. FERC, 954 F.3d 279, 285 (D.C. Cir. 2020) (agency has a

“duty to explain inconsistent treatment” of regulated entities). EPA tried to justify its overreach by claiming that the hundreds of units below the emissions threshold could one day

exceed 100 tons per year and it is “not possible to guarantee without an effective emissions

control program that all such units could not increase emissions in the future.” 88 Fed. Reg.

at 36,821. But the statute applies only to sources that “will . . . contribute significantly,” 42

U.S.C. § 7410(a)(2)(D)(i) (emphasis added), not that “could potentially” do so in the future.

And, contrary to EPA’s assertion, it is possible to ensure that units do not increase their emissions: As it did in the Rule for other sources, EPA could impose a reporting obligation and

require compliance with emissions limits if the 100-tons-per-year threshold is exceeded. Cf.

40 C.F.R. § 52.45(b)(1)–(2) (exempting low-use boilers from all but recordkeeping and reporting requirements unless they exceed certain usage thresholds).

II.

ABSENT A STAY, PIPELINE OPERATORS—AND THEIR CUSTOMERS—WILL BE

IRREPARABLY HARMED.

Absent a stay, pipeline operators will be forced to curtail natural gas shipments—

causing supply interruptions—while they take pipeline engines offline for retrofits to meet

EPA’s infeasible and unsupported compliance timeline and spend hundreds of millions of

dollars in just the 12 to 18 months after the Rule’s effective date (August 4, 2023) on those

23

retrofits. Interrupted natural gas supplies no doubt constitute irreparable injury—to the

public and pipeline companies. Likewise, compliance costs that cannot be recovered are irreparable. Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 220–21 (1994) (Scalia, J., concurring

in part and concurring in the judgment) (“[C]omplying with a regulation later held invalid

almost always produces the irreparable harm of nonrecoverable compliance costs.”); see also

Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2489 (2021) (per curiam) (noting financial impact “with no guarantee of eventual recovery” put applicants “at risk of irreparable injury”).

Natural gas reliability. Natural gas pipelines—the backbone of the country’s natural

gas supply infrastructure—cannot retrofit all their engines in time to meet EPA’s compliance

deadline of May 1, 2026. Supra at 17–21. To even have a chance of meeting that deadline,

pipeline operators will need to take engines offline during peak-demand seasons (winter and

summer) to retrofit all the engines required.13

Pipeline engines are large, complex pieces of machinery, and a single retrofit project

can take from one to two-and-a-half years from engineering development to commissioning.

Yeager Decl. ¶ 19 (716a). The installation phase itself can take between three to six months

per engine or six to 12 months per compressor station. Wooden Decl. ¶ 11 (702a). Before

construction can even begin, pipeline operators need to have state permits in hand, and the

permit process itself can take over a year, even without delays. Grubb Decl. ¶ 52 (681a).

Pipeline operators must do so to achieve the emissions limits in states where the Rule is

not stayed, and as noted above, EPA offered only vague assurances that compliance timelines

would be pushed back to account for existing state plan disapproval stays. See 88 Fed. Reg.

at 67,103–04 (EPA “generally anticipates” that lead times would be “comparable” if/when

state plan disapproval stays are lifted).

13

24

Adding this all together, pipeline operators will have a short window of time to retrofit engines, and these retrofits would require taking hundreds of engines offline during peak-demand seasons, risking natural gas reliability for winter heating (November to March) and for

use in power plants to serve air conditioning loads in the summer (May to September).

Grubb Decl. ¶¶ 61–69 (685a–693a); Wooden Decl. ¶¶ 11–12 (702a–703a). This forcedmarch timeline sharply contrasts with pipeline operators’ practice of scheduling service or

other necessary outages during lower demand periods. Grubb Decl. ¶ 62 (685a–686a).

Two case studies illustrate that reliability concerns are concrete and imminent.

Kinder Morgan performed computer simulation modeling on two of its pipelines to evaluate

the pipeline capacity impacts that will result if Kinder Morgan attempts to meet the May 1,

2026, compliance date for as many of its engines as possible. Grubb Decl. ¶¶ 64–66 (687a–

689a). First, for its pipeline system serving the Chicago area—which serves approximately

60 percent of the Chicago natural gas market—Kinder Morgan found that its delivery capacity during peak-demand winter days in Chicago would fall 20 percent short of demand. Id.

¶ 66 (689a). That shortfall equates to approximately 1,761,000 homes’ worth of natural gas

usage that could not be supplied during a peak-demand winter day. Id. (689a). Second, the

same modeling showed that Kinder Morgan’s pipeline segment serving the Gulf Coast region

would experience shortfalls of delivered natural gas equating to hundreds of thousands of

homes going unserved during both summer and winter periods. Id. ¶ 67 (690a–691a).

Kinder Morgan’s natural gas system in this region also serves six natural gas-fired power

plants, which collectively provide electricity to millions of customers. Id. (690a–691a).

EPA will likely argue that pipelines have sufficient spare capacity to absorb required

engine outages, given pipelines’ “average annual capacity utilization.” See Timing Report at

25

ES-8, 8 (385a, 394a) (citing average annual capacity utilization of 40 percent). This is not a

solution; indeed, it only reveals EPA’s deep misunderstanding of the pipeline industry. Av‐

erage capacity utilization bears little on the ability to serve peak demand. Natural gas demand is highly seasonal; pipelines experience much higher demand when weather is extremely hot or extremely cold, and demand ebbs in the spring and fall. For a particular pipeline, then, “40 percent utilization” could mean a much lower percent utilization during lowdemand times in spring and fall and over 95 percent during peak summer and winter demand. And if the weather turns hot or cold in these “off-peak” months, utilization jumps

higher.

Relying on a 40% average capacity utilization also presupposes that engine capacity

can be borrowed across the entire industry. The capacity a pipeline engine provides is highly

location- and pipeline-specific. Even within a single pipeline, there is little ability for sharing

the work of engines too far upstream or downstream in the pipeline. And in certain highly

populated regions, there is only one pipeline company that can deliver to core urban areas,

making sharing among different pipeline companies a physical impossibility.

The Rule’s purported compliance flexibilities will not avoid irreparable injury either.

First, EPA estimates that only one-third of engines would require controls because of its allowance for facility-wide emissions averaging. 88 Fed. Reg. at 36,760. But EPA’s analysis of

this supposed option is based on unrepresentative and extremely limited data and provides

operators little practical ability to reduce the number of engines requiring retrofits. Grubb

Decl. ¶¶ 35–44 (670a–676a) (noting that EPA only evaluated 10 compressor stations (out

of 713 total), all of which have far more engines than the average compressor station, and

26

therefore show more benefit from averaging than would be experienced in practice).14 Second, and as discussed above (at 16–17), the case-by-case emissions limit for extreme economic hardship is only meant to apply on a limited basis, and EPA has not provided a specific

cost threshold that would qualify, making it impossible for companies to reasonably rely on

this option. Yager Decl. ¶ 9 (711a). Third, the compliance timeline extensions would be required for a massive number of pipeline engines. For example, Kinder Morgan alone has

concluded it would need an extension for approximately half of its engines that do not currently meet the emissions limits. Grubb Decl. ¶ 48 (679a). And to qualify, operators must

“take[] all steps possible to install controls for compliance with the applicable requirements,”

40 C.F.R. § 52.40(d)(3), meaning they need to begin performing engine retrofits promptly

and through the pendency of litigation. Finally, EPA has sole discretion to grant any of these

compliance flexibilities; operators cannot reasonably rely on EPA to do so.

Compliance costs. Individual pipeline companies face steep compliance costs in the

12 to 18 months after the Rule’s effective date. As of July 2023, Enbridge expected to incur

$350 million;15 Kinder Morgan expected to incur $270 million;16 and TC Energy expected to

incur $75 million.17 Adding these costs plus its other members’ costs, INGAA estimated that

its members will need to spend at least several hundred million dollars on engine retrofits

The averaging approach also offers little flexibility in practice because it presents a constantly moving target based on a “rolling” lookback period. Grubb Decl. ¶ 44 (676a).

14

15 Wooden Decl. ¶ 13 (703a).

16 Grubb Decl. ¶¶ 6, 28 (653a–654a, 666a–667a).

17 Yeager Decl. ¶ 9 (722a).

27

over the same period. Yager Decl. ¶ 10 (712a). Absent a stay, if a court later invalidates the

Rule, pipeline companies will not be able to recover these substantial costs.

The total costs expected for retrofits of engines to meet the Rule’s emissions rates

limits are even more jaw-dropping. As of July 2023, Kinder Morgan anticipated $1.8 to $2.1

billion;18 Enbridge anticipated $1 billion;19 and TC Energy anticipated $600 million.20 In total, INGAA estimated that its members will have to spend up to approximately six billion dol‐

lars. Yager Decl. ¶ 10 (712a). And even these astronomical amounts do not include costs

resulting from curtailed shipments and other opportunity costs. Grubb Decl. ¶¶ 45–46, 70–

73 (676a–679a, 693a–695a) (noting costs of modernizations and emissions reduction projects placed on hold, as well as “reservation charge credits”—i.e., refunds—to customers for

interrupted pipeline service); Wooden Decl. ¶ 14 (703a) (system modernization plans being

deferred). These burdensome costs constitute the types of irreparable injury other circuit

courts have necessarily found when issuing stays of EPA’s state plan disapprovals. See, e.g.,

Order at 23, Texas v. EPA, No. 23-60069, ECF 269-1 (“Stay Petitioners will be forced to spend

billions of dollars in compliance costs . . . .”).

To avert natural gas delivery interruptions during peak seasons and to prevent pipeline companies from facing exorbitant compliance costs, this Court should stay the Rule.

18 Grubb Decl. ¶¶ 6, 26 (653a, 666a).

19 Wooden Decl. ¶ 14 (703a).

20 Yeager Decl. ¶¶ 9, 15 (722a, 724a).

28

III.

THE BALANCE OF HARMS AND THE PUBLIC INTEREST WEIGH HEAVILY IN FA‐

VOR OF A STAY.

Even where a compelling public interest exists, “our system does not permit agencies

to act unlawfully even in pursuit of desirable ends.” Ala. Ass’n of Realtors, 141 S. Ct. at 2490.

Accordingly, “there is a substantial public interest ‘in having governmental agencies abide

by the federal laws that govern their existence and operations.’” League of Women Voters of

United States v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016) (citation omitted). Here, given EPA’s

unlawful actions, the public interest strongly supports a stay.

A stay is also warranted because EPA, and only EPA, is responsible for the Rule’s constrained timeline, given the immense gap between States’ 2018 plan submissions and EPA’s

2023 disapprovals. As the Fifth Circuit observed, “EPA’s multi-year delay” in disapproving

states’ implementation plans “undercuts any claim that time is of the essence when it comes

to imposing” the Rule. Order at 24, Texas v. EPA, 5th Cir. No. 23-60069, ECF 269-1. Where

EPA set an unreasonable compliance deadline for pipeline engines, and where EPA was the

source of the delay in the first instance, EPA cannot argue that it or the public is harmed by

a stay. On the contrary, the public interest in ensuring the consistent and reliable supply of

natural gas to downstream consumers, including homes, businesses, and electric power

plants, tips sharply in favor of a stay.

CONCLUSION

For the foregoing reasons, Applicants respectfully request an immediate stay of the

Rule’s provisions for pipeline engines.

29

Respectfully submitted,

/s/ Catherine E. Stetson

Ana Maria Gutiérrez

Michael D. Miller

WOMBLE BOND DICKINSON (US) LLP

2001 K St NW

Washington, DC 20006

CATHERINE E. STETSON

Counsel of Record

HOGAN LOVELLS US LLP

555 Thirteenth Street, N.W.

Washington, DC 20004

(202) 637-5600

cate.stetson@hoganlovells.com

Counsel for Kinder Morgan, Inc.

Brittany M. Pemberton

BRACEWELL LLP

2001 M Street, N.W.

Suite 900

Washington, DC 20036

Counsel for TransCanada PipeLine

USA Ltd.

Laura K. McAfee (D.C. Cir. Bar No.

62386)

BEVERIDGE & DIAMOND, PC

201 North Charles Street, Suite 2200

Baltimore, MD 21201

Counsel for Enbridge (U.S.) Inc.

Eric D. McArthur

SIDLEY AUSTIN LLP

1501 K St NW

Washington, DC 20005

Counsel for the Interstate Natural Gas

Association of America and Ameri‐

can Petroleum Institute

October 13, 2023

30

APPENDIX

i

TABLE OF APPENDICES

Page

APPENDIX A — FINAL RULE OF THE ENVIRONMENTAL

PROTECTION AGENCY, DATED MONDAY JUNE 5, 2023 . . . . . . . 1a

APPENDIX B — CIRCUIT ORDER FOR THE U.S. COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT,

FILED SEPTEMBER 25, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266a

APPENDIX C — FINAL NON-EGU SECTORS TSD OF THE U.S.

ENVIRONMENTAL PROTECTION AGENCY OFFICE OF

AIR AND RADIATION, DATED MARCH 2023 . . . . . . . . . . . . . . . . . 268a

APPENDIX D — NOX EMISSION CONTROL TECHNOLOGY

INSTALLATION TIMING FOR NON-EGU SOURCES, DATED

MARCH 14, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 371a

APPENDIX E — COMMENTS OF THE INTERSTATE

NATURAL GAS ASSOCIATION OF AMERICA ON THE U.S.

ENVIRONMENTAL PROTECTION AGENCY’S PROPOSED

RULE, DATED APRIL 6, 2022 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 459a

APPENDIX F — KINDER MORGAN COMMENTS TO THE

U.S. ENVIRONMENTAL PROTECTION AGENCY’, DATED

JUNE 21, 2022 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 523a

A P P E N D I X G — T C E N E R GY C O M M E N T S T O U . S .

ENVIRONMENTAL PROTECTION AGENCY, DATED

JUNE 21, 2022 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 599a

APPENDIX H — RESPONSES TO QUESTIONS FOR THE

RECORD FOR JUNE 13 2023 HOUSE ENERGY & COMMERCE

OVERSIGHT HEARING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 615a

APPENDIX I — U.S. ENVIRONMENTAL PROTECTION

AGENCY ’S EXPECTED EMIS SIONS REDUCTIONS

WITH STAYS CHART . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 648a

ii

Table of Appendices

Page

APPENDIX J — DECLARATION OF KENNETH W. GRUBB

IN THE UNITED STATES COURT OF APPEALS FOR

T H E D I S T R I C T O F C O LU M B I A C I R C U I T, F I L E D

JULY 27, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .650a

A P P E N D I X K — D E C L A RAT I O N O F E N B R I D G E

IN THE UNITED STATES COURT OF APPEALS FOR

T H E D I S T R I C T O F C O LU M B I A C I R C U I T, F I L E D

JULY 27, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .698a

APPENDIX L — DECLARATION OF SCOTT YAGER IN

T H E U N I T E D S TAT E S C O U RT O F A P P E A L S F O R

T H E D I S T R I C T O F C O LU M B I A C I R C U I T, F I L E D

JULY 27, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .709a

APPENDIX M — DECLARATION OF DANIKA YEAGER

IN THE UNITED STATES COURT OF APPEALS FOR

T H E D I S T R I C T O F C O LU M B I A C I R C U I T, F I L E D

JULY 27, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .719a

A P P E N D I X N — E PA S C R E E N I N G A S S E S S M E N T,

DATED FEBRUARY 28, 2022 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 734a

36654

Federal Register / Vol. 88, No. 107 / Monday, June 5, 2023 / Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 52, 75, 78, and 97

[EPA–HQ–OAR–2021–0668; FRL–8670–02–

OAR]

RIN 2060–AV51

Federal ‘‘Good Neighbor Plan’’ for the

2015 Ozone National Ambient Air

Quality Standards

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

ddrumheller on DSK120RN23PROD with RULES2

SUMMARY: This action finalizes Federal

Implementation Plan (FIP) requirements

to address 23 states’ obligations to

eliminate significant contribution to

nonattainment, or interference with

maintenance, of the 2015 ozone

National Ambient Air Quality Standards

(NAAQS) in other states. The U.S.

Environmental Protection Agency (EPA)

is taking this action under the ‘‘good

neighbor’’ or ‘‘interstate transport’’

provision of the Clean Air Act (CAA or

Act). The Agency is defining the amount

of ozone-precursor emissions

(specifically, nitrogen oxides) that

constitute significant contribution to

nonattainment and interference with

maintenance from these 23 states. With

respect to fossil fuel-fired power plants

in 22 states, this action will prohibit

those emissions by implementing an

allowance-based trading program

beginning in the 2023 ozone season.

With respect to certain other industrial

stationary sources in 20 states, this

action will prohibit those emissions

through emissions limitations and

associated requirements beginning in

the 2026 ozone season. These industrial

source types are: reciprocating internal

combustion engines in Pipeline

Transportation of Natural Gas; kilns in

Cement and Cement Product

Manufacturing; reheat furnaces in Iron

and Steel Mills and Ferroalloy

Manufacturing; furnaces in Glass and

Glass Product Manufacturing; boilers in

Iron and Steel Mills and Ferroalloy

Manufacturing, Metal Ore Mining, Basic

Chemical Manufacturing, Petroleum and

Coal Products Manufacturing, and Pulp,

Paper, and Paperboard Mills; and

combustors and incinerators in Solid

Waste Combustors and Incinerators.

DATES: This final rule is effective on

August 4, 2023.

ADDRESSES: The EPA has established a

docket for this rulemaking under Docket

ID No. EPA–HQ–OAR–2021–0668. All

documents in the docket are listed in

the https://www.regulations.gov index.

Although listed in the index, some

VerDate Sep<11>2014

20:14 Jun 02, 2023

Jkt 259001

information is not publicly available,

e.g., Confidential Business Information

or other information whose disclosure is

restricted by statute. Certain other

material, such as copyrighted material,

will be publicly available only in hard

copy. 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.

FOR FURTHER INFORMATION CONTACT: Ms.

Elizabeth Selbst, Air Quality Policy

Division, Office of Air Quality Planning

and Standards (C539–01),

Environmental Protection Agency, 109

TW Alexander Drive, Research Triangle

Park, NC 27711; telephone number:

(312) 886–4746; email address:

selbst.elizabeth@epa.gov.

SUPPLEMENTARY INFORMATION:

Preamble Glossary of Terms and

Abbreviations

The following are abbreviations of

terms used in the preamble.

2016v1 2016 Version 1 Emissions Modeling

Platform

2016v2 2016 Version 2 Emissions Modeling

Platform

4-Step Framework 4-Step Interstate

Transport Framework

ABC Associated Builders and Contractors

ACS American Community Survey

ACT Alternative Control Techniques

AEO Annual Energy Outlook

AQAT Air Quality Assessment Tool

AQS Air Quality System

BACT Best Available Control Technology

BART Best Available Retrofit Technology

BOF Basic Oxygen Furnace

BPT Benefit Per Ton

C1C2 Category 1 and Category 2

C3 Category 3

CAA or Act Clean Air Act

CAIR Clean Air Interstate Rule

CBI Confidential Business Information

CCR Coal Combustion Residual

CDC Centers for Disease Control and

Prevention

CDX Central Data Exchange

CEDRI Compliance and Emissions Data

Reporting Interface

CEMS Continuous Emissions Monitoring

Systems

CES Clean Energy Standards

CFB Circulating Fluidized Bed Units

CHP Combined Heat and Power

CMDB Control Measures Database

CMV Commercial Marine Vehicle

PO 00000

Frm 00002

Fmt 4701

Sfmt 4700

1a

CoST Control Strategy Tool

CPT Cost Per Ton

CRA Congressional Review Act

CSAPR Cross-State Air Pollution Rule

DAHS Data Acquisition and Handling

System

DOE Department of Energy

EAF Electric Arc Furnace

EGU Electric Generating Unit

EIA U.S. Energy Information Agency

EIS Emissions Inventory System

EISA Energy Independence and Security

Act

ELG Effluent Limitation Guidelines

E.O. Executive Order

EPA or the Agency United States

Environmental Protection Agency

ERT Electronic Reporting Tool

FERC Federal Energy Regulatory

Commission

FFS Findings of Failure to Submit

FIP Federal Implementation Plan

GIS Geographic Information System

g/hp-hr grams per horsepower per hour

HDGHG Greenhouse Gas Emissions and

Fuel Efficiency Standards for Medium- and

Heavy-Duty Engines and Vehicles

HEDD High Electricity Demand Days

ICI Industrial, Commercial, and

Institutional

I/M Inspection and Maintenance

IPM Integrated Planning Model

IRA Inflation Reduction Act

LAER Lowest Achievable Emission Rate

LDC Local Distribution Company

LME Low Mass Emissions

LNB Low-NOX Burners

MATS Mercury and Air Toxics Standards

MCM Menu of Control Measures

MDA8 Maximum Daily Average 8-Hour

MJO Multi-Jurisdictional Organization

MOU Memorandum of Understanding

MOVES Motor Vehicle Emissions Simulator

MSAT2 Mobile Source Air Toxics Rule

MWC Municipal Waste Combustor

NAAQS National Ambient Air Quality

Standards

NACAA National Association of Clean Air

Agencies

NAICS North American Industry

Classification System

NEEDS National Electric Energy Data

System

NEI National Emissions Inventory

NERC North American Electric Reliability

Corporation

NESHAP National Emissions Standards for

Hazardous Air Pollutants

NMB Normalized Mean Bias

NME Normalized Mean Error

No SISNOSE No Significant Economic

Impact on a Substantial Number of Small

Entities

Non-EGU Non-Electric Generating Unit

NODA Notice of Data Availability

NOX Nitrogen Oxides

NREL National Renewable Energy Lab

NSCR Non-Selective Catalytic Reduction

NSPS New Source Performance Standard

NSR New Source Review

NTTAA National Technology Transfer and

Advancement Act

OFA Over-Fire Air

OMB United States Office of Management

and Budget

E:\FR\FM\05JNR2.SGM

05JNR2

Federal Register / Vol. 88, No. 107 / Monday, June 5, 2023 / Rules and Regulations

OSAT/APCA Ozone Source Apportionment

Technology/Anthropogenic Precursor

Culpability Analysis

OTC Ozone Transport Commission

OTR Ozone Transport Region

OTSA Oklahoma Tribal Statistical Area

PDF Portable Document Format

PEMS Predictive Emissions Monitoring

Systems

PM2.5 Fine Particulate Matter

ppb parts per billion

ppm parts per million

ppmv parts per million by volume

ppmvd parts per million by volume, dry

PRA Paperwork Reduction Act

PSD Prevention of Significant Deterioration

PTE Potential to Emit

RACT Reasonably Available Control

Technology

RATA Relative Accuracy Test Audit

RCF Relative Contribution Factor

RFA Regulatory Flexibility Act

RICE Reciprocating Internal Combustion

Engines

ROP Rate of Progress

RPS Renewable Portfolio Standards

RRF Relative Response Factor

RTC Response to Comments

RTO Regional Transmission Organization

SAFETEA Safe, Accountable, Flexible,

Efficient, Transportation Equity Act

SCC Source Classification Code

SCR Selective Catalytic Reduction

SIL Significant Impact Level

SIP State Implementation Plan

SMOKE Sparse Matrix Operator Kernel

Emissions

SNCR Selective Non-Catalytic Reduction

SO2 Sulfur Dioxide

tpd ton per day

TAS Treatment as State

TSD Technical Support Document

UMRA Unfunded Mandates Reform Act

VMT Vehicle Miles Traveled

VOCs Volatile Organic Compounds

WRAP Western Regional Air Partnership

WRF Weather Research and Forecasting

ddrumheller on DSK120RN23PROD with RULES2

Table of Contents

I. Executive Summary

A. Purpose of the Regulatory Action

1. Emissions Limitations for EGUs

Established by the Final Rule

2. Emissions Limitations for Industrial

Stationary Point Sources Established by

the Final Rule

B. Summary of the Regulatory Framework

of the Rule

C. Costs and Benefits

II. General Information

A. Does this action apply to me?

B. What action is the Agency taking?

C. What is the Agency’s legal authority for

taking this action?

D. What actions has the EPA previously

issued to address regional ozone

transport?

III. Air Quality Issues Addressed and Overall

Rule Approach

A. The Interstate Ozone Transport Air

Quality Challenge

1. Nature of Ozone and the Ozone NAAQS

2. Ozone Transport

3. Health and Environmental Effects

B. Final Rule Approach

1. The 4-Step Interstate Transport

Framework

VerDate Sep<11>2014

20:14 Jun 02, 2023

Jkt 259001

a. Step 1 Approach

b. Step 2 Approach

c. Step 3 Approach

d. Step 4 Approach

2. FIP Authority for Each State Covered by

the Rule

C. Other CAA Authorities for This Action

1. Withdrawal of Proposed Error Correction

for Delaware

2. Application of Rule in Indian Country

and Necessary or Appropriate Finding

a. Indian Country Subject to Tribal

Jurisdiction

b. Indian Country Subject to State

Implementation Planning Authority

D. Severability

IV. Analyzing Downwind Air Quality

Problems and Contributions From

Upwind States

A. Selection of Analytic Years for

Evaluating Ozone Transport

Contributions to Downwind Air Quality

Problems

B. Overview of Air Quality Modeling

Platform

C. Emissions Inventories

1. Foundation Emissions Inventory Data

Sets

2. Development of Emissions Inventories

for EGUs

a. EGU Emissions Inventories Supporting

This Rule

b. Impact of the Inflation Reduction Act on

EGU Emissions

3. Development of Emissions Inventories

for Stationary Industrial Point Sources

4. Development of Emissions Inventories

for Onroad Mobile Sources

5. Development of Emissions Inventories

for Commercial Marine Vessels

6. Development of Emissions Inventories

for Other Nonroad Mobile Sources

7. Development of Emissions Inventories

for Nonpoint Sources

D. Air Quality Modeling To Identify

Nonattainment and Maintenance

Receptors

E. Methodology for Projecting Future Year

Ozone Design Values

F. Pollutant Transport From Upwind States

1. Air Quality Modeling To Quantify

Upwind State Ozone Contributions

2. Application of Ozone Contribution

Screening Threshold

a. States That Contribute Below the

Screening Threshold

b. States That Contribute Above the

Screening Threshold

G. Treatment of Certain Monitoring Sites in

California and Implications for Oregon’s

Good Neighbor Obligations for the 2015

Ozone NAAQS

V. Quantifying Upwind-State NOX Emissions

Reduction Potential To Reduce Interstate

Ozone Transport for the 2015 Ozone

NAAQS

A. The Multi-Factor Test for Determining

Significant Contribution

B. Identifying Control Stringency Levels

1. EGU NOX Mitigation Strategies

a. Optimizing Existing SCRs

b. Installing State-of-the-Art NOX

Combustion Controls

c. Optimizing Already Operating SNCRs or

Turning on Idled Existing SNCRs

d. Installing New SNCRs

PO 00000

Frm 00003

Fmt 4701

Sfmt 4700

2a

36655

e. Installing New SCRs

f. Generation Shifting

g. Other EGU Mitigation Measures

2. Non-EGU or Stationary Industrial Source

NOX Mitigation Strategies

3. Other Stationary Sources NOX

Mitigation Strategies

a. Municipal Solid Waste Units

b. Electric Generating Units Less Than or

Equal to 25 MW

c. Cogeneration Units

4. Mobile Source NOX Mitigation Strategies

C. Control Stringencies Represented by

Cost Threshold ($ per ton) and

Corresponding Emissions Reductions

1. EGU Emissions Reduction Potential by

Cost Threshold

2. Non-EGU or Industrial Source Emissions

Reduction Potential

D. Assessing Cost, EGU and Industrial

Source NOX Reductions, and Air Quality

1. EGU Assessment

2. Stationary Industrial Sources

Assessment

3. Combined EGU and Non-EGU

Assessment

4. Over-Control Analysis

VI. Implementation of Emissions Reductions

A. NOX Reduction Implementation

Schedule

1. 2023–2025: EGU NOX Reductions

Beginning in 2023

2. 2026 and Later Years: EGU and

Stationary Industrial Source NOX

Reductions Beginning in 2026

a. EGU Schedule for 2026 and Later Years

b. Non-EGU or Industrial Source Schedule

for 2026 and Later Years

B. Regulatory Requirements for EGUs

1. Trading Program Background and

Overview of Revisions

a. Current CSAPR Trading Program Design

Elements and Identified Concerns

b. Enhancements To Maintain Selected

Control Stringency Over Time

i. Revised Emissions Budget-Setting

Process

ii. Allowance Bank Recalibration

c. Enhancements To Improve Emissions

Performance at Individual Units

i. Unit-Specific Backstop Daily Emissions

Rates

ii. Unit-Specific Emissions Limitations

Contingent on Assurance Level

Exceedances

d. Responses to General Comments on the

Revisions to the Group 3 Trading

Program

2. Expansion of Geographic Scope

3. Applicability and Tentative

Identification of Newly Affected Units

4. State Emissions Budgets

a. Methodology for Determining Preset

State Emissions Budgets for the 2023

through 2029 Control Periods

b. Methodology for Determining Dynamic

State Emissions Budgets for Control

Periods in 2026 Onwards

c. Final Preset State Emissions Budgets

5. Variability Limits and Assurance Levels

6. Annual Recalibration of Allowance Bank

7. Unit-Specific Backstop Daily Emissions

Rates

8. Unit-Specific Emissions Limitations

Contingent on Assurance Level

Exceedances

E:\FR\FM\05JNR2.SGM

05JNR2

ddrumheller on DSK120RN23PROD with RULES2

36656

Federal Register / Vol. 88, No. 107 / Monday, June 5, 2023 / Rules and Regulations

9. Unit-Level Allowance Allocation and

Recordation Procedures

a. Set-Asides of Portions of State Emissions

Budgets

b. Allocations to Existing Units, Including

Units That Cease Operation

c. Allocations From Portions of State

Emissions Budgets Set Aside for New

Units

d. Incorrectly Allocated Allowances

10. Monitoring and Reporting

Requirements

a. Monitor Certification Deadlines

b. Additional Recordkeeping and Reporting

Requirements

11. Designated Representative

Requirements

12. Transitional Provisions

a. Prorating Emissions Budgets, Assurance

Levels, and Unit-Level Allowance

Allocations in the Event of an Effective

Date After May 1, 2023

b. Creation of Additional Group 3

Allowance Bank for 2023 Control Period

c. Recall of Group 2 Allowances for Control

Periods After 2022

13. Conforming Revisions to Regulations

for Other CSAPR Trading Programs

C. Regulatory Requirements for Stationary

Industrial Sources

1. Pipeline Transportation of Natural Gas

2. Cement and Concrete Product

Manufacturing

3. Iron and Steel Mills and Ferroalloy

Manufacturing

4. Glass and Glass Product Manufacturing

5. Boilers at Basic Chemical

Manufacturing, Petroleum and Coal

Products Manufacturing, Pulp, Paper,

and Paperboard Mills, Iron and Steel and

Ferroalloys Manufacturing, and Metal

Ore Mining Facilities

a. Coal-fired Industrial Boilers

b. Oil-fired Industrial Boilers

c. Natural gas-fired Industrial Boilers

6. Municipal Waste Combustors

D. Submitting a SIP

1. SIP Option To Modify Allocations for

2024 under EGU Trading Program

2. SIP Option To Modify Allocations for

2025 and Beyond Under EGU Trading

Program

3. SIP Option To Replace the Federal EGU

Trading Program With an Integrated

State EGU Trading Program

4. SIP Revisions That Do Not Use the New

Trading Program

5. SIP Revision Requirements for Non-EGU

or Industrial Source Control

Requirements

E. Title V Permitting

1. Title V Permitting Considerations for

EGUs

2. Title V Permitting Considerations for

Industrial Stationary Sources

F. Relationship to Other Emissions Trading

and Ozone Transport Programs

1. NOX SIP Call

2. Acid Rain Program

3. Other CSAPR Trading Programs

VII. Environmental Justice Analytical

Considerations and Stakeholder

Outreach and Engagement

A. Introduction

B. Analytical Considerations

C. Outreach and Engagement

VerDate Sep<11>2014

20:14 Jun 02, 2023

Jkt 259001

VIII. Costs, Benefits, and Other Impacts of the

Final Rule

IX. Summary of Changes to the Regulatory

Text for the Federal Implementation

Plans and Trading Programs for EGUs

A. Amendments to FIP Provisions in 40

CFR Part 52

B. Amendments to Group 3 Trading

Program and Related Regulations

C. Transitional Provisions

D. Clarifications and Conforming Revisions

X. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory

Planning and Review and Executive

Order 13563: Improving Regulation and

Regulatory Review

B. Paperwork Reduction Act (PRA)

1. Information Collection Request for EGUs

2. Information Collection Request for NonEGUs

C. Regulatory Flexibility Act (RFA)

D. Unfunded Mandates Reform Act

(UMRA)

E. Executive Order 13132: Federalism

F. Executive Order 13175: Consultation

and Coordination With Indian Tribal

Governments

G. Executive Order 13045: Protection of

Children From Environmental Health

Risks and Safety Risks

H. Executive Order 13211: Actions

Concerning Regulations That

Significantly Affect Energy Supply,

Distribution or Use

I. National Technology Transfer and

Advancement Act (NTTAA)

J. Executive Order 12898: Federal Actions

To Address Environmental Justice in

Minority Populations and Low-Income

Populations

K. Congressional Review Act

L. Determinations Under CAA Section

307(b)(1) and (d)

I. Executive Summary

This final rule resolves the interstate

transport obligations of 23 states under

CAA section 110(a)(2)(D)(i)(I), referred

to as the ‘‘good neighbor provision’’ or

the ‘‘interstate transport provision’’ of

the Act, for the 2015 ozone NAAQS. On

October 1, 2015, the EPA revised the

primary and secondary 8-hour standards

for ozone to 70 parts per billion (ppb).1

States were required to submit to EPA

ozone infrastructure State

Implementation Plan (SIP) revisions to

fulfill interstate transport obligations for

the 2015 ozone NAAQS by October 1,

2018. The EPA proposed the subject

rule to address outstanding interstate

ozone transport obligations for the 2015

ozone NAAQS in the Federal Register

on April 6, 2022 (87 FR 20036).

The EPA is making a finding that

interstate transport of ozone precursor

emissions from 23 upwind states

(Alabama, Arkansas, California, Illinois,

Indiana, Kentucky, Louisiana,

Maryland, Michigan, Minnesota,

Mississippi, Missouri, Nevada, New

1 See 80 FR 65291 (October 26, 2015).

PO 00000

Frm 00004

Fmt 4701

Sfmt 4700

3a

Jersey, New York, Ohio, Oklahoma,

Pennsylvania, Texas, Utah, Virginia,

West Virginia, and Wisconsin) is

significantly contributing to

nonattainment or interfering with

maintenance of the 2015 ozone NAAQS

in downwind states, based on projected

ozone precursor emissions in the 2023

ozone season. The EPA is issuing FIP

requirements to eliminate interstate

transport of ozone precursor emissions

from these 23 states that significantly

contributes to nonattainment or

interferes with maintenance of the

NAAQS in downwind states. The EPA

is not finalizing its proposed error

correction for Delaware’s ozone

transport SIP, and we are deferring final

action at this time on the proposed FIPs

for Tennessee and Wyoming pending

further review of the updated air quality

and contribution modeling and analysis

developed for this final action. As

discussed in section III of this

document, the EPA’s updated analysis

of 2023 suggests that the states of

Arizona, Iowa, Kansas, and New Mexico

may be significantly contributing to one

or more nonattainment or maintenance

receptors. The EPA is not making any

final determinations with respect to

these states in this action but intends to

address these states, along with

Tennessee and Wyoming, in a

subsequent action or actions.

The EPA is finalizing FIP

requirements for 21 states for which the

Agency has, in a separate action,

disapproved (or partially disapproved)

ozone transport SIP revisions that were

submitted for the 2015 ozone NAAQS:

Alabama, Arkansas, California, Illinois,

Indiana, Kentucky, Louisiana,

Maryland, Michigan, Minnesota,

Mississippi, Missouri, Nevada, New

Jersey, New York, Ohio, Oklahoma,

Texas, Utah, West Virginia, and

Wisconsin. See 88 FR 9336. In this final

rule, the EPA is issuing FIPs for two

states—Pennsylvania and Virginia—for

which the EPA issued Findings of

Failure to Submit for 2015 ozone

NAAQS transport SIPs. See 84 FR 66612

(December 5, 2019). Under CAA section

301(d)(4), the EPA is extending FIP

requirements to apply in Indian country

located within the upwind geography of

the final rule, including Indian

reservation lands and other areas of

Indian country over which the EPA or

a tribe has demonstrated that a tribe has

jurisdiction.2

This final rule defines ozone season

nitrogen oxides (NOX) emissions

2 In general, specific tribal names or reservations

are not identified separately in this final rule except

as needed. See section III.C.2 of this document for

further discussion about the application of this rule

in Indian Country.

E:\FR\FM\05JNR2.SGM

05JNR2

ddrumheller on DSK120RN23PROD with RULES2

Federal Register / Vol. 88, No. 107 / Monday, June 5, 2023 / Rules and Regulations

performance obligations for Electric

Generating Unit (EGU) sources and

fulfills those obligations by

implementing an allowance-based

ozone season trading program beginning

in 2023. This rule also establishes

emissions limitations beginning in 2026

for certain other industrial stationary

sources (referred to generally as ‘‘nonElectric Generating Units’’ (non-EGUs)).

Taken together, these regulatory

requirements will fully eliminate the

amount of emissions that constitute the

covered states’ significant contribution

to nonattainment and interference with

maintenance in downwind states for

purposes of the 2015 ozone NAAQS.

This final rule implements the

necessary emissions reductions as

follows. Under the FIP requirements,

EGUs in 22 states (Alabama, Arkansas,

Illinois, Indiana, Kentucky, Louisiana,

Maryland, Michigan, Minnesota,

Mississippi, Missouri, Nevada, New

Jersey, New York, Ohio, Oklahoma,

Pennsylvania, Texas, Utah, Virginia,

West Virginia, and Wisconsin) are

required to participate in a revised

version of the Cross-State Air Pollution

Rule (CSAPR) NOX Ozone Season Group

3 Trading Program that was previously

established in the Revised CSAPR

Update.3 In addition to reflecting

emissions reductions based on the

Agency’s determination of the necessary

control stringency in this rule, the

revised trading program includes

several enhancements to the program’s

design to better ensure achievement of

the selected control stringency on all

days of the ozone season and over time.

For 12 states already required to

participate in the CSAPR NOX Ozone

Season Group 3 Trading Program

(Illinois, Indiana, Kentucky, Louisiana,

Maryland, Michigan, New Jersey, New

York, Ohio, Pennsylvania, Virginia, and

West Virginia) under the Revised

CSAPR Update (with respect to the 2008

ozone NAAQS), the FIPs are amended

by the revisions to the Group 3 trading

program regulations. For seven states

currently covered by the CSAPR NOX

Ozone Season Group 2 Trading Program

under SIPs or FIPs, the EPA is issuing

new FIPs for two states (Alabama and

Missouri) and amending existing FIPs

for five states (Arkansas, Mississippi,

Oklahoma, Texas, and Wisconsin) to

transition EGU sources in these states

from the Group 2 program to the revised

Group 3 trading program, beginning

with the 2023 ozone season. The EPA is

3 As explained in section V.C.1 of this document,

the EPA is making a finding that EGU sources

within the State of California are sufficiently

controlled such that no further emissions

reductions are needed from them to eliminate

significant contribution to downwind states.

VerDate Sep<11>2014

20:14 Jun 02, 2023

Jkt 259001

issuing new FIPs for three states not

currently covered by any CSAPR NOX

ozone season trading program:

Minnesota, Nevada, and Utah.

This rulemaking requires emissions

reductions in the selected control

stringency to be achieved as

expeditiously as practicable and, to the

extent possible, by the next applicable

nonattainment dates for downwind

areas for the 2015 ozone NAAQS. Thus,

initial emissions reductions from EGUs

will be required beginning in the 2023

ozone season and prior to the August 3,

2024, attainment date for areas

classified as Moderate nonattainment

for the 2015 ozone NAAQS.

The remaining emissions reduction

obligations will be phased in as soon as

possible thereafter. Substantial

additional reductions from potential

new post-combustion control

installations at EGUs as well as from

installation of new pollution controls at

non-EGUs, also referred to in this action

as industrial sources, will phase in

beginning in the 2026 ozone season,

associated with the August 3, 2027,

attainment date for areas classified as

Serious nonattainment for the 2015

ozone NAAQS. The EPA had proposed

to require all emissions reductions to

eliminate significant contribution to be

in place by the 2026 ozone season.

While we continue to view 2026 as the

appropriate analytic year for purposes of

applying the 4-step interstate transport

framework, as discussed in section

V.D.4 and VI.A.2 of this document, the

final rule will allow individual facilities

limited additional time to fully

implement the required emissions

reductions where the owner or operator

demonstrates to the EPA’s satisfaction

that more rapid compliance is not

possible. For EGUs, the emissions

trading program budget stringency

associated with retrofit of postcombustion controls will be phased in

over two ozone seasons (2026–2027).

For industrial sources, this final rule

provides a process for individual

facilities to seek a one year extension,

with the possibility of up to two

additional years, based on a specific

showing of necessity.

The EGU emissions reductions are

based on the feasibility of control

installation for EGUs in 19 states that

remain linked to downwind

nonattainment and maintenance

receptors in 2026. These 19 states are:

Arkansas, Illinois, Indiana, Kentucky,

Louisiana, Maryland, Michigan,

Mississippi, Missouri, Nevada, New

Jersey, New York, Ohio, Oklahoma,

Pennsylvania, Texas, Utah, Virginia,

and West Virginia. The emissions

reductions required for EGUs in these

PO 00000

Frm 00005

Fmt 4701

Sfmt 4700

4a

36657

states are based primarily on the

potential retrofit of additional postcombustion controls for NOX on most

coal-fired EGUs and a portion of oil/gasfired EGUs that are currently lacking

such controls.

The EPA is finalizing, with some

modifications from proposal in response

to comments, certain additional features

in the allowance-based trading program

approach for EGUs, including dynamic

adjustments of the emissions budgets

and recalibration of the allowance bank

over time as well as backstop daily

emissions rate limits for large coal-fired

units. The purpose of these

enhancements is to better ensure that

the emissions control stringency the

EPA found necessary to eliminate

significant contribution at Step 3 of the

4-step interstate transport framework is

maintained over time in Step 4

implementation and is durable to

changes in the power sector. These

enhancements ensure the elimination of

significant contribution is maintained

both in terms of geographical

distribution (by limiting the degree to

which individual sources can avoid

making emissions reductions) and in

terms of temporal distribution (by better

ensuring emissions reductions are

maintained throughout each ozone

season, year over year). As we further

discuss in section V.D of this document,

these changes do not alter the stringency

of the emissions trading program over

time. Rather, they ensure that the

trading program (as the method of

implementation at Step 4) remains

aligned with the determinations made at

Step 3. These enhancements are further

discussed in section VI.B of this

document.

The EPA is making a finding that NOX

emissions from certain non-EGU sources

are significantly contributing to

nonattainment or interfering with

maintenance of the 2015 ozone NAAQS

and that cost-effective controls for NOX

emissions reductions are available in

certain industrial source categories that

would result in meaningful air quality

improvements in downwind receptors.

The EPA is establishing emissions

limitations beginning in 2026 for nonEGU sources located within 20 states:

Arkansas, California, Illinois, Indiana,

Kentucky, Louisiana, Maryland,

Michigan, Mississippi, Missouri,

Nevada, New Jersey, New York, Ohio,

Oklahoma, Pennsylvania, Texas, Utah,

Virginia, and West Virginia. The final

rule establishes NOX emissions

limitations during the ozone season for

the following unit types for sources in

E:\FR\FM\05JNR2.SGM

05JNR2

36658

Federal Register / Vol. 88, No. 107 / Monday, June 5, 2023 / Rules and Regulations

non-EGU industries: 4 reciprocating

internal combustion engines in Pipeline

Transportation of Natural Gas; kilns in

Cement and Cement Product

Manufacturing; reheat furnaces in Iron

and Steel Mills and Ferroalloy

Manufacturing; furnaces in Glass and

Glass Product Manufacturing; boilers in

Iron and Steel Mills and Ferroalloy

Manufacturing, Metal Ore Mining, Basic

Chemical Manufacturing, Petroleum and

Coal Products Manufacturing, and Pulp,

Paper, and Paperboard Mills; and

combustors and incinerators in Solid

Waste Combustors and Incinerators.

ddrumheller on DSK120RN23PROD with RULES2

A. Purpose of the Regulatory Action

The purpose of this rulemaking is to

protect public health and the

environment by reducing interstate

transport of certain air pollutants that

significantly contribute to

nonattainment, or interfere with

maintenance, of the 2015 ozone NAAQS

in downwind states. Ground-level ozone

has detrimental effects on human health

as well as vegetation and ecosystems.

Acute and chronic exposure to ozone in

humans is associated with premature

mortality and certain morbidity effects,

such as asthma exacerbation. Ozone

exposure can also negatively impact

ecosystems by limiting tree growth,

causing foliar injury, and changing

ecosystem community composition.

Section III of this document provides

additional evidence of the harmful

effects of ozone exposure on human

health and the environment. Studies

have established that ozone air

pollution can be transported over

hundreds of miles, with elevated

ground-level ozone concentrations

occurring in rural and metropolitan

areas.5 6 Assessments of ozone control

approaches have concluded that control

strategies targeting reduction of NOX

emissions are an effective method to

reduce regional-scale ozone transport.7

CAA section 110(a)(2)(D)(i)(I) requires

states to prohibit emissions that will

contribute significantly to

nonattainment or interfere with

maintenance in any other state with

4 We use the terms ‘‘emissions limitation’’ and

‘‘emissions limit’’ to refer to both numeric

emissions limitations and control technology

requirements that specify levels of emissions

reductions to be achieved.

5 Bergin, M.S. et al. (2007) Regional air quality:

local and interstate impacts of NOX and SO2

emissions on ozone and fine particulate matter in

the eastern United States. Environmental Sci &

Tech. 41: 4677–4689.

6 Liao, K. et al. (2013) Impacts of interstate

transport of pollutants on high ozone events over

the Mid-Atlantic United States. Atmospheric

Environment 84, 100–112.

7 See 82 FR 51238, 51248 (November 3, 2017)

[citing 76 FR 48208, 48222 (August 8, 2011)] and

63 FR 57381 (October 27, 1998).

VerDate Sep<11>2014

20:14 Jun 02, 2023

Jkt 259001

respect to any primary or secondary

NAAQS.8 Within 3 years of the EPA

promulgating a new or revised NAAQS,

all states are required to provide SIP

submittals, often referred to as

‘‘infrastructure SIPs,’’ addressing certain

requirements, including the good

neighbor provision. See CAA section

110(a)(1) and (2). The EPA must either

approve or disapprove such submittals

or make a finding that a state has failed

to submit a complete SIP revision. As

with any other type of SIP under the

Act, when the EPA disapproves an

interstate transport SIP or finds that a

state failed to submit an interstate

transport SIP, the CAA requires the EPA

to issue a FIP to directly implement the

measures necessary to eliminate

significant contribution under the good

neighbor provision. See generally CAA

section 110(k) and 110(c). As such, in

this rule, the EPA is finalizing

requirements to fully address good

neighbor obligations for the covered

states for the 2015 ozone NAAQS under

its authority to promulgate FIPs under

CAA section 110(c). By eliminating

significant contribution from these

upwind states, this rule will make

substantial and meaningful

improvements in air quality by reducing

ozone levels at the identified downwind

receptors as well as many other areas of

the country. At any time after the

effective date of this rule, states may

submit a Good Neighbor SIP to replace

the FIP requirements contained in this

rule, subject to EPA approval under

CAA section 110(a).

The EPA conducted air quality

modeling for the 2023 and 2026 analytic

years to identify (1) the downwind areas

identified as ‘‘receptors’’ (which are

associated with monitoring sites) that

are expected to have trouble attaining or

maintaining the 2015 ozone NAAQS in

the future and (2) the contribution of

ozone transport from upwind states to

the downwind air quality problems. We

use the term ‘‘downwind’’ to describe

those states or areas where a receptor is

located, and we use the term ‘‘upwind’’

to describe states whose emissions are

linked to one or more receptors. States

may be both downwind and upwind

depending on the receptor or linkage in

question. Section IV of this document

provides a full description of the results

of the EPA’s updated air quality

modeling and relevant analyses for the

rulemaking, including a discussion of

how updates to the modeling and air

quality analysis following the proposed

rule have resulted in some modest

changes in the overall geography of the

final rule. Based on the EPA’s air quality

8 42 U.S.C. 7410(a)(2)(D)(i)(I).

PO 00000

Frm 00006

Fmt 4701

Sfmt 4700

5a

analysis, the 23 upwind states covered

in this action are linked above the 1

percent of the NAAQS threshold to

downwind air quality problems in

downwind states. The EPA intends to

expeditiously review the updated air

quality modeling and related analyses to

address potential good neighbor

requirements of six additional states—

Arizona, Iowa, Kansas, New Mexico,

Tennessee, and Wyoming—in a

subsequent action. The EPA had

previously approved 2015 ozone

transport SIPs submitted by Oregon and

Delaware, but in the proposed FIP

action the EPA found these states

potentially to be linked in the modeling

supporting our proposal. We proposed

to issue an error correction for our prior

approval of Delaware’s 2015 ozone

transport SIP; however, in this final

rule, the EPA is withdrawing the

proposed error correction and the

proposed FIP for Delaware, because our

updated modeling for this final rule

confirms that Delaware is not linked

above the 1 percent of NAAQS

threshold (see section III.C.1 of this

document for additional information).

The EPA is deferring finalizing a finding

at this time for Oregon (see section IV.G

of this document for additional

information).

1. Emissions Limitations for EGUs

Established by the Final Rule

In this rule, the EPA is issuing FIP

requirements that apply the provisions

of the CSAPR NOX Ozone Season Group

3 Trading Program as revised in the rule

to EGU sources within the borders of the

following 22 states: Alabama, Arkansas,

Illinois, Indiana, Kentucky, Louisiana,

Maryland, Michigan, Minnesota,

Mississippi, Missouri, Nevada, New

Jersey, New York, Ohio, Oklahoma,

Pennsylvania, Texas, Utah, Virginia,

West Virginia, and Wisconsin.

Implementation of the revised trading

program provisions begins in the 2023

ozone season.

The EPA is expanding the CSAPR

NOX Ozone Season Group 3 Trading

Program beginning in the 2023 ozone

season. Specifically, the FIPs require

power plants within the borders of the

22 states listed in the previous

paragraph to participate in an expanded

and revised version of the CSAPR NOX

Ozone Season Group 3 Trading Program

created by the Revised CSAPR Update.

Affected EGUs within the borders of the

following 12 states currently

participating in the Group 3 Trading

Program under existing FIPs remain in

the program, with revised provisions

beginning in the 2023 ozone season,

under this rule: Illinois, Indiana,

Kentucky, Louisiana, Maryland,

E:\FR\FM\05JNR2.SGM

05JNR2

Federal Register / Vol. 88, No. 107 / Monday, June 5, 2023 / Rules and Regulations

Michigan, New Jersey, New York, Ohio,

Pennsylvania, Virginia, and West

Virginia. The FIPs also require affected

EGUs within the borders of the

following seven states currently covered

by the CSAPR NOX Ozone Season

Group 2 Trading Program (the ‘‘Group 2

trading program’’) under existing FIPs or

existing SIPs to transition from the

Group 2 program to the revised Group

3 trading program beginning with the

2023 control period: Alabama,

Arkansas, Mississippi, Missouri,

Oklahoma, Texas, and Wisconsin.9

Finally, the EPA is issuing new FIPs for

EGUs within the borders of three states

not currently covered by any existing

CSAPR trading program for seasonal

NOX emissions: Minnesota, Nevada, and

Utah. Sources in these states will enter

the Group 3 trading program in the 2023

control period following the effective

date of the final rule.10 Refer to section

VI.B of this document for details on

EGU regulatory requirements.

ddrumheller on DSK120RN23PROD with RULES2

2. Emissions Limitations for Industrial

Stationary Point Sources Established by

the Final Rule

The EPA is issuing FIP requirements

that include new NOX emissions

limitations for industrial or non-EGU

sources in 20 states, with sources

expected to demonstrate compliance no

later than 2026. The EPA is requiring

emissions reductions from non-EGU

sources to address interstate transport

obligations for the 2015 ozone NAAQS

for the following 20 states: Arkansas,

California, Illinois, Indiana, Kentucky,

Louisiana, Maryland, Michigan,

Mississippi, Missouri, Nevada, New

Jersey, New York, Ohio, Oklahoma,

Pennsylvania, Texas, Utah, Virginia and

West Virginia.

The EPA is establishing emissions

limitations for the following unit types

in non-EGU industries: reciprocating

internal combustion engines in Pipeline

Transportation of Natural Gas; kilns in

Cement and Cement Product

Manufacturing; reheat furnaces in Iron

and Steel Mills and Ferroalloy

9 Five of these seven states (Arkansas,

Mississippi, Oklahoma, Texas, and Wisconsin)

currently participate in the Federal Group 2 trading

program pursuant to the FIPs finalized in the

CSAPR Update. The FIPs required under this rule

amend the existing FIPs for these states. The other

two states (Alabama and Missouri) have already

replaced the FIPs finalized in the CSAPR Update

with approved SIP revisions that require their EGUs

to participate in state Group 2 trading programs

integrated with the Federal Group 2 trading

program, so the FIPs required in this action

constitute new FIPs for these states. The EPA will

cease implementation of the state Group 2 trading

programs included in the two states’ SIPs on the

effective date of this rule.

10 Three states, Kansas, Iowa, and Tennessee, will

remain in the Group 2 Trading Program.

VerDate Sep<11>2014

20:14 Jun 02, 2023

Jkt 259001

Manufacturing; furnaces in Glass and

Glass Product Manufacturing; boilers in

Iron and Steel Mills and Ferroalloy

Manufacturing, Metal Ore Mining, Basic

Chemical Manufacturing, Petroleum and

Coal Products Manufacturing, and Pulp,

Paper, and Paperboard Mills; and

combustors and incinerators in Solid

Waste Combustors and Incinerators.

Refer to Table II.A–1 for a list of North

American Industry Classification

System (NAICS) codes for each entity

included for regulation under this rule.

B. Summary of the Regulatory

Framework of the Rule

The EPA is applying the 4-step

interstate transport framework

developed and used in CSAPR, the

CSAPR Update, the Revised CSAPR

Update, and other previous ozone

transport rules under the authority

provided in CAA section

110(a)(2)(D)(i)(I). The 4-step interstate

transport framework provides a

stepwise method for the EPA to define

and implement good neighbor

obligations for the 2015 ozone NAAQS.

The four steps are as follows: (Step 1)

identifying downwind receptors that are

expected to have problems attaining or

maintaining the NAAQS; (Step 2)

determining which upwind states

contribute to these identified problems

in amounts sufficient to ‘‘link’’ them to

the downwind air quality problems (i.e.,

in this rule as in prior transport rules

beginning with CSAPR in 2011, above a

contribution threshold of 1 percent of

the NAAQS); (Step 3) for states linked

to downwind air quality problems,

identifying upwind emissions that

significantly contribute to downwind

nonattainment or interfere with

downwind maintenance of the NAAQS

through a multifactor analysis; and

(Step 4) for states that are found to have

emissions that significantly contribute

to nonattainment or interfere with

maintenance of the NAAQS in

downwind areas, implementing the

necessary emissions reductions through

enforceable measures. The remainder of

this section provides a general overview

of the EPA’s application of the 4-step

framework as it applies to the

provisions of the rule; additional details

regarding the EPA’s approach are found

in section III of this document.

To apply the first step of the 4-step

framework to the 2015 ozone NAAQS,

the EPA performed air quality modeling

to project ozone concentrations at air

quality monitoring sites in 2023 and

2026.11 The EPA evaluated projected

11 These 2 analytic years are the last full ozone

seasons before, and thus align with, upcoming

attainment dates for the 2015 ozone NAAQS:

PO 00000

Frm 00007

Fmt 4701

Sfmt 4700

6a

36659

ozone concentrations for the 2023

analytic year at individual monitoring

sites and considered current ozone

monitoring data at these sites to identify

receptors that are anticipated to have

problems attaining or maintaining the

2015 ozone NAAQS. This analysis of

projected ozone concentrations was

then repeated for 2026.

To apply the second step of the

framework, the EPA used air quality

modeling to quantify the contributions

from upwind states to ozone

concentrations in 2023 and 2026 at

downwind receptors.12 Once quantified,

the EPA then evaluated these

contributions relative to a screening

threshold of 1 percent of the NAAQS

(i.e., 0.70 ppb).13 States with

contributions that equaled or exceeded

1 percent of the NAAQS were identified

as warranting further analysis at Step 3

of the 4-step framework to determine if

the upwind state significantly

contributes to nonattainment or

interference with maintenance in a

downwind state. States with

contributions below 1 percent of the

NAAQS were considered not to

significantly contribute to

nonattainment or interfere with

maintenance of the NAAQS in

downwind states.

Based on the EPA’s most recent air

quality modeling and contribution

analysis using 2023 as the analytic year,

the EPA finds that the following 23

states have contributions that equal or

exceed 1 percent of the 2015 ozone

NAAQS, and, thereby, warrant further

analysis of significant contribution to

nonattainment or interference with

maintenance of the NAAQS: 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.

There are locations in California to

which Oregon contributes greater than 1

percent of the NAAQS; the EPA

August 3, 2024, for areas classified as Moderate

nonattainment, and August 3, 2027, for areas

classified as Serious nonattainment. See 83 FR

25776.

12 The EPA performed air quality modeling for

2032 in the proposed rulemaking, but did not

perform contribution modeling for 2032 since

contribution data for this year were not needed to

identify upwind states to be analyzed in Step 3. The

modeling of 2032 done at proposal using the

2016v2 platform does not constitute or represent

any final agency determinations respecting air

quality conditions or regulatory judgments with

respect to good neighbor obligations or any other

CAA requirements.

13 See section IV.F of this document for

explanation of EPA’s use of the 1 percent of the

NAAQS threshold in the Step 2 analysis.

E:\FR\FM\05JNR2.SGM

05JNR2

36660

Federal Register / Vol. 88, No. 107 / Monday, June 5, 2023 / Rules and Regulations

ddrumheller on DSK120RN23PROD with RULES2

proposed that downwind areas

represented by these monitoring sites in

California should not be considered

interstate ozone transport receptors at

Step 1. However, the EPA is deferring

finalizing a finding at this time for

Oregon (see section IV.G of this

document for additional information).

Based on the air quality analysis

presented in section IV of this

document, the EPA finds that, with the

exception of Alabama, Minnesota, and

Wisconsin, the states found linked in

2023 will continue to contribute above

the 1 percent of the NAAQS threshold

to at least one receptor whose

nonattainment and maintenance

concerns persist through the 2026 ozone

season. As a result, the EPA’s evaluation

of significantly contributing emissions

at Step 3 for Alabama, Minnesota, and

Wisconsin is limited to emissions

reductions achievable by the 2023 and

2024 ozone seasons.

At the third step of the 4-step

framework, the EPA applied a

multifactor test that incorporates cost,

availability of emissions reductions, and

air quality impacts at the downwind

receptors to determine the amount of

ozone precursor emissions from the

linked upwind states that

‘‘significantly’’ contribute to downwind

nonattainment or maintenance

receptors. The EPA is applying the

multifactor test described in section V.A

of this document to both EGU and

industrial sources. The EPA assessed

the potential emissions reductions in

2023 and 2026,14 as well as in

intervening and later years to determine

the emissions reductions required to

eliminate significant contribution in

2023 and future years where downwind

areas are projected to have potential

problems attaining or maintaining the

2015 ozone NAAQS.

For EGU sources, the EPA evaluated

the following set of widely-available

NOX emissions control technologies: (1)

fully operating existing selective

catalytic reduction (SCR) controls,

including both optimizing NOX removal

by existing operational SCRs and

turning on and optimizing existing idled

SCRs; (2) installing state-of-the-art NOX

14 The EPA included emissions reductions from

the potential installation of SCRs at all affected

large coal-fired EGUs in the 2026 analytic year for

the purposes of assessing significant contribution to

nonattainment and interference with maintenance,

which is consistent with the associated attainment

date. However, in response to comments identifying

potential supply chain and outage scheduling

challenges if the full breadth of these assumed SCR

installations were to occur, the EPA is

implementing half of this emissions reduction

potential in 2026 ozone-season NOX budgets for

states containing these EGUs and the other half of

this emissions reduction potential in 2027 ozoneseason NOX budgets for those states.

VerDate Sep<11>2014

20:14 Jun 02, 2023

Jkt 259001

combustion controls; (3) fully operating

existing selective non-catalytic

reduction (SNCR) controls, including

both optimizing NOX removal by

existing operational SNCRs and turning

on and optimizing existing idled

SNCRs; (4) installing new SNCRs; (5)

installing new SCRs; and (6) generation

shifting. For the reasons explained in

section V of this document and

supported by the ‘‘Technical Support

Document (TSD) for the Final Federal

Good Neighbor Plan for the 2015 Ozone

National Ambient Air Quality Standard,

Docket ID No. EPA–HQ–OAR–2021–

0668, EGU NOX Mitigation Strategies

Final Rule TSD’’ (Mar. 2023),

hereinafter referred to as the EGU NOX

Mitigation Strategies Final Rule TSD,

included in the docket for this action,

the EPA determines that for the

regional, multi-state scale of this

rulemaking, only fully operating and

optimizing existing SCRs and existing

SNCRs (EGU NOX emissions controls

options 1 and 3 in the list earlier) are

possible for the 2023 ozone season. The

EPA determined that state-of-the-art

NOX combustion controls at EGUs

(emissions control option 2 in the list

above) are available by the beginning of

the 2024 ozone season. See section

V.B.1 of this document for a full

discussion of EPA’s analysis of NOX

emissions mitigation strategies for EGU

sources.

The EPA is requiring control

stringency levels that offer the most

incremental NOX emissions reduction

potential from EGUs—among the

uniform mitigation measures assessed

for the covered region—and the most

corresponding downwind ozone air

quality improvements to the extent

feasible in each year analyzed. The EPA

is making a finding that the required

controls provide cost-effective

reductions of NOX emissions that will

provide substantial improvements in

downwind ozone air quality to address

interstate transport obligations for the

2015 ozone NAAQS in a timely manner.

These controls represent greater

stringency in upwind EGU controls than

in the EPA’s most recent ozone

transport rulemakings, such as the

CSAPR Update and the Revised CSAPR

Update. However, programs to address

interstate ozone transport based on the

retrofit of post-combustion controls are

by no means unprecedented. In prior

ozone transport rulemakings such as the

NOX SIP Call and the Clean Air

Interstate Rule (CAIR), the EPA

established EGU budgets premised on

the widespread availability of

retrofitting EGUs with post-combustion

PO 00000

Frm 00008

Fmt 4701

Sfmt 4700

7a

emissions controls such as SCR.15 While

these programs successfully drove many

EGUs to retrofit post-combustion

controls, other EGUs throughout the

present geography of linked upwind

states continue to operate without such

controls and continue to emit at

relatively high rates more than 20 years

after similar units reduced these

emissions under prior interstate ozone

transport rulemakings.

Furthermore, the CSAPR Update

provided only a partial remedy for

eliminating significant contribution for

the 2008 ozone NAAQS, as needed to

obtain available reductions by the 2017

ozone season. In that rule, the EPA

made no determination regarding the

appropriateness of more stringent EGU

NOX controls that would be required for

a full remedy for interstate transport for

the 2008 ozone NAAQS. Following the

remand of the CSAPR Update in

Wisconsin v. EPA, 938 F.3d 303 (D.C.

Cir. 2019) (Wisconsin), the EPA again

declined to require the retrofit of new

post-combustion controls on EGUs in

the Revised CSAPR Update, but that

determination was based on a specific

timing consideration: downwind air

quality problems under the 2008 ozone

NAAQS were projected to resolve before

post-combustion control retrofits could

be accomplished on a fleetwide,

regional scale. See 86 FR 23054, 23110

(April 30, 2021).

In this rulemaking, the EPA is

addressing good neighbor obligations for

the more protective 2015 ozone

NAAQS, and the Agency observes

ongoing and persistent contribution

from upwind states to ozone

nonattainment and maintenance

receptors in downwind states under that

NAAQS. As further discussed in section

V of this document, the nature of this

contribution warrants a greater degree of

control stringency than the EPA

determined to be necessary to eliminate

significant contribution of ozone

transport in prior CSAPR rulemakings.

In this rule, the EPA is requiring

emissions performance levels for EGU

NOX control strategies commensurate

with those determined to be necessary

in the NOX SIP Call and CAIR.

Based on the Step 3 analysis

described in section V of this document,

the EPA finds that emissions reductions

commensurate with the full operation of

all existing post-combustion controls

(both SCRs and SNCRs) and state-of-theart combustion control upgrades

constitute the Agency’s selected control

stringency for EGUs within the borders

of 22 states linked to downwind

15 See, e.g., 70 FR 25162, 25205–06 (May 12,

2005).

E:\FR\FM\05JNR2.SGM

05JNR2

Federal Register / Vol. 88, No. 107 / Monday, June 5, 2023 / Rules and Regulations

ddrumheller on DSK120RN23PROD with RULES2

nonattainment or maintenance in 2023

(Alabama, Arkansas, Illinois, Indiana,

Kentucky, Louisiana, Maryland,

Michigan, Minnesota, Mississippi,

Missouri, Nevada, New Jersey, New

York, Ohio, Oklahoma, Pennsylvania,

Texas, Utah, Virginia, West Virginia,

and Wisconsin). For 19 of those states

that are also linked in 2026 (Arkansas,

Illinois, Indiana, Kentucky, Louisiana,

Maryland, Michigan, Mississippi,

Missouri, Nevada, New Jersey, New

York, Ohio, Oklahoma, Pennsylvania,

Texas, Utah, Virginia, and West

Virginia), the EPA is determining that

the selected EGU control stringency also

includes emissions reductions

commensurate with the retrofit of SCR

at coal-fired units of 100 MW or greater

capacity (excepting circulating fluidized

bed units (CFB)), new SNCR on coalfired units of less than 100 MW capacity

and on CFBs of any capacity size, and

SCR on oil/gas steam units greater than

100 MW that have historically emitted

at least 150 tons of NOX per ozone

season.

To identify appropriate control

strategies for non-EGU sources to

achieve NOX emissions reductions that

would result in meaningful air quality

improvements in downwind areas, for

the proposed FIP, the EPA evaluated air

quality modeling information, annual

emissions, and information about

potential controls to determine which

industries, beyond the power sector,

could have the greatest impact in

providing ozone air quality

improvements in affected downwind

states. Once the EPA identified the

industries, the EPA used its Control

Strategy Tool to identify potential

emissions units and control measures

and to estimate emissions reductions

and compliance costs associated with

application of non-EGU emissions

control measures. The technical

memorandum Screening Assessment of

Potential Emissions Reductions, Air

Quality Impacts, and Costs from NonEGU Emissions Units for 2026 lays out

the analytical framework and data used

to prepare proxy estimates for 2026 of

potentially affected non-EGU facilities

and emissions units, emissions

reductions, and costs.16 17 This

16 The memorandum is available in the docket at

https://www.regulations.gov/document/EPA-HQOAR-2021-0668-0150.

17 This screening assessment was not intended to

identify the specific emissions units subject to the

proposed emissions limits for non-EGU sources but

was intended to inform the development of the

proposed rule by identifying proxies for (1) nonEGU emissions units that had emissions reduction

potential, (2) potential controls for and emissions

reductions from these emissions units, and (3)

control costs from the potential controls on these

VerDate Sep<11>2014

20:14 Jun 02, 2023

Jkt 259001

information helped shape the proposal

and final rule. To further evaluate the

industries and emissions unit types

identified by the screening assessment

and to establish the applicability criteria

and proposed emissions limits, the EPA

reviewed Reasonably Available Control

Technology (RACT) rules, New Source

Performance Standards (NSPS) rules,

National Emissions Standards for

Hazardous Air Pollutants (NESHAP)

rules, existing technical studies, rules in

approved SIPs, consent decrees, and

permit limits. That evaluation is

detailed in the ‘‘Technical Support

Document (TSD) for the Proposed Rule,

Docket ID No. EPA–HQ–OAR–2021–

0668, Non-EGU Sectors TSD’’ (Dec.

2021), hereinafter referred to as the

Proposed Non-EGU Sectors TSD,

prepared for the proposed FIP.18

In this final rule, the EPA is retaining

the industries and many of the

emissions unit types included in the

proposal in its findings of significant

contribution at Step 3, as discussed in

section V of this document. As

discussed in the memorandum for the

final rule, titled ‘‘Summary of Final

Rule Applicability Criteria and

Emissions Limits for Non-EGU

Emissions Units, Assumed Control

Technologies for Meeting the Final

Emissions Limits, and Estimated

Emissions Units, Emissions Reductions,

and Costs,’’ the EPA uses the 2019

emissions inventory, the list of

emissions units estimated to be

captured by the applicability criteria,

the assumed control technologies that

would meet the emissions limits, and

information on control efficiencies and

default cost/ton values from the Control

Measures Database,19 to estimate NOX

emissions reductions and costs for the

year 2026. In this final rule, the EPA

made changes to the applicability

criteria and emissions limits following

consideration of comments on the

proposal and reassessed the overall nonEGU emissions reduction strategy based

on the factors at Step 3 to render a

judgment as to whether the level of

emissions control that would be

achievable from these units meets the

criteria for ‘‘significant contribution.’’ In

the final rule, we affirm our proposed

determinations of which industries and

emissions units are potentially

emissions units. This information helped shape the

proposed rule.

18 The TSD is available in the docket at https://

www.regulations.gov/document/EPA-HQ-OAR2021-0668-0145.

19 More information about the control measures

database (CMDB) can be found at the following link:

https://www.epa.gov/economic-and-cost-analysisair-pollution-regulations/cost-analysis-modelstoolsair-pollution.

PO 00000

Frm 00009

Fmt 4701

Sfmt 4700

8a

36661

impactful and warrant further analysis

at Step 3, and we find that the available

emissions reductions are cost-effective

and make meaningful improvements at

the identified downwind receptors. For

a detailed discussion of the changes,

between the proposal and this final rule,

in emissions unit types included and in

emissions limits, see section VI.C. of

this document.

The EPA performed air quality

analysis using the Ozone Air Quality

Assessment Tool (AQAT) to evaluate

the air quality improvements

anticipated to result from the

implementation of the selected EGU and

non-EGU emissions reduction strategies.

See section V.D of this document.20 We

also used AQAT to determine whether

the emissions reductions for both EGUs

and non-EGUs potentially create an

‘‘over-control’’ scenario. As in prior

transport rules following the holdings in

EME Homer City, overcontrol would be

established if the record indicated that,

for any given state, there is a less

stringent emissions control approach for

that state, by which (1) the expected

ozone improvements would be

sufficient to resolve all of the downwind

receptor(s) to which that state is linked;

or (2) the expected ozone improvements

would reduce the upwind state’s ozone

contributions below the screening

threshold (i.e., 1 percent of the NAAQS

or 0.70 ppb) to all of linked receptors.

The EPA’s over-control analysis,

discussed in section V.D.4 of this

document, shows that the control

stringencies for EGU and non-EGU

sources in this final rule do not overcontrol upwind states’ emissions either

with respect to the downwind air

quality problems to which they are

linked or with respect to the 1 percent

of the NAAQS contribution threshold,

such that over-control would trigger reevaluation at Step 3 for any linked

upwind state.

Based on the multi-factor test applied

to both EGU and non-EGU sources and

20 The use of AQAT and other simplified

modeling tools to generate ‘‘appropriately reliable

projections of air quality conditions and

contributions’’ when there is limited time to

conduct full-scale photochemical grid modeling

was upheld by the D.C. Circuit in MOG v. EPA, No.

21–1146 (D.C. Cir. March 3, 2023). The EPA has

used AQAT for the purpose of air quality and

overcontrol assessments at Step 3 in the prior

CSAPR rulemakings, and we continue to find it

reliable for such purposes. We discuss the

calibration of AQAT for this action and the multiple

sensitivity checks we performed to ensure its

reliability in the Ozone Transport Policy Analysis

Final Rule TSD in the docket. Because we were able

to conduct a photochemical grid modeling run of

the 2026 final rule policy scenario, these results are

also included in the docket and confirm the

regulatory conclusions reached with AQAT. See

section VIII of this document and Appendix 3A of

the Final Rule RIA for more information.

E:\FR\FM\05JNR2.SGM

05JNR2

36662

Federal Register / Vol. 88, No. 107 / Monday, June 5, 2023 / Rules and Regulations

ddrumheller on DSK120RN23PROD with RULES2

our subsequent assessment of overcontrol, the EPA finds that the selected

EGU and non-EGU control stringencies

constitute the elimination of significant

contribution and interference with

maintenance, without over-controlling

emissions, from the 23 upwind states

subject to EGU and non-EGU emissions

reductions requirements under the rule.

For additional details about the multifactor test and the over-control analysis,

see the document titled ‘‘Technical

Support Document (TSD) for the Final

Federal Good Neighbor Plan for the

2015 Ozone National Ambient Air

Quality Standard, Docket ID No. EPA–

HQ–OAR–2021–0668, Ozone Transport

Policy Analysis Proposed Rule TSD’’

(Mar. 2023), hereinafter referred to as

Ozone Transport Policy Analysis Final

Rule TSD, included in the docket for

this rulemaking.

In this fourth step of the 4-step

framework, the EPA is including

enforceable measures in the

promulgated FIPs to achieve the

required emissions reductions in each of

the 23 states. Specifically, the FIPs

require covered power plants within the

borders of 22 states (Alabama, Arkansas,

Illinois, Indiana, Kentucky, Louisiana,

Maryland, Michigan, Minnesota,

Mississippi, Missouri, Nevada, New

Jersey, New York, Ohio, Oklahoma,

Pennsylvania, Texas, Utah, Virginia,

West Virginia, and Wisconsin) to

participate in the CSAPR NOX Ozone

Season Group 3 Trading Program

created by the Revised CSAPR Update.

Affected EGUs within the borders of the

following 12 states currently

participating in the Group 3 Trading

Program will remain in the program,

with revised provisions beginning in the

2023 ozone season, under this rule:

Illinois, Indiana, Kentucky, Louisiana,

Maryland, Michigan, New Jersey, New

York, Ohio, Pennsylvania, Virginia, and

West Virginia. Affected EGUs within the

borders of the following seven states

currently covered by the CSAPR NOX

Ozone Season Group 2 Trading Program

(the ‘‘Group 2 trading program’’)—

Alabama, Arkansas, Mississippi,

Missouri, Oklahoma, Texas, and

Wisconsin—will transition from the

Group 2 program to the revised Group

3 trading program beginning with the

2023 control period,21 and affected

21 The EPA will deem participation in the Group

3 trading program by the EGUs in these seven states

as also addressing the respective states’ good

neighbor obligations with respect to the 2008 ozone

NAAQS (for all seven states), the 1997 ozone

NAAQS (for all the states except Texas), and the

1979 ozone NAAQS (for Alabama and Missouri) to

the same extent that those obligations are currently

being addressed by participation of the states’ EGUs

in the Group 2 trading program.

VerDate Sep<11>2014

20:14 Jun 02, 2023

Jkt 259001

EGUs within the borders of three states

not currently covered by any CSAPR

trading program for seasonal NOX

emissions—Minnesota, Nevada, and

Utah—will enter the Group 3 trading

program in the 2023 control period

following the effective date of the final

rule. In addition, the EPA is revising

other aspects of the Group 3 trading

program to better ensure that this

method of implementation at Step 4

provides a durable remedy for the

elimination of the amount of emissions

deemed to constitute significant

contribution at Step 3 of the interstate

transport framework. These

enhancements, summarized later in this

section, are designed to operate together

to maintain that degree of control

stringency over time, thus improving

emissions performance at individual

units and offering a necessary measure

of assurance that NOX pollution controls

will be operated throughout each ozone

season, as described in section VI.B of

this document. This rulemaking does

not revise the budget stringency and

geography of the existing CSAPR NOX

Ozone Season Group 1 trading program.

Aside from the seven states moving

from the Group 2 trading program to the

Group 3 trading program under the final

rule, this rule otherwise leaves

unchanged the budget stringency of the

existing CSAPR NOX Ozone Season

Group 2 trading program.

The EPA is establishing preset ozone

season NOX emissions budgets for each

ozone season from 2023 through 2029,

using generally the same Group 3

trading program budget-setting

methodology used in the Revised

CSAPR Update, as explained in section

VI.B of this document and as shown in

Table I.B–1. The preset budgets for the

2026 through 2029 ozone seasons

incorporate EGU emissions reductions

to eliminate significant contribution and

also take into account a substantial

number of known retirements over that

period to ensure the elimination of

significant contribution is maintained as

intended by this rule. These budgets

serve as floors and may be supplanted

by a budget that the EPA calculates for

that control period using more recent

information (a ‘‘dynamic budget’’) if that

dynamic budget yields a higher level of

allowable emissions—still consistent

with the Step 3 level of emissions

control stringency—than the preset

budget. As reflected in Table I.B–1, and

accounting for both the stringency of the

rule and known fleet change, the 2026

preset budget is 23 percent lower than

the 2025 preset budget; the 2027 preset

budget is 20 percent lower than the

2026 preset budget; the 2028 preset

PO 00000

Frm 00010

Fmt 4701

Sfmt 4700

9a

budget is 4 percent lower than the 2027

preset budget; and the 2029 preset

budget is 8 percent lower than the 2028

preset budget.

While it is possible that additional

EGUs may seek to retire in this 2026–

2029 period than are currently

scheduled and captured in the preset

emissions budgets, it is also possible

that EGUs with currently scheduled

retirements may adjust their retirement

timing to accommodate the timing of

replacement generation and/or

transmission upgrades necessitated by

their retirement. While the EPA

designed this final rule to provide preset

budgets through 2029 to incorporate

known retirement-related emissions

reductions to ensure the elimination of

significant contribution as identified at

Step 3 is maintained over time, the use

of these floors also provides generators

and grid operators enhanced certainty

regarding the minimum amount of

allowable NOX emissions for reliability

planning through the 2020s. By

providing the opportunity for dynamic

budgets to subsequently calibrate

budgets to any unforeseen increases in

fleet demand, it also ensures this rule

will not interfere with ongoing

retirement scheduling or adjustments

and thus is robust to future uncertainty

during a transition period.

The EPA also believes the likelihood

and magnitude of a scenario in which a

state’s preset emissions budgets during

this period would authorize more

emissions than the corresponding

dynamic budget is low. As described

elsewhere, dynamic budgets are

incorporated to best calibrate the rule’s

stringency to future unknown changes

to the fleet. The circumstances in which

a dynamic budget would produce a

level of allowable emissions less than

preset budgets is most pronounced for

future periods in which there is a high

degree of unknown retirements

(increasing the risk that budgets are not

appropriately calibrated to the reduced

fossil fuel heat input post retirement).

However, the 2026–2029 period

presents a case where retirement

planning has been announced with

greater lead time than normal due to a

combination of utility 2030

decarbonization commitments, and

Effluent Limitation Guideline (ELG) and

Coal Combustion Residual (CCR)

alternative compliance pathways

available to units planning to cease

combustion of coal by December 31,

2028. For each of these existing rules,

facilities that are planning to retire have

already conveyed that intention to EPA

in order to take advantage of the

alternative compliance pathways

E:\FR\FM\05JNR2.SGM

05JNR2

Federal Register / Vol. 88, No. 107 / Monday, June 5, 2023 / Rules and Regulations

available to such facilities.22 Therefore,

the likelihood of unknown

retirements—leading to lower dynamic

budgets—is much lower than typical for

this time horizon. This makes EPA’s

balanced use of preset emissions

budgets or dynamic budgets if they

exceed preset levels a reasonable

mechanism to accommodate planning

and fleet transition dynamics during

this period. The need and reasoning for

the limited-period preset budget floor is

further discussed in section VI.B.4.

For control periods in 2030 and

thereafter, the emissions budgets will be

the amounts calculated for each state

and noticed to the public roughly one

36663

year before the control period, using the

dynamic budget-setting methodology. In

this manner, the stringency of the

program will be secured and sustained

in the dynamic budgets of this program,

regardless of whatever EGU transition

activities ultimately occur in this 2026–

2029 transition period.

TABLE I.B–1—PRESET CSAPR NOX OZONE SEASON GROUP 3 STATE EMISSIONS BUDGETS (TONS) FOR 2023 THROUGH

2029 CONTROL PERIODS *

2023 State

budget

State

2024 State

budget

2025 State

budget

2026 State

budget **

2027 State

budget **

2028 State

budget **

2029 State

budget **

Alabama .......................

Arkansas ......................

Illinois ...........................

Indiana .........................

Kentucky ......................

Louisiana ......................

Maryland ......................

Michigan .......................

Minnesota .....................

Mississippi ....................

Missouri ........................

Nevada .........................

New Jersey ..................

New York .....................

Ohio ..............................

Oklahoma .....................

Pennsylvania ................

Texas ...........................

Utah ..............................

Virginia .........................

West Virginia ................

Wisconsin .....................

6,379

8,927

7,474

12,440

13,601

9,363

1,206

10,727

5,504

6,210

12,598

2,368

773

3,912

9,110

10,271

8,138

40,134

15,755

3,143

13,791

6,295

6,489

8,927

7,325

11,413

12,999

9,363

1,206

10,275

4,058

5,058

11,116

2,589

773

3,912

7,929

9,384

8,138

40,134

15,917

2,756

11,958

6,295

6,489

8,927

7,325

11,413

12,472

9,107

1,206

10,275

4,058

5,037

11,116

2,545

773

3,912

7,929

9,376

8,138

38,542

15,917

2,756

11,958

5,988

6,339

6,365

5,889

8,410

10,190

6,370

842

6,743

4,058

3,484

9,248

1,142

773

3,650

7,929

6,631

7,512

31,123

6,258

2,565

10,818

4,990

6,236

4,031

5,363

8,135

7,908

3,792

842

5,691

2,905

2,084

7,329

1,113

773

3,388

7,929

3,917

7,158

23,009

2,593

2,373

9,678

3,416

6,236

4,031

4,555

7,280

7,837

3,792

842

5,691

2,905

1,752

7,329

1,113

773

3,388

6,911

3,917

7,158

21,623

2,593

2,373

9,678

3,416

5,105

3,582

4,050

5,808

7,392

3,639

842

4,656

2,578

1,752

7,329

880

773

3,388

6,409

3,917

4,828

20,635

2,593

1,951

9,678

3,416

Total ......................

208,119

198,014

195,259

151,329

119,663

115,193

105,201

ddrumheller on DSK120RN23PROD with RULES2

* Further information on the state-level emissions budget calculations pertaining to Table I.B–1 is provided in section VI.B.4 of this document

as well as the Ozone Transport Policy Analysis Final Rule TSD. Further information on the approach for allocating a portion of Utah’s emissions

budget for each control period to the existing EGU in the Uintah and Ouray Reservation within Utah’s borders is provided in section VI.B.9 of this

document.

** As described in section VI of this document, the budget for these years will be subsequently determined and equal the greater of the value

above or that derived from the dynamic budget methodology.

The budget-setting methodology that

the EPA will use to determine dynamic

budgets for each control period starting

with 2026 is an extension of the

methodology used to determine the

preset budgets and will be used

routinely to determine emissions

budgets for each future control period in

the year before that control period, with

each emissions budget reflecting the

latest available information on the

composition and utilization of the EGU

fleet at the time that emissions budget

is determined. The stringency of the

dynamic emissions budgets will simply

reflect the stringency of the emissions

control strategies selected in the

rulemaking more consistently over time

and ensure that the annual updates

would eliminate emissions determined

to be unlawful under the good neighbor

provision. As already noted, for the

control periods in which both preset

budgets and dynamic budgets are

determined for a state (i.e., 2026 through

2029), the state’s dynamic budget will

apply only if it is higher than the state’s

preset budget. See section VI.B of this

document for additional discussion of

the EPA’s method for adjusting

emissions budgets to ensure elimination

of significant contribution from EGU

sources in the linked upwind states.

In conjunction with the levels of the

emissions budgets, the carryover of

unused allowances for use in future

control periods as banked allowances

affects the ability of a trading program

to maintain the rule’s selected control

stringency and related EGU effective

emissions rate performance level as the

EGU fleet evolves over time.

Unrestricted banking of allowances

allows what might otherwise be

temporary surpluses of allowances in

some individual control periods to

accumulate into a long-term allowance

surplus that reduces allowance prices

and weakens the trading program’s

incentives to control emissions. To

prevent this outcome, the EPA is also

revising the Group 3 trading program by

adding provisions that establish a

routine recalibration process for banked

allowances using a target percentage of

21 percent for the 2024–2029 control

periods and 10.5 percent for control

periods in 2030 and later years.

As an enhancement to the structure of

the trading program originally

promulgated in the Revised CSAPR

Update, the EPA is also establishing

backstop daily emissions rates for coal

22 Notices of Planned Participation for the ELG

Reconsideration Rule were due October 31, 2021

(85 FR 64708, 64679). For the CCR Action, facilities

had to indicate their future plans to cease receipt

of waste by April 11, 2021 (85 FR 53517).

VerDate Sep<11>2014

20:14 Jun 02, 2023

Jkt 259001

PO 00000

Frm 00011

Fmt 4701

Sfmt 4700

10a

E:\FR\FM\05JNR2.SGM

05JNR2

36664

Federal Register / Vol. 88, No. 107 / Monday, June 5, 2023 / Rules and Regulations

steam EGUs greater than or equal to 100

MW in covered states. Starting with the

2024 control period, a 3-for-1 allowance

surrender ratio (instead of the usual 1for-1 surrender ratio) will apply to

emissions during the ozone season from

any large coal-fired EGU with existing

SCR controls exceeding by more than 50

tons a daily average NOX emissions rate

of 0.14 lb/mmBtu. The daily average

emissions rate provisions will apply to

large coal-fired EGUs without existing

SCR controls starting with the second

control period in which newly installed

SCR controls are operational at the unit,

but not later than the 2030 control

period.

The backstop daily emissions rates

work in tandem with the ozone season

emissions budgets to ensure the

elimination of significant contribution

as determined at Step 3 is maintained

over time and more consistently

throughout each ozone season. They

will offer downwind receptor areas a

necessary measure of assurance that

they will be protected on a daily basis

during the ozone season by more

continuous and consistent operation of

installed pollution controls. The EPA’s

experience with the CSAPR trading

programs has revealed instances where

EGUs have reduced their SCRs’

performance on a given day, or across

the entire ozone seasons in some cases,

including high ozone days.23 In addition

to maintaining a mass-based seasonal

requirement, this rule will achieve a

much more consistent level of emissions

control in line with our Step 3

determination of significant

contribution while maintaining

compliance flexibility consistent with

that determination. These trading

program improvements will promote

consistent emissions control

performance across the power sector in

the linked upwind states, which

protects communities living in

downwind ozone nonattainment areas

from exceedances of the NAAQS that

might otherwise occur.

The EPA is including enforceable

emissions control requirements that will

apply during the ozone season (annually

from May to September) for nine nonEGU industries in the promulgated FIPs

to achieve the required emissions

reductions in 20 states with remaining

interstate transport obligations for the

2015 ozone NAAQS in 2026: Arkansas,

California, Illinois, Indiana, Kentucky,

Louisiana, Maryland, Michigan,

Mississippi, Missouri, Nevada, New

Jersey, New York, Ohio, Oklahoma,

Pennsylvania, Texas, Utah, Virginia,

and West Virginia. These requirements

would apply to all existing emissions

units and to any future emissions units

constructed in the covered states that

meet the relevant applicability criteria.

Thus, the emissions limitations for nonEGU sources and associated compliance

requirements would apply in all 20

states listed in this paragraph, even if

some of these states do not currently

have any existing emissions units

meeting the applicability criteria for the

identified industries.

Based on our evaluation of the time

required to install controls at the types

of non-EGU sources covered by this

rule, the EPA has identified the 2026

ozone season as a reasonable

compliance date for industrial sources.

The EPA is therefore finalizing control

requirements for non-EGU sources that

take effect in 2026. However, in

recognition of comments and additional

information indicating that not all

facilities may be capable of meeting the

control requirements by that time, the

final rule provides a process by which

the EPA may grant compliance

extensions of up to 1 year, which if

approved by the EPA, would require

compliance no later than the 2027 ozone

season, followed by an additional

possible extension of up to 2 more

years, where specific criteria are met.

For sources located in the 20 states

listed in the previous paragraph, the

EPA is finalizing the NOX emissions

limits listed in Table I.B–2 for

reciprocating internal combustion

engines in Pipeline Transportation of

Natural Gas; the NOX emissions limits

listed in Table I.B–3 for kilns in Cement

and Cement Product Manufacturing; the

NOX emissions limits listed in Table

I.B–4 for reheat furnaces in Iron and

Steel Mills and Ferroalloy

Manufacturing; the NOX emissions

limits listed in Table I.B–5 for furnaces

in Glass and Glass Product

Manufacturing; the NOX emissions

limits listed in Table I.B–6 for boilers in

Iron and Steel Mills and Ferroalloy

Manufacturing, Metal Ore Mining, Basic

Chemical Manufacturing, Petroleum and

Coal Products Manufacturing, and Pulp,

Paper, and Paperboard Mills; and the

NOX emissions limits listed in Table

I.B–7 for combustors and incinerators in

Solid Waste Combustors or Incinerators.

TABLE I.B–2—SUMMARY OF NOX EMISSIONS LIMITS FOR PIPELINE TRANSPORTATION OF NATURAL GAS

NOX emissions limit

(g/hp-hr)

Engine type and fuel

Natural Gas Fired Four Stroke Rich Burn ...............................................................................................................................

Natural Gas Fired Four Stroke Lean Burn ..............................................................................................................................

Natural Gas Fired Two Stroke Lean Burn ...............................................................................................................................

1.0

1.5

3.0

TABLE I.B–3—SUMMARY OF NOX EMISSIONS LIMITS FOR KILN TYPES IN CEMENT AND CONCRETE PRODUCT

MANUFACTURING

NOX emissions limit

(lb/ton of clinker)

ddrumheller on DSK120RN23PROD with RULES2

Kiln type

Long Wet .................................................................................................................................................................................

Long Dry ..................................................................................................................................................................................

Preheater .................................................................................................................................................................................

Precalciner ...............................................................................................................................................................................

Preheater/Precalciner ..............................................................................................................................................................

23 See 86 FR 23090. The EPA highlighted the

Miami Fort Unit 7 (possessing a SCR) more than

VerDate Sep<11>2014

20:14 Jun 02, 2023

Jkt 259001

tripled its ozone-season NOX emission rate between

2017 and 2019.

PO 00000

Frm 00012

Fmt 4701

Sfmt 4700

11a

E:\FR\FM\05JNR2.SGM

05JNR2

4.0

3.0

3.8

2.3

2.8

Federal Register / Vol. 88, No. 107 / Monday, June 5, 2023 / Rules and Regulations

Based on evaluation of comments

received, the EPA is not, at this time,

finalizing the source cap limit as

36665

proposed at 87 FR 20046 (see section

VII.C.2 of the April 6, 2022, Proposal).

TABLE I.B–4—SUMMARY OF NOX CONTROL REQUIREMENTS FOR IRON AND STEEL AND FERROALLOY EMISSIONS UNITS

NOX emissions standard or requirement

(lb/mmBtu)

Emissions unit

Reheat furnace .........................................................................................

Test and set limit based on installation of Low-NOX Burners.

TABLE I.B–5—SUMMARY OF NOX EMISSIONS LIMITS FOR FURNACE UNIT TYPES IN GLASS AND GLASS PRODUCT

MANUFACTURING

NOX emissions limit

(lb/ton of glass produced)

Furnace type

Container Glass Manufacturing Furnace ...........

This text is long and has been trimmed here. Open the source document for the complete record.