Emergency Application — United States Steel Corporation, Applicant v. Environmental Protection Agency, et al.
Supreme Court briefOct 26, 2023
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Case No. ______
In the Supreme Court of the United States
UNITED STATES STEEL CORPORATION,
Applicant,
v.
ENVIRONMENTAL PROTECTION AGENCY AND MICHAEL S. REGAN, ADMINISTRATOR,
Respondents.
On Application for Stay to the Honorable John G. Roberts, Jr., Chief
Justice and Circuit Justice for the District of Columbia Circuit
APPENDIX TO EMERGENCY APPLICATION FOR STAY OF
FINAL AGENCY ACTION PENDING JUDICIAL REVIEW
October 26, 2023
John D. Lazzaretti
Counsel of Record
Squire Patton Boggs (US) LLP
1000 Key Tower
127 Public Square
Cleveland, OH 44114
216.479.8350
john.lazzaretti@squirepb.com
Counsel for United States Steel
Corporation
Table of Contents
Federal “Good Neighbor Plan” for the 2015 Ozone National
Ambient Air Quality Standards, 88 Fed. Reg. 34,353
(June 5, 2023) ...................................................................................... App.001
Order, U. S. Steel v. EPA, Case Nos. 23-1157 (lead) and 231207 (D.C. Cir. Oct. 11, 2023) ............................................................ App.266
Order, Utah v. EPA, Case No. 23-1157 (lead) (D.C. Cir. Sept.
25, 2023) .............................................................................................. App.268
42 U.S.C. § 7407 (2021) ................................................................................ App.270
42 U.S.C. § 7410 (2011) ................................................................................ App.276
42 U.S.C. § 7607 (2010) ................................................................................ App.285
Application for Stay, Ohio, et al. v. EPA, Case No. 23A349 ........................ App.291
Application for Stay, Kinder Morgan, Inc. et al. v. EPA, Case
No. 23A350.......................................................................................... App.327
Application for Stay, American Forest & Paper Assoc., et al. v.
EPA, Case No. 23A351 ....................................................................... App.366
Declaration of Paul Balserak in Support of Application for
Stay, American Forest & Paper Assoc., et al v. EPA,
Case No. 23A351 ................................................................................. App.414
U. S. Steel Comments on the Federal “Good Neighbor Plan”
(June 21, 2022) .................................................................................... App.418
EPA, Screening Assessment of Potential Emissions Reductions,
Air Quality Impacts, and Costs from Non-EGU
Emissions Units for 2026 (Feb. 28, 2022, amended
March 29, 2022)................................................................................... App.532
Excerpt from Federal “Good Neighbor Plan” for the 2015
Ozone National Ambient Air Quality Standards,
Response to Public Comments on Proposed Rule............................... App.558
United States Steel Corporation Petition for Administrative
Reconsideration and Stay (Aug. 4, 2023)............................................ App.571
Declaration of Alexis Piscitelli in Support of Motion for Stay,
U. S. Steel v. EPA, Case No. 23-1207 (D.C. Cir.) ............................... App.714
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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).
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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.
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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.
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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
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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
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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.
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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).
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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).
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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,
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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.
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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.
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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:
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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.
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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.
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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
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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).
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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
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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.
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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.
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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.
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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
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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
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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
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* 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).
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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)
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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
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3.0
3.8
2.3
2.8
tripled its ozone-season NOX emission rate between
2017 and 2019.
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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 .....................................................................................................................
Pressed/Blown Glass Manufacturing Furnace or Fiberglass Manufacturing Furnace ................................................
Flat Glass Manufacturing Furnace ..............................................................................................................................
4.0
4.0
7.0
TABLE I.B–6—SUMMARY OF NOX EMISSIONS LIMITS FOR BOILERS IN IRON AND STEEL AND FERROALLOY MANUFACTURING, METAL ORE MINING, BASIC CHEMICAL MANUFACTURING, PETROLEUM AND COAL PRODUCTS MANUFACTURING, AND PULP, PAPER, AND PAPERBOARD MILLS
Emissions limit
(lbs NOX/mmBtu)
Unit type
Coal ..........................................................................................................................................................................................
Residual oil ..............................................................................................................................................................................
Distillate oil ...............................................................................................................................................................................
Natural gas ..............................................................................................................................................................................
0.20
0.20
0.12
0.08
TABLE I.B–7—SUMMARY OF NOX EMISSIONS LIMITS FOR COMBUSTORS AND INCINERATORS IN SOLID WASTE
COMBUSTORS OR INCINERATORS
NOX emissions limit
(ppmvd)
Combustor or incinerator, averaging period
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ppmvd on a 24-hour block averaging period ..........................................................................................................................
ppmvd on a 30-day rolling averaging period ...........................................................................................................................
Section VI.C of this document
provides an overview of the
applicability criteria, compliance
assurance requirements, and the EPA’s
rationale for establishing these
emissions limits and control
requirements for each of the non-EGU
industries covered by the rule.
The remainder of this preamble is
organized as follows: section II of this
document outlines general applicability
criteria and describes the EPA’s legal
authority for this rule and the
relationship of the rule to previous
interstate ozone transport rulemakings.
Section III of this document describes
the human health and environmental
challenges posed by interstate transport
contributions to ozone air quality
problems, as well as the EPA’s overall
approach for addressing interstate
transport for the 2015 ozone NAAQS in
this rule. Section IV of this document
describes the Agency’s analyses of air
quality data to inform this rulemaking,
including descriptions of the air quality
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modeling platform and emissions
inventories used in the rule, as well as
the EPA’s methods for identifying
downwind air quality problems and
upwind states’ ozone transport
contributions to downwind states.
Section V of this document describes
the EPA’s approach to quantifying
upwind states’ obligations in the form of
EGU NOX control stringencies and nonEGU emissions limits. Section VI of this
document describes key elements of the
implementation schedule for EGU and
non-EGU emissions reductions
requirements, including details
regarding the revised aspects of the
CSAPR NOX Group 3 trading program
and compliance deadlines, as well as
regulatory requirements and compliance
deadlines for non-EGU sources. Section
VII of this document discusses the
environmental justice analysis of the
rule, as well as outreach and
engagement efforts. Section VIII of this
document describes the expected costs,
benefits, and other impacts of this rule.
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105
Section IX of this document provides a
summary of changes to the existing
regulatory text applicable to the EGUs
covered by this rule; and section X of
this document discusses the statutory
and executive orders affecting this
rulemaking.
C. Costs and Benefits
A summary of the key results of the
cost-benefit analysis that was prepared
for this final rule is presented in Table
I.C–1. Table I.C–1 presents estimates of
the present values (PV) and equivalent
annualized values (EAV), calculated
using discount rates of 3 and 7 percent
as recommended by OMB’s Circular A–
4, of the health and climate benefits,
compliance costs, and net benefits of the
final rule, in 2016 dollars, discounted to
2023. The estimated monetized net
benefits are the estimated monetized
benefits minus the estimated monetized
costs of the final rule. These results
present an incomplete overview of the
effects of the rule because important
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categories of benefits—including
benefits from reducing other types of air
pollutants, and water pollution—were
not monetized and are therefore not
reflected in the cost-benefit tables. We
anticipate that taking non-monetized
effects into account would show the
rule to be more net beneficial than this
table reflects.
TABLE I.C–1—ESTIMATED MONETIZED HEALTH AND CLIMATE BENEFITS, COMPLIANCE COSTS, AND NET BENEFITS OF THE
FINAL RULE, 2023 THROUGH 2042
[Millions 2016$, discounted to 2023] a
Present Value:
Health Benefits b ...............................................................................................................................................
Climate Benefits c .............................................................................................................................................
Compliance Costs d ..........................................................................................................................................
Net Benefits ......................................................................................................................................................
Equivalent Annualized Value:
Health Benefits .................................................................................................................................................
Climate Benefits ...............................................................................................................................................
Compliance Costs ............................................................................................................................................
Net Benefits ......................................................................................................................................................
3% Discount
rate
7% Discount
rate
$200,000
15,000
14,000
200,000
$130,000
15,000
9,400
140,000
13,000
970
910
13,000
12,000
970
770
12,000
a Rows may not appear to add correctly due to rounding.
b The annualized present value of costs and benefits are calculated over a 20-year period from 2023 to 2042. Monetized benefits include those
related to public health associated with reductions in ozone and PM2.5 concentrations. The health benefits are associated with two point estimates and are presented at real discount rates of 3 and 7 percent. Several categories of benefits remain unmonetized and are thus not reflected
in the table.
c Climate benefits are calculated using four different estimates of the social cost of carbon (SC–CO (model average at 2.5 percent, 3 percent,
2
and 5 percent discount rates; 95th percentile at 3 percent discount rate). For presentational purposes in this table, the climate benefits associated with the average SC–CO2 at a 3-percent discount rate are used in the columns displaying results of other costs and benefits that are discounted at either a 3-percent or 7-percent discount rate.
d The costs presented in this table are consistent with the costs presented in Chapter 4 of the Regulatory Impact Analysis (RIA). To estimate
these annualized costs for EGUs, the EPA uses a conventional and widely accepted approach that applies a capital recovery factor (CRF) multiplier to capital investments and adds that to the annual incremental operating expenses. Costs were calculated using a 3.76 percent real discount rate consistent with the rate used in IPM’s objective function for cost-minimization. For further information on the discount rate use, please
see Chapter 4, Table 4–8 in the RIA.
As shown in Table I.C–1, the PV of
the monetized health benefits,
associated with reductions in ozone and
PM2.5 concentrations, of this final rule,
discounted at a 3-percent discount rate,
is estimated to be about $200 billion
($200,000 million), with an EAV of
about $13 billion ($13,000 million). At
a 7-percent discount rate, the PV of the
monetized health benefits is estimated
to be $130 billion ($130,000 million),
with an EAV of about $12 billion
($12,000 million). The PV of the
monetized climate benefits, associated
with reductions in GHG emissions, of
this final rule, discounted at a 3-percent
discount rate, is estimated to be about
$15 billion ($15,000 million), with an
EAV of about $970 million. The PV of
the monetized compliance costs,
discounted at a 3-percent rate, is
estimated to be about $14 billion
($14,000 million), with an EAV of about
$910 million. At a 7-percent discount
rate, the PV of the compliance costs is
estimated to be about $9.4 billion
($9,400 million), with an EAV of about
$770 million.
II. General Information
A. Does this action apply to me?
This rule affects EGU and non-EGU
sources, and regulates the groups
identified in Table II.A–1.
TABLE II.A–1—REGULATED GROUPS
Industry group
NAICS
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Fossil fuel-fired electric power generation ...........................................................................................................................................
Pipeline Transportation of Natural Gas ...............................................................................................................................................
Metal Ore Mining .................................................................................................................................................................................
Cement and Concrete Product Manufacturing ....................................................................................................................................
Iron and Steel Mills and Ferroalloy Manufacturing .............................................................................................................................
Glass and Glass Product Manufacturing .............................................................................................................................................
Basic Chemical Manufacturing ............................................................................................................................................................
Petroleum and Coal Products Manufacturing .....................................................................................................................................
Pulp, Paper, and Paperboard Mills .....................................................................................................................................................
Solid Waste Combustors and Incinerators ..........................................................................................................................................
This table is not intended to be
exhaustive, but rather provides a guide
for readers regarding entities likely to be
regulated by this rule. This table lists
the types of entities that the EPA is now
aware could potentially be regulated by
this rule. Other types of entities not
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listed in the table could also be
regulated. To determine whether your
EGU entity is regulated by this rule, you
should carefully examine the
applicability criteria found in 40 CFR
97.1004, which are unchanged in this
rule. If you have questions regarding the
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2122
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3221
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applicability of this rule to a particular
entity, consult the person listed in the
FOR FURTHER INFORMATION CONTACT
section.
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B. What action is the Agency taking?
The EPA evaluated whether interstate
ozone transport emissions from upwind
states are significantly contributing to
nonattainment, or interfering with
maintenance, of the 2015 ozone NAAQS
in any downwind state using the same
4-step interstate transport framework
that was developed in previous ozone
transport rulemakings. The EPA finds
that emissions reductions are required
from EGU and non-EGU sources in a
total of 23 upwind states to eliminate
significant contribution to downwind
air quality problems for the 2015 ozone
standard under the interstate transport
provision of the CAA. The EPA will
ensure that these NOX emissions
reductions are achieved by issuing FIP
requirements for 23 states: Alabama,
Arkansas, California, Illinois, Indiana,
Kentucky, Louisiana, Maryland,
Michigan, Minnesota, Mississippi,
Missouri, Nevada, New Jersey, New
York, Ohio, Oklahoma, Pennsylvania,
Texas, Utah, Virginia, West Virginia,
and Wisconsin.
The EPA is revising the existing
CSAPR Group 3 Trading Program to
include additional states beginning in
the 2023 ozone season. EGUs in three
states not currently covered by any
CSAPR trading program for seasonal
NOX emissions—Minnesota, Nevada,
and Utah—will be added to the CSAPR
Group 3 Trading Program under this
rule. EGUs in twelve states currently
participating in the Group 3 Trading
Program will remain in the program
under this rule: Illinois, Indiana,
Kentucky, Louisiana, Maryland,
Michigan, New Jersey, New York, Ohio,
Pennsylvania, Virginia, and West
Virginia. EGUs in seven states
(Alabama, Arkansas, Mississippi,
Missouri, Oklahoma, Texas, and
Wisconsin) will transition from the
CSAPR Group 2 Trading Program to the
CSAPR Group 3 Trading Program under
this rule beginning in the 2023 ozone
season. The EPA is establishing control
stringency levels reflecting installation
of state-of-the-art combustion controls
on certain covered EGU sources in
emissions budgets beginning in the 2024
ozone season. The EPA is establishing
control stringency levels reflecting
installation of new SCR or SNCR
controls on certain covered EGU sources
in emissions budgets beginning in the
2026 ozone season.
As a complement to the ozone season
emissions budgets, the EPA is also
establishing a backstop daily emissions
rate of 0.14 lb/mmBtu for coal-fired
steam units greater than or equal to 100
MW in covered states. The backstop
emissions rate will first apply in 2024
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for coal-fired steam sources with
existing SCRs, and in the second control
period in which a new SCR operates,
but not later than 2030, for those
currently without SCRs.
This rule establishes emissions
limitations for non-EGU sources in 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. In these states, the EPA is
establishing control requirements 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
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. See
Table II.A–1 in this document for a list
of NAICS codes for each entity included
for regulation in this rule.
This rule reduces the transport of
ozone precursor emissions to downwind
areas, which is protective of human
health and the environment because
acute and chronic exposure to ozone are
both associated with negative health
impacts. Ozone exposure is also
associated with negative effects on
ecosystems. Additional information on
the air quality issues addressed by this
rule are included in section III of this
document.
C. What is the Agency’s legal authority
for taking this action?
The statutory authority for this rule is
provided by the CAA as amended (42
U.S.C. 7401 et seq.). Specifically,
sections 110 and 301 of the CAA
provide the primary statutory
underpinnings for this rule. The most
relevant portions of CAA section 110 are
subsections 110(a)(1), 110(a)(2)
(including 110(a)(2)(D)(i)(I)) and
110(c)(1)).
CAA section 110(a)(1) provides that
states must make SIP submissions
‘‘within 3 years (or such shorter period
as the Administrator may prescribe)
after the promulgation of a national
primary ambient air quality standard (or
any revision thereof),’’ and that these
SIP submissions are to provide for the
‘‘implementation, maintenance, and
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enforcement’’ of such NAAQS.24 The
statute directly imposes on states the
duty to make these SIP submissions,
and the requirement to make the
submissions is not conditioned upon
the EPA taking any action other than
promulgating a new or revised
NAAQS.25
The EPA has historically referred to
SIP submissions made for the purpose
of satisfying the applicable requirements
of CAA sections 110(a)(1) and 110(a)(2)
as ‘‘infrastructure SIP’’ or ‘‘iSIP’’
submissions. CAA section 110(a)(1)
addresses the timing and general
requirements for iSIP submissions, and
CAA section 110(a)(2) provides more
details concerning the required content
of these submissions.26 It includes a list
of specific elements that ‘‘[e]ach such
plan’’ must address.27
CAA section 110(c)(1) requires the
Administrator to promulgate a FIP at
any time within 2 years after the
Administrator: (1) finds that a state has
failed to make a required SIP
submission; (2) finds a SIP submission
to be incomplete pursuant to CAA
section 110(k)(1)(C); or (3) disapproves
a SIP submission. This obligation
applies unless the state corrects the
deficiency through a SIP revision that
the Administrator approves before the
FIP is promulgated.28
CAA section 110(a)(2)(D)(i)(I), also
known as the ‘‘good neighbor’’
provision, provides the primary basis
for this rule.29 It requires that each state
SIP include provisions sufficient to
‘‘prohibit[ ], consistent with the
provisions of this subchapter, any
source or other type of emissions
activity within the State from emitting
any air pollutant in amounts which
will—(I) contribute significantly to
nonattainment in, or interfere with
maintenance by, any other State with
respect to any [NAAQS].’’ 30 The EPA
often refers to the emissions reduction
requirements under this provision as
‘‘good neighbor obligations’’ and
submissions addressing these
requirements as ‘‘good neighbor SIPs.’’
24 42 U.S.C. 7410(a)(1).
25 See EPA v. EME Homer City Generation, L.P.,
572 U.S. 489, 509–10 (2014).
26 42 U.S.C. 7410(a)(2).
27 The EPA’s general approach to infrastructure
SIP submissions is explained in greater detail in
individual notices acting or proposing to act on
state infrastructure SIP submissions and in
guidance. See, e.g., Memorandum from Stephen D.
Page on Guidance on Infrastructure State
Implementation Plan (SIP) Elements under Clean
Air Act Sections 110(a)(1) and 110(a)(2) (September
13, 2013).
28 42 U.S.C. 7410(c)(1).
29 42 U.S.C. 7410(a)(2)(D)(i)(I).
30 Id.
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Once the EPA promulgates a NAAQS,
the EPA must designate areas as being
in ‘‘attainment’’ or ‘‘nonattainment’’ of
the NAAQS, or ‘‘unclassifiable.’’ CAA
section 107(d).31 For ozone,
nonattainment is further split into five
classifications based on the severity of
the violation—Marginal, Moderate,
Serious, Severe, or Extreme. Higher
classifications provide states with
progressively more time to attain while
imposing progressively more stringent
control requirements. See CAA sections
181, 182.32 In general, states with
nonattainment areas classified as
Moderate or higher must submit plans
to the EPA to bring these areas into
attainment according to the statutory
schedule. CAA section 182.33 If an area
fails to attain the NAAQS by the
attainment date associated with its
classification, it is ‘‘bumped up’’ to the
next classification. CAA section
181(b).34
Section 301(a)(1) of the CAA gives the
Administrator the general authority to
prescribe such regulations as are
necessary to carry out functions under
the Act.35 Pursuant to this section, the
EPA has authority to clarify the
applicability of CAA requirements and
undertake other rulemaking action as
necessary to implement CAA
requirements. CAA section 301 affords
the Agency any additional authority that
may be needed to make certain other
changes to its regulations under 40 CFR
parts 52, 75, 78, and 97, to effectuate the
purposes of the Act. Such changes are
discussed in section IX of this
document.
Tribes are not required to submit state
implementation plans. However, as
explained in the EPA’s regulations
outlining Tribal Clean Air Act authority,
the EPA is authorized to promulgate
FIPs for Indian country as necessary or
appropriate to protect air quality if a
tribe does not submit, and obtain the
EPA’s approval of, an implementation
plan. See 40 CFR 49.11(a); see also CAA
section 301(d)(4).36 In the proposed
rule, the EPA proposed an ‘‘appropriate
or necessary’’ finding under CAA
section 301(d) and proposed tribal
FIP(s) as necessary to implement the
relevant requirements. The EPA is
finalizing these determinations, as
further discussed in section III.C.2 of
this document.
31 42 U.S.C. 7407(d).
32 42 U.S.C. 7511, 7511a.
33 42 U.S.C. 7511a.
34 42 U.S.C. 7511(b).
35 42 U.S.C. 7601(a)(1).
36 42 U.S.C. 7601(d)(4).
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D. What actions has the EPA previously
issued to address regional ozone
transport?
The EPA has issued several previous
rules interpreting and clarifying the
requirements of CAA section
110(a)(2)(D)(i)(I) with respect to the
regional transport of ozone. These rules,
and the associated court decisions
addressing these rules, summarized
here, provide important direction
regarding the requirements of CAA
section 110(a)(2)(D)(i)(I).
The ‘‘NOX SIP Call,’’ promulgated in
1998, addressed the good neighbor
provision for the 1979 1-hour ozone
NAAQS.37 The rule required 22 states
and the District of Columbia to amend
their SIPs to reduce NOX emissions that
contribute to ozone nonattainment in
downwind states. The EPA set ozone
season NOX budgets for each state, and
the states were given the option to
participate in a regional allowance
trading program, known as the NOX
Budget Trading Program.38 The D.C.
Circuit largely upheld the NOX SIP Call
in Michigan v. EPA, 213 F.3d 663 (D.C.
Cir. 2000), cert. denied, 532 U.S. 904
(2001).
The EPA’s next rule addressing the
good neighbor provision, CAIR, was
promulgated in 2005 and addressed
both the 1997 fine particulate matter
(PM2.5) NAAQS and 1997 ozone
NAAQS.39 CAIR required SIP revisions
in 28 states and the District of Columbia
to reduce emissions of sulfur dioxide
(SO2) or NOX—important precursors of
regionally transported PM2.5 (SO2 and
annual NOX) and ozone (summer-time
NOX). As in the NOX SIP Call, states
were given the option to participate in
regional trading programs to achieve the
reductions. When the EPA promulgated
the final CAIR in 2005, the EPA also
issued findings that states nationwide
had failed to submit SIPs to address the
requirements of CAA section
110(a)(2)(D)(i) with respect to the 1997
37 Finding of Significant Contribution and
Rulemaking for Certain States in the Ozone
Transport Assessment Group Region for Purposes of
Reducing Regional Transport of Ozone, 63 FR
57356 (Oct. 27, 1998). As originally promulgated,
the NOX SIP Call also addressed good neighbor
obligations under the 1997 8-hour ozone NAAQS,
but EPA subsequently stayed and later rescinded
the rule’s provisions with respect to that standard.
See 84 FR 8422 (March 8, 2019).
38 ‘‘Allowance Trading,’’ sometimes referred to as
‘‘cap and trade,’’ is an approach to reducing
pollution that has been used successfully to protect
human health and the environment. The design
elements of the EPA’s most recent trading programs
are discussed in section VI.B.1.a of this document.
39 Rule To Reduce Interstate Transport of Fine
Particulate Matter and Ozone (Clean Air Interstate
Rule); Revisions to Acid Rain Program; Revisions to
the NOX SIP Call, 70 FR 25162 (May 12, 2005).
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PM2.5 and 1997 ozone NAAQS.40 On
March 15, 2006, the EPA promulgated
FIPs to implement the emissions
reductions required by CAIR.41 CAIR
was remanded to EPA by the D.C.
Circuit in North Carolina v. EPA, 531
F.3d 896 (D.C. Cir.), modified on reh’g,
550 F.3d 1176 (D.C. Cir. 2008). For more
information on the legal issues
underlying CAIR and the D.C. Circuit’s
holding in North Carolina, refer to the
preamble of the CSAPR rule.42
In 2011, the EPA promulgated CSAPR
to address the issues raised by the
remand of CAIR. CSAPR addressed the
two NAAQS at issue in CAIR and
additionally addressed the good
neighbor provision for the 2006 PM2.5
NAAQS.43 CSAPR required 28 states to
reduce SO2 emissions, annual NOX
emissions, or ozone season NOX
emissions that significantly contribute
to other states’ nonattainment or
interfere with other states’ abilities to
maintain these air quality standards.44
To align implementation with the
applicable attainment deadlines, the
EPA promulgated FIPs for each of the 28
states covered by CSAPR. The FIPs
require EGUs in the covered states to
participate in regional trading programs
to achieve the necessary emissions
reductions. Each state can submit a good
neighbor SIP at any time that, if
approved by EPA, would replace the
CSAPR FIP for that state.
CSAPR was the subject of an adverse
decision by the D.C. Circuit in August
2012.45 However, this decision was
reversed in April 2014 by the Supreme
Court, which largely upheld the rule,
including the EPA’s approach to
addressing interstate transport in
CSAPR. EPA v. EME Homer City
Generation, L.P., 572 U.S. 489 (2014)
(EME Homer City I). The rule was
remanded to the D.C. Circuit to consider
claims not addressed by the Supreme
Court. Id. In July 2015 the D.C. Circuit
40 70 FR 21147 (April 25, 2005).
41 71 FR 25328 (April 28, 2006).
42 Federal Implementation Plans: Interstate
Transport of Fine Particulate Matter and Ozone and
Correction of SIP Approvals, 76 FR 48208, 48217
(August 8, 2011).
43 76 FR 48208.
44 CSAPR was revised by several rulemakings
after its initial promulgation to revise certain states’
budgets and to promulgate FIPs for five additional
states addressing the good neighbor obligation for
the 1997 ozone NAAQS. See 76 FR 80760
(December 27, 2011); 77 FR 10324 (February 21,
2012); 77 FR 34830 (June 12, 2012).
45 On August 21, 2012, the D.C. Circuit issued a
decision in EME Homer City Generation, L.P. v.
EPA, 696 F.3d 7 (D.C. Cir. 2012), vacating CSAPR.
The EPA sought review with the D.C. Circuit en
banc and the D.C. Circuit declined to consider the
EPA’s appeal en banc. EME Homer City Generation,
L.P. v. EPA, No. 11–1302 (D.C. Cir. January 24,
2013), ECF No. 1417012 (denying EPA’s motion for
rehearing en banc).
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generally affirmed the EPA’s
interpretation of various statutory
provisions and the EPA’s technical
decisions. EME Homer City Generation,
L.P. v. EPA, 795 F.3d 118 (2015) (EME
Homer City II). However, the court
remanded the rule without vacatur for
reconsideration of the EPA’s emissions
budgets for certain states, which the
court found may have over-controlled
those states’ emissions with respect to
the downwind air quality problems to
which the states were linked. Id. at 129–
30, 138. For more information on the
legal issues associated with CSAPR and
the Supreme Court’s and D.C. Circuit’s
decisions in the EME Homer City
litigation, refer to the preamble of the
CSAPR Update.46
In 2016, the EPA promulgated the
CSAPR Update to address interstate
transport of ozone pollution with
respect to the 2008 ozone NAAQS.47
The final rule updated the CSAPR ozone
season NOX emissions budgets for 22
states to achieve cost-effective and
immediately feasible NOX emissions
reductions from EGUs within those
states.48 The EPA aligned the analysis
and implementation of the CSAPR
Update with the 2017 ozone season to
assist downwind states with timely
attainment of the 2008 ozone NAAQS.49
The CSAPR Update implemented the
budgets through FIPs requiring sources
to participate in a revised CSAPR NOX
ozone season trading program beginning
with the 2017 ozone season. As under
CSAPR, each state could submit a good
neighbor SIP at any time that, if
approved by the EPA, would replace the
CSAPR Update FIP for that state. The
final CSAPR Update also addressed the
remand by the D.C. Circuit of certain
states’ CSAPR phase 2 ozone season
NOX emissions budgets in EME Homer
City II.
In December 2018, the EPA
promulgated the CSAPR ‘‘Close-Out,’’
which determined that no further
enforceable reductions in emissions of
46 Cross-State Air Pollution Rule Update for the
2008 Ozone NAAQS, 81 FR 74504, 74511 (October
26, 2016).
47 81 FR 74504.
48 One state, Kansas, was made newly subject to
ozone season NOX requirements by the CSAPR
Update. All other CSAPR Update states were
already subject to ozone season NOX requirements
under CSAPR.
49 81 FR 74516. The EPA’s final 2008 Ozone
NAAQS SIP Requirements Rule, 80 FR 12264,
12268 (March 6, 2015), revised the attainment
deadline for ozone nonattainment areas designated
as Moderate to July 20, 2018. See 40 CFR 51.1103.
To demonstrate attainment by this deadline, states
were required to rely on design values calculated
using ozone season data from 2015 through 2017,
since the July 20, 2018, deadline did not afford
enough time for measured data of the full 2018
ozone season.
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NOX were required with respect to the
2008 ozone NAAQS for 20 of the 22
eastern states covered by the CSAPR
Update.50
The CSAPR Update and the CSAPR
Close-Out were both subject to legal
challenges in the D.C. Circuit.
Wisconsin v. EPA, 938 F.3d 303 (D.C.
Cir. 2019) (Wisconsin); New York v.
EPA, 781 Fed. App’x 4 (D.C. Cir. 2019)
(New York). In September 2019, the D.C.
Circuit upheld the CSAPR Update in
virtually all respects but remanded the
rule because it was partial in nature and
did not fully eliminate upwind states’
significant contribution to
nonattainment or interference with
maintenance of the 2008 ozone NAAQS
by ‘‘the relevant downwind attainment
deadlines’’ in the CAA. Wisconsin, 938
F.3d at 313–15. In October 2019, the
D.C. Circuit vacated the CSAPR CloseOut on the same grounds that it
remanded the CSAPR Update in
Wisconsin, specifically because the
Close-Out rule did not address good
neighbor obligations by ‘‘the next
applicable attainment date’’ of
downwind states. New York, 781 Fed.
App’x at 7.51
In response to the Wisconsin remand
of the CSAPR Update and the New York
vacatur of the CSAPR Close-Out, the
EPA promulgated the Revised CSAPR
Update on April 30, 2021.52 The
Revised CSAPR Update found that the
CSAPR Update was a full remedy for
nine of the covered states. For the 12
remaining states, the EPA found that
their projected 2021 ozone season NOX
emissions would significantly
contribute to downwind states’
nonattainment or maintenance
problems. The EPA issued new or
amended FIPs for these 12 states and
required implementation of revised
emissions budgets for EGUs beginning
50 Determination Regarding Good Neighbor
Obligations for the 2008 Ozone National Ambient
Air Quality Standard, 83 FR 65878, 65882
(December 21, 2018). After promulgating the
CSAPR Update and before promulgating the CSAPR
Close-Out, the EPA approved a SIP from Kentucky
resolving the Commonwealth’s good neighbor
obligations for the 2008 ozone NAAQS. 83 FR
33730 (July 17, 2018). In the Revised CSAPR
Update, the EPA made an error correction under
CAA section 110(k)(6) to convert this approval to
a disapproval, because the Kentucky approval
relied on the same analysis which the D.C. Circuit
determined to be unlawful in the CSAPR Close-Out.
51 Subsequently, the D.C. Circuit made clear in a
decision reviewing the EPA’s denial of a petition
under CAA section 126 that the holding in
Wisconsin regarding alignment with downwind
area’s attainment schedules applies with equal force
to the Marginal area attainment date established
under CAA section 181(a). See Maryland v. EPA,
958 F.3d 1185, 1203–04 (D.C. Cir. 2020).
52 Revised Cross-State Air Pollution Rule Update
for the 2008 Ozone NAAQS, 86 FR 23054 (April 30,
2021).
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with the 2021 ozone season. Based on
the EPA’s assessment of remaining air
quality issues and additional emissions
control strategies for EGUs and
emissions sources in other industry
sectors (non-EGUs), the EPA determined
that the NOX emissions reductions
achieved by the Revised CSAPR Update
fully eliminated these states’ significant
contributions to downwind air quality
problems for the 2008 ozone NAAQS.
As under the CSAPR and the CSAPR
Update, each state can submit a good
neighbor SIP at any time that, if
approved by the EPA, would replace the
Revised CSAPR Update FIP for that
state.
On March 3, 2023, the D.C. Circuit
Court of Appeals denied the Midwest
Ozone Group’s (MOG) petition for
review of the Revised CSAPR Update.
MOG v. EPA, No. 21–1146 (D.C. Cir.
March 3, 2023). The court noted that it
has ‘‘exhaustively’’ addressed the
interstate transport framework before,
citing relevant cases, and ‘‘incorporate
them herein by reference.’’ Slip Op. 1
n.1. In response to MOG’s arguments,
the court upheld the Agency’s air
quality analysis. Id. at 10–11. The court
noted that in light of the statutory
timing framework and court-ordered
schedule the EPA was under, the
Agency’s methodological choices were
reasonable and provided ‘‘an
appropriately reliable projection of air
quality conditions and contributions in
2021.’’ Id. at 11–12.
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
Ground-level ozone is not emitted
directly into the air but is created by
chemical reactions between NOX and
volatile organic compounds (VOCs) in
the presence of sunlight. Emissions from
electric utilities and industrial facilities,
motor vehicles, gasoline vapors, and
chemical solvents are some of the major
sources of NOX and VOCs.
Because ground-level ozone formation
increases with temperature and
sunlight, ozone levels are generally
higher during the summer months.
Increased temperature also increases
emissions of volatile man-made and
biogenic organics and can also
indirectly increase NOX emissions (e.g.,
increased electricity generation for air
conditioning).
On October 1, 2015, the EPA
strengthened the primary and secondary
ozone standards to 70 ppb as an 8-hour
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level.53 Specifically, the standards
require that the 3-year average of the
fourth highest 24-hour maximum 8-hour
average ozone concentration may not
exceed 70 ppb as a truncated value (i.e.,
digits to right of decimal removed).54 In
general, areas that exceed the ozone
standard are designated as
nonattainment areas, pursuant to the
designations process under CAA section
107(d), and are subject to heightened
planning requirements depending on
the severity of their nonattainment
classification, see CAA sections 181,
182.
In the process of setting the 2015
ozone NAAQS, the EPA noted that the
conditions conducive to the formation
of ozone (i.e., seasonally-dependent
factors such as ambient temperature,
strength of solar insolation, and length
of day) differ by location, and that the
Agency believes it is important that
ozone monitors operate during all
periods when there is a reasonable
possibility of ambient levels
approaching the level of the NAAQS. At
that time, the EPA stated that ambient
ozone concentrations in many areas
could approach or exceed the level of
the NAAQS, more frequently and during
more months of the year compared with
the historical ozone season monitoring
lengths. Consequently, the EPA
extended the ozone monitoring season
for many locations. See 80 FR 65416 for
more details.
Furthermore, the EPA stated that in
addition to being affected by changing
emissions, future ozone concentrations
may also be affected by climate change.
Modeling studies in the EPA’s Interim
Assessment (U.S. EPA, 2009a) that are
cited in support of the 2009 Greenhouse
Gas Endangerment Finding under CAA
section 202(a) (74 FR 66496, Dec. 15,
2009) as well as a recent assessment of
potential climate change impacts (Fann
et al., 2015) project that climate change
may lead to future increases in summer
ozone concentrations across the
contiguous U.S.55 (80 FR 65300). The
U.S. Global Change Research Program’s
Impacts of Climate Change on Human
Health in the United States: A Scientific
Assessment 56 and Impacts, Risks, and
53 80 FR 65291.
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54 40 CFR part 50, appendix P.
55 These modeling studies are based on coupled
global climate and regional air quality models and
are designed to assess the sensitivity of U.S. air
quality to climate change. A wide range of future
climate scenarios and future years have been
modeled and there can be variations in the expected
response in U.S. O3 by scenario and across models
and years, within the overall signal of higher
summer O3 concentrations in a warmer climate.
56 U.S. Global Change Research Program
(USGCRP), 2016: The Impacts of Climate Change on
Human Health in the United States: A Scientific
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Adaptation in the United States: Fourth
National Climate Assessment, Volume
II 57 reinforced these findings. The
increase in ozone results from changes
in local weather conditions, including
temperature and atmospheric
circulation patterns, as well as changes
in ozone precursor emissions that are
influenced by meteorology (Nolte et al.,
2018). While the projected impact may
not be uniform, climate change has the
potential to increase average
summertime ozone relative to a future
without climate change.58 59 60 Climate
change has the potential to offset some
of the improvements in ozone air
quality, and therefore some of the
improvements in public health, that are
expected from reductions in emissions
of ozone precursors (80 FR 65300). The
EPA responds to comments received on
the impacts of climate change on ozone
formation in section 11 of the Response
to Comments (RTC) document.
2. Ozone Transport
Studies have established that ozone
formation, atmospheric residence, and
transport occur on a regional scale (i.e.,
thousands of kilometers) over much of
the U.S.61 While substantial progress
has been made in reducing ozone in
many areas, the interstate transport of
ozone precursor emissions remains an
Assessment. Crimmins, A., J. Balbus, J.L. Gamble,
C.B. Beard, J.E. Bell, D. Dodgen, R.J. Eisen, N. Fann,
M.D. Hawkins, S.C. Herring, L. Jantarasami, D.M.
Mills, S. Saha, M.C. Sarofim, J. Trtanj, and L. Ziska,
Eds. U.S. Global Change Research Program,
Washington, DC, 312 pp. https://dx.doi.org/
10.7930/J0R49NQX.
57 USGCRP, 2018: Impacts, Risks, and Adaptation
in the United States: Fourth National Climate
Assessment, Volume II [Reidmiller, D.R., C.W.
Avery, D.R. Easterling, K.E. Kunkel, K.L.M. Lewis,
T.K. Maycock, and B.C. Stewart (eds.)]. U.S. Global
Change Research Program, Washington, DC, USA,
1515 pp. doi: 10.7930/NCA4.2018.
58 Fann NL, Nolte CG, Sarofim MC, Martinich J,
Nassikas NJ. Associations Between Simulated
Future Changes in Climate, Air Quality, and Human
Health. JAMA Netw Open. 2021;4(1):e2032064.
doi:10.1001/jamanetworkopen.2020.32064
59 Christopher G Nolte, Tanya L Spero, Jared H
Bowden, Marcus C Sarofim, Jeremy Martinich,
Megan S Mallard. Regional temperature-ozone
relationships across the U.S. under multiple climate
and emissions scenarios. J Air Waste Manag Assoc.
2021 Oct;71(10):1251–1264. doi: 10.1080/
10962247.2021.1970048.
60 Nolte, C.G., P.D. Dolwick, N. Fann, L.W.
Horowitz, V. Naik, R.W. Pinder, T.L. Spero, D.A.
Winner, and L.H. Ziska, 2018: Air Quality. In
Impacts, Risks, and Adaptation in the United States:
Fourth National Climate Assessment, Volume II
[Reidmiller, D.R., C.W. Avery, D.R. Easterling, K.E.
Kunkel, K.L.M. Lewis, T.K. Maycock, and B.C.
Stewart (eds.)]. U.S. Global Change Research
Program, Washington, DC, USA, pp. 512–538. doi:
10.7930/NCA4.2018.CH13
61 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.
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important contributor to peak ozone
concentrations and high-ozone days
during the summer ozone season.
The EPA has previously concluded in
the NOX SIP Call, CAIR, CSAPR, the
CSAPR Update, and the Revised CSAPR
Update that a regional NOX control
strategy would be effective in reducing
regional-scale transport of ozone
precursor emissions. NOX emissions can
be transported downwind as NOX or as
ozone after transformation in the
atmosphere. In any given location,
ozone pollution levels are impacted by
a combination of background ozone
concentration, local emissions, and
emissions from upwind sources
resulting from ozone transport, in
conjunction with variable
meteorological conditions. Downwind
states’ ability to meet health-based air
quality standards such as the NAAQS is
challenged by the transport of ozone
pollution across state borders. For
example, ozone assessments conducted
for the October 2015 Regulatory Impact
Analysis of the Final Revisions to the
National Ambient Air Quality Standards
for Ground-Level Ozone 62 continue to
show the importance of NOX emissions
for ozone transport. This analysis is
included in the docket for this
rulemaking.
Further, studies have found that EGU
NOX emissions reductions can be
effective in reducing individual 8-hour
peak ozone concentrations and in
reducing 8-hour peak ozone
concentrations averaged across the
ozone season. For example, a study of
the EGU NOX reductions achieved
under the NOX Budget Trading Program
(i.e., the NOX SIP Call) shows that
regulating NOX emissions in that
program was highly effective in
reducing ozone concentrations during
the ozone season.63
Previous regional ozone transport
efforts, including the NOX SIP Call,
CAIR, CSAPR, the CSAPR Update, and
the Revised CSAPR Update, required
ozone season NOX reductions from EGU
sources to address interstate transport of
ozone. Together with NOX, the EPA has
also identified VOCs as a precursor in
forming ground-level ozone. Ozone
formation chemistry can be ‘‘NOXlimited,’’ where ozone production is
primarily determined by the amount of
NOX emissions or ‘‘VOC-limited,’’
where ozone production is primarily
62 Available in the docket for the October 2015
Revisions to the National Ambient Air Quality
Standards for Ground-Level Ozone at https://
www.regulations.gov/docket/EPA-HQ-OAR-20080699.
63 Butler, et al., ‘‘Response of Ozone and Nitrate
to Stationary Source Reductions in the Eastern
USA.’’Atmospheric Environment, 2011.
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determined by the amount of VOC
emissions.64 The EPA and others have
long regarded NOX to be the more
significant ozone precursor in the
context of interstate ozone transport.65
The EPA has determined that the
regulation of VOCs as an ozone
precursor is not necessary to eliminate
significant contribution of ozone
transport to downwind areas in this
rule. As described in section V.A of this
document, the EPA examined the
results of the contribution modeling
performed for this rule to identify the
portion of the ozone contribution
attributable to anthropogenic NOX
emissions versus VOC emissions from
each linked upwind state to each
downwind receptor. Our analysis of the
ozone contribution from upwind states
subject to regulation demonstrates that
regional ozone concentrations affecting
the vast majority of the downwind areas
of air quality concern are NOX-limited,
rather than VOC-limited. Therefore, the
rule’s strategy for reducing regionalscale transport of ozone targets NOX
emissions from stationary sources to
achieve the most effective reductions of
ozone transport over the geography of
the affected downwind areas. The
potential impacts of NOX mitigation
strategies from other sources are
discussed in section V.B of this
document.
In section V of this document, the
EPA describes the multi-factor test that
is used to determine NOX emissions
reductions that are cost-effective and
reduce interstate transport of groundlevel ozone. Our analysis indicates that
the EGU and non-EGU control
requirements included in this rule will
provide meaningful improvements in air
quality at the downwind receptors.
Based on the implementation schedule
established in section VI.A of this
document, the EPA finds that the
regulatory requirements included in the
rule are as expeditious as practicable
and are aligned with the attainment
schedule of downwind areas.
3. Health and Environmental Effects
Exposure to ambient ozone causes a
variety of negative effects on human
health, vegetation, and ecosystems. In
humans, acute and chronic exposure to
ozone is associated with premature
mortality and certain morbidity effects,
such as asthma exacerbation. In
ecosystems, ozone exposure causes
visible foliar injury, decreases plant
growth, and affects ecosystem
64 ‘‘Ozone Air Pollution.’’ Introduction to
Atmospheric Chemistry, by Daniel J. Jacob,
Princeton University Press, Princeton, New Jersey,
1999, pp. 231–244.
65 81 FR 74514.
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community composition. See EPA’s
October 2015 Regulatory Impact
Analysis of the Final Revisions to the
National Ambient Air Quality Standards
for Ground-Level Ozone 66 in the docket
for this rulemaking for more information
on the human health and ecosystem
effects associated with ambient ozone
exposure.
Commenters on prior ozone transport
rules have asserted that VOC emissions
harm underserved and overburdened
communities experiencing
disproportionate environmental health
burdens and facing other environmental
injustices. The EPA acknowledges that
VOCs can contain toxic chemicals that
are detrimental to public health. The
EPA conducted a demographic analysis
as part of the regulatory impact analysis
for the 2015 revisions to the primary
and secondary ozone NAAQS. This
analysis, which is included in the
docket for this rulemaking, found
greater representation of minority
populations in areas with poor air
quality relative to the revised ozone
standard than in the U.S. as a whole.
The EPA concluded that populations in
these areas would be expected to benefit
from implementation of future air
pollution control actions from state and
local air agencies in implementing the
strengthened standard. This rule is an
example of air pollution control actions
implemented by the Federal
Government in support of the more
protective 2015 ozone NAAQS, and
populations living in downwind ozone
nonattainment and maintenance areas
are expected to benefit from improved
air quality that will result from reducing
ozone transport. Further discussion of
the environmental justice analysis of
this rule is located in section VII of this
document and in the accompanying
regulatory impact analysis, titled
‘‘Regulatory Impact Analysis for Final
Federal Good Neighbor Plan Addressing
Regional Ozone Transport for the 2015
Ozone National Ambient Air Quality
Standard’’ [EPA–452/D–22–001], which
is available in the docket for this
rulemaking.
The Agency regulates exposure to
toxic pollutant concentrations and
ambient exposure to criteria pollutants
other than ozone through other sections
of the Act, such as the regulation of
hazardous air pollutants under CAA
section 112 or the process for revising
and implementing the NAAQS under
CAA sections 107–110. The purpose of
the subject rulemaking is to protect
public health and the environment by
eliminating significant contribution
66 Available at https://www.epa.gov/sites/default/
files/2016-02/documents/20151001ria.pdf.
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36671
from 23 states to nonattainment or
maintenance of the 2015 ozone NAAQS
to meet the requirements of the CAA’s
interstate transport provision. In this
rule, the EPA continues to observe that
requiring NOX emissions reductions
from stationary sources is an effective
strategy for reducing regional ozone
transport in the U.S.
The EPA responds to other comments
received on the health and
environmental impacts of ozone
exposure in section 11 of the RTC
document.
B. Final Rule Approach
1. The 4-Step Interstate Transport
Framework
The EPA first developed a multi-step
process to address the requirements of
the good neighbor provision in the 1998
NOX SIP Call and the 2005 CAIR. The
Agency built upon this framework and
further refined the methodology for
addressing interstate transport
obligations in subsequent rules such as
CSAPR in 2011, the CSAPR Update in
2016, and the Revised CSAPR Update in
2021.67 In CSAPR, the EPA first
articulated a ‘‘4-step framework’’ within
which to assess interstate transport
obligations for ozone. In this rule to
address interstate transport obligations
for the 2015 ozone NAAQS, the EPA is
again utilizing the 4-step interstate
transport framework. These steps are:
(1) identifying downwind receptors that
are expected to have problems attaining
the NAAQS (nonattainment receptors)
or maintaining the NAAQS
(maintenance receptors); (2)
determining which upwind states are
‘‘linked’’ to these identified downwind
receptors based on a numerical
contribution threshold; (3) for states
linked to downwind air quality
problems, identifying upwind emissions
on a statewide basis that significantly
contribute to downwind nonattainment
or interfere with downwind
maintenance of the NAAQS,
considering cost- and air quality-based
factors; and (4) for upwind states that
are found to have emissions that
significantly contribute to
nonattainment or interfere with
maintenance of the NAAQS in any
downwind state, implementing the
necessary emissions reductions through
enforceable measures.
Comment: The EPA received
comments supporting the Agency’s use
of the 4-step interstate transport
framework as a permissible method for
assigning the required amount of
67 See CSAPR, Final Rule, 76 FR 48208, 48248–
48249 (August 8, 2011); CSAPR Update, Final Rule,
81 FR 74504, 74517–74521 (October 26, 2016).
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emissions reductions necessary to
eliminate upwind states’ significant
contribution. Commenters also noted
that the 4-step interstate transport
framework was reviewed by the
Supreme Court in EPA vs. EME Homer
City Generation, 572 U.S. 489 (2014),
and upheld. However, other
commenters took exception to the
overall approach of this proposed
action. These commenters alleged that
the EPA is ignoring the ‘‘flexibility’’ in
addressing good neighbor obligations
that it had purportedly suggested to
states would be permissible in
memoranda that the EPA issued in
2018. Commenters also raised concerns
that the air quality modeling (2016v2)
the EPA used to propose to disapprove
SIP submittals and as the basis for the
proposed FIP was not available to states
at the time they made their submissions
and that the changes in results at Steps
1 and 2 from prior rounds of modeling
rendered the new modeling unreliable.
Commenters also raised a number of
arguments that the EPA should allow
states an additional opportunity to
submit SIPs before promulgating a FIP,
advocated that the EPA should issue a
‘‘SIP call’’ under CAA section 110(k)(5),
asked for the EPA to issue new or more
specific guidance, or otherwise
suggested that the EPA should defer
acting to promulgate a FIP at this time.
Response: As an initial matter,
comments regarding the EPA’s basis for
disapproving SIPs are beyond the scope
of this action.68 To the extent these
comments relate to the legal basis for
the EPA to promulgate a FIP, the EPA
disagrees that it is acting in a manner
contrary to the memoranda it released in
2018 related to good neighbor
obligations for the 2015 ozone NAAQS.
Arguments that the EPA must or should
allow states to re-submit SIP
submissions based on the most recent
modeling information before the EPA
promulgates a FIP ignore the plain
language of the statute and relevant
caselaw. CAA section 110(c) authorizes
the EPA to promulgate a FIP ‘‘at any
time within 2 years’’ of a SIP
disapproval. No provision of the Act
requires the EPA to give states an
additional opportunity to prepare a new
SIP submittal once the EPA has
proposed a FIP or proposed disapproval
of a SIP submittal. Comments regarding
the timing of the EPA’s actions and calls
68 We nonetheless further respond to comments
regarding the timing and sequence of the EPA’s SIP
and FIP actions, the relevance of judicial consent
decrees, the requests for a SIP call, and related
comments—to the extent any of these issues are
within scope of the present action—in Sections 1
and 2 of the RTC document located in the docket
for this action.
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for the EPA to allow time for states to
resubmit SIPs are further addressed in
RTC sections 1.1 and 2.4.
With regard to the need for the EPA
to develop and issue guidance in
addressing good neighbor obligations, in
EPA v. EME Homer City Generation,
L.P., the Supreme Court held that
‘‘nothing in the statute places the EPA
under an obligation to provide specific
metrics to States before they undertake
to fulfill their good neighbor
obligations.’’ 69 While we have taken a
different approach in some prior
rulemakings by providing states with an
opportunity to submit a SIP after we
quantified the states’ budgets (e.g., the
NOX SIP Call and CAIR 70), the CAA
does not require such an approach.
2018 Memoranda. As commenters
point out, the EPA issued three
‘‘memoranda’’ in 2018 to provide some
assistance to states in developing these
SIP submittals.71 Each memorandum
made clear that the EPA’s action on SIP
submissions would be through a
separate notice-and-comment
rulemaking process and that SIP
submissions seeking to rely on or take
advantage of any so-called
‘‘flexibilities’’ in these memoranda
would be carefully reviewed against the
relevant legal requirements and
technical information available to the
EPA at the time it would take such
rulemaking action. Further, certain
aspects of discussions in those
memoranda were specifically identified
as not constituting agency guidance
(especially Attachment A to the March
69 572 U.S. 489, 510 (2014). ‘‘Nothing in the Act
differentiates the Good Neighbor Provision from the
several other matters a State must address in its SIP.
Rather, the statute speaks without reservation: Once
a NAAQS has been issued, a State ‘shall’ propose
a SIP within three years, § 7410(a)(1), and that SIP
‘shall’ include, among other components,
provisions adequate to satisfy the Good Neighbor
Provision, § 7410(a)(2).’’ EPA v. EME Homer City
Generation, L.P., 572 U.S. at 515.
70 For information on the NO SIP call see 63 FR
X
57356 (October 27, 1998). For information on CAIR
see 70 FR 25162 (May 12, 2005).
71 See Information on the Interstate Transport
State Implementation Plan Submissions for the
2015 Ozone National Ambient Air Quality
Standards under Clean Air Act Section
110(a)(2)(D)(i)(I) (March 27, 2018) (‘‘March 2018
memorandum’’); Analysis of Contribution
Thresholds for Use in Clean Air Act Section
110(a)(2)(D)(i)(I) Interstate Transport State
Implementation Plan Submissions for the 2015
Ozone National Ambient Air Quality Standards,
August 31, 2018) (‘‘August 2018 memorandum’’);
Considerations for Identifying Maintenance
Receptors for Use in Clean Air Act Section
110(a)(2)(D)(i)(I) Interstate Transport State
Implementation Plan Submissions for the 2015
Ozone National Ambient Air Quality Standards,
October 19, 2018 (‘‘October 2018 memorandum’’).
These are available in the docket or at https://
www.epa.gov/airmarkets/memo-and-supplementalinformation-regarding-interstate-transport-sips2015-ozone-naaqs.
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2018 memorandum, which comprised
an unvetted list of external stakeholders’
ideas). And, although outside the scope
of this action, as the EPA has explained
in disapproving states’ SIP submittals,
those submittals did not meet the terms
of the August 2018 or October 2018
memoranda addressing contribution
thresholds and maintenance receptors,
respectively.
Commenters mistakenly view
Attachment A to the March 2018
memorandum as constituting agency
guidance. This memorandum was
primarily issued to share modeling
results for 2023 that represented the best
information available to the Agency as
of March 2018, while Attachment A
then listed certain ideas from certain
stakeholders that the EPA said could be
further discussed among states and
stakeholders. The EPA disagrees with
commenters’ characterization of the
EPA’s stance regarding these so-called
‘‘flexibilities’’ listed (without analysis)
in Attachment A. The March 2018
memorandum provided, ‘‘While the
information in this memorandum and
the associated air quality analysis data
could be used to inform the
development of these SIPs, the
information is not a final determination
regarding states’ obligations under the
good neighbor provision.’’ The EPA
again affirms that the concepts listed in
Attachment A to the March 2018
memorandum require unique
consideration, and these ideas do not
constitute agency guidance with respect
to transport obligations for the 2015
ozone NAAQS. Attachment A to the
March 2018 memorandum identified a
‘‘Preliminary List of Potential
Flexibilities’’ that could potentially
inform SIP development. However, the
EPA made clear in both the March 2018
memorandum 72 and in Attachment A
that the list of ideas was not endorsed
by the Agency but rather ‘‘comments
provided in various forums’’ on which
the EPA sought ‘‘feedback from
interested stakeholders.’’ 73 Further,
Attachment A stated, ‘‘EPA is not at this
time making any determination that the
ideas discussed below are consistent
with the requirements of the CAA, nor
are we specifically recommending that
states use these approaches.’’ 74
Attachment A to the March 2018
memorandum, therefore, does not
72 ‘‘In addition, the memorandum is accompanied
by Attachment A, which provides a preliminary list
of potential flexibilities in analytical approaches for
developing a good neighbor SIP that may warrant
further discussion between EPA and states.’’ March
2018 memorandum at 1.
73 March 2018 memorandum, Attachment A at
A–1.
74 Id.
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constitute agency guidance, but was
intended to generate further discussion
around potential approaches to
addressing ozone transport among
interested stakeholders. The EPA
emphasized in these memoranda that
such alternative approaches must be
technically justified and appropriate in
light of the facts and circumstances of
each particular state’s submittal. To the
extent states sought to develop or rely
on one or more of these ideas in support
of their SIP submissions, the EPA
reviewed their technical and legal
justifications for doing so.75
Regarding the October 2018
memorandum, that document
recognized that states may be able to
demonstrate in their SIPs that
conditions exist that would justify
treating a monitoring site as not being a
maintenance receptor despite results
from our modeling methodology
identifying it as such a receptor. The
EPA explained that this demonstration
could be appropriate under two
circumstances: (1) the site currently has
‘‘clean data’’ indicating attainment of
the 2015 ozone NAAQS based on
measured air quality concentrations, or
(2) the state believes there is a technical
reason to justify using a design value
from the baseline period that is lower
than the maximum design value based
on monitored data during the same
baseline period. To justify such an
approach, the EPA anticipated that any
such showing would be based on an
analytical demonstration that (1)
meteorological conditions in the area of
the monitoring site were conducive to
ozone formation during the period of
clean data or during the alternative base
period design value used for
projections; (2) ozone concentrations
have been trending downward at the
site since 2011 (and ozone precursor
emissions of NOX and VOC have also
decreased); and (3) emissions are
expected to continue to decline in the
upwind and downwind states out to the
attainment date of the receptor.
Although this is beyond the scope of
this action, the EPA explained in its
final SIP disapproval action that no state
successfully demonstrated that one of
these alternative approaches is justified.
In this action, our analysis of the air
quality data and projections in section
IV of this document indicate that trends
in historic measured data do not
necessarily support adopting a less
75 E.g., 87 FR 64423–64425 (Alabama); 87 FR
31453–31454 (California); 87 FR 9852–9854
(Illinois); 87 FR 9859–9860 (Indiana); 87 FR 9508,
9515 (Kentucky); 87 FR 9861–9862 (Michigan); 87
FR 9869–9870 (Ohio); 87 FR 9798, 9818–9820
(Oklahoma); 87 FR 31477–31481 (Utah); 87 FR
9526–9527 (West Virginia).
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stringent approach for identifying
maintenance receptors for purposes of
the 2015 ozone NAAQS. In fact, as
explained in section III.B.1.a and IV.D of
this document, the EPA has found in its
analysis for this final rule that, in
general, recent measured data from
regulatory ambient air quality ozone
monitoring sites suggest that a number
of receptors with elevated ozone levels
will persist in 2023 even though our
traditional methodology at Step 1 did
not identify these monitoring sites as
receptors in 2023. Thus, the EPA is not
acting inconsistently with that
memorandum—the factual conditions
that would need to exist for the
suggested approaches of that
memorandum to be applicable have not
been demonstrated as being applicable
or appropriate based on the relevant
data.
Regarding the August 2018
memorandum, as discussed in section
IV.F.2 of this document, for purposes of
Step 2 of our ozone transport evaluation
framework, we are applying a 1 percent
of NAAQS threshold rather than a 1 ppb
threshold, as this memorandum had
suggested might be appropriate for
states to apply as an alternative. The
EPA is finalizing its proposed approach
of consistently using a 1 percent of the
NAAQS contribution threshold at Step
2 to evaluate whether states are linked
to downwind nonattainment and
maintenance concerns for purposes of
this FIP.
The approach of this FIP ensures both
national consistency across all states
and consistency and continuity with our
prior interstate transport actions for
other NAAQS. Further, in this action
the EPA is promulgating FIPs under the
authority of CAA section 110(c). In
doing so, the EPA has exercised its
discretion to determine how to define
and apply good neighbor obligations in
place of the discretion states otherwise
would exercise (subject to the EPA’s
approval as compliant with the Act). In
general, the EPA is applying the 4-step
interstate transport framework it
devised over the course of its prior good
neighbor rulemakings, including
applying a consistent definition of
nonattainment and maintenance-only
receptors, and applying the 1 percent of
NAAQS threshold at Step 2. The basis
for these decisions is further explained
in sections IV.F.1 and IV.F.2 of the
document. These policy judgments
reflect consistency with relevant good
neighbor case law and past agency
practice implementing the good
neighbor provision as reflected in the
original CSAPR, CSAPR Update,
Revised CSAPR Update, and related
rulemakings. Nationwide consistency in
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approach is particularly important in
the context of interstate ozone transport,
which is a regional-scale pollution
problem involving the collective
emissions of many smaller contributors.
Effective policy solutions to the problem
of interstate ozone transport dating back
to the NOX SIP Call (63 FR 57356
(October 27, 1998)) have necessitated
the application of a uniform framework
of policy judgments, and the EPA’s
framework applied here has been
upheld as ensuring an ‘‘efficient and
equitable’’ approach. See EME Homer
City Generation, LP v. EPA, 572 U.S.
489, 519 (2014).
Updated modeling. The EPA had
originally provided 2023 modeling
results in its March 2018 memorandum,
which used a 2011-based platform.
Many states used this modeling in
providing good neighbor SIP submittals
for the 2015 ozone NAAQS. While our
action on the SIP submittals is not
within scope of this action, commenters
claim the use of new modeling or other
information not available to states at the
time they made their submittals renders
this action promulgating a FIP unlawful.
Notwithstanding whether that is an
accurate characterization of the EPA’s
basis for disapproving the SIPs, we note
that the court in Wisconsin rejected this
precise argument against the CSAPR
Update FIPs as a collateral attack on the
SIP disapprovals. 938 F.3d at 336 (‘‘That
is the hallmark of an improper collateral
attack. The true gravamen of the claim
lies in the agency’s failure to timely act
upon the States’ SIP submissions and,
relatedly, its reliance on data compiled
after the SIP action deadline. Both go
directly to the legitimacy of the SIP
denials.’’).
Nonetheless, we offer the following
explanation of the evolution of the
EPA’s understanding of projected air
quality conditions and contributions in
2023 resulting from the iterative nature
of our modeling efforts. These modeling
efforts are further addressed in section
IV of this document. We acknowledge
that to evaluate transport SIPs and
support our proposed FIP the EPA
reassessed receptors at Step 1 and states’
contribution levels at Step 2 through
additional modeling (2016v2) before
proposing this action and have
reassessed again to inform the final
action (2016v3). At proposal, we relied
on CAMx Version 7.10 and the 2016v2
emissions platform to make updated
determinations regarding which
receptors would likely exist in 2023 and
which states are projected to contribute
above the contribution threshold to
those receptors. As explained in the
preamble of the EPA’s proposed FIP and
further detailed in the ‘‘Air Quality
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Modeling Technical Support Document
for the Federal Implementation Plan
Addressing Regional Ozone Transport
for the 2015 Ozone National Ambient
Air Quality Standards Proposed
Rulemaking’’ (Dec. 2021), hereinafter
referred to as Air Quality Modeling
Proposed Rule TSD, and the ‘‘Technical
Support Document (TSD): Preparation
of Emissions Inventories for the 2016v2
North American Emissions Modeling
Platform’’ (Dec. 2021), hereinafter
referred to as the 2016v2 Emissions
Inventory TSD, both available in the
docket for this action (docket ID no.
EPA–HQ–OAR–2021–0668), this
modeling built off of previous modeling
iterations used to support the EPA’s
action on interstate transport
obligations. The EPA periodically
refines its modeling to ensure the results
are as indicative as possible of air
quality in future years. This includes
making any necessary adjustments to
our modeling platform and updating our
emissions inventories to reflect current
information, including information
submitted during public comments on
proposed actions.
For this final rule, the EPA has
evaluated a raft of technical information
and critiques of its 2016v2 modeling
provided by commenters on this action
(as well as comments on the SIP actions)
and has responded to those comments
and incorporated updates into the
version of the modeling used to support
this final rule (2016v3). As explained in
section IV.B of the document, in
response to additional information
provided by stakeholders following a
solicitation of feedback during the
release of the 2016v2 emissions
inventory and during the comment
periods on the proposed SIP actions, the
EPA has reviewed and revised its
2016v2 modeling platform and input
since the platform was made available
for comment. The new modeling
platform 2016v3 was developed from
this input, and the modeling results
using platform 2016v3 are available
with this action. See section IV of this
document for further discussion. Thus,
the EPA’s final rule is based on a
comprehensive record of data and
technical evaluation, including the
updated modeling information used at
proposal (2016v2), the comments
received on that modeling, and the
latest modeling used in this final rule
(2016v3).
The changes in projected outcomes at
Steps 1 and 2 are a product of these
changes; these updates between the data
released in 2018 to now are an
outgrowth of this iterative process,
including updating the platform from a
2011 to a 2016 base year, updates to the
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emissions inventory information and
other updates. It is reasonable for the
Agency to improve its understanding of
a situation before taking final action,
and the Agency uses the best
information available to it in taking this
action.
Further, these modeling updates have
not uniformly resulted in new
linkages—the 2016v2 modeling, for
instance, corroborated the proposed
approval of Montana and supported
approval of Colorado’s SIP in October of
2022.76 Although some commenters
indicate that our modeling iterations
have provided differing outcomes and
are therefore unreliable, this is not what
the overall record indicates. Rather, in
general, although the specifics of states’
linkages may have changed to some
extent, our modeling on the whole has
provided consistent outcomes regarding
which states are linked to downwind air
quality problems. For example, the
EPA’s modeling shows that most states
that were linked to one or more
receptors using the 2011-based platform
(i.e., the March 2018 data release) are
also linked to one or more receptors
using the newer 2016-based platform.
Because the new platform uses different
meteorology (i.e., 2016 instead of 2011),
it is not unexpected that an upwind
state would be linked to different
receptors using 2011 versus 2016
meteorology. In addition, although a
state may be linked to a different set of
receptors, those receptors are within the
same areas that have historically had a
persistent air quality problem. Only
three upwind states included in the FIP
went from being unlinked to being
linked in 2023 between the 2011-based
modeling provided in the March 2018
memorandum and the 2016v3-based
modeling—Alabama, Minnesota, and
Nevada.
Additionally, we disagree with
commenters who claim that the 2016v2
modeling results were sprung upon the
states with the publication of the
proposed SIP disapprovals. In fact,
states had prior access to a series of data
and modeling releases beginning as
early as the publication of the 2016v1
modeling with the proposed Revised
CSAPR Update in October 2020. States
could have reviewed and used this
technical information to understand and
track how the EPA’s modeling updates
were affecting the list of potential
receptors and linkages for the 2015
ozone NAAQS in the 2023 analytic year.
76 87 FR 6095, 6097 at n. 15 (February 3, 2022)
(Montana proposal); 87 FR 27050, 27056 (May 6,
2022) (Colorado, proposal), 87 FR 61249 (October
11, 2022) (Colorado, final).
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The 2016-based meteorology and
boundary conditions used in the
modeling have been available through
the 2016v1 platform, which was used
for the Revised CSAPR Update
(proposed, 85 FR 68964; October 30,
2020). The updated emissions inventory
files used in the current modeling were
publicly released September 21, 2021,
for stakeholder feedback, and have been
available on our website since that
time.77 The CAMx modeling software
that the EPA used has likewise been
publicly available for over a year before
this final rule was proposed on April 6,
2022. CAMx version 7.10 was released
by the model developer, Ramboll, in
December 2
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