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.

ddrumheller on DSK120RN23PROD with RULES2

A. Purpose of the Regulatory Action

The purpose of this rulemaking is to

protect public health and the

environment by reducing interstate

transport of certain air pollutants that

significantly contribute to

nonattainment, or interfere with

maintenance, of the 2015 ozone NAAQS

in downwind states. Ground-level ozone

has detrimental effects on human health

as well as vegetation and ecosystems.

Acute and chronic exposure to ozone in

humans is associated with premature

mortality and certain morbidity effects,

such as asthma exacerbation. Ozone

exposure can also negatively impact

ecosystems by limiting tree growth,

causing foliar injury, and changing

ecosystem community composition.

Section III of this document provides

additional evidence of the harmful

effects of ozone exposure on human

health and the environment. Studies

have established that ozone air

pollution can be transported over

hundreds of miles, with elevated

ground-level ozone concentrations

occurring in rural and metropolitan

areas.5 6 Assessments of ozone control

approaches have concluded that control

strategies targeting reduction of NOX

emissions are an effective method to

reduce regional-scale ozone transport.7

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

states to prohibit emissions that will

contribute significantly to

nonattainment or interfere with

maintenance in any other state with

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

‘‘emissions limit’’ to refer to both numeric

emissions limitations and control technology

requirements that specify levels of emissions

reductions to be achieved.

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

local and interstate impacts of NOX and SO2

emissions on ozone and fine particulate matter in

the eastern United States. Environmental Sci &

Tech. 41: 4677–4689.

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

transport of pollutants on high ozone events over

the Mid-Atlantic United States. Atmospheric

Environment 84, 100–112.

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

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

63 FR 57381 (October 27, 1998).

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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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36659

ozone concentrations for the 2023

analytic year at individual monitoring

sites and considered current ozone

monitoring data at these sites to identify

receptors that are anticipated to have

problems attaining or maintaining the

2015 ozone NAAQS. This analysis of

projected ozone concentrations was

then repeated for 2026.

To apply the second step of the

framework, the EPA used air quality

modeling to quantify the contributions

from upwind states to ozone

concentrations in 2023 and 2026 at

downwind receptors.12 Once quantified,

the EPA then evaluated these

contributions relative to a screening

threshold of 1 percent of the NAAQS

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

contributions that equaled or exceeded

1 percent of the NAAQS were identified

as warranting further analysis at Step 3

of the 4-step framework to determine if

the upwind state significantly

contributes to nonattainment or

interference with maintenance in a

downwind state. States with

contributions below 1 percent of the

NAAQS were considered not to

significantly contribute to

nonattainment or interfere with

maintenance of the NAAQS in

downwind states.

Based on the EPA’s most recent air

quality modeling and contribution

analysis using 2023 as the analytic year,

the EPA finds that the following 23

states have contributions that equal or

exceed 1 percent of the 2015 ozone

NAAQS, and, thereby, warrant further

analysis of significant contribution to

nonattainment or interference with

maintenance of the NAAQS: Alabama,

Arkansas, California, Illinois, Indiana,

Kentucky, Louisiana, Maryland,

Michigan, Minnesota, Mississippi,

Missouri, Nevada, New Jersey, New

York, Ohio, Oklahoma, Pennsylvania,

Texas, Utah, Virginia, West Virginia,

and Wisconsin.

There are locations in California to

which Oregon contributes greater than 1

percent of the NAAQS; the EPA

August 3, 2024, for areas classified as Moderate

nonattainment, and August 3, 2027, for areas

classified as Serious nonattainment. See 83 FR

25776.

12 The EPA performed air quality modeling for

2032 in the proposed rulemaking, but did not

perform contribution modeling for 2032 since

contribution data for this year were not needed to

identify upwind states to be analyzed in Step 3. The

modeling of 2032 done at proposal using the

2016v2 platform does not constitute or represent

any final agency determinations respecting air

quality conditions or regulatory judgments with

respect to good neighbor obligations or any other

CAA requirements.

13 See section IV.F of this document for

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

NAAQS threshold in the Step 2 analysis.

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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

ddrumheller on DSK120RN23PROD with RULES2

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

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

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

document.

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

above or that derived from the dynamic budget methodology.

The budget-setting methodology that

the EPA will use to determine dynamic

budgets for each control period starting

with 2026 is an extension of the

methodology used to determine the

preset budgets and will be used

routinely to determine emissions

budgets for each future control period in

the year before that control period, with

each emissions budget reflecting the

latest available information on the

composition and utilization of the EGU

fleet at the time that emissions budget

is determined. The stringency of the

dynamic emissions budgets will simply

reflect the stringency of the emissions

control strategies selected in the

rulemaking more consistently over time

and ensure that the annual updates

would eliminate emissions determined

to be unlawful under the good neighbor

provision. As already noted, for the

control periods in which both preset

budgets and dynamic budgets are

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

2029), the state’s dynamic budget will

apply only if it is higher than the state’s

preset budget. See section VI.B of this

document for additional discussion of

the EPA’s method for adjusting

emissions budgets to ensure elimination

of significant contribution from EGU

sources in the linked upwind states.

In conjunction with the levels of the

emissions budgets, the carryover of

unused allowances for use in future

control periods as banked allowances

affects the ability of a trading program

to maintain the rule’s selected control

stringency and related EGU effective

emissions rate performance level as the

EGU fleet evolves over time.

Unrestricted banking of allowances

allows what might otherwise be

temporary surpluses of allowances in

some individual control periods to

accumulate into a long-term allowance

surplus that reduces allowance prices

and weakens the trading program’s

incentives to control emissions. To

prevent this outcome, the EPA is also

revising the Group 3 trading program by

adding provisions that establish a

routine recalibration process for banked

allowances using a target percentage of

21 percent for the 2024–2029 control

periods and 10.5 percent for control

periods in 2030 and later years.

As an enhancement to the structure of

the trading program originally

promulgated in the Revised CSAPR

Update, the EPA is also establishing

backstop daily emissions rates for coal

22 Notices of Planned Participation for the ELG

Reconsideration Rule were due October 31, 2021

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

had to indicate their future plans to cease receipt

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

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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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4.0

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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3272

3251

3241

3221

562213

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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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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36673

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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