Rule2024-25501
Federal “Good Neighbor Plan” for the 2015 Ozone National Ambient Air Quality Standards; Response to Judicial Stay
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
November 6, 2024
Effective
November 6, 2024
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is taking interim final action to stay, for emissions sources in California, Illinois, Indiana, Maryland, Michigan, New Jersey, New York, Ohio, Pennsylvania, Virginia, and Wisconsin, the effectiveness of the requirements established to address the obligations of these and other states to mitigate interstate air pollution with respect to the 2015 national ambient air quality standards (NAAQS) for ozone (the Good Neighbor Plan). The EPA is also revising certain other regulations to ensure the continued implementation of previously established requirements to mitigate interstate air pollution with respect to other ozone NAAQS while the effectiveness of the Good Neighbor Plan's requirements is stayed. The stay and the associated revisions to other regulations are being issued in response to a judicial order staying enforcement of the Good Neighbor Plan as to the stay applicants pending judicial review.
Full Text
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<title>Federal Register, Volume 89 Issue 215 (Wednesday, November 6, 2024)</title>
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[Federal Register Volume 89, Number 215 (Wednesday, November 6, 2024)]
[Rules and Regulations]
[Pages 87960-87977]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-25501]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 97
[EPA-HQ-OAR-2021-0668; FRL-8670.4-03-OAR]
RIN 2060-AW30
Federal ``Good Neighbor Plan'' for the 2015 Ozone National
Ambient Air Quality Standards; Response to Judicial Stay
AGENCY: Environmental Protection Agency (EPA).
ACTION: Interim final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is taking interim
final action to stay, for emissions sources in California, Illinois,
Indiana, Maryland, Michigan, New Jersey, New York, Ohio, Pennsylvania,
Virginia, and Wisconsin, the effectiveness of the requirements
established to address the obligations of these and other states to
mitigate interstate air pollution with respect to the 2015 national
ambient air quality standards (NAAQS) for ozone (the Good Neighbor
Plan). The EPA is also revising certain other regulations to ensure the
continued implementation of previously established requirements to
mitigate interstate air pollution with respect to other ozone NAAQS
while the effectiveness of the Good Neighbor Plan's requirements is
stayed. The stay and the associated revisions to other regulations are
being issued in response to a judicial order staying enforcement of the
Good Neighbor Plan as to the stay applicants pending judicial review.
DATES: This interim final rule is effective November 6, 2024.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OAR-2021-0668. All documents in the docket are
listed on the <a href="https://www.regulations.gov">https://www.regulations.gov</a> website. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available electronically through <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: David Lifland, Clean Air and Power
Division, Office of Atmospheric Protection, Office of Air and
Radiation, U.S. Environmental Protection Agency, Mail Code 6204A, 1200
Pennsylvania Avenue NW, Washington, DC 20460; telephone number: (202)
343-9151; email address: <a href="/cdn-cgi/l/email-protection#412d28272d202f256f2520372825012431206f262e37"><span class="__cf_email__" data-cfemail="cea2a7a8a2afa0aae0aaafb8a7aa8eabbeafe0a9a1b8">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. General
A. Potentially Affected Entities
This action revises on an interim basis the Good Neighbor Plan (the
Plan),\1\ which includes regulations addressing emissions from
electricity generating units (EGUs) and non-EGU industrial sources.
This action also revises other allowance trading program regulations
that apply to EGUs but not to non-EGU sources. The affected sources are
generally in the following industry groups:
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\1\ Federal ``Good Neighbor Plan'' for the 2015 Ozone National
Ambient Air Quality Standards, 88 FR 36654 (June 5, 2023).
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North American Industry Classification
Industry group System (NAICS) code
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Fossil Fuel Electric Power Generation................................... 221112
Pipeline Transportation of Natural Gas.................................. 4862
Cement and Concrete Product Manufacturing............................... 3273
Iron and Steel Mills and Ferroalloy Manufacturing....................... 3311
Glass and Glass Product Manufacturing................................... 3272
Basic Chemical Manufacturing............................................ 3251
Petroleum and Coal Products Manufacturing............................... 3241
Pulp, Paper, and Paperboard Mills....................................... 3221
Metal Ore Mining........................................................ 2122
Solid Waste Combustors and Incinerators................................. 562213
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As promulgated, the Plan applied to emissions sources in 23 states.
The effectiveness of the Plan's requirements for sources in Alabama,
Arkansas, Kentucky, Louisiana, Minnesota, Mississippi, Missouri,
Nevada, Oklahoma, Texas, Utah, and West Virginia was stayed in previous
actions. This action applies to sources in the
[[Page 87961]]
remaining states covered by the Plan as promulgated: California,
Illinois, Indiana, Maryland, Michigan, New Jersey, New York, Ohio,
Pennsylvania, Virginia, and Wisconsin.
The information provided in this section on potentially affected
entities is not intended to be exhaustive. If you have questions
regarding the applicability of this action to a particular entity,
consult the person listed in the FOR FURTHER INFORMATION CONTACT
section.
B. Statutory Authority
Statutory authority to issue the amendments finalized in this
action is provided by the same Clean Air Act (CAA) provisions that
provided authority to issue the regulations being amended: CAA section
110(a) and (c), 42 U.S.C. 7410(a) and (c) (state implementation plan
(SIP) and federal implementation plan (FIP) requirements, including
requirements for mitigation of interstate air pollution), and CAA
section 301, 42 U.S.C. 7601 (general rulemaking authority). Statutory
authority for the rulemaking procedures followed in this action is
provided by the Administrative Procedure Act (APA), 5 U.S.C. 553.
II. Response to Stay Order
A. Background and Summary
CAA section 110(a)(2)(D)(i)(I), also known as the ``good neighbor''
provision, requires each state's SIP to 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].'' 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.'' CAA section 110(c)(1) requires the EPA
Administrator to promulgate a FIP at any time within 2 years after the
Administrator: (i) finds that a state has failed to make a required SIP
submission; (ii) finds a SIP submission to be incomplete pursuant to
CAA section 110(k)(1)(C); or (iii) 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.
In March 2023, in accordance with CAA sections 110(a)(2)(D)(i)(I)
and 110(c)(1), the EPA promulgated the Good Neighbor Plan, a rule
determining the good neighbor obligations of 23 states with respect to
the 2015 ozone NAAQS and establishing FIP requirements for emissions
sources in the states to address the states' obligations by reducing
emissions of nitrogen oxides (NO<INF>X</INF>), an ozone precursor.
Following the Plan's promulgation, in response to judicial orders
partially staying a separate EPA action as to several states, the EPA
issued two sets of interim amendments (referred to here as the First
and Second Interim Final Rules) staying the Plan's effectiveness for
emissions sources in those states pending further EPA rulemaking.\2\ As
modified by the First and Second Interim Final Rules, the Plan applied
to EGUs within the borders of Illinois, Indiana, Maryland, Michigan,
New Jersey, New York, Ohio, Pennsylvania, Virginia, and Wisconsin and
to non-EGU sources within the borders of nine of the same ten states
(all except Wisconsin) as well as California.\3\ For EGUs, the Plan as
promulgated requires affected sources to participate in the CSAPR
NO<INF>X</INF> Ozone Season ``Group 3'' Trading Program as amended by
the Plan starting with the 2023 ozone season (the period from May 1
through September 30 of each year). For non-EGU sources, the Plan as
promulgated establishes source-specific compliance requirements that
generally take effect starting with the 2026 ozone season.
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\2\ Federal ``Good Neighbor Plan'' for the 2015 Ozone National
Ambient Air Quality Standards; Response to Judicial Stays of SIP
Disapproval Action for Certain States, 88 FR 49295 (July 31, 2023);
Federal ``Good Neighbor Plan'' for the 2015 Ozone National Ambient
Air Quality Standards; Response to Additional Judicial Stays of SIP
Disapproval Action for Certain States, 88 FR 67102 (September 29,
2023).
\3\ The Plan's emissions reduction requirements apply to all
emissions sources meeting the Plan's applicability criteria within
the borders of each covered state, including sources in Indian
country within the borders of the state. See 88 FR 36690.
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The Plan's compliance requirements for EGUs were coordinated with
similar trading program-based compliance requirements established under
two earlier EPA rules. Before the Plan was promulgated, EGUs in a set
of states including Wisconsin were addressing these states' good
neighbor obligations with respect to the 2008 ozone NAAQS by
participating in the CSAPR NO<INF>X</INF> Ozone Season ``Group 2''
Trading Program established under the CSAPR Update,\4\ and EGUs in a
set of states including Illinois, Indiana, Maryland, Michigan, New
Jersey, New York, Ohio, Pennsylvania, and Virginia were addressing
those states' good neighbor obligations with respect to the 2008 ozone
NAAQS by participating in the pre-Plan version of the Group 3 trading
program established under the Revised CSAPR Update.\5\ In the Plan, the
EPA's previous determinations concerning states' good neighbor
obligations with respect to the 2008 ozone NAAQS were not altered, but
the EPA allowed participation of the states' EGUs in the Group 3
trading program as amended by the Plan to serve as the compliance
mechanism to address not only the EGU-related portions of the states'
good neighbor obligations with respect to the 2015 ozone NAAQS but also
the states' previously determined good neighbor obligations with
respect to the 2008 ozone NAAQS.\6\
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\4\ Cross-State Air Pollution Rule Update for the 2008 Ozone
NAAQS, 81 FR 74504 (October 26, 2016).
\5\ Revised Cross-State Air Pollution Rule Update for the 2008
Ozone NAAQS, 86 FR 23054 (April 30, 2021).
\6\ See 88 FR 36844. For some states, participation of the
states' EGUs in the Group 3 trading program was deemed to address
the states' good neighbor obligations with respect to the 1997 ozone
NAAQS as well. Id.
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In October 2023, after failing to obtain a stay from the Unites
States Court of Appeals for the District of Columbia Circuit (D.C.
Circuit),\7\ four sets of parties submitted emergency applications to
the United States Supreme Court seeking a stay of some or all of the
Good Neighbor Plan's requirements.\8\ In an opinion issued on June 27,
2024 (referred to here as the Stay Order), the Supreme Court granted
the emergency applications and ordered that ``[e]nforcement of EPA's
rule against the applicants shall be stayed'' while judicial review of
the Plan on the merits proceeds, first in the D.C. Circuit and then
potentially in the Supreme Court.\9\
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\7\ Orders, Utah v. EPA, No. 23-1157 (D.C. Cir. September 25,
2023, and October 11, 2023); see also Order, Utah v. EPA, No. 23-
1157 (D.C. Cir. December 4, 2023) (denying additional stay motions).
\8\ Ohio v. EPA, No. 23A349 (U.S. docketed October 18, 2023)
(other named applicants are Indiana and West Virginia); Kinder
Morgan, Inc. v. EPA, No. 23A350 (U.S. docketed October 18, 2023)
(other named applicants are Enbridge (U.S.) Inc., TransCanada
PipeLine USA Ltd., Interstate Natural Gas Association of America,
and American Petroleum Institute); American Forest & Paper
Association v. EPA, No. 23A351 (U.S. docketed October 18, 2023)
(other named applicants are America's Power, Associated Electric
Cooperative, Inc., Deseret Power Electric Cooperative, Midwest Ozone
Group, National Mining Association, National Rural Electric
Cooperative Association, Ohio Valley Electric Corporation, Portland
Cement Association, and Wabash Valley Power Alliance); United States
Steel Corporation v. EPA, No. 23A384 (U.S. docketed October 31,
2023).
\9\ Ohio v. EPA, 144 S. Ct. 2040, 2058 (2024).
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In this action, the EPA is responding to the Stay Order by
administratively staying the effectiveness of the Plan's
[[Page 87962]]
requirements for all emissions sources subject to the Plan as
promulgated, not just the applicants for a stay before the Supreme
Court. The Agency's determination on the scope of the administrative
stay is discussed in section II.B. of this document. In addition, as
discussed in section II.C. of this document, the EPA is modifying its
trading program regulations for EGUs to ensure that the existing good
neighbor obligations of Illinois, Indiana, Maryland, Michigan, New
Jersey, New York, Ohio, Pennsylvania, Virginia, and Wisconsin with
respect to the 2008 ozone NAAQS will continue to be met while the
administrative stay is in effect. The approach being taken with respect
to the EGUs in these states in this action is the same as the approach
taken with respect to the EGUs in similarly situated states in the
First and Second Interim Final Rules. Section II.D. of this document
describes the specific regulatory amendments being adopted in this
action to implement the administrative stay and modify the trading
programs.
The amendments to the regulatory requirements for EGUs and non-EGU
sources that are being finalized in this action in response to the Stay
Order are intended to apply on an interim basis until the Plan's
requirements can be reimplemented, as appropriate and in accordance
with the final judgment of a reviewing court, through a future
rulemaking action. The EPA generally anticipates that any future action
bringing the Plan's requirements into effect after a stay would phase
in the requirements so as to provide lead times to implement the Plan's
identified emissions control strategies comparable to the lead times
that the Plan would have provided in the absence of the stay, thereby
giving parties sufficient time to prepare for implementation.
B. Scope of Administrative Stay
The first issue addressed by this action concerns the scope of the
administrative stay being implemented in response to the Stay Order,
and specifically the treatment of emissions sources whose owners and
operators were not among the applicants for a stay before the Supreme
Court. By its terms, the Stay Order extends only to the applicants.\10\
Three of the named applicants are states--Ohio, Indiana, and West
Virginia--and although the Good Neighbor Plan imposes no requirements
on states, the EPA interprets the Stay Order as applying to all EGUs
and non-EGU sources meeting the Plan's applicability criteria that are
located in these states.\11\ The named industry applicants for a stay
include several owners of EGUs or non-EGU sources expected to meet the
Plan's applicability criteria and several trade associations, including
some trade associations whose identified members include other trade
associations.\12\ Beyond the individually named applicants, the full
set of applicants also encompasses applicant trade associations'
members, which in turn includes members of trade associations that are
applicants by virtue of their membership in other applicant trade
associations.\13\
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\10\ The applicants named in the four stay applications are
listed supra note 8.
\11\ The EPA has already implemented an administrative stay as
to all EGUs and non-EGU sources in West Virginia in the Second
Interim Final Rule in response to a previous judicial order. See 88
FR 67103-04.
\12\ For example, Midwest Ozone Group has represented that its
members include American Forest & Paper Association, American Iron
and Steel Institute, American Wood Council, Appalachian Region
Independent Power Producers Association, Council of Industrial
Boiler Owners, Indiana Energy Association, Indiana Utility Group,
National Lime Association, Ohio Utility Group, and Steel
Manufacturers Association. See Midwest Ozone Group comments on
proposed Good Neighbor Plan, at 1 (June 21, 2022) (EPA-HQ-OAR-2021-
0668-0323), available in the docket.
\13\ See New York State Club Association v. City of New York,
487 U.S. 1, 9-10 (1988).
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Through the members of the applicant trade associations, the Stay
Order covers a broad range of the EGUs and non-EGU sources that would
otherwise be subject to the Plan's requirements in states other than
Ohio, Indiana, and West Virginia. In the ordinary circumstances, if an
EPA rule that requires pollution reductions becomes subject to a
judicial stay, the Agency would apply the stay by its precise terms,
because that approach would be expected to preserve the rule's health
and environmental benefits to the maximum extent possible while the
stay remains in effect. However, in this instance, to continue
enforcing the Plan's requirements as to emissions sources not owned or
operated by applicants while staying enforcement of the Plan's
requirements as to sources owned or operated by applicants, the EPA
would need to use trade association membership as an applicability
criterion in distinguishing among covered and noncovered sources, which
would be an inherently uncertain method by which to make such
determinations. Although, to the EPA's knowledge, not all owners and
operators of EGUs and non-EGU sources meeting the Plan's applicability
criteria were members of applicant trade associations when the
applications for a stay were submitted or when the Stay Order was
issued, an entity that is not already a member of an applicant trade
association could choose to become one. The Stay Order does not speak
to whether there is a specific point in time at which an entity must be
a member of an applicant trade association to be covered by the Court's
stay as to applicants. The need to use trade association membership as
an applicability criterion in this instance would therefore create
uncertainty and a high likelihood of legal disputes over which
individual sources must be excluded from enforcement of the Plan's
requirements during the pendency of the Stay Order.\14\
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\14\ The Agency reaches this conclusion only in light of the
specific circumstances of the present case. The Agency does not view
this decision as in any way precedential concerning how it would
interpret, apply, or comply with any future judicial stay orders in
any future matters, which necessarily would entail similarly case-
specific review of all of the relevant facts and circumstances.
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In short, in the specific circumstances of the Plan and the related
litigation, continuing to enforce the Plan's requirements for some
sources but not others while using trade association membership as an
applicability criterion to distinguish between covered and noncovered
sources would entail extreme administrative complexity and such a
degree of inherent uncertainty as to reach the point of
impracticability. Accordingly, the EPA has determined that the only
practicable way to comply with the Stay Order is to administratively
stay enforcement of the Plan's requirements as to all sources covered
by the Plan as promulgated.\15\
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\15\ The regulatory revisions being adopted in this action to
implement an administrative stay of the effectiveness of the Plan's
requirements for sources in 11 states will have no immediate effect
on sources in the 12 states for which such an administrative stay
was already implemented in the First and Second Interim Final Rules.
However, if a judicial order that caused the EPA to administratively
stay the effectiveness of the Plan's requirements for one of the 12
states in the earlier rules is lifted, the EPA would not take
rulemaking action to end the administrative stay for the sources in
that state while the Supreme Court's Stay Order remains in effect.
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The EPA notes that in addition to being the only practicable means
of complying with the Stay Order as to the Plan in these circumstances,
the scope of the administrative stay being implemented in this action
is consistent with the Supreme Court's rationale in granting the stay
applications. The Court did not identify any specific, substantive flaw
concerning the Plan's requirements for any regulated party, but rather
preliminarily found that the EPA had likely failed to adequately
respond to comments concerning the Plan's application if it were not in
effect for one or more upwind states.\16\ In
[[Page 87963]]
implementing an administrative stay as to all sources covered by the
Plan as promulgated, the Agency recognizes that the grounds on which
the Court stayed enforcement of the Plan's requirements as to the
applicants could have applied to any such source whose owner or
operator had applied to the Court for relief.\17\
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\16\ See 144 S. Ct. at 2053-54 & n.10.
\17\ Significantly, the Supreme Court issued an opinion that
identified a specific, but far-reaching, issue that the Court deemed
to have been raised with sufficient specificity in particular
comments but that it was likely the EPA had not adequately
addressed. That issue and those comments are unique to the Plan.
This action is also informed by the unusual posture here--on
emergency applications to the Supreme Court--and the issuance of an
opinion that has allowed the EPA to assess the relevance of the
specific concern to other regulated parties. As such, the EPA does
not presently find, and does not concede in taking this action, that
the Supreme Court's rationale would necessarily extend to any other
action the EPA may take, if such action does not contain the
potential record deficiency that the Court had identified in the
rulemaking record of the Good Neighbor Plan as originally
promulgated.
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C. Requirements To Meet Existing Good Neighbor Obligations
The second issue addressed in this action concerns how to ensure
that the previously determined good neighbor obligations of Illinois,
Indiana, Maryland, Michigan, New Jersey, New York, Ohio, Pennsylvania,
Virginia, and Wisconsin with respect to the 2008 ozone NAAQS will
continue to be met while the effectiveness of the Good Neighbor Plan's
requirements is stayed. As noted in section II.A. of this document,
before issuance of the Stay Order, participation of the EGUs in these
ten states in the Group 3 trading program as amended by the Good
Neighbor Plan was serving as the compliance mechanism for not only the
EGU-related portions of the states' good neighbor obligations with
respect to the 2015 ozone NAAQS but also the states' previously
determined good neighbor obligations with respect to the 2008 ozone
NAAQS. The Stay Order does not affect the states' good neighbor
obligations as to the 2008 ozone NAAQS, which were determined in the
CSAPR Update (for Wisconsin) and in the Revised CSAPR Update (for the
other nine states), but it prevents the Group 3 trading program as
amended by the Plan from being used as the compliance mechanism to
address the obligations. Consequently, an alternate compliance
mechanism is needed to address the states' good neighbor obligations
with respect to the 2008 ozone NAAQS while the effectiveness of the
Plan's requirements is stayed.
To address the 2008 ozone NAAQS good neighbor obligations for these
ten states, the EPA is taking the same overall approach as was taken in
the First and Second Interim Final Rules for states covered by earlier
judicial orders. The central feature of the alternate compliance
mechanism adopted under this approach is a requirement for the EGUs
within the borders of the ten states to participate in the Group 2
trading program for the 2024 ozone season and future ozone seasons
while the effectiveness of the Plan's requirements remains stayed.\18\
The amounts of the state emissions budgets that will apply for each
ozone season will be the amounts that would have applied for that ozone
season under the CSAPR Update, for Wisconsin, or the Revised CSAPR
Update, for the other nine states. Like EGUs in Alabama, Arkansas,
Mississippi, Missouri, Oklahoma, and Texas, EGUs in Wisconsin
participated in the Group 2 trading program immediately before
implementation of the Plan and therefore will use ``Original Group 2''
allowances for compliance under the Group 2 trading program. Like EGUs
in Kentucky, Louisiana, and West Virginia, EGUs in Illinois, Indiana,
Maryland, Michigan, New Jersey, New York, Ohio, Pennsylvania, and
Virginia participated in the pre-Plan version of the Group 3 trading
program immediately before implementation of the Plan and therefore
will use ``Expanded Group 2'' allowances for compliance under the Group
2 trading program.\19\
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\18\ Under both the Group 2 trading program and the Group 3
trading program, the programs' primary requirements are ``enforced''
based on comparisons of sources' reported emissions for the entire
ozone season to the sources' allowance holdings on a specified date
after the end of the ozone season. Because these comparisons have
not yet been made for the 2024 ozone season, to ensure compliance
with the Stay Order as to the applicants, in this action the EPA is
eliminating any use of the Plan's state emissions budgets for the
entire 2024 ozone season, including the portion of the ozone season
that passed before issuance of the Stay Order.
\19\ For further discussion of the regulatory provisions
relating to Original Group 2 allowances and Expanded Group 2
allowances, see the First Interim Final Rule, 88 FR 49297-98.
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The amounts of the unit-level allocations of newly issued Group 2
allowances to EGUs within the borders of the ten states will be the
same amounts of allowances that would have been allocated to the EGUs
for the same ozone seasons under the CSAPR Update, for EGUs within the
borders of Wisconsin, or under the Revised CSAPR Update, for EGUs
within the borders of the other nine states.\20\ In almost all cases,
the EPA will record the allocated amounts of newly issued 2024 Group 2
allowances in the sources' compliance accounts without adjustment.
However, a small number of transactions involving 2024 Group 3
allowances occurred before issuance of the Stay Order. To preserve the
substantive effect of these pre-stay transactions, the Agency will
adjust the quantities of newly issued 2024 Group 2 allowances recorded
in the relevant sources' compliance accounts upward or downward by the
amounts of the pre-stay transactions on a 1-for-1 basis.\21\ The EPA
will deduct all 2024 Group 3 allowances from all compliance accounts
and general accounts as soon as practicable on or after November 21,
2024 and will record the newly issued 2024 Group 2 allowances with
these adjustments in sources' compliance accounts as soon as
practicable on or after December 6, 2024.
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\20\ Unit-level allocations of Group 2 allowances (before any
applicable adjustments) are made in accordance with a notice of data
availability (NODA) issued by the EPA Administrator. See 40 CFR
97.811(a)(1). For EGUs within the borders of Wisconsin, the
applicable NODA will be the NODA published at 81 FR 67190 (September
30, 2016) to implement the CSAPR Update. For EGUs within the borders
of the other nine states, the applicable NODA will be the NODA
published at 86 FR 26719 (May 17, 2021) to implement the Revised
CSAPR Update. The provisions for state-determined allocations of
Group 2 allowances included in the SIP revisions previously approved
for Indiana and New York under the CSAPR Update before promulgation
of the Revised CSAPR Update will not apply.
\21\ Specifically, the recorded amounts of newly issued 2024
Group 2 allowances will differ from the allocated amounts as
follows: a decrease of 3 allowances for Gilbert Generating Station
(ID 2393) and an increase of 3 allowances for Warren (ID 3132) to
reflect the pre-stay transfer of 3 2024 Group 3 allowances from
Gilbert to Warren; a decrease of 50 allowances for Baldwin Energy
Complex (ID 889) and an increase of 50 allowances for Midland
Cogeneration Venture (ID 10745) to reflect the pre-stay transfer of
50 2024 Group 3 allowances from Baldwin to Midland; and a decrease
of 8 allowances for PEI Power Corporation (also known as Archbald,
ID 50279) to reflect the pre-stay deduction of 8 2024 Group 3
allowances to address Archbald's 2023 excess emissions. The EPA will
not make any adjustments to reflect the pre-stay transfer of 570
2024 Group 3 allowances from Cardinal (ID 2828) to an Ohio Power
Company general account or the pre-stay transfer of 285 2024 Group 3
allowances from Alcoa Allowance Management Inc. (also known as
Warrick, ID 6705) to an Alcoa Allowance Management Inc. general
account because these appear to be transfers between affiliated
accounts with no substantive effect.
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Consistent with the provisions applicable to EGUs in states covered
by the First and Second Interim Final Rules, the EPA is providing EGUs
in the ten states covered by this action an opportunity to have
``banked'' 2021-2023 Group 3 allowances converted to Group 2 allowances
on a 1-for-1 basis.\22\
[[Page 87964]]
To be converted, the Group 3 allowances must be held in the compliance
account for an EGU within the borders of Illinois, Indiana, Maryland,
Michigan, New Jersey, New York, Ohio, Pennsylvania, Virginia, or
Wisconsin as of the conversion date, which will be as soon as
practicable on or after December 23, 2024. Group 3 allowances held in
the compliance accounts of EGUs in Wisconsin will be converted to
Original Group 2 allowances, while Group 3 allowances held in the
compliance accounts of EGUs in the other nine states will be converted
to Expanded Group 2 allowances. Group 3 allowances held in other
compliance accounts or in general accounts will not be converted.\23\
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\22\ Pursuant to the administrative stay of the effectiveness of
the Plan's requirements (and in compliance with the Stay Order as to
the stay applicants), the EPA will not carry out the recalibration
of the bank of 2021-2023 Group 3 allowances that would otherwise
have been scheduled to take place as soon as practicable on or after
August 1, 2024.
\23\ When the Stay Order was issued, to ensure compliance, the
Agency immediately stopped accepting transfers of Group 3 allowances
between accounts. In conjunction with the regulatory revisions being
adopted in this action, the EPA has determined that transfers of
2021-2023 Group 3 allowances between accounts can be accepted again
after all 2024 Group 3 allowances have been recalled. Following the
date of the recall of 2024 Group 3 allowances, account holders will
have a period of approximately 30 days to make any desired transfers
of 2021-2023 Group 3 allowances between accounts before the date of
the conversion of 2021-2023 Group 3 allowances to Group 2
allowances. The EPA intends to notify all account holders regarding
the availability, conditions, and timing of the conversion
opportunity.
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Finally, revisions are needed to two sets of provisions that were
adopted in earlier rules to address situations that could arise after
an EGU transitions from one trading program to another trading program,
because the provisions as previously designed cannot accommodate the
greater complexity of transition patterns necessitated by the Stay
Order. The first set of provisions governs how EGUs that have
transitioned between trading programs may use allowances from later
trading programs to meet surrender requirements for past ozone seasons
under earlier trading programs. The EPA is preserving the core
functionality of these provisions by revising them to employ a simpler
approach under which certain allowances from an EGU's current trading
program may be used to meet certain surrender obligations under a
previous trading program on a 1-for-1 basis. The second set of
provisions governed potential future conversions of allowances that had
been allocated for past ozone seasons but had not yet been recorded.
The potential situation these provisions were designed to address has
never arisen in practice, and the EPA is removing the provisions
instead of revising them.
D. Specific Regulatory Revisions
This section describes the specific regulatory amendments that the
EPA is adopting to carry out the Agency's response to the Stay Order.
Supplementing the descriptions in this section, the EPA is also adding
documents to the docket showing all the regulatory revisions that are
being adopted in this action in redline-strikeout format.
The principal amendment to 40 CFR part 52 that the EPA is adopting
to stay the effectiveness of the Good Neighbor Plan's requirements for
non-EGU sources within the borders of California, Illinois, Indiana,
Maryland, Michigan, New Jersey, New York, Ohio, Pennsylvania, and
Virginia is a revision to the existing provision at Sec. 52.40(c)(4),
which under the First and Second Interim Final Rules stayed the
effectiveness of the Plan's requirements for non-EGU sources within the
borders of Arkansas, Kentucky, Louisiana, Mississippi, Missouri,
Nevada, Oklahoma, Texas, Utah, and West Virginia.\24\ The revision in
this action expands the provision's list of states to include the
remaining ten states where requirements for non-EGU sources would
otherwise apply under the Plan as promulgated. In addition, parallel
provisions staying the effectiveness of the Plan's requirements for
non-EGU sources are being added to the state-specific subparts of part
52 for each of the relevant states.\25\
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\24\ See 88 FR 49297-98; 88 FR 67104.
\25\ See Sec. Sec. 52.284(b) (California), 52.731(c)(2)
(Illinois), 52.789(c)(2) (Indiana), 52.1084(c)(2) (Maryland),
52.1186(f)(2) (Michigan), 52.1584(f)(2) (New Jersey), 52.1684(c)(2)
(New York), 52.1882(c)(2) (Ohio), 52.2040(c)(2) (Pennsylvania), and
52.2440(c)(2) (Virginia).
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The amendments to 40 CFR parts 52 and 97 that the EPA is adopting
to stay the effectiveness of the Good Neighbor Plan's requirements for
EGUs within the borders of Illinois, Indiana, Maryland, Michigan, New
Jersey, New York, Ohio, Pennsylvania, Virginia, and Wisconsin while
ensuring continued implementation of requirements established to
address good neighbor obligations under rules promulgated before the
Plan include the following:
<bullet> New provisions are being added at Sec.
52.38(b)(2)(iii)(D)(5) and (4) to stay the effectiveness of
requirements for EGUs within the borders of Wisconsin and the other
nine states, respectively, to participate in the Group 3 trading
program for ozone seasons after 2023, and the existing provisions at
Sec. 52.38(b)(2)(ii)(D)(2) and (1), which require EGUs within the
borders of most states covered by the First and Second Interim Final
Rules to participate in the Group 2 trading program while the
effectiveness of the Plan's requirements is stayed,\26\ are being
revised to extend the provisions to EGUs within the borders of
Wisconsin and the other nine states, respectively. Parallel provisions
are also being added to the state-specific subparts of part 52 for each
of the relevant states.\27\
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\26\ The provisions at Sec. 52.38(b)(2)(ii)(D) do not apply to
EGUs within the borders of Minnesota, Nevada, or Utah because these
EGUs are not subject to previously established requirements to
mitigate interstate air pollution with respect to other ozone NAAQS.
See 88 FR 67104.
\27\ See Sec. Sec. 52.731(b)(6) (Illinois), 52.789(b)(6)
(Indiana), 52.1084(b)(6) (Maryland), 52.1186(e)(6) (Michigan),
52.1584(e)(6) (New Jersey), 52.1684(b)(6) (New York), 52.1882(b)(6)
(Ohio), 52.2040(b)(6) (Pennsylvania), 52.2440(b)(6) (Virginia), and
52.2587(e)(6) (Wisconsin).
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<bullet> The existing provisions at Sec. 52.38(b)(2)(ii)(D)(1) and
(b)(16)(ii)(A), which apply to states covered by the Revised CSAPR
Update and the Plan as originally promulgated and address, among other
things, the effects of SIP revisions approved to modify or replace the
federal Group 2 trading program regulations, are being revised to
provide that for EGUs in states for which the EPA has approved such SIP
revisions, the EPA will administer the trading program in accordance
with the SIP revisions, but only for SIP revisions approved after the
effective date of this rule. The analogous existing provisions at Sec.
52.38(b)(2)(ii)(D)(2) and (b)(16)(ii)(B), which apply to states covered
by the CSAPR Update and the Plan as originally promulgated but not by
the Revised CSAPR Update, will continue to apply with respect to SIP
revisions approved either before or after this rule.
<bullet> The existing provisions at Sec. 97.810(a) and (b), which
identify the amounts of state emissions budgets, new unit set-asides,
Indian country new unit set-asides, and variability limits by state and
ozone season under the Group 2 trading program, are being revised to
provide the same amounts for each of the ten states for ozone seasons
after 2023 as would have been provided under the CSAPR Update or the
Revised CSAPR Update (for Wisconsin or the other nine states,
respectively) in the absence of the Plan. The amounts of the unit-level
allocations of Group 2 allowances from the state emission budgets will
be determined in accordance with Sec. 97.811(a) as previously amended
by the First Interim Final Rule.
<bullet> The existing provisions at Sec. 97.821(e) and (f), which
establish schedules for recording Group 2 allowances in sources'
compliance
[[Page 87965]]
accounts, and the existing provisions at Sec. 97.811(d)(1) and (e)(1),
which governed recalls of 2024 Group 2 allowances during the earlier
transitions of states out of the Group 2 trading program, are being
revised to establish the schedule for recording allocations of the new
2024 Group 2 allowances to be issued in response to the Stay Order and
to more clearly distinguish these newly issued 2024 Group 2 allowances
from the previously issued 2024 Group 2 allowances that were recorded
in 2020 and then recalled during trading program transitions in 2021
and 2023.
<bullet> A new provision is being added at Sec. 97.1011(d) to
recall all 2024 Group 3 allowances previously recorded under the Plan
and currently held in any compliance account or general account. To
preserve the substantive effect of transfers and deductions of 2024
Group 3 allowances that occurred before issuance of the Stay Order and
this recall, the revised recordation provision at Sec. 97.821(e)(3)
requires corresponding positive or negative adjustments to be made to
the quantities of the newly issued 2024 Group 2 allowances that will be
recorded in the relevant sources' compliance accounts.
<bullet> A new provision is being added at Sec. 97.1026(e)(2) \28\
to convert all banked 2021-2023 Group 2 allowances that as of the
conversion date are held in the compliance accounts of EGUs within the
borders of the ten states to Original Group 2 allowances or Expanded
Group 2 allowances (for EGUs within the borders of Wisconsin or the
other nine states, respectively) on a 1-for-1 basis.
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\28\ The previous Sec. 97.1026(e)(2) is being redesignated as
Sec. 97.1026(e)(1)(ii).
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<bullet> The existing provisions at Sec. Sec. 97.526(e),
97.826(f), and 97.1026(f), which address how EGUs that have
transitioned between trading programs may use allowances from later
trading programs to meet surrender requirements for past ozone seasons
under earlier trading programs, are being revised to prospectively
apply a uniform approach where certain allowances from an EGU's current
trading program may be used for this purpose on a 1-for-1 basis.
<bullet> The existing provisions at Sec. Sec. 97.526(d)(2) and
97.826(d)(3) and (e)(2), which addressed potential future conversions
of not-yet-recorded allowances that have been allocated for a past
ozone season under one trading program to EGUs that have transitioned
to another trading program, are being removed.
<bullet> The existing provisions at Sec. Sec. 97.830(b)(1) and
97.834(d)(2)(i), which establish deadlines for affected units to
commence monitoring and reporting activities under the Group 2 trading
program, are being revised to provide each affected EGU within the
borders of the ten states the same deadlines as would have applied to
that EGU in the absence of the Plan.
<bullet> Conforming updates and other minor technical corrections
are being made as necessary to the provisions at Sec. Sec.
52.38(b)(14)(iii), 97.806(c)(4)(iv), 97.824(c)(2)(ii), 97.826(b) and
(e)(1), 97.1024(c)(2)(ii), and 97.1026(b) and (e)(1) and several
definitions in Sec. Sec. 97.502, 97.802, and 97.1002, as well as to
the provisions identified in previous items in this list.
III. Rulemaking Procedures and Findings of Good Cause
The EPA's authority for the rulemaking procedures followed in this
action is provided by 5 U.S.C. 553.\29\ In general, an agency issuing a
rule under the procedures in section 553 must provide prior notice and
an opportunity for public comment, but section 553(b)(B) includes an
exemption from notice-and-comment requirements ``when the agency for
good cause finds (and incorporates the finding and a brief statement of
reasons therefor in the rule issued) that notice and public procedure
thereon are impracticable, unnecessary, or contrary to the public
interest.'' This action is being issued as an interim final rule
without prior notice or opportunity for public comment because the EPA
finds that the APA ``good cause'' exemption from notice-and-comment
requirements applies here.
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\29\ Under CAA section 307(d)(1)(B), the EPA's revision of a FIP
under CAA section 110(c) would normally be subject to the rulemaking
procedural requirements of CAA section 307(d), including notice-and-
comment procedures, but CAA section 307(d) does not apply ``in the
case of any rule or circumstance referred to in subparagraphs (A) or
(B) of [5 U.S.C. 553(b)].'' CAA section 307(d)(1).
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The basis for the finding of good cause is that following notice-
and-comment procedures is unnecessary and impracticable for this
action. With respect to the scope of the administrative stay being
implemented in this action, the EPA has no discretion to enforce the
Good Neighbor Plan's requirements against emissions sources located in
applicant states or owned or operated by applicant industry entities
while the Stay Order remains in effect. Further, as explained in
section II.B. of this document, continuing to enforce the Plan's
requirements against any sources owned and operated by non-applicants
and using the applicability criterion of whether a given source is or
is not owned or operated by a member of an applicant trade association
to distinguish covered sources from noncovered sources is not a
practicable option to comply with the Stay Order. With respect to the
regulatory revisions that provide an alternate mechanism for EGUs in
states where the Plan is newly stayed to continue to address the
states' good neighbor obligations with respect to other ozone NAAQS,
while some superficial discretion exists concerning the specific design
of the regulatory revisions, no discretion exists as to the function of
that design, which is to restore requirements substantively identical
to those that would have applied in the absence of the Plan. As
explained in section II.C. of this document, the EPA's design for the
regulatory revisions in this action accomplishes this function. Taking
comment so as to allow the public to advocate for not staying the
effectiveness of the Good Neighbor Plan's requirements, not adopting
regulatory revisions needed to implement requirements substantively
identical to those that would have applied in the absence of the Plan,
or adopting superficially different regulatory revisions to accomplish
the same function would serve no purpose and is therefore unnecessary.
Following notice-and-comment procedures for this action would also
be impracticable. Even though no specific statutory or judicial
deadline applies, this action nevertheless needs to be completed
quickly to provide clarity to the regulated community about the
regulatory requirements that apply during a stay and to ensure that
states' good neighbor obligations with respect to the 2008 ozone NAAQS
continue to be met. The EPA has acted expeditiously to respond to the
Stay Order. If the contents of this action were instead issued in the
form of a proposal subject to notice-and-comment procedures, the
comment period and the time needed after the close of the comment
period to review any comments, prepare responses, and draft and review
a final rule would likely require at least 90 additional days,
extending the period before parties would know their regulatory
requirements to six months or more after the issuance of the Stay
Order.
The regulatory revisions made in this action will take effect
immediately upon publication of the action in the Federal Register. In
general, an agency issuing a rule under 5 U.S.C. 553 must provide for a
period of at least 30 days between the rule's dates of publication and
effectiveness, but section 553(d) specifies several exceptions to that
general requirement, including two that apply to this action.
[[Page 87966]]
First, under section 553(d)(1), an exception applies to a rule that
``grants or recognizes an exemption or relieves a restriction.''
Because the portions of this action that stay the effectiveness of the
Plan's requirements for emissions sources in certain states grant or
recognize an exemption (on an interim basis while the Stay Order
remains in place), the normal 30-day minimum period between this
action's dates of publication and effectiveness is not required. The
EPA is making these portions of the action effective as of the action's
publication date to comply with the Stay Order in a timely manner.
Second, under section 553(d)(3), the normal 30-day minimum period
between a rule's dates of publication and effectiveness does not apply
``as otherwise provided by the agency for good cause found and
published with the rule.'' With respect to the portions of this action
that provide an alternate mechanism for EGUs in states where the Plan
is newly stayed to continue to address the states' good neighbor
obligations under rules issued before the Plan, the EPA finds good
cause to make the regulatory revisions effective as of the action's
publication date for the following reasons. First, these regulatory
revisions benefit the public by avoiding the possibility that
interruption of the previously established requirements would cause air
quality degradation. Second, these regulatory revisions benefit the
regulated community by clarifying the regulatory requirements that
apply in light of the Stay Order. Finally, making these regulatory
revisions effective less than 30 days after this action's publication
date does not conflict with the purpose of the normal requirement for a
30-day minimum period, which is ``to give affected parties a reasonable
time to adjust their behavior before the final rule takes effect.''
\30\ The regulatory revisions in this action ensuring the continued
achievement of states' previously established good neighbor obligations
impose no requirements on any emissions source that differ
substantively from the requirements that would have applied to that
source in the absence of the Plan. Thus, no affected party needs time
to adjust its behavior in preparation for these regulatory revisions.
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\30\ Omnipoint Corporation v. FCC, 78 F.3d 620, 630 (D.C. Cir.
1996).
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IV. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at <a href="https://www.epa.gov/laws-regulations/laws-and-executive-orders">https://www.epa.gov/laws-regulations/laws-and-executive-orders</a>.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 14094: Modernizing Regulatory Review
This action is a significant regulatory action as defined in
Executive Order 12866, as amended by Executive Order 14094.
Accordingly, the EPA submitted this action to the Office of Management
and Budget (OMB) for Executive Order 12866 review. Documentation of any
changes made in response to the Executive Order 12866 review is
available in the docket.
B. Paperwork Reduction Act
This action does not impose any new information collection burden
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The OMB has
previously approved the information collection activities that will
apply to the EGUs affected by this action and has assigned OMB control
numbers 2060-0258, 2060-0667, and 2060-0745. Additional information
collection activities that will apply to non-EGU sources under the Good
Neighbor Plan have been submitted to the OMB for approval in
conjunction with that rulemaking. This action makes no changes to the
information collection activities under the previously approved
information collection requests (ICRs) for EGUs or the additional
information collection activities for which approval has been requested
in the Plan's ICR for non-EGU sources.
C. Regulatory Flexibility Act
This action is not subject to the Regulatory Flexibility Act (RFA),
5 U.S.C. 601-612. The RFA applies only to rules subject to notice-and-
comment rulemaking requirements under 5 U.S.C. 553 or any other
statute. This rule is not subject to notice-and-comment requirements
because the Agency has invoked the APA ``good cause'' exemption under 5
U.S.C. 553(b)(B).
D. Unfunded Mandates Reform Act
This action does not contain any unfunded mandate as described in
the Unfunded Mandates Reform Act, 2 U.S.C. 1531-1538, and does not
significantly or uniquely affect small governments. This action imposes
no enforceable duty on any state, local, or tribal governments or the
private sector. This action simply stays the effectiveness of certain
regulatory requirements for certain emissions sources on an interim
basis in response to a procedural court order while ensuring that
previously applicable regulatory requirements continue to be met.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government. This
action simply stays the effectiveness of certain regulatory
requirements for certain emissions sources on an interim basis in
response to a procedural court order while ensuring that previously
applicable regulatory requirements continue to be met.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175. This action simply stays the effectiveness of
certain regulatory requirements for certain emissions sources on an
interim basis in response to a procedural court order while ensuring
that previously applicable regulatory requirements continue to be met.
Thus, Executive Order 13175 does not apply to this action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action responds to a court
order issued by the United States Supreme Court and the EPA lacks
discretion to deviate from the order. The EPA's assessment of health
and climate benefits for the action establishing the requirements that
are being stayed is discussed in Chapter 5 of the Regulatory Impact
Analysis for the Good Neighbor Plan.\31\
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\31\ See Regulatory Impact Analysis for the Final Federal Good
Neighbor Plan Addressing Regional Ozone Transport for the 2015 Ozone
National Ambient Air Quality Standard, at 197-257 (March 2023) (EPA-
HQ-OAR-2021-0668-1115), available in the docket.
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H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not a ``significant energy action'' because it is
not likely to
[[Page 87967]]
have a significant adverse effect on the supply, distribution, or use
of energy. This action simply stays the effectiveness of certain
regulatory requirements for certain emissions sources on an interim
basis in response to a procedural court order while ensuring that
previously applicable regulatory requirements continue to be met.
I. National Technology Transfer and Advancement Act
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations and
Executive Order 14096: Revitalizing Our Nation's Commitment to
Environmental Justice for All
The EPA believes that this type of action does not concern human
health or environmental conditions and therefore cannot be evaluated
with respect to potentially disproportionate and adverse effects on
communities with environmental justice concerns. This action responds
to a court order issued by the United States Supreme Court and the EPA
lacks discretion to deviate from the order. The EPA's assessment of
environmental justice considerations for the action establishing the
requirements that are being stayed is discussed in section VII. of the
Good Neighbor Plan preamble.\32\
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\32\ See 88 FR 36844-46.
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K. Congressional Review Act
This action is subject to the Congressional Review Act (CRA), 5
U.S.C. 801-808, and the EPA will submit a rule report to each House of
the Congress and to the Comptroller General of the United States. The
CRA allows the issuing agency to make a rule effective sooner than
otherwise provided by the CRA if the agency makes a good cause finding
that notice-and-comment rulemaking procedures are impracticable,
unnecessary, or contrary to the public interest (5 U.S.C. 808(2)). The
EPA has made a good cause finding for this rule as discussed in section
III. of this document, including the basis for that finding.
L. Judicial Review
CAA section 307(b)(1) governs judicial review of final actions by
the EPA. This section provides, in part, that petitions for review must
be filed in the D.C. Circuit (i) when the agency action consists of
``nationally applicable regulations promulgated, or final actions
taken, by the Administrator,'' or (ii) when such action is locally or
regionally applicable, if ``such action is based on a determination of
nationwide scope or effect and if in taking such action the
Administrator finds and publishes that such action is based on such a
determination.'' For locally or regionally applicable final actions
that are based on a determination of nationwide scope or effect, the
CAA reserves to the EPA complete discretion to decide whether to invoke
the provision in (ii).\33\
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\33\ In deciding whether to invoke the exception by making and
publishing a finding that an action is based on a determination of
nationwide scope or effect, the Administrator takes into account a
number of policy considerations, including his judgment balancing
the benefit of obtaining the D.C. Circuit's authoritative
centralized review versus allowing development of the issue in other
contexts and the best use of Agency resources.
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This action is ``nationally applicable'' within the meaning of CAA
section 307(b)(1). In this action, in response to a court order, the
EPA is amending on an interim basis the Good Neighbor Plan,\34\ a
nationally applicable rule that the EPA developed by applying a uniform
legal interpretation and common, nationwide analytical methods to
address the requirements of CAA section 110(a)(2)(D)(i)(I) concerning
interstate transport of pollution (i.e., ``good neighbor''
requirements) for the 2015 ozone NAAQS. Based on that nationwide
analysis, the Good Neighbor Plan established FIP requirements for
emissions sources in 23 states located across eight EPA Regions and ten
federal judicial circuits. Given that this action amends an action
implementing the good neighbor requirements of CAA section
110(a)(2)(D)(i)(I) in a large number of states located across the
country and given the interdependent nature of interstate pollution
transport and the common core of knowledge and analysis involved in
promulgating the FIP requirements, this action is a ``nationally
applicable'' action within the meaning of CAA section 307(b)(1).
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\34\ The Good Neighbor Plan is nationally applicable or based on
a determination of nationwide scope or effect found and published by
the EPA. See 88 FR 36859-60.
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In the alternative, to the extent a court finds this action to be
locally or regionally applicable, the Administrator is exercising the
complete discretion afforded to him under the CAA to make and publish a
finding that this action is based on a determination of ``nationwide
scope or effect'' within the meaning of CAA section 307(b)(1). In this
action, in response to a court order, the EPA is amending on an interim
basis the Good Neighbor Plan, an action in which the EPA interpreted
and applied CAA section 110(a)(2)(D)(i)(I) for the 2015 ozone NAAQS
based on a common core of nationwide policy judgments and technical
analysis concerning the interstate transport of pollutants throughout
the continental United States. Based on that nationwide analysis, the
Good Neighbor Plan established FIP requirements for emissions sources
in 23 states located across eight EPA Regions and ten federal judicial
circuits. In response to a court order, this action temporarily stays
the implementation of the Good Neighbor Plan for emissions sources in
eleven states located across four EPA Regions and six federal judicial
circuits and also implements necessary measures to ensure the status
quo is maintained with respect to existing obligations under previously
issued regulations (that were themselves nationally applicable or based
on a determination of nationwide scope or effect found and published by
the EPA \35\).
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\35\ See 86 FR 23163-64 (Revised CSAPR Update); 81 FR 74585-86
(CSAPR Update).
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The Administrator finds that, like the Good Neighbor Plan, which it
amends, this action is a matter on which national uniformity in
judicial resolution of any petitions for review is desirable, to take
advantage of the D.C. Circuit's administrative law expertise, and to
facilitate the orderly development of the basic law under the Act. The
Administrator also finds that consolidated review of this action in the
D.C. Circuit will avoid piecemeal litigation in the regional circuits,
further judicial economy, and eliminate the risk of inconsistent
results for different states, and that a nationally consistent approach
to the CAA's mandate concerning interstate transport of ozone pollution
constitutes the best use of Agency resources.
For these reasons, this final action is nationally applicable or,
alternatively, the Administrator is exercising the complete discretion
afforded to him by the CAA and finds that this final action is based on
a determination of nationwide scope or effect for purposes of CAA
section 307(b)(1) and is publishing that finding in the Federal
Register. Under CAA section 307(b)(1), petitions for judicial review of
this action must be filed in the D.C. Circuit by January 6, 2025.
List of Subjects
40 CFR Part 52
Environmental protection, Administrative practice and procedure,
Air pollution control, Incorporation by reference, Intergovernmental
relations,
[[Page 87968]]
Nitrogen oxides, Ozone, Particulate matter, Sulfur dioxide.
40 CFR Part 97
Environmental protection, Administrative practice and procedure,
Air pollution control, Electric power plants, Nitrogen oxides, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Sulfur
dioxide.
Michael S. Regan,
Administrator.
For the reasons stated in the preamble, parts 52 and 97 of title 40
of the Code of Federal Regulations are amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart A--General Provisions
0
2. Amend Sec. 52.38 by:
0
a. Revising and republishing paragraphs (b)(2)(ii)(D)(1) introductory
text, (b)(2)(ii)(D)(1)(i), and (b)(2)(ii)(D)(2) introductory text;
0
b. Adding paragraphs (b)(2)(iii)(D)(4) and (5); and
0
c. Revising and republishing paragraphs (b)(14)(iii) and (b)(16)(ii).
The revisions, republications, and additions read as follows:
Sec. 52.38 What are the requirements of the Federal Implementation
Plans (FIPs) for the Cross-State Air Pollution Rule (CSAPR) relating to
emissions of nitrogen oxides?
* * * * *
(b) * * *
(2) * * *
(ii) * * *
(D) * * *
(1) While a stay under paragraph (b)(2)(iii)(D)(1) or (4) of this
section is in effect for the sources in a State and Indian country
located within the borders of such State with regard to emissions
occurring in a control period in a given year--
(i) The provisions of subpart EEEEE of part 97 of this chapter (as
modified in any approval after November 6, 2024 of a SIP revision for
such State by the Administrator under paragraph (b)(8) of this section)
or the provisions of a SIP revision approved after November 6, 2024 for
such State by the Administrator under paragraph (b)(9) of this section,
if any, shall apply to the sources in such State and areas of Indian
country within the borders of such State subject to the State's SIP
authority, and the provisions of subpart EEEEE of part 97 of this
chapter shall apply to the sources in areas of Indian country within
the borders of such State not subject to the State's SIP authority,
with regard to emissions occurring in such control period; and
* * * * *
(2) While a stay under paragraph (b)(2)(iii)(D)(2) or (5) of this
section is in effect for the sources in a State and Indian country
located within the borders of such State with regard to emissions
occurring in a control period in a given year--
* * * * *
(iii) * * *
(D) * * *
(4) The effectiveness of paragraph (b)(2)(iii)(A) of this section
is stayed for sources in Illinois, Indiana, Maryland, Michigan, New
Jersey, New York, Ohio, Pennsylvania, and Virginia and Indian country
located within the borders of such States with regard to emissions
occurring in 2024 and thereafter. While a stay under this paragraph
(b)(2)(iii)(D)(4) is in effect for a State, such State shall be deemed
not to be listed in paragraph (b)(2)(iii)(A) of this section for
purposes of part 97 of this chapter for a control period after 2023.
(5) The effectiveness of paragraph (b)(2)(iii)(B) of this section
is stayed for sources in Wisconsin and Indian country located within
the borders of such State with regard to emissions occurring in 2024
and thereafter. While a stay under this paragraph (b)(2)(iii)(D)(5) is
in effect for a State, such State shall be deemed not to be listed in
paragraph (b)(2)(iii)(B) of this section for purposes of part 97 of
this chapter for a control period after 2023.
* * * * *
(14) * * *
(iii) Notwithstanding any discontinuation pursuant to paragraph
(b)(2) or (b)(13)(i) of this section of the applicability of subpart
BBBBB, EEEEE, or GGGGG of part 97 of this chapter to the sources in a
State and areas of Indian country within the borders of the State
subject to the State's SIP authority with regard to emissions occurring
in any control period, the following provisions shall continue to apply
with regard to all CSAPR NO<INF>X</INF> Ozone Season Group 1
allowances, CSAPR NO<INF>X</INF> Ozone Season Group 2 allowances, and
CSAPR NO<INF>X</INF> Ozone Season Group 3 allowances at any time
allocated for any control period to any source or other entity in the
State and areas of Indian country within the borders of the State
subject to the State's SIP authority and shall apply to all entities,
wherever located, that at any time held or hold such allowances:
(A) The provisions of Sec. Sec. 97.526(c), 97.826(c), and
97.1026(c) of this chapter (concerning the transfer of CSAPR
NO<INF>X</INF> Ozone Season Group 1 allowances, CSAPR NO<INF>X</INF>
Ozone Season Group 2 allowances, and CSAPR NO<INF>X</INF> Ozone Season
Group 3 allowances between certain Allowance Management System accounts
under common control);
(B) The provisions of Sec. Sec. 97.526(d), 97.826(d) and (e), and
97.1026(e) of this chapter (concerning the conversion of allowances of
one type into allowances of another type, in the same or different
quantities and issued for the same or different control periods,
including conversions among CSAPR NO<INF>X</INF> Ozone Season Group 1
allowances, CSAPR NO<INF>X</INF> Ozone Season Original Group 2
allowances, CSAPR NO<INF>X</INF> Ozone Season Expanded Group 2
allowances, and CSAPR NO<INF>X</INF> Ozone Season Group 3 allowances);
and
(C) The provisions of Sec. Sec. 97.811(d) and (e) and 97.1011(d)
of this chapter (concerning the recall of certain CSAPR NO<INF>X</INF>
Ozone Season Original Group 2 allowances and CSAPR NO<INF>X</INF> Ozone
Season Group 3 allowances).
* * * * *
(16) * * *
(ii)(A) Notwithstanding any provision of subpart EEEEE of part 97
of this chapter or any State's SIP, with regard to any State listed in
paragraph (b)(2)(ii)(B) of this section and any control period that
begins after December 31, 2020, the Administrator will not carry out
any of the functions set forth for the Administrator in subpart EEEEE
of part 97 of this chapter or in any emissions trading program
provisions in a State's SIP approved under paragraph (b)(8) or (9) of
this section, except as otherwise provided in paragraph
(b)(2)(ii)(D)(1) or (b)(14)(iii) of this section.
(B) Notwithstanding any provision of subpart EEEEE of part 97 of
this chapter or any State's SIP, with regard to any State listed in
paragraph (b)(2)(ii)(C) of this section and any control period that
begins after December 31, 2022, the Administrator will not carry out
any of the functions set forth for the Administrator in subpart EEEEE
of part 97 of this chapter or in any emissions trading program
provisions in a State's SIP approved under paragraph (b)(8) or (9) of
this section, except as otherwise provided in paragraph
(b)(2)(ii)(D)(2) or (b)(14)(iii) of this section.
* * * * *
0
3. Amend Sec. 52.40 by revising and republishing paragraph (c)(4) to
read as follows:
[[Page 87969]]
Sec. 52.40 What are the requirements of the Federal Implementation
Plans (FIPs) relating to ozone season emissions of nitrogen oxides from
sources not subject to the CSAPR ozone season trading program?
* * * * *
(c) * * *
(4) Notwithstanding any other provision of this part, the
effectiveness of paragraphs (a) and (b), (c)(1) through (3), and (d)
through (g) of this section and Sec. Sec. 52.41 through 52.46 is
stayed for sources located in Arkansas, California, Illinois, Indiana,
Kentucky, Louisiana, Maryland, Michigan, Mississippi, Missouri, Nevada,
New Jersey, New York, Ohio, Oklahoma, Pennsylvania, Texas, Utah,
Virginia, and West Virginia, including Indian country located within
the borders of such States.
* * * * *
Subpart F--California
0
4. Amend Sec. 52.284 by redesignating the text as paragraph (a) and
adding paragraph (b) to read as follows:
Sec. 52.284 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
* * * * *
(b) Notwithstanding any other provision of this part, the
effectiveness of paragraph (a) of this section is stayed.
Subpart O--Illinois
0
5. Amend Sec. 52.731 by:
0
a. Adding paragraph (b)(6); and
0
b. Redesignating paragraph (c) as paragraph (c)(1) and adding paragraph
(c)(2).
The additions read as follows:
Sec. 52.731 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
* * * * *
(b) * * *
(6) Notwithstanding any other provision of this part, the
effectiveness of paragraph (b)(3) of this section is stayed with regard
to emissions occurring in 2024 and thereafter, provided that while such
stay remains in effect, the provisions of paragraph (b)(2) of this
section shall apply with regard to such emissions.
(c) * * *
(2) Notwithstanding any other provision of this part, the
effectiveness of paragraph (c)(1) of this section is stayed.
Subpart P--Indiana
0
6. Amend Sec. 52.789 by:
0
a. Adding paragraph (b)(6); and
0
b. Redesignating paragraph (c) as paragraph (c)(1) and adding paragraph
(c)(2).
The additions read as follows:
Sec. 52.789 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
* * * * *
(b) * * *
(6) Notwithstanding any other provision of this part, the
effectiveness of paragraph (b)(3) of this section is stayed with regard
to emissions occurring in 2024 and thereafter, provided that while such
stay remains in effect, the provisions of paragraph (b)(2) of this
section shall apply with regard to such emissions.
(c) * * *
(2) Notwithstanding any other provision of this part, the
effectiveness of paragraph (c)(1) of this section is stayed.
Subpart V--Maryland
0
7. Amend Sec. 52.1084 by:
0
a. Adding paragraph (b)(6); and
0
b. Redesignating paragraph (c) as paragraph (c)(1) and adding paragraph
(c)(2).
The additions read as follows:
Sec. 52.1084 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
* * * * *
(b) * * *
(6) Notwithstanding any other provision of this part, the
effectiveness of paragraph (b)(3) of this section is stayed with regard
to emissions occurring in 2024 and thereafter, provided that while such
stay remains in effect, the provisions of paragraph (b)(2) of this
section shall apply with regard to such emissions.
(c) * * *
(2) Notwithstanding any other provision of this part, the
effectiveness of paragraph (c)(1) of this section is stayed.
Subpart X--Michigan
0
8. Amend Sec. 52.1186 by:
0
a. Adding paragraph (e)(6); and
0
b. Redesignating paragraph (f) as paragraph (f)(1) and adding paragraph
(f)(2).
The additions read as follows:
Sec. 52.1186 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
* * * * *
(e) * * *
(6) Notwithstanding any other provision of this part, the
effectiveness of paragraph (e)(3) of this section is stayed with regard
to emissions occurring in 2024 and thereafter, provided that while such
stay remains in effect, the provisions of paragraph (e)(2) of this
section shall apply with regard to such emissions.
(f) * * *
(2) Notwithstanding any other provision of this part, the
effectiveness of paragraph (f)(1) of this section is stayed.
Subpart FF--New Jersey
0
9. Amend Sec. 52.1584 by:
0
a. Adding paragraph (e)(6); and
0
b. Redesignating paragraph (f) as paragraph (f)(1) and adding paragraph
(f)(2).
The additions read as follows:
Sec. 52.1584 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
* * * * *
(e) * * *
(6) Notwithstanding any other provision of this part, the
effectiveness of paragraph (e)(3) of this section is stayed with regard
to emissions occurring in 2024 and thereafter, provided that while such
stay remains in effect, the provisions of paragraph (e)(2) of this
section shall apply with regard to such emissions.
(f) * * *
(2) Notwithstanding any other provision of this part, the
effectiveness of paragraph (f)(1) of this section is stayed.
Subpart HH--New York
0
10. Amend Sec. 52.1684 by:
0
a. Adding paragraph (b)(6); and
0
b. Redesignating paragraph (c) as paragraph (c)(1) and adding paragraph
(c)(2).
The additions read as follows:
Sec. 52.1684 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
* * * * *
(b) * * *
(6) Notwithstanding any other provision of this part, the
effectiveness of paragraph (b)(3) of this section is stayed with regard
to emissions occurring in 2024 and thereafter, provided that while such
stay remains in effect, the provisions of paragraph (b)(2) of this
section shall apply with regard to such emissions.
[[Page 87970]]
(c) * * *
(2) Notwithstanding any other provision of this part, the
effectiveness of paragraph (c)(1) of this section is stayed.
Subpart KK--Ohio
0
11. Amend Sec. 52.1882 by:
0
a. Adding paragraph (b)(6); and
0
b. Redesignating paragraph (c) as paragraph (c)(1) and adding paragraph
(c)(2).
The additions read as follows:
Sec. 52.1882 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
* * * * *
(b) * * *
(6) Notwithstanding any other provision of this part, the
effectiveness of paragraph (b)(3) of this section is stayed with regard
to emissions occurring in 2024 and thereafter, provided that while such
stay remains in effect, the provisions of paragraph (b)(2) of this
section shall apply with regard to such emissions.
(c) * * *
(2) Notwithstanding any other provision of this part, the
effectiveness of paragraph (c)(1) of this section is stayed.
Subpart NN--Pennsylvania
0
12. Amend Sec. 52.2040 by:
0
a. Adding paragraph (b)(6); and
0
b. Redesignating paragraph (c) as paragraph (c)(1) and adding paragraph
(c)(2).
The additions read as follows:
Sec. 52.2040 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
* * * * *
(b) * * *
(6) Notwithstanding any other provision of this part, the
effectiveness of paragraph (b)(3) of this section is stayed with regard
to emissions occurring in 2024 and thereafter, provided that while such
stay remains in effect, the provisions of paragraph (b)(2) of this
section shall apply with regard to such emissions.
(c) * * *
(2) Notwithstanding any other provision of this part, the
effectiveness of paragraph (c)(1) of this section is stayed.
Subpart VV--Virginia
0
13. Amend Sec. 52.2440 by:
0
a. Adding paragraph (b)(6); and
0
b. Redesignating paragraph (c) as paragraph (c)(1) and adding paragraph
(c)(2).
The additions read as follows:
Sec. 52.2440 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
* * * * *
(b) * * *
(6) Notwithstanding any other provision of this part, the
effectiveness of paragraph (b)(3) of this section is stayed with regard
to emissions occurring in 2024 and thereafter, provided that while such
stay remains in effect, the provisions of paragraph (b)(2) of this
section shall apply with regard to such emissions.
(c) * * *
(2) Notwithstanding any other provision of this part, the
effectiveness of paragraph (c)(1) of this section is stayed.
Subpart YY--Wisconsin
0
14. Amend Sec. 52.2587 by adding paragraph (e)(6) to read as follows:
Sec. 52.2587 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
* * * * *
(e) * * *
(6) Notwithstanding any other provision of this part, the
effectiveness of paragraph (e)(3) of this section is stayed with regard
to emissions occurring in 2024 and thereafter, provided that while such
stay remains in effect, the provisions of paragraph (e)(2) of this
section shall apply with regard to such emissions.
PART 97--FEDERAL NOX BUDGET TRADING PROGRAM, CAIR NOX AND SO2
TRADING PROGRAMS, CSAPR NOX AND SO2 TRADING PROGRAMS, AND TEXAS SO2
TRADING PROGRAM
0
15. The authority citation for part 97 continues to read as follows:
Authority: 42 U.S.C. 7401, 7403, 7410, 7426, 7491, 7601, and
7651, et seq.
Subpart BBBBB--CSAPR NOX Ozone Season Group 1 Trading Program
0
16. Amend Sec. 97.502 by revising and republishing the definitions of
``CSAPR NO<INF>X</INF> Ozone Season Expanded Group 2 allowance'',
``CSAPR NO<INF>X</INF> Ozone Season Group 2 allowance'', and ``CSAPR
NO<INF>X</INF> Ozone Season Group 3 allowance'' to read as follows:
Sec. 97.502 Definitions.
* * * * *
CSAPR NOX Ozone Season Expanded Group 2 allowance means a CSAPR
NO<INF>X</INF> Ozone Season Group 2 allowance allocated for a control
period after 2022 under subpart EEEEE of this part or Sec.
97.1026(e)(1)(ii) or (e)(2)(ii) to a unit in a State listed in Sec.
52.38(b)(2)(ii)(D)(1) of this chapter (and Indian country within the
borders of such a State) or allocated or auctioned for a control period
after 2022 in accordance with the provisions of a SIP revision approved
after November 6, 2024 for such a State by the Administrator under
Sec. 52.38(b)(7), (8), or (9) of this chapter.
* * * * *
CSAPR NOX Ozone Season Group 2 allowance means a limited
authorization issued and allocated or auctioned by the Administrator
under subpart EEEEE of this part, Sec. 97.526, or Sec. 97.1026, or by
a State or permitting authority under a SIP revision approved by the
Administrator under Sec. 52.38(b)(7), (8), or (9) of this chapter, to
emit one ton of NO<INF>X</INF> during a control period of the specified
calendar year for which the authorization is allocated or auctioned or
of any calendar year thereafter under the CSAPR NO<INF>X</INF> Ozone
Season Group 2 Trading Program, where each CSAPR NO<INF>X</INF> Ozone
Season Group 2 allowance is either a CSAPR NO<INF>X</INF> Ozone Season
Original Group 2 allowance or a CSAPR NO<INF>X</INF> Ozone Season
Expanded Group 2 allowance.
* * * * *
CSAPR NOX Ozone Season Group 3 allowance means a limited
authorization issued and allocated or auctioned by the Administrator
under subpart GGGGG of this part or Sec. 97.826, or by a State or
permitting authority under a SIP revision approved by the Administrator
under Sec. 52.38(b)(10), (11), or (12) of this chapter, to emit one
ton or less of NO<INF>X</INF> during a control period of the specified
calendar year for which the authorization is allocated or auctioned or
of any calendar year thereafter under the CSAPR NO<INF>X</INF> Ozone
Season Group 3 Trading Program.
* * * * *
0
17. Amend Sec. 97.526 by:
0
a. Removing and reserving paragraph (d)(2);
0
b. Revising and republishing paragraphs (e)(1) through (3); and
0
c. Adding paragraphs (e)(4) through (6).
The revisions, republications, and additions read as follows:
Sec. 97.526 Banking and conversion.
* * * * *
(e) * * *
(1) After the Administrator has carried out the procedures set
forth in
[[Page 87971]]
paragraph (d)(1) of this section and before November 6, 2024, the owner
or operator of a CSAPR NO<INF>X</INF> Ozone Season Group 1 source in a
State listed in Sec. 52.38(b)(2)(i)(B) of this chapter (and Indian
country within the borders of such a State) may satisfy a requirement
to hold a given number of CSAPR NO<INF>X</INF> Ozone Season Group 1
allowances for the control period in 2015 or 2016 by holding instead,
in a general account established for this sole purpose, an amount of
CSAPR NO<INF>X</INF> Ozone Season Original Group 2 allowances for the
control period in 2017 (or any later control period for which the
allowance transfer deadline defined in Sec. 97.802 has passed)
computed as the quotient, rounded up to the nearest allowance, of such
given number of CSAPR NO<INF>X</INF> Ozone Season Group 1 allowances
divided by the conversion factor determined under paragraph (d)(1)(ii)
of this section.
(2)(i) Except as provided in paragraph (e)(2)(ii) of this section,
after the Administrator has carried out the procedures set forth in
paragraph (d)(1) of this section and Sec. 97.826(d)(1) and before
November 6, 2024, the owner or operator of a CSAPR NO<INF>X</INF> Ozone
Season Group 1 source in a State listed in Sec. 52.38(b)(2)(ii)(B) of
this chapter (and Indian country within the borders of such a State)
may satisfy a requirement to hold a given number of CSAPR
NO<INF>X</INF> Ozone Season Group 1 allowances for the control period
in 2015 or 2016 by holding instead, in a general account established
for this sole purpose, an amount of CSAPR NO<INF>X</INF> Ozone Season
Group 3 allowances for the control period in 2021 (or any later control
period for which the allowance transfer deadline defined in Sec.
97.1002 has passed) computed as the quotient, rounded up to the nearest
allowance, of such given number of CSAPR NO<INF>X</INF> Ozone Season
Group 1 allowances divided by the conversion factor determined under
paragraph (d)(1)(ii) of this section and further divided by the
conversion factor determined under Sec. 97.826(d)(1)(i)(D).
(ii) After the Administrator has carried out the procedures set
forth in paragraph (d)(1) of this section and Sec. Sec. 97.826(d)(1)
and 97.1026(e)(1) and before November 6, 2024, the owner or operator of
a CSAPR NO<INF>X</INF> Ozone Season Group 1 source in a State listed in
Sec. 52.38(b)(2)(iii)(D)(1) of this chapter (and Indian country within
the borders of such a State) may satisfy a requirement to hold a given
number of CSAPR NO<INF>X</INF> Ozone Season Group 1 allowances for the
control period in 2015 or 2016 by holding instead, in a general account
established for this sole purpose, an amount of CSAPR NO<INF>X</INF>
Ozone Season Expanded Group 2 allowances for the control period in 2021
(or any later control period for which the allowance transfer deadline
defined in Sec. 97.802 has passed) computed as the quotient, rounded
up to the nearest allowance, of such given number of CSAPR
NO<INF>X</INF> Ozone Season Group 1 allowances divided by the
conversion factor determined under paragraph (d)(1)(ii) of this section
and further divided by the conversion factor determined under Sec.
97.826(d)(1)(i)(D).
(3) After the Administrator has carried out the procedures set
forth in paragraph (d)(1) of this section and Sec. 97.826(e)(1) and
before November 6, 2024, the owner or operator of a CSAPR
NO<INF>X</INF> Ozone Season Group 1 source in a State listed in Sec.
52.38(b)(2)(ii)(C) of this chapter and not listed in Sec.
52.38(b)(2)(iii)(D)(2) of this chapter (and Indian country within the
borders of such a State) may satisfy a requirement to hold a given
number of CSAPR NO<INF>X</INF> Ozone Season Group 1 allowances for the
control period in 2015 or 2016 by holding instead, in a general account
established for this sole purpose, an amount of CSAPR NO<INF>X</INF>
Ozone Season Group 3 allowances for the control period in 2023 (or any
later control period for which the allowance transfer deadline defined
in Sec. 97.1002 has passed) computed as the quotient, rounded up to
the nearest allowance, of such given number of CSAPR NO<INF>X</INF>
Ozone Season Group 1 allowances divided by the conversion factor
determined under paragraph (d)(1)(ii) of this section and further
divided by the conversion factor determined under Sec.
97.826(e)(1)(ii).
(4) On or after November 6, 2024, the owner or operator of a source
subject to the requirements of the CSAPR NO<INF>X</INF> Ozone Season
Group 2 Trading Program for the control period in the current year and
required to demonstrate compliance under such program for such control
period by holding CSAPR NO<INF>X</INF> Ozone Season Original Group 2
allowances may satisfy a requirement to hold a given number of CSAPR
NO<INF>X</INF> Ozone Season Group 1 allowances for the control period
in a previous year for which the allowance transfer deadline defined in
Sec. 97.502 has passed by holding instead in the source's compliance
account an equal number of CSAPR NO<INF>X</INF> Ozone Season Original
Group 2 allowances for the control period in the current year.
(5) On or after November 6, 2024, the owner or operator of a source
subject to the requirements of the CSAPR NO<INF>X</INF> Ozone Season
Group 2 Trading Program for the control period in the current year and
required to demonstrate compliance under such program for such control
period by holding CSAPR NO<INF>X</INF> Ozone Season Expanded Group 2
allowances may satisfy a requirement to hold a given number of CSAPR
NO<INF>X</INF> Ozone Season Group 1 allowances for the control period
in a previous year for which the allowance transfer deadline defined in
Sec. 97.502 has passed by holding instead in the source's compliance
account an equal number of CSAPR NO<INF>X</INF> Ozone Season Expanded
Group 2 allowances for the control period in the current year.
(6) On or after November 6, 2024, the owner or operator of a source
subject to the requirements of the CSAPR NO<INF>X</INF> Ozone Season
Group 3 Trading Program for the control period in the current year may
satisfy a requirement to hold a given number of CSAPR NO<INF>X</INF>
Ozone Season Group 1 allowances for the control period in a previous
year for which the allowance transfer deadline defined in Sec. 97.502
has passed by holding instead in the source's compliance account an
equal number of CSAPR NO<INF>X</INF> Ozone Season Group 3 allowances
for the control period in the current year.
Subpart EEEEE--CSAPR NOX Ozone Season Group 2 Trading Program
0
18. Amend Sec. 97.802 by revising and republishing the introductory
text for the definition of ``Allocate or allocation'', paragraph (2) of
the definition of ``Common designated representative's assurance
level'', and the definitions of ``CSAPR NO<INF>X</INF> Ozone Season
Expanded Group 2 allowance'', ``CSAPR NO<INF>X</INF> Ozone Season Group
2 allowance'', and ``CSAPR NO<INF>X</INF> Ozone Season Group 3
allowance'' to read as follows:
Sec. 97.802 Definitions.
* * * * *
Allocate or allocation means, with regard to CSAPR NO<INF>X</INF>
Ozone Season Group 2 allowances, the determination by the
Administrator, State, or permitting authority, in accordance with this
subpart, Sec. Sec. 97.526 and 97.1026, and any SIP revision submitted
by the State and approved by the Administrator under Sec. 52.38(b)(7),
(8), or (9) of this chapter, of the amount of such CSAPR NO<INF>X</INF>
Ozone Season Group 2 allowances to be initially credited, at no cost to
the recipient, to:
* * * * *
Common designated representative's assurance level * * *
(2) Provided that the allocations of CSAPR NO<INF>X</INF> Ozone
Season Group 2 allowances for any control period taken
[[Page 87972]]
into account for purposes of this definition shall exclude any CSAPR
NO<INF>X</INF> Ozone Season Group 2 allowances allocated for such
control period under Sec. 97.526 or Sec. 97.1026.
* * * * *
CSAPR NOX Ozone Season Expanded Group 2 allowance means a CSAPR
NO<INF>X</INF> Ozone Season Group 2 allowance allocated for a control
period after 2022 under this subpart or Sec. 97.1026(e)(1)(ii) or
(e)(2)(ii) to a unit in a State listed in Sec. 52.38(b)(2)(ii)(D)(1)
of this chapter (and Indian country within the borders of such a State)
or allocated or auctioned for a control period after 2022 in accordance
with the provisions of a SIP revision approved after November 6, 2024
for such a State by the Administrator under Sec. 52.38(b)(7), (8), or
(9) of this chapter.
CSAPR NOX Ozone Season Group 2 allowance means a limited
authorization issued and allocated or auctioned by the Administrator
under this subpart, Sec. 97.526, or Sec. 97.1026, or by a State or
permitting authority under a SIP revision approved by the Administrator
under Sec. 52.38(b)(7), (8), or (9) of this chapter, to emit one ton
of NO<INF>X</INF> during a control period of the specified calendar
year for which the authorization is allocated or auctioned or of any
calendar year thereafter under the CSAPR NO<INF>X</INF> Ozone Season
Group 2 Trading Program, where each CSAPR NO<INF>X</INF> Ozone Season
Group 2 allowance is either a CSAPR NO<INF>X</INF> Ozone Season
Original Group 2 allowance or a CSAPR NO<INF>X</INF> Ozone Season
Expanded Group 2 allowance.
* * * * *
CSAPR NOX Ozone Season Group 3 allowance means a limited
authorization issued and allocated or auctioned by the Administrator
under subpart GGGGG of this part or Sec. 97.826, or by a State or
permitting authority under a SIP revision approved by the Administrator
under Sec. 52.38(b)(10), (11), or (12) of this chapter, to emit one
ton or less of NO<INF>X</INF> during a control period of the specified
calendar year for which the authorization is allocated or auctioned or
of any calendar year thereafter under the CSAPR NO<INF>X</INF> Ozone
Season Group 3 Trading Program.
* * * * *
0
19. Amend Sec. 97.806 by revising and republishing paragraph
(c)(4)(iv) to read as follows:
Sec. 97.806 Standard requirements.
* * * * *
(c) * * *
(4) * * *
(iv) A CSAPR NO<INF>X</INF> Ozone Season Group 2 allowance held for
compliance with the requirements under paragraphs (c)(1)(i),
(c)(1)(ii)(A), and (c)(2)(i) through (iii) of this section for a source
or group of sources in a State listed in Sec. 52.38(b)(2)(ii)(D)(1) of
this chapter (and Indian country within the borders of such a State)
for a control period after 2022 must be a CSAPR NO<INF>X</INF> Ozone
Season Expanded Group 2 allowance.
* * * * *
0
20. Amend Sec. 97.810 by:
0
a. Adding paragraphs (a)(4)(iv) through (vi), (a)(5)(iv) through (vi),
(a)(10)(iv) through (vi), (a)(11)(iv) through (vi), (a)(14)(iv) through
(vi), (a)(15)(iv) through (vi), (a)(16)(iv) through (vi), (a)(18)(iv)
through (vi), and (a)(21)(iv) through (vi); and
0
b. Revising and republishing paragraphs (a)(23) and (b)(4), (5), (10),
(11), (14), (15), (16), (18), (21), and (23).
The additions, revisions, and republications read as follows:
Sec. 97.810 State NOX Ozone Season Group 2 trading budgets, new unit
set-asides, Indian country new unit set-asides, and variability limits.
(a) * * *
(4) * * *
(iv) The NO<INF>X</INF> Ozone Season Group 2 trading budget for
2024 and thereafter is 8,059 tons.
(v) The new unit set-aside for 2024 and thereafter is 244 tons.
(vi) [Reserved]
(5) * * *
(iv) The NO<INF>X</INF> Ozone Season Group 2 trading budget for
2024 and thereafter is 9,564 tons.
(v) The new unit set-aside for 2024 and thereafter is 190 tons.
(vi) [Reserved]
* * * * *
(10) * * *
(iv) The NO<INF>X</INF> Ozone Season Group 2 trading budget for
2024 and thereafter is 1,348 tons.
(v) The new unit set-aside for 2024 and thereafter is 122 tons.
(vi) [Reserved]
(11) * * *
(iv) The NO<INF>X</INF> Ozone Season Group 2 trading budget for
2024 and thereafter is 9,786 tons.
(v) The new unit set-aside for 2024 and thereafter is 382 tons.
(vi) The Indian country new unit set-aside for 2024 and thereafter
is 10 tons.
* * * * *
(14) * * *
(iv) The NO<INF>X</INF> Ozone Season Group 2 trading budget for
2024 and thereafter is 1,253 tons.
(v) The new unit set-aside for 2024 and thereafter is 27 tons.
(vi) [Reserved]
(15) * * *
(iv) The NO<INF>X</INF> Ozone Season Group 2 trading budget for
2024 and thereafter is 3,403 tons.
(v) The new unit set-aside for 2024 and thereafter is 167 tons.
(vi) The Indian country new unit set-aside for 2024 and thereafter
is 3 tons.
(16) * * *
(iv) The NO<INF>X</INF> Ozone Season Group 2 trading budget for
2024 and thereafter is 9,773 tons.
(v) The new unit set-aside for 2024 and thereafter is 290 tons.
(vi) [Reserved]
* * * * *
(18) * * *
(iv) The NO<INF>X</INF> Ozone Season Group 2 trading budget for
2024 and thereafter is 8,373 tons.
(v) The new unit set-aside for 2024 and thereafter is 339 tons.
(vi) [Reserved]
* * * * *
(21) * * *
(iv) The NO<INF>X</INF> Ozone Season Group 2 trading budget for
2024 and thereafter is 3,663 tons.
(v) The new unit set-aside for 2024 and thereafter is 150 tons.
(vi) [Reserved]
* * * * *
(23) Wisconsin. (i) The NO<INF>X</INF> Ozone Season Group 2 trading
budget for 2017 through 2022 and for 2024 and thereafter is 7,915 tons.
(ii) The new unit set-aside for 2017 through 2022 and for 2024 and
thereafter is 151 tons.
(iii) The Indian country new unit set-aside for 2017 through 2022
and for 2024 and thereafter is 8 tons.
(b) * * *
(4)(i) The variability limit for Illinois for 2017 through 2020 is
3,066 tons.
(ii) The variability limit for Illinois for 2024 and thereafter is
1,692 tons.
(5)(i) The variability limit for Indiana for 2017 through 2020 is
4,894 tons.
(ii) The variability limit for Indiana for 2024 and thereafter is
2,008 tons.
* * * * *
(10)(i) The variability limit for Maryland for 2017 through 2020 is
804 tons.
(ii) The variability limit for Maryland for 2024 and thereafter is
283 tons.
(11)(i) The variability limit for Michigan for 2017 through 2020 is
3,575 tons.
(ii) The variability limit for Michigan for 2024 and thereafter is
2,055 tons.
* * * * *
(14)(i) The variability limit for New Jersey for 2017 through 2020
is 433 tons.
(ii) The variability limit for New Jersey for 2024 and thereafter
is 263 tons.
[[Page 87973]]
(15)(i) The variability limit for New York for 2017 through 2020 is
1,078 tons.
(ii) The variability limit for New York for 2024 and thereafter is
715 tons.
(16)(i) The variability limit for Ohio for 2017 through 2020 is
4,100 tons.
(ii) The variability limit for Ohio for 2024 and thereafter is
2,052 tons.
* * * * *
(18)(i) The variability limit for Pennsylvania for 2017 through
2020 is 3,770 tons.
(ii) The variability limit for Pennsylvania for 2024 and thereafter
is 1,758 tons.
* * * * *
(21)(i) The variability limit for Virginia for 2017 through 2020 is
1,937 tons.
(ii) The variability limit for Virginia for 2024 and thereafter is
769 tons.
* * * * *
(23) The variability limit for Wisconsin for 2017 through 2022 and
for 2024 and thereafter is 1,662 tons.
* * * * *
0
21. Amend Sec. 97.811 by revising and republishing the paragraph (d)
heading, paragraph (d)(1), the paragraph (e) heading, and paragraph
(e)(1) to read as follows:
Sec. 97.811 Timing requirements for CSAPR NOX Ozone Season Group 2
allowance allocations.
* * * * *
(d) Recall of CSAPR NOX Ozone Season Original Group 2 allowances
allocated for control periods in 2021 through 2024. (1) Notwithstanding
any other provision of this subpart, part 52 of this chapter, or any
SIP revision approved under Sec. 52.38(b) of this chapter, the
provisions of this paragraph and paragraphs (d)(2) through (7) of this
section shall apply with regard to each CSAPR NO<INF>X</INF> Ozone
Season Original Group 2 allowance that was allocated for a control
period in 2021 through 2024 to any unit (including a permanently
retired unit qualifying for an exemption under Sec. 97.805) in a State
listed in Sec. 52.38(b)(2)(ii)(B) of this chapter (and Indian country
within the borders of such a State) and that was initially recorded
under Sec. 97.821(d) or (e)(1) in the compliance account for the
source that includes the unit, whether such CSAPR NO<INF>X</INF> Ozone
Season Original Group 2 allowance was allocated pursuant to this
subpart or pursuant to a SIP revision approved under Sec. 52.38(b) of
this chapter and whether such CSAPR NO<INF>X</INF> Ozone Season
Original Group 2 allowance remains in such compliance account or has
been transferred to another Allowance Management System account.
* * * * *
(e) Recall of CSAPR NOX Ozone Season Original Group 2 allowances
allocated for control periods in 2023 and 2024. (1) Notwithstanding any
other provision of this subpart, part 52 of this chapter, or any SIP
revision approved under Sec. 52.38(b) of this chapter, the provisions
of this paragraph (e)(1) and paragraphs (e)(2) through (7) of this
section shall apply with regard to each CSAPR NO<INF>X</INF> Ozone
Season Original Group 2 allowance that was allocated for a control
period in 2023 or 2024 to any unit (including a permanently retired
unit qualifying for an exemption under Sec. 97.805) in a State listed
in Sec. 52.38(b)(2)(ii)(C) of this chapter and not listed in Sec.
52.38(b)(2)(iii)(D)(2) of this chapter (and Indian country within the
borders of such a State) and that was initially recorded under Sec.
97.821(e)(1) in the compliance account for the source that includes the
unit, whether such CSAPR NO<INF>X</INF> Ozone Season Original Group 2
allowance was allocated pursuant to this subpart or pursuant to a SIP
revision approved under Sec. 52.38(b) of this chapter and whether such
CSAPR NO<INF>X</INF> Ozone Season Original Group 2 allowance remains in
such compliance account or has been transferred to another Allowance
Management System account.
* * * * *
0
22. Amend Sec. 97.821 by revising and republishing paragraph (e)(2),
adding paragraphs (e)(3) and (4), and revising and republishing
paragraph (f) to read as follows:
Sec. 97.821 Recordation of CSAPR NOX Ozone Season Group 2 allowance
allocations and auction results.
* * * * *
(e) * * *
(2) After the Administrator has carried out the procedures in Sec.
97.811(d), for sources in a State listed in Sec.
52.38(b)(2)(iii)(D)(1) of this chapter (and Indian country within the
borders of such a State), by September 5, 2023, or, with regard to
sources in West Virginia, as soon as practicable on or after September
29, 2023, the Administrator will record in each CSAPR NO<INF>X</INF>
Ozone Season Group 2 source's compliance account the CSAPR
NO<INF>X</INF> Ozone Season Expanded Group 2 allowances allocated to
the CSAPR NO<INF>X</INF> Ozone Season Group 2 units at the source in
accordance with Sec. 97.811(a) for the control periods in 2023 and
2024.
(3) After the Administrator has carried out the procedures in Sec.
97.811(d), for sources in a State listed in Sec.
52.38(b)(2)(iii)(D)(4) of this chapter (and Indian country within the
borders of such a State), as soon as practicable on or after December
6, 2024, the Administrator will record in each CSAPR NO<INF>X</INF>
Ozone Season Group 2 source's compliance account the CSAPR
NO<INF>X</INF> Ozone Season Expanded Group 2 allowances allocated to
the CSAPR NO<INF>X</INF> Ozone Season Group 2 units at the source in
accordance with Sec. 97.811(a) for the control period in 2024, with
the following adjustments:
(i) The quantity of CSAPR NO<INF>X</INF> Ozone Season Expanded
Group 2 allowances recorded in the compliance account for Gilbert
Generating Station (plant ID 2393) will be the quantity allocated in
accordance with Sec. 97.811(a) minus 3.
(ii) The quantity of CSAPR NO<INF>X</INF> Ozone Season Expanded
Group 2 allowances recorded in the compliance account for Warren (plant
ID 3132) will be the quantity allocated in accordance with Sec.
97.811(a) plus 3.
(iii) The quantity of CSAPR NO<INF>X</INF> Ozone Season Expanded
Group 2 allowances recorded in the compliance account for Baldwin
Energy Complex (plant ID 889) will be the quantity allocated in
accordance with Sec. 97.811(a) minus 50.
(iv) The quantity of CSAPR NO<INF>X</INF> Ozone Season Expanded
Group 2 allowances recorded in the compliance account for Midland
Cogeneration Venture (plant ID 10745) will be the quantity allocated in
accordance with Sec. 97.811(a) plus 50.
(v) The quantity of CSAPR NO<INF>X</INF> Ozone Season Expanded
Group 2 allowances recorded in the compliance account for PEI Power
Corporation (plant ID 50279) will be the quantity allocated in
accordance with Sec. 97.811(a) minus 8.
(4) After the Administrator has carried out the procedures in Sec.
97.811(e), for sources in a State listed in Sec.
52.38(b)(2)(iii)(D)(5) of this chapter (and Indian country within the
borders of such a State), as soon as practicable on or after December
6, 2024, the Administrator will record in each CSAPR NO<INF>X</INF>
Ozone Season Group 2 source's compliance account the CSAPR
NO<INF>X</INF> Ozone Season Original Group 2 allowances allocated to
the CSAPR NO<INF>X</INF> Ozone Season Group 2 units at the source in
accordance with Sec. 97.811(a) for the control period in 2024.
(f) By July 1, 2024, or, for sources in a State listed in Sec.
52.38(b)(2)(iii)(D)(4) or (5) of this chapter (and Indian country
within the borders of such a State), as soon as practicable on or after
December 6, 2024, and by July 1 of each year thereafter, the
Administrator will record
[[Page 87974]]
in each CSAPR NO<INF>X</INF> Ozone Season Group 2 source's compliance
account the CSAPR NO<INF>X</INF> Ozone Season Group 2 allowances
allocated to the CSAPR NO<INF>X</INF> Ozone Season Group 2 units at the
source, or in each appropriate Allowance Management System account the
CSAPR NO<INF>X</INF> Ozone Season Group 2 allowances auctioned to CSAPR
NO<INF>X</INF> Ozone Season Group 2 units, in accordance with Sec.
97.811(a), or with a SIP revision approved under Sec. 52.38(b)(8) or
(9) of this chapter, for the control period in the year after the year
of the applicable recordation deadline under this paragraph.
* * * * *
0
23. Amend Sec. 97.824 by revising and republishing paragraph
(c)(2)(ii) to read as follows:
Sec. 97.824 Compliance with CSAPR Ozone Season Group 2 emissions
limitation.
* * * * *
(c) * * *
(2) * * *
(ii) Any other CSAPR NO<INF>X</INF> Ozone Season Group 2 allowances
that were transferred to and recorded in the compliance account
pursuant to this subpart or that were recorded in the compliance
account pursuant to Sec. 97.526 or Sec. 97.1026, in the order of
recordation.
* * * * *
0
24. Amend Sec. 97.826 by:
0
a. Revising and republishing paragraph (b);
0
b. Removing and reserving paragraph (d)(3);
0
c. Revising and republishing paragraphs (e)(1) introductory text and
(e)(1)(ii)(B);
0
d. Removing and reserving paragraph (e)(2); and
0
e. Revising and republishing paragraph (f).
The revisions and republications read as follows:
Sec. 97.826 Banking and conversion.
* * * * *
(b) Any CSAPR NO<INF>X</INF> Ozone Season Group 2 allowance that is
held in a compliance account or a general account will remain in such
account unless and until the CSAPR NO<INF>X</INF> Ozone Season Group 2
allowance is deducted or transferred under Sec. 97.811(c), (d), or
(e), Sec. 97.823, Sec. 97.824, Sec. 97.825, Sec. 97.827, or Sec.
97.828, or paragraph (c), (d), or (e) of this section.
* * * * *
(e) * * *
(1) By September 18, 2023, the Administrator will temporarily
suspend acceptance of CSAPR NO<INF>X</INF> Ozone Season Group 2
allowance transfers submitted under Sec. 97.822 and, before resuming
acceptance of such transfers, will take the following actions with
regard to every general account and every compliance account except a
compliance account for a CSAPR NO<INF>X</INF> Ozone Season Group 2
source in a State listed in Sec. 52.38(b)(2)(ii)(A) or
(b)(2)(iii)(D)(1) through (3) of this chapter (and Indian country
within the borders of such a State):
* * * * *
(ii) * * *
(B) The product of the sum of the trading budgets for the control
period in 2024 under Sec. 97.1010(a)(1)(i) for all States listed in
Sec. 52.38(b)(2)(iii)(B) and (C) of this chapter and not listed in
Sec. 52.38(b)(2)(iii)(D)(2) or (3) of this chapter multiplied by 0.21
and further multiplied by a fraction whose numerator is the number of
days from August 4, 2023 through September 30, 2023, inclusive, and
whose denominator is 153.
* * * * *
(f) Notwithstanding any other provision of this subpart or any SIP
revision approved under Sec. 52.38(b)(8) or (9) of this chapter, CSAPR
NO<INF>X</INF> Ozone Season Expanded Group 2 allowances or CSAPR
NO<INF>X</INF> Ozone Season Group 3 allowances may be used to satisfy
requirements to hold CSAPR NO<INF>X</INF> Ozone Season Original Group 2
allowances under this subpart and CSAPR NO<INF>X</INF> Ozone Season
Group 3 allowances may be used to satisfy requirements to hold CSAPR
NO<INF>X</INF> Ozone Season Expanded Group 2 allowances under this
subpart as follows, provided that nothing in this paragraph (f) alters
the time as of which any such allowance holding requirement must be met
or limits any consequence of a failure to timely meet any such
allowance holding requirement:
(1)(i) Except as provided in paragraph (f)(1)(ii) of this section,
after the Administrator has carried out the procedures set forth in
paragraph (d)(1) of this section and before November 6, 2024, the owner
or operator of a CSAPR NO<INF>X</INF> Ozone Season Group 2 source in a
State listed in Sec. 52.38(b)(2)(ii)(B) of this chapter (and Indian
country within the borders of such a State) may satisfy a requirement
to hold a given number of CSAPR NO<INF>X</INF> Ozone Season Original
Group 2 allowances for a control period in 2017 through 2020 by holding
instead, in a general account established for this sole purpose, an
amount of CSAPR NO<INF>X</INF> Ozone Season Group 3 allowances for the
control period in 2021 (or any later control period for which the
allowance transfer deadline defined in Sec. 97.1002 has passed)
computed as the quotient, rounded up to the nearest allowance, of such
given number of CSAPR NO<INF>X</INF> Ozone Season Original Group 2
allowances divided by the conversion factor determined under paragraph
(d)(1)(i)(D) of this section.
(ii) After the Administrator has carried out the procedures set
forth in paragraph (d)(1) of this section and Sec. 97.1026(e)(1) and
before November 6, 2024, the owner or operator of a CSAPR
NO<INF>X</INF> Ozone Season Group 2 source in a State listed in Sec.
52.38(b)(2)(iii)(D)(1) of this chapter (and Indian country within the
borders of such a State) may satisfy a requirement to hold a given
number of CSAPR NO<INF>X</INF> Ozone Season Original Group 2 allowances
for a control period in 2017 through 2020 by holding instead, in a
general account established for this sole purpose, an amount of CSAPR
NO<INF>X</INF> Ozone Season Expanded Group 2 allowances for the control
period in 2023 (or any later control period for which the allowance
transfer deadline defined in Sec. 97.802 has passed) computed as the
quotient, rounded up to the nearest allowance, of such given number of
CSAPR NO<INF>X</INF> Ozone Season Original Group 2 allowances divided
by the conversion factor determined under paragraph (d)(1)(i)(D) of
this section.
(2) After the Administrator has carried out the procedures set
forth in paragraph (e)(1) of this section and before November 6, 2024,
the owner or operator of a CSAPR NO<INF>X</INF> Ozone Season Group 2
source in a State listed in Sec. 52.38(b)(2)(ii)(C) of this chapter
and not listed in Sec. 52.38(b)(iii)(D)(2) of this chapter (and Indian
country within the borders of such a State) may satisfy a requirement
to hold a given number of CSAPR NO<INF>X</INF> Ozone Season Original
Group 2 allowances for a control period in 2017 through 2022 by holding
instead, in a general account established for this sole purpose, an
amount of CSAPR NO<INF>X</INF> Ozone Season Group 3 allowances for the
control period in 2023 (or any later control period for which the
allowance transfer deadline defined in Sec. 97.1002 has passed)
computed as the quotient, rounded up to the nearest allowance, of such
given number of CSAPR NO<INF>X</INF> Ozone Season Original Group 2
allowances divided by the conversion factor determined under paragraph
(e)(1)(ii) of this section.
(3) On or after November 6, 2024, the owner or operator of a source
subject to the requirements of the CSAPR NO<INF>X</INF> Ozone Season
Group 2 Trading Program for the control period in the current year and
required to demonstrate compliance under such program for such control
period by holding CSAPR NO<INF>X</INF> Ozone Season Expanded Group 2
allowances
[[Page 87975]]
may satisfy a requirement to hold a given number of CSAPR
NO<INF>X</INF> Ozone Season Original Group 2 allowances for the control
period in a previous year for which the allowance transfer deadline
defined in Sec. 97.802 has passed by holding instead in the source's
compliance account an equal number of CSAPR NO<INF>X</INF> Ozone Season
Expanded Group 2 allowances for the control period in the current year.
(4) On or after November 6, 2024, the owner or operator of a source
subject to the requirements of the CSAPR NO<INF>X</INF> Ozone Season
Group 3 Trading Program for the control period in the current year may
satisfy a requirement to hold a given number of CSAPR NO<INF>X</INF>
Ozone Season Original Group 2 allowances for the control period in a
previous year for which the allowance transfer deadline defined in
Sec. 97.802 has passed by holding instead in the source's compliance
account an equal number of CSAPR NO<INF>X</INF> Ozone Season Group 3
allowances for the control period in the current year.
(5) On or after November 6, 2024, the owner or operator of a source
subject to the requirements of the CSAPR NO<INF>X</INF> Ozone Season
Group 3 Trading Program for the control period in the current year may
satisfy a requirement to hold a given number of CSAPR NO<INF>X</INF>
Ozone Season Expanded Group 2 allowances for the control period in a
previous year for which the allowance transfer deadline defined in
Sec. 97.802 has passed by holding instead in the source's compliance
account an equal number of CSAPR NO<INF>X</INF> Ozone Season Group 3
allowances for the control period in the current year.
0
25. Amend Sec. 97.830 by revising and republishing paragraph (b)(1) to
read as follows:
Sec. 97.830 General monitoring, recordkeeping, and reporting
requirements.
* * * * *
(b) * * *
(1)(i) May 1, 2017, for a unit other than a unit described in
paragraph (b)(1)(ii) or (iii) of this section;
(ii) May 1, 2023, for a unit in a State listed in Sec.
52.38(b)(2)(iii)(D)(1) of this chapter (and Indian country within the
borders of such a State) that did not commence commercial operation at
least 180 calendar days before September 30, 2020;
(iii) May 1, 2024, for a unit in a State listed in Sec.
52.38(b)(2)(iii)(D)(4) of this chapter (and Indian country within the
borders of such a State) that did not commence commercial operation at
least 180 calendar days before September 30, 2020, or a unit in a State
listed in Sec. 52.38(b)(2)(iii)(D)(5) of this chapter (and Indian
country within the borders of such a State) that did not commence
commercial operation at least 180 calendar days before September 30,
2022;
* * * * *
0
26. Amend Sec. 97.834 by revising and republishing paragraph (d)(2)(i)
to read as follows:
Sec. 97.834 Recordkeeping and reporting.
* * * * *
(d) * * *
(2) * * *
(i)(A) The calendar quarter covering May 1, 2017, through June 30,
2017, for a unit other than a unit described in paragraph (d)(2)(i)(B)
or (C) of this section;
(B) The calendar quarter covering May 1, 2023, through June 30,
2023, for a unit in a State listed in Sec. 52.38(b)(2)(iii)(D)(1) of
this chapter (and Indian country within the borders of such a State)
that did not commence commercial operation at least 180 calendar days
before September 30, 2020;
(C) The calendar quarter covering May 1, 2024, through June 30,
2024, for a unit in a State listed in Sec. 52.38(b)(2)(iii)(D)(4) of
this chapter (and Indian country within the borders of such a State)
that did not commence commercial operation at least 180 calendar days
before September 30, 2020, or a unit in a State listed in Sec.
52.38(b)(2)(iii)(D)(5) of this chapter (and Indian country within the
borders of such a State) that did not commence commercial operation at
least 180 calendar days before September 30, 2022;
* * * * *
Subpart GGGGG--CSAPR NOX Ozone Season Group 3 Trading Program
0
27. Amend Sec. 97.1002 by revising and republishing the introductory
text for the definition of ``Allocate or allocation'', paragraph (2) of
the definition of ``Common designated representative's assurance
level'', and the definitions of ``CSAPR NO<INF>X</INF> Ozone Season
Expanded Group 2 allowance'', ``CSAPR NO<INF>X</INF> Ozone Season Group
2 allowance'', and ``CSAPR NO<INF>X</INF> Ozone Season Group 3
allowance'' to read as follows:
Sec. 97.1002 Definitions.
* * * * *
Allocate or allocation means, with regard to CSAPR NO<INF>X</INF>
Ozone Season Group 3 allowances, the determination by the
Administrator, State, or permitting authority, in accordance with this
subpart, Sec. 97.826, and any SIP revision submitted by the State and
approved by the Administrator under Sec. 52.38(b)(10), (11), or (12)
of this chapter, of the amount of such CSAPR NO<INF>X</INF> Ozone
Season Group 3 allowances to be initially credited, at no cost to the
recipient, to:
* * * * *
Common designated representative's assurance level * * *
(2) Provided that the allocations of CSAPR NO<INF>X</INF> Ozone
Season Group 3 allowances for any control period taken into account for
purposes of this definition shall exclude any CSAPR NO<INF>X</INF>
Ozone Season Group 3 allowances allocated for such control period under
Sec. 97.826.
* * * * *
CSAPR NOX Ozone Season Expanded Group 2 allowance means a CSAPR
NO<INF>X</INF> Ozone Season Group 2 allowance allocated for a control
period after 2022 under subpart EEEEE of this part or Sec.
97.1026(e)(1)(ii) or (e)(2)(ii) to a unit in a State listed in Sec.
52.38(b)(2)(ii)(D)(1) of this chapter (and Indian country within the
borders of such a State) or allocated or auctioned for a control period
after 2022 in accordance with the provisions of a SIP revision approved
after November 6, 2024 for such a State by the Administrator under
Sec. 52.38(b)(7), (8), or (9) of this chapter.
* * * * *
CSAPR NOX Ozone Season Group 2 allowance means a limited
authorization issued and allocated or auctioned by the Administrator
under subpart EEEEE of this part, Sec. 97.526, or Sec. 97.1026, or by
a State or permitting authority under a SIP revision approved by the
Administrator under Sec. 52.38(b)(7), (8), or (9) of this chapter, to
emit one ton of NO<INF>X</INF> during a control period of the specified
calendar year for which the authorization is allocated or auctioned or
of any calendar year thereafter under the CSAPR NO<INF>X</INF> Ozone
Season Group 2 Trading Program, where each CSAPR NO<INF>X</INF> Ozone
Season Group 2 allowance is either a CSAPR NO<INF>X</INF> Ozone Season
Original Group 2 allowance or a CSAPR NO<INF>X</INF> Ozone Season
Expanded Group 2 allowance.
* * * * *
CSAPR NOX Ozone Season Group 3 allowance means a limited
authorization issued and allocated or auctioned by the Administrator
under this subpart or Sec. 97.826, or by a State or permitting
authority under a SIP revision approved by the Administrator under
Sec. 52.38(b)(10), (11), or (12) of this chapter, to emit one ton or
less of NO<INF>X</INF> during a control period of the specified
calendar year for which the authorization is allocated or auctioned
[[Page 87976]]
or of any calendar year thereafter under the CSAPR NO<INF>X</INF> Ozone
Season Group 3 Trading Program.
* * * * *
0
28. Amend Sec. 97.1011 by adding paragraph (d) to read as follows:
Sec. 97.1011 CSAPR NOX Ozone Season Group 3 allowance allocations to
existing units.
* * * * *
(d) Recall of CSAPR NOX Ozone Season Group 3 allowances allocated
for the control period in 2024. As soon as practicable on or after
November 21, 2024, the Administrator will deduct from every general
account and compliance account all CSAPR NO<INF>X</INF> Ozone Season
Group 3 allowances allocated for the control period in 2024 and will
record the deductions in each such account.
0
29. Amend Sec. 97.1024 by revising and republishing paragraph
(c)(2)(ii) to read as follows:
Sec. 97.1024 Compliance with CSAPR NOX Ozone Season Group 3 primary
emissions limitation; backstop daily NOX emissions rate.
* * * * *
(c) * * *
(2) * * *
(ii) Any other CSAPR NO<INF>X</INF> Ozone Season Group 3 allowances
that were transferred to and recorded in the compliance account
pursuant to this subpart or that were recorded in the compliance
account pursuant to Sec. 97.826, in the order of recordation.
* * * * *
0
30. Amend Sec. 97.1026 by revising and republishing paragraphs (b),
(e), and (f) to read as follows:
Sec. 97.1026 Banking and conversion; bank recalibration.
* * * * *
(b) Any CSAPR NO<INF>X</INF> Ozone Season Group 3 allowance that is
held in a compliance account or a general account will remain in such
account unless and until the CSAPR NO<INF>X</INF> Ozone Season Group 3
allowance is deducted or transferred under Sec. 97.1011(c) or (d),
Sec. 97.1012(c), Sec. 97.1023, Sec. 97.1024, Sec. 97.1025, Sec.
97.1027, or Sec. 97.1028, or paragraph (c), (d), or (e) of this
section.
* * * * *
(e)(1) Notwithstanding any other provision of this subpart, by
September 18, 2023, or, with regard to sources in West Virginia, as
soon as practicable on or after September 29, 2023, the Administrator
will temporarily suspend acceptance of CSAPR NO<INF>X</INF> Ozone
Season Group 3 allowance transfers submitted under Sec. 97.1022 and,
before resuming acceptance of such transfers, will take the actions in
paragraphs (e)(1)(i) and (ii) of this section with regard to every
compliance account for a CSAPR NO<INF>X</INF> Ozone Season Group 3
source in a State listed in Sec. 52.38(b)(2)(iii)(D)(1) of this
chapter (and Indian country within the borders of such a State):
(i) The Administrator will deduct all CSAPR NO<INF>X</INF> Ozone
Season Group 3 allowances allocated for the control periods in 2021 and
2022 from each such compliance account.
(ii) For each CSAPR NO<INF>X</INF> Ozone Season Group 3 allowance
deducted from a given source's compliance account under paragraph
(e)(1)(i) of this section, the Administrator will allocate to the
source and record in the source's compliance account one CSAPR
NO<INF>X</INF> Ozone Season Expanded Group 2 allowance for the control
period in 2023.
(2) Notwithstanding any other provision of this subpart, as soon as
practicable on or after December 23, 2024, the Administrator will
temporarily suspend acceptance of CSAPR NO<INF>X</INF> Ozone Season
Group 3 allowance transfers submitted under Sec. 97.1022 and, before
resuming acceptance of such transfers, will take the actions in
paragraphs (e)(2)(i) through (iii) of this section with regard to every
compliance account for a source in a state listed in Sec.
52.38(b)(2)(iii)(D)(4) or (5) of this chapter (and Indian country
within the borders of such a State):
(i) The Administrator will deduct all CSAPR NO<INF>X</INF> Ozone
Season Group 3 allowances allocated for the control periods in 2021
through 2023 from each such compliance account.
(ii) For each CSAPR NO<INF>X</INF> Ozone Season Group 3 allowance
deducted from the compliance account for a source in a State listed in
Sec. 52.38(b)(2)(iii)(D)(4) of this chapter (and Indian country within
the borders of such a State) under paragraph (e)(2)(i) of this section,
the Administrator will allocate and record in the account one CSAPR
NO<INF>X</INF> Ozone Season Expanded Group 2 allowance for the control
period in 2024.
(iii) For each CSAPR NO<INF>X</INF> Ozone Season Group 3 allowance
deducted from the compliance account for a source in a State listed in
Sec. 52.38(b)(2)(iii)(D)(5) of this chapter (and Indian country within
the borders of such a State) under paragraph (e)(2)(i) of this section,
the Administrator will allocate and record in the account one CSAPR
NO<INF>X</INF> Ozone Season Original Group 2 allowance for the control
period in 2024.
(f) Notwithstanding any other provision of this subpart, CSAPR
NO<INF>X</INF> Ozone Season Original Group 2 allowances or CSAPR
NO<INF>X</INF> Ozone Season Expanded Group 2 allowances may be used to
satisfy requirements to hold CSAPR NO<INF>X</INF> Ozone Season Group 3
allowances under this subpart as follows, provided that nothing in this
paragraph (f) alters the time as of which any such allowance holding
requirement must be met or limits any consequence of a failure to
timely meet any such allowance holding requirement:
(1) After the Administrator has carried out the procedures set
forth in paragraph (e)(1) of this section and before November 6, 2024,
the owner or operator of a CSAPR NO<INF>X</INF> Ozone Season Group 3
source in a State listed in Sec. 52.38(b)(2)(iii)(D)(1) of this
chapter (and Indian country within the borders of such a State) may
satisfy a requirement to hold a given number of CSAPR NO<INF>X</INF>
Ozone Season Group 3 allowances for the control period in 2021 or 2022
by holding instead, in a general account established for this sole
purpose, an equal amount of CSAPR NO<INF>X</INF> Ozone Season Expanded
Group 2 allowances for the control period in 2023 (or any later control
period for which the allowance transfer deadline defined in Sec.
97.802 has passed).
(2) On or after November 6, 2024, the owner or operator of a source
subject to the requirements of the CSAPR NO<INF>X</INF> Ozone Season
Group 2 Trading Program for the control period in the current year and
required to demonstrate compliance under such program for such control
period by holding CSAPR NO<INF>X</INF> Ozone Season Original Group 2
allowances may satisfy a requirement to hold a given number of CSAPR
NO<INF>X</INF> Ozone Season Group 3 allowances for the control period
in a previous year for which the allowance transfer deadline defined in
Sec. 97.1002 has passed by holding instead in the source's compliance
account an equal number of CSAPR NO<INF>X</INF> Ozone Season Original
Group 2 allowances for the control period in the current year.
(3) On or after November 6, 2024, the owner or operator of a source
subject to the requirements of the CSAPR NO<INF>X</INF> Ozone Season
Group 2 Trading Program for the control period in the current year and
required to demonstrate compliance under such program for such control
period by holding CSAPR NO<INF>X</INF> Ozone Season Expanded Group 2
allowances may satisfy a requirement to hold a given number of CSAPR
NO<INF>X</INF> Ozone Season Group 3 allowances for the control period
in a previous year for which the allowance transfer deadline
[[Page 87977]]
defined in Sec. 97.1002 has passed by holding instead in the source's
compliance account an equal number of CSAPR NO<INF>X</INF> Ozone Season
Expanded Group 2 allowances for the control period in the current year.
[FR Doc. 2024-25501 Filed 11-5-24; 8:45 am]
BILLING CODE 6560-50-P
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