[Federal Register Volume 82, Number 188 (Friday, September 29, 2017)]
[Rules and Regulations]
[Pages 45481-45497]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-20832]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-HQ-OAR-2016-0598; FRL-9968-46-OAR]
RIN 2060-AT16
Interstate Transport of Fine Particulate Matter: Revision of
Federal Implementation Plan Requirements for Texas
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is finalizing
withdrawal of the federal implementation plan (FIP) provisions that
require affected electricity generating units (EGUs) in Texas to
participate in Phase 2 of the Cross-State Air Pollution Rule (CSAPR)
trading programs for annual emissions of sulfur dioxide
(SO2) and nitrogen oxides (NOX). Withdrawal of
the FIP requirements is intended to address a decision of the U.S.
Court of Appeals for the District of Columbia Circuit (D.C. Circuit)
remanding the CSAPR Phase 2 SO2 budget for Texas to the EPA
for reconsideration. With this action, the EPA is also determining
that, following withdrawal of the FIP requirements, sources in Texas do
not contribute significantly to nonattainment in, or interfere with
maintenance by, any other state with regard to the 1997 national
ambient air quality standard (NAAQS) for fine particulate matter
(PM2.5). Accordingly, we are also determining that the EPA
has no obligation to issue new FIP requirements for Texas sources to
address transported PM2.5 pollution under Clean Air Act
(CAA) section 110(a)(2)(D)(i)(I) with regard to that NAAQS. Finally,
the EPA is also affirming the continued validity of the Agency's 2012
determination that participation in CSAPR meets the Regional Haze
Rule's criteria for an alternative to the application of source-
specific best available retrofit technology (BART). The EPA has
determined that changes to CSAPR's geographic scope resulting from the
actions EPA has taken or expects to take in response to the D.C.
Circuit's remand do not affect the continued validity of participation
in CSAPR as a BART alternative, because the changes in geographic scope
would not have adversely affected the results of the air quality
modeling analysis upon which the EPA based the 2012 determination.
DATES: This final rule is effective on September 29, 2017.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OAR-2016-0598. All documents in the docket are
listed and publicly available at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Questions about the withdrawal of
CSAPR FIP requirements for Texas EGUs should be directed to David
Lifland, Clean Air Markets Division, Office of Atmospheric Programs,
U.S. Environmental Protection Agency, MC 6204M, 1200 Pennsylvania
Avenue NW., Washington, DC 20460; telephone number: (202) 343-9151;
email address: [email protected]. Questions about the sensitivity
analysis regarding CSAPR participation as a BART alternative should be
directed to Melinda Beaver, Office of Air Quality Planning and
Standards, U.S. Environmental Protection Agency, 109 T.W. Alexander
Drive, Mail Code C539-04, Research Triangle Park, NC 27709; telephone
number: (919) 541-1062; email address: [email protected].
SUPPLEMENTARY INFORMATION: Regulated Entities. Entities regulated under
CSAPR are fossil fuel-fired boilers and stationary combustion turbines
that serve generators producing electricity for sale, including
combined cycle units and units operating as part of systems that
cogenerate electricity and other useful energy output. Regulated
categories and entities include:
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Examples of potentially
Category NAICS * code regulated industries
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Industry....................... 221112 Fossil fuel-fired
electric power
generation.
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* North American Industry Classification System.
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated. To
determine whether your facility is affected by this action, you should
carefully examine the applicability provisions in 40 CFR 97.404 and
97.704. If you have questions regarding the applicability of CSAPR to a
particular entity, consult the person listed in the FOR FURTHER
INFORMATION CONTACT section above.
Table of Contents
I. Overview
II. Background
A. History and Summary of CSAPR
B. CSAPR Participation as a BART Alternative
III. Withdrawal of CSAPR FIP Requirements Related to Texas'
Transport Obligations With Regard to the 1997 Annual
PM2.5 NAAQS
A. Summary
B. Adequacy of Rationale for Finding No Remaining Transport
Obligation
[[Page 45482]]
C. Responsiveness to the D.C. Circuit's Remand Instructions
D. Consistency of Responses To Remand Across States
E. Consistency of Consideration of D.C. Circuit's Holding Across
States
F. Potential Use of Texas FIP Budgets To Address a Different
PM2.5 NAAQS
IV. Sensitivity Analysis Regarding CSAPR Participation as a BART
Alternative
A. Summary
B. Continued CSAPR Participation by Georgia and South Carolina
C. Appropriateness of Continued Reliance on Original CSAPR-
Better-than-BART Analysis
D. Possible Changes in the Geographic Distribution of Emissions
E. Validity of 2012 Analytic Demonstration Prior to CSAPR
Changes
V. Description of Amendments to Regulatory Text
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review, and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
C. Paperwork Reduction Act
D. Regulatory Flexibility Act
E. Unfunded Mandates Reform Act
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
H. Executive Order 13045: Protection of Children from
Environmental Health and Safety Risks
I. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
J. National Technology Transfer Advancement Act
K. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
L. Congressional Review Act
M. Judicial Review and Determinations Under CAA Section
307(b)(1) and (d)
I. Overview
The EPA promulgated CSAPR in 2011 in order to address the
obligations of states--and of the EPA when states have not met their
obligations--under CAA section 110(a)(2)(D)(i)(I) to prohibit air
pollution contributing significantly to nonattainment in, or
interfering with maintenance by, any other state with regard to several
NAAQS, including the 1997 annual PM2.5 NAAQS.\1\ To address
Texas' transport obligation under CAA section 110(a)(2)(D)(i)(I) with
regard to this NAAQS, CSAPR established FIP requirements for affected
EGUs in Texas, including statewide emissions budgets that apply to the
EGUs' collective annual emissions of SO2 and NOX.
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\1\ Federal Implementation Plans; Interstate Transport of Fine
Particulate Matter and Ozone and Correction of SIP Approvals, 76 FR
48208 (August 8, 2011).
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In 2012, the EPA promulgated an amendment to the Regional Haze Rule
allowing a state whose EGUs participate in one of the CSAPR trading
programs for a given pollutant to rely on its sources' participation in
CSAPR as an alternative to source-specific BART requirements--the so-
called CSAPR-better-than-BART rule, codified at 40 CFR 51.308(e)(4).\2\
This rule relied on a regional analytic demonstration that included an
air quality modeling analysis comparing the projected visibility
impacts of CSAPR implementation and BART implementation. To project
emissions under CSAPR, the EPA assumed that the geographic scope and
state emissions budgets for CSAPR would be implemented as finalized and
amended in 2011 and 2012.\3\
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\2\ Regional Haze: Revisions to Provisions Governing
Alternatives to Source-Specific Best Available Retrofit Technology
(BART) Determinations, Limited SIP Disapprovals, and Federal
Implementation Plans, 77 FR 33642 (June 7, 2012).
\3\ CSAPR was amended three times in 2011 and 2012 to add five
states to the seasonal NOX program and to increase
certain state budgets. 76 FR 80760 (December 27, 2011); 77 FR 10324
(February 21, 2012); 77 FR 34830 (June 12, 2012). The CSAPR-better-
than-BART final rule reflected consideration of these changes to
CSAPR.
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In July 2015, the D.C. Circuit issued a decision on a range of
challenges to CSAPR in EME Homer City Generation, L.P. v. EPA (EME
Homer City II), denying most claims but remanding several CSAPR
emissions budgets to the EPA for reconsideration, including the Phase 2
SO2 budget for Texas.\4\ Because the remand created the
potential for changes in the geographic scope and stringency of CSAPR
as evaluated for purposes of the 2012 comparison to BART
implementation, the EPA recognizes that how the Agency addresses the
remand could raise questions as to whether states and the EPA should
continue to rely on the CSAPR-better-than-BART rule.
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\4\ EME Homer City Generation, L.P. v. EPA (EME Homer City II),
795 F.3d 118, 138 (D.C. Cir. 2015). The court also remanded the
Phase 2 SO2 budgets for three other states and the Phase
2 seasonal NOX budgets for eleven states, including
Texas. Id.
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The EPA issued a proposal to address the remand of the Texas Phase
2 SO2 budget and to resolve any questions about continued
reliance on the CSAPR-better-than-BART rule on November 3, 2016, and
solicited comment on the proposal.\5\ Four commenters provided
substantive comments, and this final rule takes those comments into
consideration. The Agency's responses to the principal comments are
provided below. The remaining comments are addressed in the Response to
Comments document available in the docket for this action.
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\5\ Interstate Transport of Fine Particulate Matter: Revision of
Federal Implementation Plan Requirements for Texas, Proposed Rule,
81 FR 78954 (November 10, 2016).
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In this final action, as proposed, the EPA is withdrawing the FIP
provisions requiring Texas EGUs to participate in the CSAPR
SO2 Group 2 Trading Program and the CSAPR NOX
Annual Trading Program during Phase 2 of these programs, which began
with 2017 emissions.\6\ Removal of Texas EGUs from Phase 2 of these
CSAPR trading programs renders it necessary to evaluate whether EPA
should use other means to address any remaining transport obligation
for Texas under CAA section 110(a)(2)(D)(i)(I) with regard to the 1997
annual PM2.5 NAAQS. However, the EPA is finalizing its
proposed determination that Texas does not have any such remaining 1997
annual PM2.5 NAAQS transport obligation as of the beginning
of Phase 2 of the CSAPR trading programs for SO2 and annual
NOX. Accordingly, the EPA is also determining that the
Agency has no obligation to issue new FIP requirements for Texas
sources to address transported PM2.5 pollution under CAA
section 110(a)(2)(D)(i)(I) with regard to this NAAQS.
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\6\ With regard to each of the other remanded budgets, the EPA
either has already withdrawn or expects to withdraw the FIP
provisions requiring the EGUs in the affected states to participate
in the corresponding CSAPR federal trading programs in Phase 2
through other actions, as discussed in section III below.
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Also in this action, the EPA is concluding, based on consideration
of the sensitivity analysis included in the proposal and additional
analysis included in this final action, that the 2012 analytic
demonstration supporting the conclusion that CSAPR participation
qualifies as a BART alternative is not adversely affected by the
actions being taken to respond to the D.C. Circuit's remand of CSAPR
Phase 2 budgets.\7\ As a result, no revisions are needed to the CSAPR-
better-than-BART rule.
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\7\ In addition to this action, the full set of actions being
taken to respond to the remand includes the 2016 CSAPR Update
withdrawing the remanded seasonal NOX budgets for eleven
states and establishing new seasonal NOX budgets to
address a more recent ozone NAAQS for eight of those states, the
action approving Alabama's SIP revision establishing state CSAPR
trading programs for SO2 and annual NOX to
replace the corresponding federal CSAPR trading programs, and the
expected actions to approve proposed SIP revisions for Georgia and
South Carolina comparable to Alabama's SIP revision (see notes 14,
53, and 57 below). These additional actions are described in more
detail in sections II.A and III.D below.
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At the same time, however, because Texas EGUs will no longer
participate in a CSAPR SO2 trading program, Texas
[[Page 45483]]
will no longer be eligible to rely on CSAPR participation as an
alternative to the application of source-specific SO2 BART
for its BART-eligible EGUs under 40 CFR 51.308(e)(4). That obligation
and any other remaining regional haze obligations for Texas are not
addressed in this action and will need to be addressed through other
actions as appropriate.\8\
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\8\ The EPA notes that under 40 CFR 51.308(e)(4), CSAPR
implementation is available as a NOX BART alternative for
a state whose EGUs are subject to CSAPR requirements for either
annual NOX or seasonal NOX emissions. See 77
FR at 33652. Texas EGUs continue to participate in a CSAPR trading
program for seasonal NOX. In a separate proposed action,
the EPA has proposed to address NOX BART for Texas EGUs
through reliance on participation in CSAPR as a NOX BART
alternative. 82 FR 917 (January 4, 2017).
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This final rule is effective immediately upon publication in the
Federal Register. As discussed in section VI.L below, the EPA is
issuing this rule under CAA section 307(d). While Administrative
Procedure Act (APA) section 553(d)\9\ generally provides that rules may
not take effect earlier than 30 days after they are published in the
Federal Register, CAA section 307(d)(1) clarifies that ``[t]he
provisions of [APA] section 553 . . . shall not, except as expressly
provided in this section, apply to actions to which this subsection
applies.'' Thus, APA section 553(d) does not apply to this rule.
Nevertheless, in making this rule effective immediately upon
publication, the EPA has considered the purposes underlying APA section
553(d). The primary purpose of the prescribed 30-day waiting period is
to give affected parties a reasonable time to adjust their behavior and
prepare before a final rule takes effect. This rule does not impose any
new regulatory requirements and therefore does not necessitate time for
affected sources to adjust their behavior or otherwise prepare for
implementation. Further, APA section 553(d) expressly allows an
effective date less than 30 days after publication for a rule that
``grants or recognizes an exemption or relieves a restriction.'' This
rule relieves Texas EGUs of certain FIP requirements that would
otherwise apply. Consequently, making this rule effective immediately
upon publication is consistent with the purposes of APA section 553(d).
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\9\ 5 U.S.C. 553(d).
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II. Background
A. History and Summary of CSAPR
The EPA initially promulgated CSAPR in 2011 to address the
obligations of states--and of the EPA when states have not met their
obligations--under CAA section 110(a)(2)(D)(i)(I), often referred to as
the ``good neighbor'' provision, to prohibit transported air pollution
contributing significantly to nonattainment in, or interfering with
maintenance by, any other state with regard to the 1997 annual
PM2.5 NAAQS, the 2006 24-hour PM2.5 NAAQS, and
the 1997 8-hour ozone NAAQS.\10\ To reduce transported PM2.5
pollution, CSAPR sets limits on annual emissions of NOX and
SO2 as precursors to PM2.5. To reduce transported
ozone pollution during the May-September ozone season, CSAPR sets
limits on seasonal emissions of NOX as a precursor to ozone.
The CSAPR requirements were initially established in FIPs, but states
can voluntarily replace the CSAPR FIPs with CSAPR state implementation
plans (SIPs) that include equally stringent budgets.\11\ Upon approval
of such a CSAPR SIP, the corresponding CSAPR FIP is automatically
withdrawn.\12\
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\10\ See generally 76 FR 48208.
\11\ E.g., 40 CFR 52.39(i).
\12\ E.g., 40 CFR 52.39(j).
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As explained in the proposal, a number of petitioners challenged
CSAPR, and in 2015 the D.C. Circuit issued a decision remanding the
Phase 2 SO2 emissions budgets for Alabama, Georgia, South
Carolina, and Texas and the Phase 2 seasonal NOX budgets for
eleven states to the EPA for reconsideration.\13\ In response to the
remand of the Phase 2 SO2 emissions budgets, the EPA has
engaged the affected states to determine appropriate next steps to
address the decision with regard to each state. As discussed in the
proposal and also in section III below, the EPA expects that EGUs in
Alabama, Georgia, and South Carolina will continue to participate in
CSAPR trading programs for SO2 and annual NOX
pursuant to approved SIP revisions (with equally stringent emissions
budgets), making Texas the only state whose EGUs will no longer
participate in these programs to reduce transported PM2.5
pollution as a result of actions taken to address the remand.
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\13\ EME Homer City II, 795 F.3d at 138.
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Also as explained in the proposal, in the CSAPR Update rule issued
in 2016, the EPA responded to the remand of eleven states' original
Phase 2 seasonal NOX budgets (which had been established to
address transport obligations with regard to the 1997 8-hour ozone
NAAQS) by withdrawing the FIP provisions requiring EGUs to comply with
those budgets for emissions after 2016.\14\ The EPA determined that
none of those eleven states has a remaining transport obligation under
CAA section 110(a)(2)(D)(i)(I) with regard to the 1997 8-hour ozone
NAAQS, but for eight of those states, including Texas, the CSAPR Update
rule also established new budgets to address transport obligations with
regard to the more stringent 2008 8-hour ozone NAAQS.\15\ EGUs in the
three states with remanded Phase 2 seasonal NOX budgets for
which the EPA did not establish new budgets--Florida, North Carolina,
and South Carolina--are no longer required to participate in a CSAPR
trading program for seasonal NOX emissions to address ozone
transport obligations after 2016. However, because EGUs in North
Carolina and South Carolina\16\ are expected to continue to participate
in a CSAPR trading program for annual NOX emissions in order
to address PM2.5-related transport obligations, Florida is
expected to be the only state originally covered by CSAPR for
NOX emissions for which all such coverage is ending as a
result of the EPA's set of actions to address the remand.\17\
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\14\ Cross-State Air Pollution Rule Update for the 2008 Ozone
NAAQS (CSAPR Update), 81 FR 74504, 74576 (October 26, 2016).
\15\ Id. at 74524.
\16\ North Carolina EGUs remain subject to FIP provisions
requiring participation in a CSAPR trading program for annual
NOX emissions. The EPA's expectation that South Carolina
EGUs will continue to participate in a CSAPR program for annual
NOX emissions is based on South Carolina's submission of
a SIP revision that includes such requirements, as discussed in
sections III and V below.
\17\ For discussion of the EPA's response to the remand of the
Florida seasonal NOX budget, and the assessment of the
implications of that response for the CSAPR-better-than-BART
analytical demonstration, see 81 FR at 78962.
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Prior to this action, Texas EGUs have been subject to CSAPR FIP
provisions requiring participation in the CSAPR SO2 Group 2
Trading Program and the CSAPR NOX Annual Trading Program.
With this action, the EPA is withdrawing the FIP provisions requiring
Texas EGUs to participate in these CSAPR federal trading programs.
(Although the court's decision specifically remanded only Texas' Phase
2 SO2 budget, the court's rationale for remanding that
budget also implicates Texas' Phase 2 annual NOX budget
because the SO2 and annual NOX budgets were
developed through an integrated analysis and were promulgated to meet a
common PM2.5 transport obligation under CAA section
110(a)(2)(D)(i)(I).) This action has no effect on the separate CSAPR
requirements applicable to Texas EGUs relating to seasonal
NOX emissions, which, as discussed in the preceding
paragraph, were promulgated in the
[[Page 45484]]
CSAPR Update rule and are not subject to the D.C. Circuit's remand.
B. CSAPR Participation as a BART Alternative
The proposal provides a detailed explanation of the Regional Haze
Rule requirements for best available retrofit technology (BART) and the
criteria for demonstrating that an alternative measure achieves greater
reasonable progress than source-specific BART.\18\
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\18\ 81 FR at 78957.
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In 2012, the EPA amended the Regional Haze Rule to provide that
participation by a state's EGUs in a CSAPR trading program for a given
pollutant--either a CSAPR federal trading program implemented through a
CSAPR FIP or a CSAPR state trading program implemented through an
approved CSAPR SIP revision--qualifies as a BART alternative for those
EGUs for that pollutant.\19\ In promulgating this CSAPR-better-than-
BART rule, the EPA relied on an analytic demonstration of the
improvement in visibility from CSAPR implementation relative to BART
implementation based on an air quality modeling study.\20\ Since the
EPA promulgated this amendment, numerous states covered by CSAPR have
come to rely on the provision through either SIPs or FIPs.\21\
Additionally, many states have submitted or are planning to submit SIPs
relying on the CSAPR-better-than-BART rule for BART or visibility
transport purposes, or to replace regional haze FIPs with SIPs.
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\19\ 40 CFR 51.308(e)(4); see also generally 77 FR 33642. Legal
challenges to the CSAPR-better-than-BART rule from conservation
groups and other petitioners are pending. Utility Air Regulatory
Group v. EPA, No. 12-1342 (D.C. Cir. filed August 6, 2012).
\20\ See Technical Support Document for Demonstration of the
Transport Rule as a BART Alternative, Docket ID No. EPA-HQ-OAR-2011-
0729-0014 (December 2011) (2011 CSAPR/BART Technical Support
Document), and memo entitled ``Sensitivity Analysis Accounting for
Increases in Texas and Georgia Transport Rule State Emissions
Budgets,'' Docket ID No. EPA-HQ-OAR-2011-0729-0323 (May 29, 2012),
both available in the docket for this action.
\21\ The EPA has promulgated FIPs relying on CSAPR participation
for BART purposes for Georgia, Indiana, Iowa, Kentucky, Michigan,
Missouri, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia,
and West Virginia, 77 FR at 33654, and Nebraska, 77 FR 40150, 40151
(July 6, 2012). The EPA has approved SIPs relying on CSAPR
participation for BART purposes for Minnesota, 77 FR 34801, 34806
(June 12, 2012), and Wisconsin, 77 FR 46952, 46959 (August 7, 2012).
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As explained in the proposal, the 2012 analytic demonstration that
CSAPR provides for greater reasonable progress than BART included Texas
EGUs as subject to CSAPR for SO2 and annual NOX
(as well as seasonal NOX) and included Florida EGUs as
subject to CSAPR for seasonal NOX. The EPA recognizes that
the treatment of these EGUs in the analysis would have been different
if the Florida FIP withdrawal finalized in the CSAPR Update rule and
the Texas FIP withdrawal finalized in this action had been known at the
time of the demonstration. In order to address any potential concern
about continuing to rely on CSAPR participation as a BART alternative
for EGUs in the remaining CSAPR states, in the proposal for this action
the EPA provided a sensitivity analysis explicitly addressing the
potential effect on that demonstration of the removal of Texas and
Florida EGUs from the relevant CSAPR trading programs in response to
the D.C. Circuit's remand. As discussed in section IV, the sensitivity
analysis indicates clearly that the demonstration remains valid despite
these changes in CSAPR's geographic scope, supporting the continued
validity of EPA's 2012 conclusion that CSAPR participation meets the
Regional Haze Rule's criteria for a BART alternative.\22\ Consequently,
in this action the EPA is affirming the current Regional Haze Rule
provision at 40 CFR 51.308(e)(4) authorizing the use of CSAPR
participation as a BART alternative for BART-eligible EGUs for a given
pollutant in states whose EGUs continue to participate in a CSAPR
trading program for that pollutant.
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\22\ With respect to each of the remanded budgets, the EPA has
responded or expects to respond to the remand by withdrawing the FIP
provisions requiring compliance with the remanded budget. Thus, all
changes to CSAPR arising directly from the Agency's response to the
remand are changes in CSAPR's geographic scope rather than changes
in the stringency of state budgets. Although the EPA has also
promulgated new CSAPR seasonal NOX budgets for 22 states
(including eight states with remanded seasonal NOX
budgets) in order to address a more stringent NAAQS, see generally
81 FR 74504, for purposes of the sensitivity analysis the EPA has
conservatively not considered the generally increased stringency of
the new seasonal NOX budgets, but the EPA did consider
the changes in CSAPR's geographic scope--that is, the fact that the
remaining three states with remanded seasonal NOX budgets
will no longer participate in CSAPR for seasonal NOX.
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III. Withdrawal of CSAPR FIP Requirements Related to Texas' Transport
Obligations With Regard to the 1997 Annual PM2.5 NAAQS
A. Summary
In this action, as proposed, the EPA is responding to the remand of
the CSAPR Phase 2 SO2 budget for Texas by withdrawing the
FIP provisions requiring Texas EGUs to participate in the CSAPR
SO2 Group 2 Trading Program and the CSAPR NOX
Annual Trading Program with regard to emissions during Phase 2 of those
programs, which began in 2017. In EME Homer City II, the court remanded
the CSAPR Phase 2 SO2 budget for Texas to the EPA for
reconsideration on the grounds that the budget may be more stringent
than necessary to address the state's obligation under CAA section
110(a)(2)(D)(i)(I) to reduce transported pollution with respect to the
1997 annual PM2.5 NAAQS.\23\ Upon review of options for
responding to the remand, the EPA has determined, for the reasons
discussed in this section, that withdrawal of the FIP provisions
identified above, rather than issuance of revised FIP provisions for
Texas with a higher (i.e., less stringent) Phase 2 SO2
budget as advocated by some commenters, is the appropriate response.
Withdrawal of the FIP provisions related to the CSAPR SO2
trading program encompasses withdrawal of the requirement for Texas
EGUs to comply with the remanded Phase 2 SO2 budget, thereby
addressing the specific rule provision remanded by the court. The EPA
is withdrawing the FIP provisions related to annual NOX (in
addition to the requirements related to SO2) because the
CSAPR FIP requirements for SO2 and annual NOX
were determined through an integrated analysis and were promulgated in
combination to remedy covered states' PM2.5 transport
obligations; the court's finding that CSAPR's Phase 2 requirements may
be more stringent than necessary to address Texas' PM2.5
transport obligation therefore implicates the state's Phase 2 budgets
for both SO2 and annual NOX.
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\23\ 795 F.3d at 128-29. A more detailed discussion of how the
EPA established the CSAPR Phase 2 SO2 budget for Texas
and why the court found the budget invalid is included in the
proposal for this action. 81 FR at 78958.
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Withdrawal of the previous CSAPR FIP requirements revives the need
to consider Texas' transport obligation under CAA section
110(a)(2)(D)(i)(I) with regard to the 1997 annual PM2.5
NAAQS and to address any remaining obligation through other means.
However, as proposed, the Agency is further determining that Texas has
no remaining transport obligation under this CAA provision with regard
to this NAAQS following withdrawal of the previous FIP requirements,
and consequently is also determining that the EPA has no obligation to
issue new FIP requirements as to Texas's transport obligation under CAA
section 110(a)(2)(D)(i)(I) with regard to the 1997 annual
PM2.5 NAAQS.
In the CSAPR final rule, the EPA determined that 23 states,
including Texas, had transport obligations with regard to the 1997
annual PM2.5
[[Page 45485]]
NAAQS, the 2006 24-hour PM2.5 NAAQS, or both, and
established SO2 and annual NOX emissions budgets
for each of the states.\24\ The budgets were implemented through FIP
provisions requiring the affected EGUs in each covered state to
participate in CSAPR allowance trading programs. In the case of Texas,
the PM2.5-related FIP requirements were imposed based solely
on the state's transport obligations with regard to the 1997 annual
PM2.5 NAAQS.\25\
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\24\ The EPA also determined in CSAPR and a related supplemental
rule that 25 states, including Texas, had transport obligations with
regard to the 1997 8-hour ozone NAAQS. In all, 28 states were
determined to have transport obligations related to either
PM2.5, ozone, or both. The EPA's process for determining
states' emissions limitations under CSAPR and the associated CSAPR
FIP requirements is described at length in the preamble to the CSAPR
final rule. See generally 77 FR at 48222-71.
\25\ As noted in the proposal and further discussed below, the
modeling for the CSAPR final rule also linked Texas to a downwind
air quality problem with regard to the 2006 24-hour PM2.5
NAAQS, but the EPA did not rely on the linkage with regard to that
NAAQS as a basis for establishing CSAPR FIP requirements for Texas
EGUs. 81 FR at 78960 n.42; see also 76 FR at 48243, 48214.
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Following issuance of the D.C. Circuit's decision in EME Homer City
II remanding the CSAPR Phase 2 SO2 budget for Texas, the EPA
reevaluated its earlier conclusions regarding Texas' PM2.5
transport obligations by reexamining the data in the final CSAPR record
in light of the D.C. Circuit's holdings in the decision, including the
holdings regarding the CSAPR Phase 2 seasonal NOX budgets
for several states, as explained in the proposal.\26\ The final CSAPR
record contained ``base case'' modeling projections of air quality at
monitoring locations throughout the country both for 2012, the intended
start year of Phase 1 of the CSAPR trading programs, and for 2014, the
intended start year of Phase 2 of the programs. The base case
projections were designed to represent projected air quality at these
monitoring locations without any emission reductions from CSAPR. In the
CSAPR rulemaking, the EPA used the 2012 base case air quality
projections for purposes of identifying ozone receptors projected to
have air quality problems and determining states that were linked to
those receptors and that therefore might have transport obligations
under both Phase 1 and Phase 2 of the CSAPR trading programs. However,
in EME Homer City II, the D.C. Circuit agreed with petitioners\27\ that
the EPA should also have considered the 2014 base case air quality
projections for these purposes, and that in instances of receptors
where the 2014 base case projections did not show air quality problems,
the EPA lacked authority to require any emission reductions in Phase 2
of the CSAPR trading programs based on linkages to those receptors only
occurring in Phase 1 of the programs. On these grounds, the court found
that EPA lacked authority to establish Phase 2 seasonal NOX
emission limitations for EGUs in ten states linked solely to ozone
receptors whose 2014 air quality projections did not show air quality
problems.\28\
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\26\ 81 FR at 78960.
\27\ See Opening Brief of Industry and Labor Petitioners on
Remand 8, 14, EME Homer City Generation, L.P. v. EPA, No. 11-1302
(D.C. Cir. filed December 10, 2014).
\28\ EME Homer City II, 795 F.3d at 129-30. The court also
remanded the Phase 2 seasonal NOX budget for an eleventh
state (Texas), but on different grounds.
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While not discussed in the court's decision, the projections of
2014 air quality for a PM2.5 receptor in Madison County,
Illinois (the only PM2.5 receptor with projected air quality
problems to which Texas was linked) in the final CSAPR record are
analogous to the 2014 air quality projections for the ozone receptors
described above, in that the air quality problems at the Madison County
receptor were projected to be resolved in 2014 before any emission
reductions from CSAPR. In light of the court's holding as to the legal
import of the 2014 base case air quality projections for the ozone
receptors described above, the EPA considered the legal import of the
analogous 2014 base case air quality projections for the Madison County
PM2.5 receptor with respect to Texas' PM2.5-
related obligations under CSAPR. There are three relevant record data
elements. First, the record indicates that the only PM2.5
receptor to which Texas is linked for purposes of determining possible
obligations under the good neighbor provision is the receptor in
Madison County, Illinois.\29\ Second, the projected maximum design
value \30\ for annual PM2.5 at the Madison County receptor
is 15.02 micrograms per cubic meter ([micro]g/m\3\) in the 2014 base
case.\31\ Finally, the value that the EPA used to determine whether a
particular PM2.5 receptor should be identified as having air
quality problems that may trigger transport obligations with regard to
the 1997 annual PM2.5 NAAQS is 15.05 [micro]g/m\3\, which is
higher than the Madison County maximum design value in the 2014 base
case.\32\ Thus, the reevaluation of the final CSAPR record in light of
the D.C. Circuit's holding indicates that the record does not support a
finding of a transport obligation for Texas under CAA section
110(a)(2)(D)(i)(I) with regard to this NAAQS as of the beginning of
Phase 2 of the CSAPR trading programs for SO2 and annual
NOX, and the Agency accordingly finds that the state's
obligation is resolved without a need for further emission reductions,
including the emission reductions from CSAPR. The finding that Texas's
transport obligation with regard to this NAAQS is resolved as of the
start of Phase 2 of the CSAPR trading programs without the need for any
emission reductions from CSAPR removes the EPA's authority to issue new
FIP requirements for purposes of responding to the court's remand of
the state's CSAPR Phase 2 SO2 budget. The finding likewise
eliminates any obligation of the EPA to issue new FIP requirements
addressing a remaining transport obligation of the state with regard to
this NAAQS following withdrawal of the existing CSAPR FIP requirements,
because the state has no such remaining transport obligation following
the withdrawal.
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\29\ See 76 FR at 48241, tables V.D-2 and V.D-3.
\30\ The EPA independently considered linkages to
``nonattainment'' and ``maintenance'' receptors. If both the
projected average design value and the projected maximum design
values for a receptor were above the triggering threshold, the
receptor was considered a nonattainment receptor. If the projected
maximum design value was above the triggering threshold but the
projected average design value was not, the receptor was considered
a maintenance receptor. Thus, if the projected maximum design value
was not above the triggering threshold, the receptor was not
considered either a nonattainment receptor or a maintenance
receptor. See 76 FR at 48233.
\31\ See projected 2014 base case maximum annual
PM2.5 design value for Madison County, Illinois receptor
171191007 at B-41 of the Air Quality Modeling Final Rule Technical
Support Document, Docket ID No. EPA-HQ-OAR-2009-0491-4140 (June
2011) (CSAPR Final Rule Technical Support Document), available in
the docket for this action.
\32\ 76 FR at 48233.
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As noted in the proposal, the modeling for the CSAPR final rule
also linked Texas to a downwind air quality problem with regard to the
2006 24-hour PM2.5 NAAQS, but the EPA did not rely on the
linkage with regard to this NAAQS as a basis for establishing CSAPR FIP
requirements for Texas EGUs. In the proposal, the EPA indicated that
data in the final CSAPR record, reevaluated in light of EME Homer City
II, would show that Texas no longer has a transport obligation with
regard to the 2006 24-hour PM2.5 NAAQS as of the beginning
of Phase 2 of the CSAPR trading programs for SO2 and annual
NOX, but that because Texas was not subject to CSAPR
requirements with regard to this NAAQS, the EPA was not proposing to
make a determination in this action as to any obligation of Texas with
regard to this NAAQS. Nevertheless, because commenters raise the 2006
24-hour PM2.5 NAAQS in their comments, the EPA will explain
how the court's reasoning would apply with respect to
[[Page 45486]]
the data for this NAAQS. The analysis for the 2006 24-hour
PM2.5 NAAQS is essentially identical to the analysis
described above with regard to the 1997 annual PM2.5 NAAQS.
Specifically, the Madison County receptor is the only PM2.5
receptor to which Texas was linked for this NAAQS; \33\ the projected
maximum design value for 24-hour PM2.5 at the Madison County
receptor is 35.3 [micro]g/m\3\ in the 2014 base case; \34\ and the
value that the EPA used to determine whether a particular
PM2.5 receptor should be identified as having air quality
problems that may trigger transport obligations with regard to the 2006
24-hour PM2.5 NAAQS is 35.5 [micro]g/m\3\, which is higher
than the Madison County maximum design value in the 2014 base case.\35\
Thus, the reevaluation of the final CSAPR record in light of the D.C.
Circuit's holding also indicates that the record would not support a
finding of a transport obligation for Texas with regard to the 2006 24-
hour PM2.5 NAAQS as of the beginning of Phase 2 of the CSAPR
trading programs for SO2 and annual NOX.
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\33\ See 76 FR at 48242-44, tables V.D-5 and V.D-6.
\34\ See projected 2014 base case maximum 24-hour
PM2.5 design value for Madison County, Illinois receptor
171191007 at B-70 of the CSAPR Final Rule Technical Support
Document, available in the docket for this action.
\35\ 76 FR at 48234-35.
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Overall, on the subject of the proposed withdrawal of the FIP
provisions and the proposed finding that Texas will no longer have a
transport obligation following withdrawal of the FIP provisions, the
EPA received substantive comments from two parties.\36\ The remainder
of this section summarizes these commenters' principal comments on this
topic and provides the Agency's response.
---------------------------------------------------------------------------
\36\ A third commenter states without further elaboration that
it does not oppose the FIP withdrawal.
---------------------------------------------------------------------------
B. Adequacy of Rationale for Finding No Remaining Transport Obligation
The commenters state that the Agency's explanation for the proposed
finding that Texas no longer has a transport obligation under CAA
section 110(a)(2)(D)(i)(I) with regard to the 1997 annual
PM2.5 NAAQS as of the beginning of Phase 2 of the CSAPR
trading programs for SO2 and annual NOX is
inadequate or confusing, and that the Agency must provide additional
explanation for changing its position on the continued existence of a
Texas transport obligation from the contrary position taken by the
Agency when promulgating the CSAPR final rule.
The EPA disagrees with these comments. The proposal contained a
complete explanation of the Agency's basis for this finding, including
all necessary supporting data and documentation.\37\ As fully explained
in the proposal and reiterated above, the Agency's change in position
as to Texas' transport obligation between the CSAPR final rule and this
action is readily attributable to the D.C. Circuit's holding in EME
Homer City II with regard to the legal import of the 2014 base case air
quality projections in the final CSAPR record. The court's holding
clarifies the legal standard the Agency should have used when
considering the information in the final CSAPR record, which includes
those air quality projections.
---------------------------------------------------------------------------
\37\ 81 FR at 78960.
---------------------------------------------------------------------------
C. Responsiveness to the D.C. Circuit's Remand Instructions
The commenters assert that withdrawal of the remanded Texas
SO2 budget without issuance of a presumably less stringent
replacement budget is not responsive to the D.C. Circuit's remand
instructions. According to the commenters, the court directed the EPA
to develop a revised CSAPR FIP SO2 budget for Texas EGUs
that does not over-control, and the EPA must either do so or,
alternatively, must allow Texas to submit a CSAPR SIP with a higher
SO2 budget. The commenters' argument is intended to provide
a continued basis for reliance on CSAPR participation as an
SO2 BART alternative for Texas EGUs. Underlying the
commenters' arguments is an apparent belief that a revised, higher
CSAPR budget, whether issued through a FIP or approved through a SIP,
would automatically enable Texas to rely on CSAPR participation as an
alternative to source-specific SO2 BART requirements for the
State's EGUs under 40 CFR 51.308(e)(4).
The EPA disagrees with these comments. As an initial matter, the
D.C. Circuit in fact did not direct the Agency to develop replacement
budgets for the Texas SO2 budget or any of the other
remanded CSAPR Phase 2 budgets. Rather, the court found that certain
budgets were invalid and remanded to the EPA to ``reconsider''
them,\38\ a general instruction that encompasses a range of possible
Agency actions upon reconsideration. The commenters cite no statement
from the court's opinion that requires the establishment of replacement
budgets, but assert that such a requirement must be inferred from the
court's other statements or determinations. For example, the commenters
suggest that because the court remanded the budgets without vacatur
instead of vacating the budgets outright, the court must have intended
for the Agency to replace rather than simply withdraw the budgets.
However, the court actually provided a different rationale for
remanding without vacatur, including the statement that ``some good
neighbor obligations may be appropriate for some of the relevant
states.'' \39\ The reference to ``some'' of the states indicates that
the court considered it likely that replacement budgets would not be
established in every instance, and the use of the word ``may''
indicates that the court considered it possible that replacement
budgets would not be established in any instance. Thus, contrary to the
commenters' claims, the court's opinion clearly affords the Agency the
discretion to determine the appropriate response to the remand and does
not prevent the Agency from determining upon reconsideration that the
program is no longer needed for a particular state with respect to a
particular pollutant and consequently not establishing a replacement
budget.
---------------------------------------------------------------------------
\38\ EME Homer City II, 795 F.3d at 124, 138.
\39\ Id. at 132 (emphasis added).
---------------------------------------------------------------------------
The commenters make several additional arguments in support of
their contention that the FIP withdrawal is not responsive to the D.C.
Circuit's instructions. One commenter asserts that because the court
stated that the Agency could consider new information in responding to
the remand, the court must have intended for the Agency's response to
involve the establishment of replacement budgets. This claim is a non
sequitur--the court's acknowledgement that additional information may
be considered says nothing about what the Agency may or must conclude
from consideration of that information. The same commenter also asserts
that the Agency may not rely on lack of FIP authority as the basis for
not establishing a revised budget because lack of FIP authority was not
the basis cited by the court for remanding the budget. This claim is
also a non sequitur--the Agency lacks authority to issue a revised
budget and therefore may not do so, regardless of what additional
defects the court may have cited in ordering the remand.
The other commenter asserts that the FIP withdrawal would disrupt
allowance markets, contrary to the concern expressed by the D.C.
Circuit that outright vacatur, rather than remand without vacatur,
could have that impact. While the EPA agrees with the concern expressed
by the court and the commenter regarding the potentially disruptive
effects of outright vacatur on
[[Page 45487]]
allowance markets, the Agency does not agree that the court's concern
regarding unintended consequences of a judicial vacatur provides a
basis for not taking final action at this time to withdraw the Texas
FIP requirements, for two reasons. First, the EPA believes that the
court did not intend for its expression of concern to constrain the
Agency's range of possible responses to the remand. As discussed above,
it is clear from the opinion that the court anticipated the possibility
that upon reconsideration the EPA would determine that some, or even
all, of the remanded budgets should be withdrawn and not replaced.
Second, in this instance, emissions data reported by the EGUs covered
by the CSAPR trading programs for SO2 and annual
NOX demonstrate that withdrawal of the FIP provisions
requiring Texas EGUs to participate in these programs will not cause
allowance market disruption for the programs' remaining participants.
Under both programs, the totals of the emissions reported by
participating EGUs for both 2015 and 2016 in states other than Texas
were less than the sums of the Phase 2 emissions budgets for these
other states.\40\ Likewise, under both programs the totals of the
emissions reported by Texas EGUs for both 2015 and 2016 were less than
the Texas Phase 2 budgets.\41\ The elimination from the programs of
Texas EGUs and the allowances allocated to Texas EGUs is therefore not
expected to cause either shortages of allowances available for purchase
by EGUs in the other states or the loss of an important market for sale
of surplus allowances by EGUs in the other states. In these
circumstances, the EPA anticipates that the FIP withdrawal will have
little impact on the allowance market in either trading program.
---------------------------------------------------------------------------
\40\ See ``2015-2016 Compliance Summary for CSAPR SO2
Group 2 and NOX Annual Trading Programs,'' available in
the docket for this action.
\41\ Id.
---------------------------------------------------------------------------
With regard to the two commenters' preferred response to the
remand--that the EPA establish a revised, less stringent SO2
budget for Texas EGUs and implement that budget through a revised FIP--
such an action is infeasible because the Agency lacks the necessary
legal authority. In this action, the EPA is finalizing the proposed
finding that Texas no longer has a transport obligation under CAA
section 110(a)(2)(D)(i)(I) for the 1997 annual PM2.5 NAAQS.
That finding addresses the deficiency in the Texas SIP that was the
basis for issuance of the withdrawn FIP requirements and, therefore,
because there is no longer a deficiency, the Agency no longer has
authority to issue revised FIP requirements.\42\ The reasons for the
finding are discussed above and were discussed at length in the
proposal.\43\
---------------------------------------------------------------------------
\42\ See CAA section 110(c).
\43\ 81 FR at 78960.
---------------------------------------------------------------------------
With regard to the commenters' suggested alternative response to
the remand--that the EPA allow Texas to submit a CSAPR SIP with a
higher SO2 budget in order to allow the state to rely on
CSAPR participation as an SO2 BART alternative even if the
state's EGUs are no longer subject to a CSAPR FIP SO2
budget--the comment is not properly directed to the EPA, because Texas
has not expressed interest in submitting a CSAPR SIP.\44\ Moreover,
even if consideration of Texas' BART obligations were relevant for our
action on remand, reliance on CSAPR participation with a higher budget
would not automatically qualify as an SO2 BART alternative
under the terms of the CSAPR-better-than-BART rule. That rule allows a
state to rely on its EGUs' participation in a CSAPR SIP trading program
only if the EPA approves the SIP as ``meeting the requirements of'' the
CSAPR regulations at 40 CFR 52.38 and 52.39.\45\ As relevant here, the
CSAPR regulations at Sec. 52.39 expressly preclude a state's
SO2 emissions budget from exceeding the SO2
emissions budget established under the CSAPR FIP trading program that
the CSAPR SIP trading program would replace.\46\ Thus, even if the D.C.
Circuit's remand could serve as a basis for the EPA to approve a SIP
revision that does not satisfy Sec. 52.39 on the grounds that the
state's transport obligations can be addressed by a less stringent
budget, the CSAPR-better-than-BART rule at 40 CFR 51.308(e)(4) would
not be satisfied. A SIP approved on such a basis could in theory
provide a mechanism for Texas EGUs to participate in CSAPR with a
higher SO2 budget than the remanded FIP budget despite the
Agency's lack of authority to set a revised SO2 budget
through a revised FIP. However, because of the increased SO2
budget, such a SIP would not ``meet[] the requirements of . . . Sec.
52.39'' and therefore would not allow the state to rely on its EGUs'
participation in the CSAPR SIP trading program as an alternative to
source-specific BART for SO2.\47\
---------------------------------------------------------------------------
\44\ Texas did not submit comments on the proposal for this
action.
\45\ 40 CFR 51.308(e)(4).
\46\ 40 CFR 52.39(i)(1)(i).
\47\ To the extent the commenters are suggesting that the D.C.
Circuit's holdings in EME Homer City II require the Agency to find
that a SIP with a revised, higher SO2 budget would
somehow satisfy the CSAPR-better-than-BART rule despite its plain
language, the Agency disagrees. The court held that the remanded
budgets may over-control relative to the states' transport
obligations, but did not determine that the budgets are more
stringent than necessary to serve as an alternative to source-
specific BART. Further, the CSAPR-better-than-BART rule rests on an
evaluation of the projected visibility impacts from CSAPR
implementation assuming the final CSAPR Phase 2 budget stringencies
(including the 2012 CSAPR budget revisions, which were accounted for
in the analysis for the final CSAPR-better-than-BART rule). Given
this, continuing to enforce the CSAPR-better-than-BART rule's
requirement that a state's participation in CSAPR through a SIP must
``meet[] the requirements of . . . Sec. 52.39''--including the
requirement for a state budget no less stringent than was analyzed
for purposes of promulgating the rule--is entirely reasonable.
---------------------------------------------------------------------------
D. Consistency of Responses to Remand Across States
One commenter states that by withdrawing the FIP requirements the
EPA is arbitrarily singling Texas out as the only state with a remanded
CSAPR budget whose EGUs will lose the ability to rely on CSAPR
participation as a BART alternative. The commenter further asserts that
the Agency's ``sole purpose'' in withdrawing the FIP requirements is to
facilitate the imposition of source-specific SO2 BART
requirements on Texas EGUs through a different action.
The EPA disagrees with these comments, which are entirely contrary
to the record. First, on the question of uniform application of the
CSAPR-better-than-BART regulations, no state whose EGUs do not
participate in a CSAPR trading program for a given pollutant can rely
on CSAPR participation as a BART alternative for that pollutant. In
response to the D.C. Circuit's remand of CSAPR Phase 2 budgets, the EPA
has withdrawn or expects to withdraw all fifteen remanded budgets. As
explained in the proposal, in thirteen instances, the state will retain
eligibility to rely on the CSAPR-better-than-BART rule for the
pollutant in question through either the EPA's establishment of a new
CSAPR budget to address a more stringent NAAQS (eight seasonal
NOX budgets), the state's sources' continued participation
in a different CSAPR trading program for the same pollutant (two
seasonal NOX budgets), or the state's voluntary adoption in
a SIP revision of a CSAPR state budget as stringent as the remanded
CSAPR FIP budget (three SO2 budgets).\48\ In the remaining
two instances where a remanded budget is being withdrawn and none of
the three options for preserving eligibility to rely on CSAPR-better-
than-BART applies--Texas' SO2 budget and Florida's seasonal
NOX budget--the state is losing the
[[Page 45488]]
opportunity to rely on CSAPR participation as a BART alternative for
that pollutant.\49\ Thus, Texas is being treated the same as every
other state with respect to use of the CSAPR-better-than-BART rule.\50\
---------------------------------------------------------------------------
\48\ 71 FR at 78956-57.
\49\ As noted in the proposal, 81 FR at 78962, n.55, the EPA has
already approved the incorporation into Florida's SIP of
determinations regarding source-specific NOX BART. 77 FR
71111, 71113-14 (November 29, 2012); 78 FR 53250, 53267 (August 29,
2013).
\50\ As a further example of the consistent treatment of Texas,
the EPA notes that, despite the withdrawal of the Texas FIP
requirements relating to annual NOX emissions, the state
will be able to continue to rely on the CSAPR-better-than-BART rule
for NOX as long as the state's EGUs continue to
participate in a CSAPR trading program for seasonal NOX
emissions. See 81 FR at 78955 n.4 and 78956 n.7.
---------------------------------------------------------------------------
Second, on the question of the EPA's purpose in withdrawing the FIP
requirements, that purpose is to address the court's remand. As
explained in the proposal, before initiating this action, the EPA
communicated with officials in all four states with remanded
SO2 budgets--Alabama, Georgia, South Carolina, and Texas--
regarding the EPA's intent to respond to the remand of the Phase 2
SO2 budgets by withdrawing the FIP provisions requiring the
states' EGUs to participate in the CSAPR federal trading programs for
SO2 and annual NOX.\51\ The EPA explained that
each state would lose its ability to rely on CSAPR participation as a
BART alternative for SO2 and/or NOX if its EGUs
no longer participated in the CSAPR trading programs, but that the
state could preserve that ability, if desired, by submitting a CSAPR
SIP revision replacing the CSAPR federal trading programs with CSAPR
state trading programs applying state-established budgets no less
stringent than the remanded federally-established budgets (i.e.,
budgets consistent with the 2012 CSAPR-better-than-BART analytic
demonstration).\52\ Alabama, Georgia, and South Carolina indicated
their preference to pursue the SIP revision option. The EPA approved
Alabama's CSAPR SIP revision in 2016 and, accordingly, the FIP
provisions requiring its EGUs to participate in the CSAPR federal
trading programs for SO2 and annual NOX have been
automatically withdrawn.\53\ Georgia and South Carolina committed to
the EPA in 2016 to submit similar CSAPR SIP revisions by deadlines
falling in September 2017 and August 2017, respectively.\54\ Georgia
has in fact now submitted its SIP to the EPA for approval,\55\ South
Carolina has submitted its proposed state CSAPR trading program rules
and has requested that the EPA begin the SIP approval process under the
Agency's parallel processing procedure,\56\ and the EPA has proposed to
approve both SIP revisions.\57\ The CSAPR FIP provisions remain in
place for the time being for EGUs in Georgia and South Carolina, and
the EPA is not proposing their withdrawal at this time based on the
reasonable expectation that such withdrawal will be automatically
accomplished as a result of the Agency's action on those states' SIP
submittals, just as with Alabama.\58\ Because Texas has indicated that
it will not submit a CSAPR SIP revision, the EPA is proceeding with
this action to withdraw the FIP requirements for Texas EGUs, consistent
with the intended approach previously communicated to officials for all
four states. Texas has had the same set of options available to all
four states with remanded SO2 budgets and has selected a
different option than the other three states.
---------------------------------------------------------------------------
\51\ See memo entitled ``The U.S. Environmental Protection
Agency's Plan for Responding to the Remand of the Cross-State Air
Pollution Rule Phase 2 SO2 Budgets for Alabama, Georgia,
South Carolina and Texas'' from Janet G. McCabe, EPA Acting
Assistant Administrator for Air and Radiation, to EPA Regional Air
Division Directors (June 27, 2016), available in the docket for this
action. The memo directs the Regional Air Division Directors to
share the memo with state officials. The EPA also communicated
orally with officials in Alabama, Georgia, South Carolina, and Texas
in advance of the memo.
\52\ Although the D.C. Circuit remanded the states' Phase 2
SO2 budgets because it determined that the budgets may be
more stringent than necessary to address the states' identified
PM2.5 transport obligations, nothing in the court's
decision affects the states' authority to seek incorporation into
their SIPs of state-established budgets as stringent as the remanded
federally-established budgets or limits the EPA's authority to
approve such SIP revisions. See CAA sections 116, 110(k)(3).
\53\ Air Plan Approval; Alabama; Cross-State Air Pollution Rule,
81 FR 59869 (August 31, 2016).
\54\ See letters to Heather McTeer Toney, Regional
Administrator, EPA Region 4, from Judson H. Turner, Director of the
Environmental Protection Division, Georgia Department of Natural
Resources (May 26, 2016) and from Myra C. Reece, Director of
Environmental Affairs, South Carolina Department of Health and
Environmental Control (April 19, 2016), available in the docket for
this action. The EPA has conditionally approved the CAA section
110(a)(2)(D)(i)(II) prong 4 visibility element for multiple NAAQS in
the Georgia and South Carolina SIPs based on each state's commitment
to submit a CSAPR SIP revision. 81 FR 65899, 65900 (September 26,
2016) (Georgia); 81 FR 56512, 56513 (August 22, 2016) (South
Carolina). Each state committed to submit its CSAPR SIP revision
within one year of the date of the Agency's final conditional
approval of the state's prong 4 SIP revision. Failure of a state to
meet a commitment serving as the basis for a conditional SIP
approval results in automatic conversion of the conditional approval
to a disapproval.
\55\ See letter to V. Anne Heard, Acting Regional Administrator,
EPA Region 4, from Richard E. Dunn, Director, Environmental
Protection Division, Georgia Department of Natural Resources (July
26, 2017), available in the docket for this action.
\56\ See letter to V. Anne Heard, Acting Regional Administrator,
EPA Region 4, from Myra C. Reece, Director of Environmental Affairs,
South Carolina Department of Health and Environmental Control (May
26, 2017), available in the docket for this action. Under the
parallel processing procedure, the EPA works closely with the state
agency during regulatory development, and the state submits a copy
of its proposed regulations to the EPA before completion of the
state's public notice and adoption process. The EPA reviews the
proposed state action, prepares a notice of proposed EPA action
(approval or disapproval) for publication in the Federal Register,
and provides public notice concurrently with the state's process.
After the state adopts its final regulations and submits its formal
SIP revision request, the EPA reviews the SIP submission for changes
from proposal and either prepares a notice of final EPA action or,
if the state has made significant changes, may re-propose before
taking final EPA action. The public comment period on South
Carolina's proposed regulations ended on June 26, 2017, and the
state expects its final regulations to become effective in August
2017. Id.
\57\ Air Plan Approval; Georgia; Cross-State Air Pollution Rule,
82 FR 38866 (August 16, 2017); Air Plan Approval; South Carolina;
Cross-State Air Pollution Rule, 82 FR 37389 (August 10, 2017).
\58\ If the EPA disapproves Georgia's or South Carolina's SIP
submittal, the EPA will propose to withdraw the FIP provisions
requiring that state's EGUs to participate in the CSAPR federal
trading programs for SO2 and annual NOX,
consistent with the action taken here for Texas EGUs.
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E. Consistency of Consideration of D.C. Circuit's Holding Across States
One commenter asserts that the EPA has not analyzed whether other
states covered by CSAPR are linked only to receptors for which the 2014
base case projections do not show air quality problems, and that ``[b]y
not performing that analysis, the EPA is arbitrarily singling Texas out
for removal from the CSAPR program.''
The EPA disagrees with these comments. With respect to the budgets
that were not remanded by the court, the Agency has confirmed for each
such budget that the state is linked to at least one receptor for which
the base case 2014 air quality projections showed air quality problems.
The court's holding as to lack of authority to establish Phase 2
emission reduction requirements for a state in the absence of any
linkage to a projected air quality problem in the 2014 base case
therefore does not extend to these budgets.\59\
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\59\ See 76 FR at 48241-44, tables V.D-2, V.D-3, V.D-5, and V.D-
6 (annual and 24-hour PM2.5 linkages); id. at 48246,
tables V.D-8 and V.D-9 (ozone linkages); CSAPR Final Rule Technical
Support Document at B-35 to B-92 (2014 base case maximum design
values for annual and 24-hour PM2.5); id. at B-4 to B-34
(2014 base case maximum design values for ozone). As discussed
above, the relevant triggering values for annual and 24-hour
PM2.5 are 15.05 [micro]g/m\3\ and 35.5 [micro]g/m\3\,
respectively. The relevant triggering value for ozone is 85 parts
per billion (ppb). 76 FR at 48236.
---------------------------------------------------------------------------
With respect to the remanded budgets, the EPA again rejects the
suggestion that Texas is being treated differently than any other
state. As noted in the response above to the comments concerning the
consistency of the Agency's responses to the remand,
[[Page 45489]]
the FIP requirements to comply with all the remanded budgets, not just
the remanded Texas SO2 budget, have been withdrawn or are
expected to be withdrawn. Further, as discussed above, in the cases of
ten of the eleven remanded seasonal NOX budgets, the absence
of air quality problems at the relevant receptors in the 2014 base case
projections was expressly cited by the court as the basis for remanding
the budgets. The EPA's reliance on the court's holding as applied to
those states' ozone-related transport obligations with regard to the
1997 8-hour ozone NAAQS is indistinguishable from the EPA's reliance on
the same holding as applied to Texas' PM2.5-related
transport obligations with regard to the 1997 annual PM2.5
NAAQS.\60\
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\60\ In the case of the last remanded seasonal NOX
budget--for Texas--the court remanded the budget on different
grounds, and the EPA subsequently determined through further
analysis that the state has no remaining transport obligation under
CAA section 110(a)(2)(D)(i)(I) with respect to the 1997 8-hour ozone
NAAQS. See 81 FR at 74524. In the cases of the remanded
SO2 budgets for Alabama, Georgia, and South Carolina, the
states are adopting equally stringent CSAPR SIP budgets to replace
the withdrawn FIP budgets in order to preserve the states' options
to rely on the CSAPR-better-than-BART rule, thereby rendering moot
any questions about the states' remaining transport obligations and
EPA's authority or obligation to issue revised FIP budgets to
address such transport obligations.
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F. Potential Use of Texas FIP Budgets To Address a Different PM2.5
NAAQS
Finally, the commenters state that the EPA should consider Texas's
obligations to address interstate transport with respect to the 2006
24-hour PM2.5 NAAQS and/or the 2012 annual PM2.5
NAAQS before withdrawing Texas' FIP obligations. As noted in the
proposal and discussed above, in the case of Texas, CSAPR FIP
obligations related to PM2.5 pollution were established with
respect to the 1997 annual PM2.5 NAAQS only, even though for
other states the CSAPR FIPs were based on the states' transport
obligations with respect to both the 1997 annual PM2.5 NAAQS
and the 2006 24-hour PM2.5 NAAQS.\61\ The commenters assert
that failure to consider Texas' potential transport obligations with
respect to the 2006 24-hour PM2.5 NAAQS now before
withdrawing the FIP obligations would be inconsistent with the manner
in which the EPA responded to the D.C. Circuit's remand of seasonal
NOX budgets and inconsistent with data in the CSAPR record
that links Texas to downwind air quality problems with respect to the
2006 24-hour PM2.5 NAAQS.\62\
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\61\ See 81 FR at 78960 n.42; see also 76 FR at 48213, table
III-1.
\62\ One of the commenters asserts that ``under EPA's own
theory,'' the existence of this data in the CSAPR final record
mandates that the EPA consider the state's transport obligations
with respect to the 2006 24-hour PM2.5 NAAQS before
withdrawing the FIP requirements. Wrongly attributing this
``theory'' to the Agency, the commenter ignores other factors the
Agency must take into account before promulgating FIP requirements,
such as whether a statutory condition establishing FIP authority has
been satisfied. In any event, for this final action the Agency has
expressly considered (and rejected) the option of leaving the Texas
FIP requirements in place to address the state's transport
obligations with respect to this NAAQS, as discussed in this
section.
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The EPA disagrees with this comment for three reasons. First, as
noted above, the Agency is responding to the court's remand of all
fifteen CSAPR Phase 2 SO2 and seasonal NOX
budgets in the same way, namely by withdrawing the FIP provisions
requiring affected EGUs to comply with the remanded budgets.\63\ The
differences noted by the commenters are differences only in the actions
that are being coordinated with the responses, not differences in the
responses themselves.
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\63\ As discussed in the proposal, addressing the remanded
budgets by withdrawing the FIP requirements is also fully consistent
with the manner in which EPA has responded to previous judicial
remands regarding obligations of individual states under other EPA
rules addressing multiple states' transport obligations. 81 FR at
78959.
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Second, the differences in the coordinated actions are reasonable
given the differences in other regulatory activities being undertaken
for the two pollutants. The EPA coordinated the withdrawal of the
eleven remanded seasonal NOX budgets addressing the 1997 8-
hour ozone NAAQS with the establishment of new budgets for eight of
those states addressing the 2008 8-hour ozone NAAQS because a
rulemaking to address transported pollution with respect to the 2008 8-
hour ozone NAAQS was actively under development at the time of the
court's decision.\64\ Under this circumstance, such coordination was
efficient and fully consistent with the court's expressed intent to
minimize market disruption and to continue to address statutory
obligations to reduce transported pollution where appropriate. In
contrast, no analogous opportunity is available to coordinate
withdrawal of the remanded SO2 budgets with another
rulemaking addressing a more recent PM2.5 NAAQS because
states' transport obligations with respect to the 2006 24-hour
PM2.5 NAAQS have already been largely addressed through
either SIPs or the CSAPR rulemaking, and the Agency has not identified
interstate transport problems with respect to the 2012 annual
PM2.5 NAAQS sufficient to justify a new national rulemaking
at this time.
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\64\ As noted in the proposal, for three of the eleven states
with remanded seasonal NOX budgets addressing the 1997 8-
hour ozone NAAQS--Florida, North Carolina, and South Carolina--the
EPA found no transport obligations with respect to the 2008 8-hour
ozone NAAQS and did not establish seasonal NOX budgets
addressing that NAAQS. 81 FR at 78959.
---------------------------------------------------------------------------
Third, the EPA lacks authority to rely on a transport obligation
for Texas with respect to either the 2006 24-hour PM2.5
NAAQS or the 2012 annual PM2.5 NAAQS as the legal basis to
support imposing an SO2 budget for the state via a FIP.
Under CAA section 110(c), the Agency's authority to issue a FIP with
respect to a particular state obligation arises either when the Agency
finds that a state has failed to submit a required SIP or when the
Agency disapproves a submitted SIP. Neither of these predicate events
has occurred with regard to Texas' transport obligations under either
the 2006 24-hour PM2.5 NAAQS or the 2012 annual
PM2.5 NAAQS.\65\ Commenters are correct that data in the
final CSAPR record, as evaluated by the Agency when CSAPR was
promulgated, showed that PM2.5 pollution transported from
Texas to downwind states exceeded the minimum threshold level used to
establish which states might have transport obligations for the 2006
24-hour PM2.5 NAAQS. However, as noted in the proposal \66\
and discussed above, the 2014 base case air quality projections in the
final CSAPR record, when reevaluated in light of the D.C. Circuit's
holdings in EME Homer City II, would support a finding that as of the
beginning of Phase 2 of the CSAPR trading programs for SO2
and annual NOX, Texas does not have an ongoing transport
obligation with respect to the 2006 24-hour PM2.5 NAAQS.
Thus, even if the EPA had taken final action disapproving Texas'
outstanding SIP submission addressing transported pollution with regard
to the 2006 24-hour PM2.5 NAAQS, such a disapproval would no
longer provide a basis for the Agency to issue a FIP in this instance,
because without any remaining transport obligation, there is no
remaining SIP deficiency to address through a FIP.
---------------------------------------------------------------------------
\65\ Texas has submitted SIPs intended to address its transport
obligations under each of these NAAQS. In the case of the 2006 24-
hour PM2.5 NAAQS, the EPA has proposed to disapprove the
state's transport SIP submittal, 76 FR 20602 (April 13, 2011), but
has yet not taken final action. In the case of the 2012 annual
PM2.5 NAAQS, the EPA has not yet taken any action on the
state's transport SIP submittal.
\66\ 81 FR at 78955 n.5.
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[[Page 45490]]
IV. Sensitivity Analysis Regarding CSAPR Participation as a BART
Alternative
A. Summary
As explained in the proposal and summarized in section II.B, the
EPA amended the Regional Haze Rule in 2012 to authorize states whose
EGUs participate in CSAPR trading programs for a given pollutant to
rely on CSAPR participation as a BART alternative for that pollutant.
The CSAPR-better-than-BART rule rests on an analytic demonstration that
implementation of CSAPR as expected to take effect at that time would
achieve greater reasonable progress than BART toward the national goal
of natural visibility conditions in Class I areas. As part of the
proposal for this action, the EPA included a sensitivity analysis to
the 2012 analytic demonstration showing that the 2012 analysis would
have supported the same conclusion if the actions being taken in
response to the D.C. Circuit's remand of various CSAPR Phase 2 budgets
\67\ had been reflected in the 2012 analysis. In this action, upon
consideration of comments received, the EPA is affirming the
sensitivity analysis from the proposal that concluded that the 2012
analytic demonstration is still valid and is consequently affirming
that there is no need for revision of the CSAPR-better-than-BART rule
as a result of the changes in CSAPR's geographic scope resulting from
the Agency's set of responses to the EME Homer City II decision.
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\67\ As described in sections II.A and III.D above, in addition
to this action, the full set of actions being taken to respond to
the remand includes the 2016 CSAPR Update (see note 14 above)
withdrawing the remanded seasonal NOX budgets for eleven
states and establishing new seasonal NOX budgets to
address a more recent ozone NAAQS for eight of those states, the
action approving Alabama's SIP revision establishing state CSAPR
trading programs for SO2 and annual NOX to
replace the corresponding federal CSAPR trading programs (see note
53 above), and expected actions to approve proposed SIP revisions
for Georgia and South Carolina comparable to Alabama's SIP revision
(see note 57 above).
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The original 2012 analytic demonstration supporting participation
in CSAPR as a BART alternative was based on an air quality modeling
analysis comparing projected visibility conditions at relevant
locations (referred to in the proposal and here simply as ``Class I
areas'') under three scenarios.\68\ The first scenario reflected no
implementation of either CSAPR or BART, the second scenario reflected
implementation of presumptive source-specific BART for both
SO2 and NOX at BART-eligible EGUs nationwide, and
the third scenario reflected implementation of CSAPR in covered states
and presumptive source-specific BART for each pollutant in states where
CSAPR did not apply for that pollutant (the three scenarios are
referred to here as the base case scenario, the BART scenario, and the
original CSAPR scenario, respectively). The EPA used the results of the
three scenarios to compare the projected visibility impacts of CSAPR
and BART under a two-pronged ``better-than-BART'' test.\69\ The first
prong--a requirement that visibility must not decline in any Class I
area under the proposed BART alternative--was evaluated by comparing
the projected visibility conditions under the original CSAPR scenario
and the base case scenario. The second prong--a requirement that there
must be an overall visibility improvement on average across all
affected Class I areas under the proposed BART alternative relative to
source-specific BART--was evaluated by comparing the projected
visibility conditions under the original CSAPR scenario and the BART
scenario. Based on these comparisons, and also taking account of
revisions made to CSAPR after the 2011 modeling but before or
contemporaneous with the 2012 CSAPR-better-than-BART rule, the EPA
concluded that the original CSAPR scenario satisfied both prongs of the
test.
---------------------------------------------------------------------------
\68\ This background is set forth in greater detail in the
proposal. See 81 FR at 78961-62.
\69\ As described in the proposal, satisfaction of the two-
pronged test based on an air quality modeling analysis is one of
three ways that an alternative measure may be demonstrated to be
``better than BART'' under the Regional Haze Rule. 81 FR at 78957.
---------------------------------------------------------------------------
The EPA's proposed sensitivity analysis is set forth in detail in
the proposal for this action.\70\ To reiterate briefly, for the
sensitivity analysis, the Agency identified a total of five changes in
CSAPR's geographic scope expected to occur as a result of actions
responding to the D.C. Circuit's remand: The removal of Florida, North
Carolina, and South Carolina from CSAPR for seasonal NOX;
the removal of Texas from CSAPR for annual NOX; and the
removal of Texas from CSAPR for SO2.\71\ With respect to
each of the four changes related to NOX, the EPA explained
that the change would not have caused a sufficiently large change in
the modeled NOX emissions in the original CSAPR scenario to
materially alter the visibility impacts comparison. For North Carolina
and South Carolina, this assessment was based on the fact that the
states' EGUs would, or were expected to, remain subject to CSAPR for
annual NOX after the end of their CSAPR obligations for
seasonal NOX.\72\ For Florida and Texas, this assessment was
based on the small magnitudes of the differences in projected total
NOX emissions from the EGUs in each of those states between
the original CSAPR scenario and the relevant other modeled scenarios,
combined with the dominance of sulfate impacts compared to nitrate
impacts on visibility (especially in the South).\73\ With respect to
the removal of Texas from CSAPR for SO2, the EPA explained
that the change would have caused a large reduction in the Texas
SO2 emissions as modeled in the original CSAPR scenario,\74\
thereby causing the visibility impacts comparison to support the
Agency's determination that CSAPR participation met the criteria for a
BART alternative even more strongly than the comparison as originally
performed in 2012. Thus, because the only material change from the
original 2012 analytic demonstration would be the relative visibility
improvement in a revised CSAPR scenario resulting from the removal of
Texas from CSAPR for SO2, the sensitivity analysis as
proposed indicated that the 2012 analytic demonstration remains valid.
---------------------------------------------------------------------------
\70\ 81 FR at 78961-64.
\71\ For purposes of the sensitivity analysis, the EPA
conservatively did not consider the increased stringency of the
CSAPR seasonal NOX budgets established in the CSAPR
Update. See generally 81 FR 74504.
\72\ 81 FR at 78962.
\73\ Id. at 78962 (Florida), 78963 (Texas).
\74\ As noted above and discussed in the proposal, the original
CSAPR scenario reflected projected implementation of CSAPR in
covered states and presumptive source-specific BART in states where
CSAPR did not apply for a pollutant. If Texas had not been expected
to be covered by CSAPR for SO2, the CSAPR scenario would
therefore have reflected SO2 emissions from Texas EGUs
consistent with the implementation of presumptive source-specific
SO2 BART instead of participation in CSAPR. While EPA
projected that the CSAPR region overall would have substantially
lower SO2 emissions under CSAPR than under source-
specific BART, for some individual states, including Texas,
SO2 emissions under source-specific BART were projected
to be lower than under CSAPR. Thus, removing Texas from CSAPR for
SO2 in the CSAPR-better-than-BART analytic demonstration
would have resulted in a decrease in projected SO2
emissions in the CSAPR scenario as modeled for the demonstration.
See 81 FR at 78962-63. In the proposal, the EPA identified the
minimum amount of the projected decrease in Texas SO2
emissions as 127,300 tons, based on the difference between projected
Texas SO2 emissions under the original CSAPR and BART
scenarios. Id.; see also ``Projected Changes in Texas Emissions,
Fossil Generation, and Fuel Usage Between the Base Case, BART, and
Original CSAPR Scenarios,'' available in the docket for this action.
---------------------------------------------------------------------------
The EPA received substantive comments from two parties with respect
to the proposed sensitivity analysis. One commenter agrees with the
EPA's conclusion and with all but one detail of the EPA's methodology
(which, if changed as suggested by the commenter, would strengthen the
Agency's conclusion). The other commenter does not agree with either
the conclusion or
[[Page 45491]]
the methodology, providing several reasons. The remainder of this
section summarizes the opposing commenter's principal comments on this
topic and provides the Agency's response.
B. Continued CSAPR Participation by Georgia and South Carolina
The commenter states that in order to analyze the impacts on the
CSAPR-better-than-BART analytic demonstration from changes caused by
the remand, in addition to any other changes evaluated, the EPA must
also evaluate the removal of Georgia and South Carolina from CSAPR's
SO2 programs, both because the D.C. Circuit remanded their
SO2 budgets as invalid and because in the commenter's view
it is impermissible to rely in such a sensitivity analysis on mere
commitments from those states to submit CSAPR SIPs in the future.
Further, according to the commenter, allowing these states to continue
to participate in CSAPR and then rely on such participation as a BART
alternative after their SO2 budgets have been remanded would
be inconsistent with the EPA's previous determinations that states
could no longer indefinitely rely on participation in the former Clean
Air Interstate Rule (CAIR) trading programs as a BART alternative after
the D.C. Circuit found CAIR to be an invalid rule that must be
replaced.\75\
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\75\ In 2005, the EPA promulgated the Clean Air Interstate Rule
(CAIR) addressing certain interstate air pollution reduction
obligations, 70 FR 25162 (May 12, 2005), and amended the Regional
Haze Rule to allow participation in CAIR to be relied on as a BART
alternative (the CAIR-better-than-BART rule), 70 FR 39104 (July 6,
2005). The D.C. Circuit upheld the CAIR-better-than-BART rule,
Utility Air Regulatory Group v. EPA, 471 F.3d 1333 (D.C. Cir. 2006),
but later found CAIR invalid and remanded that rule to the Agency
for replacement, North Carolina v. EPA, 531 F.3d 896 (D.C. Cir.
2008), modified on rehearing, 550 F.3d 1176 (D.C. Cir. 2008). The
Agency then replaced CAIR with CSAPR, 76 FR 48208, and replaced the
CAIR-better-than-BART rule with the CSAPR-better-than-BART rule, 77
FR 33642. In addition, following the remand of CAIR, the Agency
disapproved SIP submissions for several states seeking to rely on
CAIR as a BART alternative, e.g., 77 FR at 33647.
---------------------------------------------------------------------------
The EPA disagrees with the comment that the Agency must consider
Georgia and South Carolina ineligible to continue to participate in
CSAPR's SO2 programs as a consequence of the remand of their
FIP budgets. The CSAPR regulations expressly provide for approval of
CSAPR SIPs that meet certain conditions as replacements for CSAPR FIPs,
and Georgia and South Carolina (as well as Alabama) have elected to
submit such SIPs. The comparison that the commenter draws to the EPA's
previous findings that states may no longer rely on participation in
CAIR as a BART alternative is inapt, because the basis for such
previous findings was that CAIR itself (including its trading programs)
would not exist, not that particular CAIR budgets were invalid. Here,
the CSAPR trading program will still exist, making it possible for the
states to continue to participate in CSAPR through voluntary SIPs
notwithstanding the invalidation of the EPA's authority to require
compliance with the remanded budgets through FIPs addressing the
states' transport obligations.
The EPA considers the comment about reliance on mere commitments to
submit SIPs to be largely moot because in the interval between
submission of the comment and finalization of this action, Georgia has
submitted its SIP revision and South Carolina has submitted its
proposed state regulations and has requested that EPA begin the SIP
approval process under the Agency's parallel processing procedure.\76\
Each of the state trading program rules includes a state budget for
SO2 or annual NOX emissions equal to that state's
current FIP budget. To the extent the commenter believes that for
purposes of a sensitivity analysis the Agency may rely only on a SIP
that has been approved and not on a SIP or proposed state rule that has
been submitted for EPA approval but not yet approved, the Agency
disagrees. Both states' rules take the approach of incorporating by
reference the federal CSAPR trading program rules, including the
relevant budget amounts, so there are no substantive differences
between the state trading program rules being adopted by the states for
inclusion in their SIPs and the federal trading program rules that are
being replaced. The Agency has proposed to approve both states' SIP
revisions \77\ and at this time is unaware of any reason why the
proposed approvals should not be finalized. In these circumstances, the
EPA believes it is reasonable to rely on the SIP submittals for
purposes of supporting an analytic assumption that Georgia and South
Carolina will continue to participate in CSAPR's SO2 and
annual NOX programs at the states' current budget
levels.\78\
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\76\ See supra notes 55 and 56.
\77\ See supra note 57.
\78\ As discussed in section III.D above, both states continue
to participate in the CSAPR SO2 and annual NOX
programs through FIPs while Agency action on their SIP submittals is
pending.
---------------------------------------------------------------------------
C. Appropriateness of Continued Reliance on Original CSAPR-Better-Than-
BART Analysis
The commenter states that the sensitivity analysis is arbitrary
because it is based on outdated material, and that instead of
evaluating whether the 2012 analytic demonstration remains valid, the
EPA must perform an entirely new analytic demonstration based on a new
air quality modeling analysis using more current data.
The EPA disagrees with this comment. While criticizing aspects of
the Agency's analytic methodology, the commenter does not dispute that
the sensitivity analysis as conducted by the EPA using that methodology
shows that the 2012 analytic demonstration would have been strengthened
rather than weakened by the changes in CSAPR's geographic scope that
are occurring as a result of the D.C. Circuit's remand. (The
methodological criticisms are addressed as the next comment below.)
Further, the commenter offers no compelling support for the suggestion
that, in the absence of any reason to doubt the conclusion from the
2012 analytic demonstration, the EPA must nevertheless conduct an
entirely new demonstration. As an asserted legal rationale for the need
for a new analysis, the commenter cites the Regional Haze Rule
provisions for approval of BART alternatives, noting that the provision
that the EPA followed in approving the CSAPR-better-than-BART rule
requires a demonstration based on an air quality modeling analysis.\79\
The EPA has performed one such air quality modeling analysis and in
this action has shown that the analysis already performed would
continue to support a conclusion that CSAPR meets the criteria for a
BART alternative notwithstanding changes in CSAPR's geographic scope.
Contrary to the commenter's suggestion, the regulations do not say that
the EPA must perform an entirely new analysis. Similarly, the
commenter's assertion that changes in industry data since 2011
necessitate a new analytic demonstration amounts to a call for
recurring demonstrations that a BART alternative results in greater
reasonable progress than BART as the industry evolves, rather than a
one-time demonstration when the alternative is approved. The
regulations include no such requirement for recurring demonstrations.
---------------------------------------------------------------------------
\79\ See 40 CFR 51.308(e)(3).
---------------------------------------------------------------------------
D. Possible Changes in the Geographic Distribution of Emissions
The commenter states that the EPA's methodology for conducting the
sensitivity analysis as set forth in the proposal failed to adequately
consider whether changes in a revised CSAPR scenario regarding the
geographic distribution of emissions across states or
[[Page 45492]]
within individual states might lead to violations of the analytic
criteria that the EPA relied on to find that CSAPR qualifies as a BART
alternative. In particular, the commenter raises the theoretical
possibility that, in a revised CSAPR scenario where Texas EGUs no
longer participate in CSAPR for SO2, some individual sources
in other CSAPR states could buy additional allowances and increase
their emissions, and that such increases in emissions in turn could
cause adverse visibility impacts in some individual Class I areas
(thereby violating the first prong of the two-pronged test described
above). More generally, the commenter asserts that without new modeling
the EPA ``has no data'' and has ``simply assume[d]'' that the two
prongs of the test would be satisfied under such a revised scenario.
As an initial matter, the EPA disagrees with the commenter's
summary characterization of the proposed sensitivity analysis as not
being grounded in data. To the contrary, the Agency's proposed
conclusions explicitly rely on data drawn from the modeling results in
the record for the CSAPR-better-than-BART rule. The EPA explained in
the proposal, first, how the data from the earlier rulemaking record
showed that a revised CSAPR scenario would reflect a projected
reduction in Texas SO2 emissions of 127,300 tons (or more)
\80\ along with projected increases in Florida and Texas NOX
emissions of at most a few thousand tons and, second, why it was
logical to conclude from these projected emissions changes that,
relative to the modeled BART and base case scenarios, the revised CSAPR
scenario would have shown even larger visibility improvements than the
original CSAPR scenario.\81\ The commenter provides no data of any
kind, let alone data that might challenge the data presented in the
proposal.
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\80\ The 127,300-ton amount was described in the proposal as the
minimum reduction in projected Texas SO2 emissions
because it did not reflect a 50,500-ton increase in the Texas
SO2 budget that occurred after the original CSAPR
scenario was modeled. If that budget increase had been reflected in
the original CSAPR scenario, modeled Texas EGU SO2
emissions in that scenario would likely have been higher,
potentially by the full 50,500-ton amount. The CSAPR budget increase
would have had no effect on Texas EGUs' modeled SO2
emissions under BART. As a consequence, the 127,300-ton minimum
estimate of the reduction in projected Texas SO2
emissions caused by removing Texas EGUs from CSAPR for
SO2, which are computed as the difference between Texas
EGUs' collective emissions in the original CSAPR scenario and the
BART scenario, may be understated by as much as 50,500 tons.
\81\ 81 FR at 78962-64.
---------------------------------------------------------------------------
Turning to the commenter's more specific methodological criticism--
that the Agency has not sufficiently considered whether shifts in the
geographic distribution of emissions might lead to violations of the
two-pronged test--the EPA agrees that the potential for such shifts was
not expressly addressed in the sensitivity analysis as proposed. For
the final action, the EPA has therefore performed further analysis to
address this comment, focusing on the specific circumstance identified
by the commenter--shifts associated with the removal of Texas EGUs from
CSAPR for SO2--because the Agency agrees that this is the
most significant change to CSAPR among the actions that have been or
are expected to be taken in response to the D.C. Circuit's remand.\82\
The further analysis is based on state- and unit-level data
disaggregated from the projections of electricity generation, fuel
usage, and emissions developed for the base case, BART, and original
CSAPR scenarios that were compared in the 2012 analytic
demonstration.\83\
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\82\ As summarized above, the Agency explained in the proposal
that the removal of Florida, North Carolina, South Carolina, and
Texas EGUs from CSAPR for either seasonal or annual NOX,
as applicable, would not have caused sufficient changes in modeled
NOX emissions in a revised CSAPR scenario to materially
alter the visibility impacts comparison, in some instances because
the EGUs would remain subject to another CSAPR NOX
program and in some instances because of the small magnitudes of the
differences in projected total NOX emissions from the
EGUs in each of those states between the original CSAPR scenario and
the relevant other modeled scenarios, combined with the dominance of
sulfate impacts compared to nitrate impacts on visibility
(especially in the South). The EPA believes these same factors
likewise indicate that the visibility impacts of any potential
shifts in the geographic distribution of NOX emissions
related to removal of these states from the CSAPR NOX
programs would not be material to either prong of the two-pronged
visibility impacts comparison.
\83\ The state- and plant-level data are derived from the unit-
level data in three spreadsheets included in the final CSAPR-better-
than-BART rulemaking record and available in the docket for this
action: IPM Parsed File for CSAPR Base Case Scenario 2014 (EPA-HQ-
OAR-2011-0729-0004), IPM Parsed File for National BART Scenario 2014
(EPA-HQ-OAR-2011-0729-0008), and IPM Parsed File for CSAPR-BART
Scenario 2014 (EPA-HQ-OAR-2011-0729-0006).
---------------------------------------------------------------------------
Based on this additional analysis, the EPA finds that, in addition
to the projected SO2 emissions reduction of at least 127,300
tons in Texas identified in the proposal,\84\ a revised CSAPR scenario
without Texas in CSAPR for SO2 could also reflect a
projected aggregated increase in SO2 emissions of
approximately 22,300 tons in the six other states in the CSAPR
SO2 Group 2 trading program (Alabama, Georgia, Kansas,
Minnesota, Nebraska, and South Carolina). The reason for this
adjustment is that in the original CSAPR scenario, Texas EGUs were
projected to emit 22,300 tons of SO2 in excess of the
state's SO2 budget.\85\ This would have been possible
through the use of allowances purchased from EGUs in other
SO2 Group 2 states. Under a revised CSAPR scenario where
Texas EGUs are no longer part of the CSAPR trading program, Texas EGUs
would no longer purchase the 22,300 allowances from the other states,
and the EGUs in those other states could potentially use those
allowances to increase their own collective SO2 emissions.
Much or all of the total potential increase in emissions in the other
states would be projected to occur in Alabama and Georgia, because in
the original CSAPR scenario the collective emissions from Kansas EGUs
were projected to already be at the state's ``assurance level''--the
emissions level above which EGUs trigger a CSAPR provision requiring
the surrender of three allowances instead of one allowance per ton of
emissions--and the collective emissions from Minnesota, Nebraska, and
South Carolina EGUs were projected to already be close to their states'
respective assurance levels.\86\ After accounting for the potential
22,300-ton offsetting adjustment, the net regional SO2
reduction under the revised CSAPR scenario relative to the original
CSAPR scenario would be projected to be approximately 105,000 tons (or
more) instead of 127,300 tons (or more) as described in the proposed
sensitivity analysis.\87\ For the reasons below, the EPA has considered
both the projected decrease in Texas SO2 emissions and the
projected aggregated increase in SO2
[[Page 45493]]
emissions in the other states and has concluded that the two-pronged
CSAPR-better-than-BART test described above would continue to be
satisfied.
---------------------------------------------------------------------------
\84\ See supra note 74.
\85\ See ``Projected Interstate Trading of CSAPR SO2
Group 2 Allowances in the Original CSAPR Scenario,'' available in
the docket for this action.
\86\ Id.
\87\ It is possible that if the original CSAPR scenario that
includes Texas in CSAPR for SO2 had been remodeled to
include the 50,500 increase in the Texas SO2 budget
described in the proposal and in footnote 80, Texas EGUs would have
been projected to purchase either more or less than 22,300
allowances from EGUs in other CSAPR SO2 Group 2 states,
and that a revised CSAPR scenario in which Texas was removed from
CSAPR for SO2 would therefore have shown the other Group
2 states increasing their SO2 emissions by this different
amount. Regardless of the amount or direction of any modeled change
in Texas EGUs' CSAPR allowance purchases, that change would
generally have been matched by an equal and opposite change in Texas
EGUs' projected emissions under CSAPR, with the result that the
overall net projected reduction in emissions caused by removing
Texas from CSAPR for SO2 would continue to be at least
105,000 tons. The maximum amount of CSAPR SO2 allowances
that Texas could purchase from other states and use in a given year
without incurring 3-for-1 allowance surrender requirements is
approximately 53,000 tons, which is the amount of Texas'
SO2 variability limit--the difference between the state's
budget and its assurance level--under the CSAPR regulations. See 40
CFR 97.710(b)(7).
---------------------------------------------------------------------------
As summarized above, the first prong of the two-pronged test
requires that visibility conditions must not decline in any Class I
area. In the 2012 analytic demonstration, the EPA evaluated this prong
by comparing visibility impacts at each affected Class I area under the
original CSAPR scenario and the base case scenario. The situation
identified by the commenter in which emissions under a revised CSAPR
scenario might rise at some individual EGUs sufficiently to cause a
decline in visibility at some individual Class I area relative to
visibility conditions in the base case scenario--that is, without
either CSAPR or BART--would be a very unusual event and likely can be
ruled out as impossible, or nearly so, in a scenario such as the
revised CSAPR scenario being considered. Under the base case scenario,
EGUs incur no cost at all under CSAPR for emitting a ton of
SO2. In contrast, under either the original CSAPR scenario
or a revised CSAPR scenario, EGUs would incur some cost per ton of
SO2 emissions under CSAPR, and where that new cost is the
principal change from the base case scenario, EGUs that emit
SO2 would generally be projected to either decrease or
maintain their emissions relative to the base case scenario where that
cost was not present. If in a revised CSAPR scenario, allowances are
more plentiful and the cost incurred per ton of SO2
emissions therefore is less than the cost per ton under the original
CSAPR scenario, some EGUs that emit SO2 would be projected
to reduce their SO2 emissions by a smaller amount than in
the original CSAPR scenario, but they generally would not be projected
to significantly increase their emissions relative to the base case
scenario. An exception to this general principle could occur if some
other factor influencing EGUs' operating decisions, such as electricity
demand or relative fuel prices, also changed. The EPA therefore
considered whether the removal of Texas from CSAPR could have been
projected to result in any material change in demand for generation
from other states or relative fuel prices in other states in a revised
CSAPR scenario compared to the original CSAPR scenario.\88\
---------------------------------------------------------------------------
\88\ Although the analysis focuses on other CSAPR states,
consistent with the concerns raised by the commenter, the EPA notes
that absent changes in generation demand or relative fuel prices,
removal of Texas from CSAPR would also be expected not to affect the
operating decisions of EGUs in non-CSAPR states.
---------------------------------------------------------------------------
With respect to the possibility of changes in electricity demand in
other states, record data show that, relative to the original CSAPR
scenario, aggregated 2014 generation from fossil-fired Texas EGUs was
projected to increase by 0.2% in the BART scenario (which is used here
as a proxy representing the operating behavior of Texas EGUs in a
revised CSAPR scenario), indicating that removal of Texas EGUs from
CSAPR for SO2 and implementation of SO2 BART
would not be projected to result in an increase in emissions outside
Texas caused by a shift in generation from Texas to other states.\89\
---------------------------------------------------------------------------
\89\ See ``Projected Changes in Texas Emissions, Fossil
Generation, and Fuel Usage Between the Base Case, BART, and Original
CSAPR Scenarios,'' available in the docket for this action. Because
there is little difference in NOX emissions from Texas
EGUs between the original CSAPR scenario, the BART scenario, and the
base case scenario, id., the EPA considers the BART scenario a
reasonable emissions proxy for a revised CSAPR scenario in which
Texas EGUs would be subject to BART for SO2 but not for
NOX.
---------------------------------------------------------------------------
With respect to changes in relative fuel prices in other states,
record data show that, relative to the original CSAPR scenario, in the
BART scenario Texas EGUs were projected to decrease their use of
subbituminous coal by 68 trillion Btus (TBtu), increase their use of
lignite by 66 TBtu, and increase their use of other fossil fuels
(predominantly natural gas) by 11 TBtu.\90\ The changes in projected
Texas usage of subbituminous coal and natural gas are less than 1% of
the projected total industry usage of those fuels nationwide under the
original CSAPR scenario, indicating that there is no reason to expect
material impacts on prices or usage of those fuels in other states.
Unlike subbituminous coal and natural gas, lignite is an inherently
local fuel that is consumed near the point of extraction because the
fuel's low energy content per unit of weight makes shipment over long
distances uneconomic. Thus, although the increase in Texas EGUs'
projected usage of lignite is fairly large (8.2% of projected national
usage of lignite under the original CSAPR scenario), any resulting
increase in the local prices of lignite would not be expected to affect
the mix of fuels used in other states.
---------------------------------------------------------------------------
\90\ See id.
---------------------------------------------------------------------------
For further confirmation of the applicability here of the general
principle discussed above--namely, that in a modeled CSAPR scenario,
EGUs that emit SO2 would generally be projected to either
decrease or maintain their emissions and not to increase their
emissions relative to the base case scenario--the EPA compared the
projected unit-level SO2 emissions in the original CSAPR and
base case scenarios for all coal-fired EGUs in the seven states in the
CSAPR SO2 Group 2 trading program. The results of the
comparison clearly indicate that the general principle applies in this
instance: 77 Units were projected to reduce their SO2
emissions by 1,000 tons or more (in amounts up to 57,000 tons), 106
units were projected to essentially maintain their SO2
emissions (increasing or decreasing by between 0 and 1,000 tons), and 2
units were projected to increase their SO2 emissions by
approximately 1,100 tons each.\91\ A similar comparison at the state
level shows that collective SO2 emissions from the sets of
EGUs in each of the seven states were also projected to decrease from
the base case scenario to the original CSAPR scenario (in amounts
ranging from 1,900 tons for Nebraska to 248,800 tons for Alabama).\92\
In combination with the data above showing that removal of Texas from
CSAPR for SO2 would not be expected to cause changes in
demand for generation or relative fuel prices in other states, the EPA
believes that these data on how EGUs were projected to comply with
CSAPR in the original CSAPR scenario indicate that in a revised CSAPR
scenario where Texas is removed from CSAPR for SO2 and
22,300 additional allowances (or up to 53,000 allowances, as noted
earlier \93\) therefore become available to the EGUs in the other
SO2 Group 2 states, few if any EGUs would respond to the
availability of the additional allowances by increasing their emissions
materially above their emissions in the base case scenario. Further,
even if some EGUs did increase their emissions above their emissions in
the base case scenario, because of the regional nature of sulfate
formation from SO2 emissions and the very large decreases in
SO2 emissions across the broader region, the EPA believes
that any such local increase would be unlikely to cause localized
visibility degradation in any Class I area near a CSAPR state affected
by the removal of Texas from CSAPR for SO2. In consequence,
the Agency finds it reasonable to conclude that in such a revised CSAPR
scenario, no such Class I areas would experience declines in visibility
conditions relative to the base case scenario.
---------------------------------------------------------------------------
\91\ See ``Projected Changes in Unit-Level Emissions Between the
Base Case and Original CSAPR Scenarios,'' available in the docket
for this action.
\92\ See id.
\93\ See supra note 87.
---------------------------------------------------------------------------
The second prong of the two-pronged test requires the average
projected
[[Page 45494]]
visibility improvement across all affected Class I areas to be greater
under the BART alternative than under BART. In the proposal, the EPA
proposed to conclude that this prong would be easily satisfied under
the revised CSAPR scenario because Texas EGUs would be modeled in the
revised CSAPR scenario as subject to SO2 BART instead of
being subject to CSAPR for SO2, and the record data showed
that Texas EGUs' projected SO2 emissions would be at least
127,300 tons lower under BART than under CSAPR. As discussed above,
based on further analysis the EPA concludes that the decrease in
projected Texas SO2 emissions could potentially be partially
offset by an increase in projected SO2 emissions in other
CSAPR SO2 Group 2 states, most likely Alabama or Georgia.
The EPA believes that such a revised CSAPR scenario would continue to
show greater average visibility improvement than the BART scenario (and
greater than the original CSAPR scenario), again easily passing the
second prong of the two-pronged test. Any reduction in visibility
improvement in Class I areas near Alabama, Georgia, or the other Group
2 states relative to the original CSAPR scenario would be more than
offset by greater visibility improvement in Class I areas near
Texas.\94\ Due to the regional nature of sulfate particulate matter
formation, it is highly likely that, like the original CSAPR scenario,
the revised CSAPR scenario would show greater visibility improvement on
average across all Class I areas than the BART scenario. The commenters
did not present any information to indicate otherwise, and the EPA is
not aware of any such information.
---------------------------------------------------------------------------
\94\ The CSAPR-better-than-BART record shows that the Class I
areas most impacted by Texas were projected to have greater modeled
visibility improvement in the BART scenario (on the 20% best days)
than in the CSAPR scenario. This indicates that there would have
been additional visibility improvement in a revised CSAPR scenario
in which Texas is not in CSAPR for SO2 and is therefore
modeled at BART SO2 levels. Note that the average
visibility improvements across all affected Class I areas as
computed in the original CSAPR and BART scenarios are much closer on
the 20% best days than on the 20% worst days. Therefore, in
determining whether the second prong of the two-pronged test will be
passed under a revised CSAPR scenario, the modeled results on the
20% best days are particularly important.
---------------------------------------------------------------------------
E. Validity of 2012 Analytic Demonstration Prior to CSAPR Changes
Finally, the commenter asserts that regardless of the character of
the sensitivity analysis itself, the original 2012 CSAPR-better-than-
BART analytic demonstration was arbitrary, rendering any sensitivity
analysis performed regarding the original demonstration arbitrary. In
support of this claim, the commenter incorporates by reference all
criticisms of the original analytic demonstration contained in the
comments submitted by the commenter in the original CSAPR-better-than-
BART rulemaking as well as all criticisms contained in the commenter's
brief in the pending litigation challenging the CSAPR-better-than-BART
rule.
The EPA rejects these comments as both improperly raised and
outside the scope of this proceeding. The EPA appreciates the value of
public input in the rulemaking process and seeks to fulfill its legal
obligation to consider and respond to all substantive comments that are
``raised with reasonable specificity,'' \95\ but catch-all references
to whatever statements may have been made in another proceeding do not
meet this standard. Moreover, even if they had been properly raised,
comments concerning the legal validity of the original 2012 analytic
demonstration are beyond the scope of this rulemaking, which concerns
only the sensitivity analysis addressing the effect on the 2012
analytic demonstration of changes in CSAPR's geographic scope resulting
from the D.C. Circuit's remand (as well as the withdrawal of Texas
CSAPR FIP requirements for SO2 and annual NOX and
the finding as to Texas' remaining transport obligation under CAA
section 110(a)(2)(D)(i)(I) regarding the 1997 annual PM2.5
NAAQS). Arguments concerning the original 2012 analytic demonstration
should be, and have been, raised in the original CSAPR-better-than-BART
rulemaking and in the pending litigation over that rule.
---------------------------------------------------------------------------
\95\ CAA section 307(d)(7)(B).
---------------------------------------------------------------------------
V. Description of Amendments to Regulatory Text
In order to implement the withdrawal of the FIP provisions
requiring Texas EGUs to participate in the CSAPR NOX Annual
Trading Program and the CSAPR SO2 Group 2 Trading Program
with regard to emissions occurring in Phase 2 of those programs, the
EPA is amending the regulatory text at 40 CFR 52.38(a)(2), 52.39(c),
52.2283(c), and 52.2284(c) to provide that Texas EGUs are subject to
requirements under these two programs with regard to emissions
occurring in 2015 and 2016 only. Conforming amendments to cross-
references are being made at Sec. 52.38(a)(3), (a)(4), (a)(5), (a)(6),
and (a)(8)(iii) and Sec. 52.39(g), (h), (i), (j), and (m)(3).
The EPA is also clarifying the CSAPR regulations by adding the
introductory headings ``Annual emissions'' and ``Ozone season
emissions'' to Sec. 52.38(a) and (b), respectively, and by amending
the wording of the regulatory text at Sec. Sec. 52.38(b)(2)(i) and
52.39(b) to parallel the wording of the newly amended regulatory text
at Sec. Sec. 52.38(a)(2)(i) and 52.39(c)(1). These editorial
clarifications do not alter any existing regulatory requirements.
Finally, the EPA is correcting the CSAPR regulations applicable to
South Carolina EGUs by amending the regulatory text at Sec. 52.2141(b)
to reference CSAPR SO2 Group 2 allowances and 40 CFR part
97, subpart DDDDD instead of CSAPR SO2 Group 1 allowances
and 40 CFR part 97, subpart CCCCC. The corrections make the text at
Sec. 52.2141(b) consistent with the existing text at Sec. 52.2141(a),
and the two paragraphs together now correctly reflect the existing
regulatory requirements applicable to South Carolina EGUs as already
set forth at Sec. 52.39(c) and (k).
VI. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review, and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and therefore
was not submitted to the Office of Management and Budget (OMB) for
review.
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
This action is not expected to be an Executive Order 13771
regulatory action because this action is not significant under
Executive Order 12866.
C. Paperwork Reduction Act
This action does not impose any new information collection burden
under the Paperwork Reduction Act. The OMB has previously approved the
information collection activities contained in the existing regulations
and has assigned OMB control number 2060-0667. The withdrawal of the
FIP provisions in this action will eliminate the obligations of Texas
sources to comply with the existing monitoring, recordkeeping, and
reporting requirements under the CSAPR SO2 Group 2 Trading
Program and the CSAPR NOX Annual Trading Program.
[[Page 45495]]
D. Regulatory Flexibility Act
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the Regulatory
Flexibility Act. In making this determination, the impact of concern is
any significant adverse economic impact on small entities. An agency
may certify that a rule will not have a significant economic impact on
a substantial number of small entities if the rule relieves regulatory
burden, has no net burden, or otherwise has a positive economic effect
on the small entities subject to the rule. This action withdraws
existing regulatory requirements for some entities and does not impose
new requirements on any entity. We have therefore concluded that this
action will either relieve or have no net regulatory burden for all
directly regulated small entities.
E. 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. The action imposes
no enforceable duty on any state, local, or tribal governments or the
private sector. This action simply eliminates certain federal
regulatory requirements that the D.C. Circuit has held invalid.
F. 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 eliminates certain federal regulatory requirements that
the D.C. Circuit has held invalid.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175. It will not have substantial direct effects on
tribal governments, on the relationship between the federal government
and Indian tribes, or on the distribution of power and responsibilities
between the federal government and Indian tribes. This action simply
eliminates certain federal regulatory requirements that the D.C.
Circuit has held invalid. Thus, Executive Order 13175 does not apply to
this action. Consistent with the EPA Policy on Consultation and
Coordination with Indian Tribes, the EPA consulted with tribal
officials while developing CSAPR. A summary of that consultation is
provided in the preamble for CSAPR, 76 FR 48208, 48346 (August 8,
2011).
H. Executive Order 13045: Protection of Children From Environmental
Health 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 is not subject to
Executive Order 13045 because it simply eliminates certain federal
regulatory requirements that the D.C. Circuit has held invalid.
I. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
J. National Technology Transfer Advancement Act
This rulemaking does not involve technical standards.
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA believes that this action is not subject to Executive Order
12898 because it does not establish an environmental health or safety
standard. This action simply eliminates certain federal regulatory
requirements that the D.C. Circuit has held invalid. Consistent with
Executive Order 12898 and the EPA's environmental justice policies, the
EPA considered effects on low-income populations, minority populations,
and indigenous peoples while developing CSAPR. The process and results
of that consideration are described in the preamble for CSAPR, 76 FR
48208, 48347-52 (August 8, 2011).
L. Congressional Review Act
This action is subject to the Congressional Review Act, and the EPA
will submit a rule report to each House of the Congress and to the
Comptroller General of the United States. This action is not a ``major
rule'' as defined by 5 U.S.C. 804(2).
M. Judicial Review and Determinations Under CAA Section 307(b)(1) and
(d)
CAA section 307(b)(1) indicates which federal appellate courts have
venue for petitions of review of final actions by the EPA. This section
provides, in part, that petitions for review must be filed in the D.C.
Circuit Court of Appeals if (i) the agency action consists of
``nationally applicable regulations promulgated, or final action taken,
by the Administrator,'' or (ii) 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.'' This
final action is ``nationally applicable.'' In addition, the EPA finds
that all aspects of this action are based on a determination of
``nationwide scope and effect'' within the meaning of section
307(b)(1).
First, the EPA's withdrawal of FIP requirements under the CSAPR
program for Texas is being undertaken in response to a remand by the
D.C. Circuit in litigation that challenged numerous aspects of CSAPR
with implications for multiple states and resulted in the remand of
fifteen budgets for thirteen states. Retaining review in the D.C.
Circuit is appropriate and avoids the potential that another court is
forced to interpret the remand order of a sister circuit. Also, the
finding that, after the FIP withdrawal, Texas has no remaining
obligation to address interstate transport with respect to the 1997
annual PM2.5 NAAQS is based on a common core of factual
findings and analyses concerning the transport of pollutants between
the different states subject to CSAPR, which is a nationally applicable
program. Further, this action is based on a determination that modifies
the scope and effect of CSAPR; thus, any judicial review of this action
will necessarily implicate the national-level policies, technical
analyses, or interpretations that undergird this nationwide program.
Second, in express consideration of the effect of the withdrawal of
Texas FIP requirements accomplished through this final action, the EPA
is affirming the continued validity of 40 CFR 51.308(e)(4), a
regulatory provision available to each of the 27 States whose sources
currently participate in one or more CSAPR trading programs. This
determination affects the rights and interests of regulated parties and
other stakeholders throughout the eastern United States relying on or
otherwise affected by that regulatory provision.
For these reasons, this final action is nationally applicable and,
in addition,
[[Page 45496]]
the Administrator finds that this final action is based on a
determination of nationwide scope and effect for purposes of section
307(b)(1). Thus, pursuant to section 307(b) any petitions for review of
this action must be filed in the D.C. Circuit within 60 days from the
date of publication of this action in the Federal Register.
In addition, pursuant to CAA sections 307(d)(1)(B), 307(d)(1)(J),
and 307(d)(1)(V), the Administrator determines that this action is
subject to the provisions of section 307(d). CAA section 307(d)(1)(B)
provides that section 307(d) applies to, among other things, ``the
promulgation or revision of an implementation plan by the Administrator
under [CAA section 110(c)].'' 42 U.S.C. 7607(d)(1)(B). Under section
307(d)(1)(J), the provisions of section 307(d) apply to the
``promulgation or revision of regulations . . . relating to . . .
protection of visibility.'' 42 U.S.C. 7607(d)(1)(J). Under section
307(d)(1)(V), the provisions of section 307(d) also apply to ``such
other actions as the Administrator may determine.'' 42 U.S.C.
7607(d)(1)(V). The agency has complied with the procedural requirements
of CAA section 307(d) during the course of this rulemaking.
CAA section 307(b)(1) also provides that filing a petition for
reconsideration by the Administrator of this rule does not affect the
finality of the rule for the purposes of judicial review, does not
extend the time within which a petition for judicial review may be
filed, and does not postpone the effectiveness of the rule. Under CAA
section 307(b)(2), the requirements established by this rule may not be
challenged separately in any civil or criminal proceedings brought by
the EPA to enforce these requirements.
List of Subjects in 40 CFR Part 52
Environmental protection, Administrative practice and procedure,
Air pollution control, Incorporation by reference, Intergovernmental
relations, Nitrogen oxides, Ozone, Particulate matter, Regional haze,
Reporting and recordkeeping requirements, Sulfur dioxide.
Dated: September 21, 2017.
E. Scott Pruitt,
Administrator.
For the reasons stated in the preamble, part 52 of chapter I of
title 40 of the Code of Federal Regulations is 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. Section 52.38 is amended by:
0
a. Adding a paragraph (a) heading;
0
b. Revising paragraph (a)(2);
0
c. In paragraph (a)(3) introductory text, removing the text ``(a)(2)''
and in its place adding the text ``(a)(2)(i) or (ii)'';
0
d. In paragraph (a)(4) introductory text, removing the text ``(a)(2)''
and in its place adding the text ``(a)(2)(i)'';
0
e. In paragraphs (a)(5) introductory text and (a)(6), removing the text
``(a)(2)'' and in its place adding the text ``(a)(2)(i)'', and removing
the text ``(a)(1) through (4)'' and in its place adding the text
``(a)(1), (a)(2)(i), and (a)(3) and (4)'';
0
f. In paragraph (a)(8)(iii), removing the text ``(a)(1) through (4)''
and in its place adding the text ``(a)(1), (a)(2)(i), and (a)(3) and
(4)'';
0
g. Adding a paragraph (b) heading; and
0
h. In paragraph (b)(2)(i), after the word ``emissions'' adding the word
``occurring''.
The additions and revisions 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?
(a) Annual emissions. * * *
(2)(i) The provisions of subpart AAAAA of part 97 of this chapter
apply to sources in each of the following States and Indian country
located within the borders of such States with regard to emissions
occurring in 2015 and each subsequent year: Alabama, Georgia, Illinois,
Indiana, Iowa, Kansas, Kentucky, Maryland, Michigan, Minnesota,
Missouri, Nebraska, New Jersey, New York, North Carolina, Ohio,
Pennsylvania, South Carolina, Tennessee, Virginia, West Virginia, and
Wisconsin.
(ii) The provisions of subpart AAAAA of part 97 of this chapter
apply to sources in each of the following States and Indian country
located within the borders of such States with regard to emissions
occurring in 2015 and 2016 only: Texas.
* * * * *
(b) Ozone season emissions. * * *
0
3. Section 52.39 is amended by:
0
a. In paragraph (b), before the colon, adding the text ``with regard to
emissions occurring in 2015 and each subsequent year'';
0
b. Revising paragraph (c);
0
c. In paragraph (g) introductory text, removing the text ``(c)'' and in
its place adding the text ``(c)(1) or (2)'';
0
d. In paragraph (h) introductory text, removing the text ``(c)'' and in
its place adding the text ``(c)(1)'';
0
e. In paragraphs (i) introductory text and (j), removing the text
``(c)'' two times and in its place adding the text ``(c)(1)''; and
0
f. In paragraph (m)(3), removing the text ``(c)'' and in its place
adding the text ``(c)(1)''.
The revision reads as follows:
Sec. 52.39 What are the requirements of the Federal Implementation
Plans (FIPs) for the Cross-State Air Pollution Rule (CSAPR) relating to
emissions of sulfur dioxide?
* * * * *
(c)(1) The provisions of subpart DDDDD of part 97 of this chapter
apply to sources in each of the following States and Indian country
located within the borders of such States with regard to emissions
occurring in 2015 and each subsequent year: Alabama, Georgia, Kansas,
Minnesota, Nebraska, and South Carolina.
(2) The provisions of subpart DDDDD of part 97 of this chapter
apply to sources in each of the following States and Indian country
located within the borders of such States with regard to emissions
occurring in 2015 and 2016 only: Texas.
* * * * *
Subpart PP--South Carolina
Sec. 52.2141 [Amended]
0
4. Section 52.2141, paragraph (b) is amended by removing the text
``Group 1'' two times and in its place adding the text ``Group 2'', and
removing the text ``CCCCC'' two times and in its place adding the text
``DDDDD''.
Subpart SS--Texas
0
5. Section 52.2283 is amended by revising paragraph (c)(1) and removing
and reserving paragraph (c)(2).
The revision reads as follows:
Sec. 52.2283 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
* * * * *
(c)(1) The owner and operator of each source and each unit located
in the State of Texas and Indian country within the borders of the
State and for which requirements are set forth under the CSAPR
NOX Annual Trading Program in subpart AAAAA of part 97 of
this
[[Page 45497]]
chapter must comply with such requirements with regard to emissions
occurring in 2015 and 2016.
* * * * *
0
6. Section 52.2284 is amended by revising paragraph (c)(1) and removing
and reserving paragraph (c)(2).
The revision reads as follows:
Sec. 52.2284 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of sulfur dioxide?
* * * * *
(c)(1) The owner and operator of each source and each unit located
in the State of Texas and Indian country within the borders of the
State and for which requirements are set forth under the CSAPR
SO2 Group 2 Trading Program in subpart DDDDD of part 97 of
this chapter must comply with such requirements with regard to
emissions occurring in 2015 and 2016.
* * * * *
[FR Doc. 2017-20832 Filed 9-28-17; 8:45 am]
BILLING CODE 6560-50-P