Federal “Good Neighbor Plan” for the 2015 Ozone National Ambient Air Quality Standards; Notice on Remand of the Record of the Good Neighbor Plan To Respond to Certain Comments, 99105-99129 [2024-28739]
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Federal Register / Vol. 89, No. 237 / Tuesday, December 10, 2024 / Rules and Regulations
(6) UL 60079–28, Standard for Safety
for Explosive Atmospheres—Part 28:
Protection of Equipment and
Transmission Systems Using Optical
Radiation, Second Edition, Dated
September 15, 2017, including revisions
through December 7, 2021 (ANSI/UL
60079–28); into § 18.101.
ENVIRONMENTAL PROTECTION
AGENCY
Note 1 to § 18.102: The voluntary
consensus standards listed in this section
may also be obtained from the American
National Standards Institute (ANSI), 1899 L
Street NW, 11th Floor, Washington, DC
20036, phone: (202) 293–8020; website:
www.ansi.org.
Federal ‘‘Good Neighbor Plan’’ for the
2015 Ozone National Ambient Air
Quality Standards; Notice on Remand
of the Record of the Good Neighbor
Plan To Respond to Certain Comments
§ 18.103 Review and update of applicable
voluntary consensus standards.
(a) MSHA will review more recent
editions of voluntary consensus
standards listed in § 18.102 to
determine whether they can be used in
their entirety and without modification,
in lieu of the requirements in subparts
B through E of this part.
(b) MSHA may review voluntary
consensus standards not approved for
incorporation by reference (IBR) in
§ 18.102 to determine whether such
standards are suitable for gassy mining
environments and whether they provide
protection against fire or explosion, if
substituted in their entirety and without
modification, in lieu of the requirements
in subparts B through E of this part.
(c) Following such review and
determination, MSHA will use the
appropriate rulemaking process to
amend the list of voluntary consensus
standards approved for IBR in lieu of
the requirements in subparts B through
E of this part.
PART 740—COAL MINE DUST
SAMPLING DEVICES
6. The authority citation for part 74
continues to read as follows:
■
Authority: 30 U.S.C. 957.
§ § 74.5 and 74.11
[Amended]
7. In §§ 74.5(b) and 74.11(d), remove
‘‘30 CFR 18.68’’ and add in its place the
term ‘‘30 CFR part 18.’’
■
[FR Doc. 2024–28315 Filed 12–9–24; 8:45 am]
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40 CFR Parts 52, 75, 78, and 97
[EPA–HQ–OAR–2021–0668; FRL–8670.5–
02–OAR]
RIN 2060–AW47
Environmental Protection
Agency (EPA).
ACTION: Notice; supplemental response
to comments.
AGENCY:
The Environmental Protection
Agency (EPA) is addressing certain
comments that were submitted on the
proposed Good Neighbor Plan that the
Supreme Court of the United States
concluded the EPA had likely not
sufficiently addressed in the final Good
Neighbor Plan. The EPA is providing a
fuller explanation of its reasoning at the
time of its action in response to these
comments. The Good Neighbor Plan
addressed 23 states’ obligations to
eliminate significant contribution to
nonattainment or interference with
maintenance of the 2015 ozone national
ambient air quality standards (NAAQS),
pursuant to the ‘‘good neighbor’’
provision of the Clean Air Act (CAA or
Act). On September 12, 2024, the D.C.
Circuit Court of Appeals remanded the
record of the Good Neighbor Plan to the
EPA to permit the Agency to further
respond to comments related to the
Good Neighbor Plan’s operation if one
or more upwind States were no longer
participating. In this document, the EPA
responds to the comments by more fully
explaining why the Good Neighbor Plan
appropriately defines each state’s
obligations, regardless of the status of
the rule in other states, and can be
implemented without modification in
any individual state or combination of
states covered by the rule.
DATES: December 10, 2024.
ADDRESSES: The EPA has established a
docket for this document under Docket
ID No. EPA–HQ–OAR–2021–0668. All
documents in the docket are listed on
the https://www.regulations.gov
website. Although listed in the index,
some information is not publicly
available, e.g., Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the internet and will be publicly
available only in hard copy form.
SUMMARY:
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Publicly available docket materials are
available electronically through https://
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Gwyndolyn Sofka, OAQPS–AQPD
(C541–04), Environmental Protection
Agency, 109 TW Alexander Dr,
Research Triangle Park, NC 27711;
telephone number: (919)–541–5121;
email address: sofka.gwyndolyn@
epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document ‘‘we,’’
‘‘us,’’ and ‘‘our’’ refer to the EPA.
I. General Information
The EPA is responding to a set of
comments that together raise a question
regarding the method by which the
Agency developed the Good Neighbor
Plan (88 FR 36654; June 5, 2023).
Namely: would the conclusions the EPA
reached regarding states’ obligations
under CAA section 110(a)(2)(D)(i)(I) for
the 2015 ozone NAAQS have been
different, had the rule been promulgated
for, or if it covered, a smaller or
different group of states than the 23
states that were included in that the
rule? In short, for reasons that are
provided in the record of the Good
Neighbor Plan itself and elaborated
upon in this document, the answer to
that question is no. The EPA applied its
4-step interstate transport analytical
framework in the Good Neighbor Plan to
determine each included state’s
obligations. That framework, which
accounts for the multistate ‘‘collective
contribution’’ nature of ozone problems
throughout the United States,
nonetheless defines the amount of
emissions from each state that
constitutes ‘‘significant contribution to
nonattainment or interference with
maintenance’’ of the NAAQS in other
states and implements programs to
prohibit those emissions through federal
implementation plans (FIPs)
promulgated for each state accordingly.
As the Good Neighbor Plan itself
indicated, the EPA’s methodology is
designed to be applicable in any state
that may become subject to a federal
plan to address its ‘‘significant
contribution’’ to other states’ ozone
problems for the 2015 ozone NAAQS; it
provides an equitable and efficient
solution to a ‘‘thorny causation
problem,’’ EME Homer City, 572 U.S.
489, 514 (2014), by holding any linked
state’s largest industrial NOX-emitting
sources to widely achievable emissions
levels, and ensures fairness among
states by not being dependent on the
order in which they are addressed.
By issuing this document, the Agency
is addressing a particular issue that the
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U.S. Supreme Court preliminarily found
had been raised by commenters with
reasonable specificity, but which the
Court considered the Agency had likely
failed to adequately address when it
originally promulgated the rule. See
Ohio v. EPA, 144 S. Ct. 2040 (2024)
(granting applications to stay
enforcement of the Good Neighbor Plan
pending judicial review). This
document summarizes the relevant
comments identified by the Supreme
Court and, after summarizing our initial
responses to these comments in section
II.B., provides a fuller response in
section III. of this document concerning
how these comments relate or could be
read as relating to the question of the
Good Neighbor Plan’s application and
severability on a state-by-state basis,
consolidating material and discussions
from the existing administrative record
at the time the EPA issued the action.
To provide the most complete possible
response to the issues identified by the
Supreme Court, the Agency has
considered these comments from all
angles, even considering arguments that
are not evident on the face of the
comments themselves. For this reason,
we do not concede that each of the
topics discussed in this document was
in fact raised with ‘‘reasonable
specificity’’ by the commenters
themselves, as required by CAA section
307(d)(7)(B), but the Agency views it to
be appropriate in light of the Court’s
preliminary findings in Ohio to address
all of the issues commenters potentially
could be seen to have raised, to ensure
a thorough and complete response to the
commenters’ concerns.
In responding to these comments, the
Agency is relying solely on the
information and data available in the
record at the time the Good Neighbor
Plan was signed by the EPA
Administrator and promulgated on
March 15, 2023 (88 FR 36654; June 5,
2023). See CAA section 307(d)(6)(C)
(limiting the basis for CAA rules issued
under section 307(d) to ‘‘information
[and] data . . . placed in the docket as
of the date of [ ] promulgation’’). The
purpose of this document is not to
supplement the record of the Good
Neighbor Plan with new findings,
information, data, or new record
support, but rather only to consolidate
the existing material in the record to
more fully respond to the relevant
comments received during the public
comment period following proposal of
the Good Neighbor Plan. In this
document, we provide an ‘‘amplified
articulation’’ of the methodology
underlying the design of the Good
Neighbor Plan to more fully explain
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why, at the time the EPA issued the
Good Neighbor Plan, it understood the
Good Neighbor Plan’s requirements to
reasonably function on a state-by-state
basis and therefore to be severable by
state. See Dep’t of Homeland Sec. v.
Regents of the Univ. of Cal., 591 U.S. 1,
20–21 (2020) (quoting Alpharma, Inc. v.
Leavitt, 460 F. 3d 1, 5–6 (D.C. Cir.
2006)).
Thus, in this document, we compile
and present together discussions and
components of the analysis that are
already in the record and explain how
they relate to one another and together
demonstrate that the Good Neighbor
Plan fulfills the statutory mandate for
each state regardless of the number of
states included in the rule at any given
time.
As described in more detail in section
II.A. of this document, following the
Supreme Court’s opinion in Ohio, the
EPA sought a voluntary partial remand
of the Good Neighbor Plan from the D.C.
Circuit to provide the explanation that
the Supreme Court concluded was
likely lacking in the Good Neighbor
Plan. The D.C. Circuit ordered ‘‘that the
record be remanded to permit the
Environmental Protection Agency to
further respond to comments in the
record.’’ State of Utah et al. v. EPA, No.
23–1157 (D.C. Cir. September 12, 2024).
The statutory authority for the Good
Neighbor Plan is provided by the CAA
as amended (42 U.S.C. 7401 et seq.). The
most relevant portions of CAA section
110 are subsections 110(a)(1), 110(a)(2)
(including 110(a)(2)(D)(i)(I)), and
110(c)(1). For further information, see
section II.C. of the preamble for the
Good Neighbor Plan, 88 FR 36667–68.
II. Background
A. Procedural History
On March 15, 2023, in accordance
with CAA sections 110(a)(2)(D)(i)(I) and
110(c)(1), the EPA promulgated the
Good Neighbor Plan, a rule determining
the good neighbor obligations of 23
states with respect to the 2015 ozone
NAAQS and establishing for these states
federal implementation plans (FIPs) for
emissions sources in these states to
address each state’s obligations by
reducing emissions of nitrogen oxides
(NOX), an ozone precursor.1 Prior to
promulgating the Good Neighbor Plan,
the EPA had disapproved state
implementation plans for 21 of those
states and had found that several states
had failed to submit complete plans—
predicates to EPA’s authority to
1 Federal ‘‘Good Neighbor Plan’’ for the 2015
Ozone National Ambient Air Quality Standards, 88
FR 36654 (June 5, 2023).
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promulgate FIPs for those states.2
Following the Good Neighbor Plan’s
promulgation, in response to judicial
orders partially staying the SIP
Disapproval as to several states, the EPA
issued two sets of interim amendments
(referred to here as the First and Second
Interim Final Rules) staying the Good
Neighbor Plan’s effectiveness for
emissions sources in those states
pending the resolution of judicial
review of that action and further EPA
rulemaking.3 As modified by the First
and Second Interim Final Rules, the
Good Neighbor Plan’s FIPs applied to
electric generating units (EGUs) within
the borders of Illinois, Indiana,
Maryland, Michigan, New Jersey, New
York, Ohio, Pennsylvania, Virginia, and
Wisconsin and to non-EGU sources
within the borders of nine of the same
ten states (all except Wisconsin) as well
as California.4
In October 2023, after the United
States Court of Appeals for the District
of Columbia Circuit (D.C. Circuit)
denied motions to stay the Good
Neighbor Plan pending judicial review,5
four sets of parties submitted emergency
applications to the United States
Supreme Court seeking a stay of some
or all of the Good Neighbor Plan’s
requirements.6 In an opinion issued on
2 Air Plan Disapprovals; Interstate Transport of
Air Pollution for the 2015 8-Hour Ozone National
Ambient Air Quality Standards, 88 FR 9336
(February 13, 2023) (‘‘SIP Disapproval’’); Findings
of Failure to Submit a Clean Air Act Section 110
State Implementation Plan for Interstate Transport
for the 2015 Ozone National Ambient Air Quality
Standards (NAAQS), 84 FR 66612 (December 5,
2019) (including Pennsylvania, Utah, and Virginia).
3 Federal ‘‘Good Neighbor Plan’’ for the 2015
Ozone National Ambient Air Quality Standards;
Response to Judicial Stays of SIP Disapproval
Action for Certain States, 88 FR 49295 (July 31,
2023); Federal ‘‘Good Neighbor Plan’’ for the 2015
Ozone National Ambient Air Quality Standards;
Response to Additional Judicial Stays of SIP
Disapproval Action for Certain States, 88 FR 67102
(September 29, 2023).
4 The Good Neighbor Plan’s emissions reduction
requirements apply to all emissions sources
meeting the Good Neighbor Plan’s applicability
criteria within the borders of each covered state,
including sources in Indian country within the
borders of the state. See 88 FR 36690.
5 Orders, Utah v. EPA, No. 23–1157 (D.C. Cir.
September 25, 2023, and October 11, 2023); see also
Order, Utah v. EPA, No. 23–1157 (D.C. Cir.
December 4, 2023) (denying additional stay
motions).
6 Ohio v. EPA, No. 23A349 (U.S. docketed
October 18, 2023) (other named applicants are
Indiana and West Virginia); Kinder Morgan, Inc. v.
EPA, No. 23A350 (U.S. docketed October 18, 2023)
(other named applicants are Enbridge (U.S.) Inc.,
TransCanada PipeLine USA Ltd., Interstate Natural
Gas Association of America, and American
Petroleum Institute); American Forest & Paper
Association v. EPA, No. 23A351 (U.S. docketed
October 18, 2023) (other named applicants are
America’s Power, Associated Electric Cooperative,
Inc., Deseret Power Electric Cooperative, Midwest
Ozone Group, National Mining Association,
National Rural Electric Cooperative Association,
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June 27, 2024 (referred to here as the
Stay Order), the Supreme Court granted
the emergency applications and ordered
that ‘‘[e]nforcement of EPA’s rule
against the applicants shall be stayed’’
while judicial review of the Good
Neighbor Plan on the merits proceeds,
first in the D.C. Circuit and then
potentially in the Supreme Court.7
The Court found that, with respect to
the ‘‘explanation why the number and
identity of participating States does not
affect what measures maximize costeffective downwind air-quality
improvements,’’ the stay applicants ‘‘are
likely to prevail on their argument that
EPA’s final rule was not ‘reasonably
explained,’ that the agency failed to
supply ‘a satisfactory explanation for its
action[,]’ and that it instead ignored ‘an
important aspect of the problem’ before
it’’. Ohio v. EPA, 144 S. Ct. 2040, 2054
(2024) (citations omitted). The Court
focused in particular on the fact that the
Good Neighbor Plan’s FIPs had been
stayed in several states pending judicial
review of the EPA’s disapproval of those
states’ state implementation plan (SIP)
submissions. 144 S. Ct. at 2051–52. Stay
applicants had argued that the ‘‘EPA’s
plan rested on an assumption that all 23
upwind States would adopt emissionsreduction tools up to a ‘uniform’ level
of ‘costs’ to the point of diminishing
returns’’ and the EPA had not explained
how the rule was substantiated for a
smaller number of states. Id. at 2053
(citations omitted). The Court
preliminarily interpreted several
comments filed on the proposed Good
Neighbor Plan as raising this concern,
i.e., that if a different number or
grouping of states were subject to the
EPA’s FIPs promulgated in the Good
Neighbor Plan rulemaking, then the
EPA’s cost-effectiveness analysis would
have changed, and therefore the
obligations would or could be different
for the remaining states. Id. at 2050–51.
The Court did not conclude that the
EPA’s methodology was unlawful, or
that petitioners were correct in their
assessment that the Good Neighbor
Plan’s obligations could change
depending on the number or group of
states subject to it. Rather, the Court
preliminarily found that the EPA had
failed to adequately respond to the
relevant comments and thus the rule
was likely not ‘‘reasonably explained.’’
Id. at 2054. The Court noted that the
rule’s ‘‘severability’’ discussion did not
adequately address the issue, since that
Ohio Valley Electric Corporation, Portland Cement
Association, and Wabash Valley Power Alliance);
United States Steel Corporation v. EPA, No. 23A384
(U.S. docketed October 31, 2023).
7 Ohio v. EPA, 144 S. Ct. 2040, 2058 (2024).
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discussion, in itself, contained no
supporting analysis. Id. at 2054–55.
On March 27, 2024, several months
before the Supreme Court issued this
ruling, the EPA partially denied several
petitions for reconsideration of the Good
Neighbor Plan objecting to the rule on
the basis that it had been stayed in
certain states and was no longer lawful
or workable in the remaining states, as
well as objecting that the rule should
not have been published at all following
judicial stays of the SIP Disapproval as
to certain states. The EPA’s ‘‘basis for
denial’’ addressed both issues and
determined that these objections were
not ‘‘centrally relevant’’ because, after
examining the objections in detail, the
EPA concluded they failed to establish
that the rule should be revised. See 89
FR 23526 (April 4, 2024) (providing
notice of issuance of the partial denial).8
The Supreme Court declined to consider
the EPA’s Denial in evaluating the
applications for stay. See 144 S. Ct. at
2068 n.11.
Following the Supreme Court’s
decision granting the applications to
stay enforcement of the Good Neighbor
Plan, the EPA implemented the Court’s
stay of the effectiveness of the Good
Neighbor Plan’s requirements for the
sources that would have been subject to
the rule pursuant to the 23 states’ FIPs
originally promulgated, pending judicial
review. See 89 FR 87960 (November 6,
2024). In addition, the EPA sought a
voluntary partial remand of the Good
Neighbor Plan. The D.C. Circuit granted
a remand of the record of the rule so
that the EPA might respond to the
comments related to the rule’s
appropriateness for each state and
operation. State of Utah et al. v. EPA,
No. 23–1157 (D.C. Cir. September 12,
2024). The D.C. Circuit retains
jurisdiction of the case, has placed the
case in abeyance pending further order
of the court, and has directed the parties
to file motions to govern future
proceedings in the case within 30 days
after completion of this remand or
December 30, 2024, whichever is earlier.
Id.
The following section, II.B. of this
document, summarizes the comments
identified by the Supreme Court as
relevant to the issue of the Good
Neighbor Plan’s operation if one or more
upwind States were no longer
participating and provides a summary of
the EPA’s responses to these comments
in the Good Neighbor Plan with
citations to the record.9 The EPA does
not intend to reopen its prior response
to those comments through this
document by summarizing those prior
responses. Section III. of this document
provides a fuller explanation in
response to a specific issue identified by
the Supreme Court derived from these
comments: whether the Good Neighbor
Plan would lawfully define and
implement good neighbor obligations
for any particular state if it were not in
effect for some other state or states. As
the EPA originally concluded based on
the information in the record at the time
of promulgation, the Good Neighbor
Plan appropriately defines each state’s
obligations on an individual basis and is
severable on a state-by-state basis. See
88 FR 36693.
8 See also ‘‘Letter Enclosure: The EPA’s Basis for
Partially Denying Petitions for Reconsideration of
the Good Neighbor Plan on Ground Related to
Judicial Stays of the SIP Disapproval Act as to 12
States,’’ available at https://www.epa.gov/CrossState-Air-Pollution/response-four-petitionsreconsideration and at https://www.regulations.gov/
document/EPA-HQ-OAR-2021-0668-1255.
9 We have focused specifically on the comments
that the Supreme Court identified in Ohio v. EPA.
While other commenters raised issues similar to
these comments, these comments present a
representative set of perspectives on those issues
that the Supreme Court viewed as most closely
related to the question of the Good Neighbor Plan’s
severability by state.
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B. Summary of Comments Identified by
the Supreme Court and Citation to Prior
Responses to Comments
Comment category 1 (SIP/FIP
sequencing): Multiple commenters (the
Missouri Department of Natural
Resources (MO DNR), the Louisiana
Department of Environmental Quality
(LA DEQ), and the Texas Commission
on Environmental Quality (TX CEQ))
expressed concern that the EPA had
proposed FIPs prior to finalization of
the SIP disapprovals for states included
in the FIP rulemaking, without knowing
which states would ultimately be
covered by a FIP. Commenters state that
this kept the EPA from being able to
receive and consider the technical,
procedural, and legal issues that they
identified in their comments.
Commenters state that the proposed
FIPs presume the result of the proposed
disapproval of SIPs even though the
comment period for the SIP Disapproval
action was ongoing at the time of the
proposed FIPs.
Commenters (LA DEQ and TX CEQ)
requested that the EPA withdraw both
the proposed FIPs for their states and
the proposed SIP disapproval so that
both states could have a further
opportunity to show that their
respective SIPs address their supposed
significant contribution to
nonattainment or interference with
maintenance in downwind states. One
commenter (MO DNR) requested that
the EPA withdraw the proposed FIP for
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Missouri and other states so that the
EPA can consider and respond to all
comments received on the SIP
Disapproval action. The commenter
goes on to request that the EPA respond
to all comments on the proposed
disapproval of the Missouri SIP in the
final action for the Good Neighbor Plan
if it does not withdraw the proposed
FIP, as the SIP Disapproval action and
the proposed FIP are ‘‘inextricably
linked.’’ 10 Relevant portions of the
comment are included immediately
below.
Missouri Department of Natural
Resources
EPA is now proposing good neighbor FIPs,
which are the subject of this comment letter,
before even finalizing the SIP disapprovals
for Missouri and numerous other states. The
Air Program and several other entities
submitted adverse comments on EPA’s
proposed SIP disapproval for Missouri’s 2019
Good Neighbor SIP. Those comments were
all submitted after the publication of EPA’s
proposed good neighbor FIP in the Federal
Register. Therefore, EPA did not even give
itself a chance to receive, and much less,
consider all the technical, legal, and
procedural issues for the proposed
disapproval that were identified in those
comments before it moved forward with the
proposed FIP. It follows then, that EPA’s
proposed FIP is extremely premature, and
EPA should withdraw the proposal and be
obligated to consider and respond to all of
the comments it received on the proposed
disapprovals before it can propose FIPs for
these states.11
Louisiana Department of Environmental
Quality
The EPA’s proposed FIP presumed the
result of its proposed disapproval of
Louisiana’s SIP submission, even though
public notice and comment were ongoing.
EPA must consider comments received on its
proposed actions. The EPA cannot consider
LDEQ’s comment on the proposed
disapproval of the SIP in good faith, when it
has already proposed a FIP prior to the close
of the comment period . . .
Louisiana requests that this proposed FIP
be withdrawn, allowing the state to either
prove its original SIP submittal through
modeling or to provide specific enforceable
measures to adequately prohibit the
contribution of pollution to downwind
states.12
Texas Commission on Environmental
Quality
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Based on the numerous technical and legal
errors discussed in our comments, the TCEQ
10 See the Missouri Department of Natural
Resources June 17, 2022, comment letter Docket Id
No. EPA–HQ–OAR–2021–0668–0289, at 4.
11 See id. at 3.
12 See the Louisiana Department of
Environmental Quality June 21, 2022, comment
letter Docket Id No. EPA–HQ–OAR–2021–0668–
0365, at 2.
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respectfully requests that the EPA withdraw
its proposed FIP, either in whole, or in part
as it pertains to Texas. In the alternative, the
TCEQ respectfully requests that the EPA
address and remedy the numerous technical
and legal errors identified by the TCEQ
. . .13 The inclusion of Texas in the
proposed FIP is dependent on the EPA
finalizing its proposed disapproval of the
transport SIP that Texas timely submitted for
the 2015 ozone NAAQS.14
Citations to previous responses: The
EPA explained that FIPs can be
proposed before final action is taken on
SIP disapprovals, because the statute
provides that the EPA is required to
promulgate a FIP ‘‘at any time within 2
years’’ of a SIP disapproval or a finding
of failure to submit. This statutory
sequence necessarily permits the
proposal of a FIP before the finalization
of a SIP disapproval. See 88 FR 36689
(citing CAA section 110(c)(1); EME
Homer City, 572 U.S. 489, 509). The
EPA was clear in both the proposed and
final rulemaking documents that it was
issuing FIPs on a state-by-state basis,
with adjustments in the scope of states
covered by the Good Neighbor Plan’s
uniform regulatory programs occurring
from proposal to final based on changes
in the underlying analytics, similar to
changes in state coverage that had
occurred under prior good neighbor
rulemakings.15 The EPA explained that
it had predicate FIP authority for each
of the 23 covered states at the time of
signature and promulgation of the Good
Neighbor Plan. See 88 FR 36688–89 and
the Good Neighbor Plan Response to
Comments (RTC) Document at 6–8.16
The EPA explained the timing of its
action to promulgate FIPs in relation to
the need to address good neighbor
obligations as expeditiously as
practicable, and to the extent possible
by the 2023 ozone season, 88 FR 36690,
and explained why we would not delay
our action to afford states additional
opportunities to develop new
submissions or instead issue a call for
SIP revisions, though we noted that
states remain free to develop and submit
SIP revisions at any time. See Good
Neighbor Plan RTC at 12–15. The EPA
further explained its reasoning
concerning the sequencing of its actions
13 See the Texas Commission on Environmental
Quality June 21, 2022, comment letter Docket Id No.
EPA–HQ–OAR–2021–0668–0505, at 1.
14 Id. at 2.
15 See, e.g., 87 FR 20036, 20038, 20039, 20040
n.8, 20041, 20044, 20045, 20051 n.39, 20051–2–52,
20058, 20067 n.115, 20073, and 20140 (April 6,
2022); 88 FR 36654, 36656, 36657, 36658, 36659
n.9, 36659, 36662, 36664, 36668 n.41 & 44, 36668/
3, 36669, 36673/2, 36688 n.99, and 36689 (June 5,
2023).
16 Available in the docket at https://
www.regulations.gov/document/EPA-HQ-OAR2021-0668-1127.
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and that this sequencing did not
prejudice the Agency’s evaluation of
states’ SIP submissions in the separate
SIP Disapproval action. See Good
Neighbor Plan RTC at 149–51. The EPA
noted that it was not finalizing its
proposed FIPs for several states, and the
EPA acknowledged that several states
remained to be addressed for which it
either lacked predicate authority to
issue a FIP or because further
rulemaking proceedings were
appropriate. 88 FR 36658. The EPA
explained that specific technical or legal
objections to the SIP Disapproval were
addressed in that action and were out of
scope of the Good Neighbor Plan. Id. at
144–45, 155.
Comment category 2 (potential for
new modeling at Steps 1 and 2):
Comments from the Air Stewardship
Coalition (ASC) and the Portland
Cement Association (PCA) asserted that
if the EPA took different action on SIPs
than contemplated in the FIP
rulemaking proposal, the EPA would be
required to conduct a new assessment
and modeling of contribution and
subject those findings to public
comment. In a section titled ‘‘EPA Step
Two Screening is Premised on the
Premature Disapproval of 19 Upwind
States Good Neighbor SIPs’’ (sections
III.C. and II.C. of their respective
comments) the ASC and the PCA stated
that the EPA’s screening at Step 2 of the
4-step interstate transport framework for
the Proposed Good Neighbor Plan
included states that already had good
neighbor SIPs for the 2015 ozone
NAAQS. Commenters state the EPA
should not have included these states in
this proposed rule’s screening as the
final disapproval of said SIPs was not
issued prior to the proposed FIP. The
commenters claim that the EPA rushed
to take final action on its good neighbor
SIPs when the EPA proposed to
disapprove 19 good neighbor SIP
submissions and four findings of failure
to issue a complete SIP on February 22,
2022. Commenters state that in doing so
the EPA prejudged the outcome of the
pending SIP actions in their separate
FIP action and did not account for the
possibility that the EPA may take a
different course of action at final than
what was proposed in the SIP
Disapproval action.
Commenters indicate that as a
consequence of this prejudgment the
EPA may need to conduct a new
assessment and modeling of
contribution at Step 2 of the 4-step
interstate transport framework if the
EPA chooses to take a different action
on any of the SIPs they have proposed
to disapprove or found as having failed
to issue a complete SIP. As such,
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commenters urged the EPA to stay
action on the proposals and coordinate
with states to ensure the appropriate
sequence of actions is taken. The
relevant text of the ASC’s comment is
included immediately below.17
Yet, it appears EPA is rushing to take final
action as EPA on February 22, 2022,
proposed to disapprove 19 Good Neighbor
SIP submissions. EPA also issued proposed
findings of failure to issue a complete SIP for
NM, PA, UT, and VA. The proposed FIP
essentially prejudges the outcome of those
pending SIP actions and, in the event EPA
takes a different action on those SIPs than
contemplated in this proposal, it would be
required to conduct a new assessment and
modeling of contribution and subject those
findings to public comment.18
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Citations to previous responses: The
EPA explained that, partially in
response to comments concerning
technical issues with the modeling used
at proposal for Steps 1 and 2, it
conducted a new round of modeling and
air quality analysis at Steps 1 and 2 in
taking final action on the SIP
Disapproval and the Good Neighbor
Plan. 88 FR 36673–74; 88 FR 9339. The
EPA explained that it also reviewed
recent ozone monitoring data indicating
persistent elevated ozone levels at many
locations throughout the country. Id. at
36704–05. The EPA explained that for
most states its updated air quality
analysis for the final rule was
confirmatory of its proposed findings
concerning which states contribute to
downwind receptors at Step 2, and even
its older 2011-based modeling. Id. at
36674, 36707. The EPA explained that
where its updated analysis at Steps 1
and 2 indicated that a state was not
contributing or that the basis for finding
contribution had changed, it was not
finalizing a FIP for that state in the Good
Neighbor Plan; the EPA indicated its
intent to address these and other states
in subsequent actions. Id. at 36656,
36658, 36689; see also SIP Disapproval,
88 FR 9354.19
17 See Portland Cement Association’s June 21,
2022, comment letter Docket Id No. EPA–HQ–OAR–
2021–0668–0516, at 7, for section II.C. of the PCA
comment as referenced.
18 See Air Stewardship Coalition’s June 21, 2022,
comment letter Docket Id No. EPA–HQ–OAR2021–0668–0518, at 13–14.
19 The EPA has conducted or is in the process of
conducting additional notice-and-comment
rulemaking to address the obligations of those
states. See 88 FR 87720 (December 19, 2023)
(Wyoming); 89 FR 12666 (February 16, 2024)
Supplemental Air Plan Actions: Interstate Transport
of Air Pollution for the 2015 8-Hour Ozone National
Ambient Air Quality Standards and Supplemental
Federal ‘‘Good Neighbor Plan’’ Requirements for the
2015 8- Hour Ozone National Ambient Air Quality
Standards (‘‘Supplemental Rulemaking’’)
(proposing action for Arizona, Iowa, Kansas, New
Mexico, and Tennessee).
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Comment category 3 (costeffectiveness at Step 3): Comments from
ASC, PCA, the Indiana Municipal Power
Agency (IMPA), the Lower Colorado
River Authority (LCRA), and the
Wisconsin Paper Council (WPC)
question the methodology by which the
EPA identified a cost-threshold used to
establish the cost-effectiveness of the
proposed controls.
Commenters (ASC and PCA) both ask
the EPA to reconsider the $7,500/ton
average marginal cost-effectiveness
threshold used for non-EGUs stating
that it is too high and a departure from
past practices. Both commenters state
the EPA has failed to explain why the
EPA relied on a ‘‘knee in the curve’’
approach instead of the past ‘‘clear
breakpoint’’ approach to determine the
$7,500/ton number. Commenters state
that there is no noticeable break at that
point for Tier 1 industries but there is
a break at $1,600/ton mark; however,
commenters concede there is a
difference at $7,500/ton in Tier 2
industries and the combined Tier 1 and
2 industries line. In addition,
commenters question why the EPA
departed from the cost-effectiveness
threshold used in the 2021 Revised
CSAPR Update Rule ($2,000/ton in
$2016) as it appears to commenters that
the EPA had not collected any new
information on costs or technologies or
used different implementation timelines
since the Revised CSAPR Update Rule.
The relevant text of the Air Stewardship
Coalition’s comment is included
immediately below.20
The Agency’s sole analysis is that there
was a ‘‘knee in the curve’’ that identified
$7,500 per ton, but that is not obvious to a
reviewer. There is no noticeable difference
around $7,500 in the plotted line for Tier 1
industries, instead the Tier 1 line reflects a
break around the $1,600 mark. While the Tier
2 and combined Tier 1 and 2 lines show
some difference around $7,500 mark, there is
no explanation for EPA’s reliance on a ‘‘knee
in the curve’’ as opposed to past transport
rules that have relied upon a ‘‘clear break
point’’ at this step. Further, EPA has
provided no explanation for why the Tier 1
and 2 industries were subject to different
contribution thresholds, as described above,
yet they were combined when developing the
cost-effective control threshold.
In addition, EPA fails to explain why the
threshold departs from prior transport rule
cost-effectiveness thresholds for non-EGUs.
In particular, less than one year before EPA
released the Proposed Rule, in the 2021
Revised CSAPR Update Rule, EPA said the
non-EGU data demonstrated ‘‘a clear break
point’’ (versus a ‘‘knee in the curve’’) at
approximately $2,000 (in $2016) per ton.
20 The Portland Cement Association’s comment
on this topic is nearly identical and can be found
at Docket Id No. EPA–HQ–OAR–2021–0668–0516,
at 22.
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According to EPA, EPA adopted ‘‘that
analysis using the best available current
data,’’ including the ‘‘identified available
control technologies,’’ their ‘‘costs and
potential emissions reductions,’’ and ‘‘the
information it has regarding control
technology implementation timeframes,
including information on such timeframes
provided by commenters on the proposed
rule.’’ Further, to identify levels of control for
non-EGUs, EPA used the Control Strategy
Tool (CoST) and the projected 2023
inventory from the 2016v1 modeling
platform, just as EPA has done in this
Proposed Rule. Indeed, there is no indication
in the Proposed Rule that EPA collected any
new information on costs or technologies or
implementation timelines that differed in any
material way from the information it
analyzed in the Revised CSAPR Update
Rule.21
Other commenters (IMPA, LCRA, and
the WPC) state that cost-effectiveness
varies based on operational
characteristics of the unit in question,
that installing controls on existing EGUs
may not be cost-effective, and that
emissions from certain industries
(specifically pulp and paper mills)
would have a negligible effect on air
quality.
One commenter (IMPA) objected that
requiring a specific type of emissions
control will result in a lack of flexibility.
They state that the cost-effectiveness of
employing selective non-catalytic
reduction (SNCR) will be highly
variable, and that units employed at
peak timeframes will not see similar
emissions reductions to those that are
used as base load generation. The
commenter then states that technology
specific dictates are not the best means
of emissions control but would prefer
controls that maintain flexibility.
To support their claim that the EPA’s
EGU controls are unlawful because they
are not cost-effective, another
commenter (LCRA) states that the
installation of controls on existing
sources (as compared to new sources) is
not ‘‘per se reasonable or costeffective.’’ 22 The commenter goes on to
state that EGUs that have already
invested in state-of-the-art combustion
controls have already undertaken
significant costs and will have less to
gain from additional controls such as an
selective catalytic reduction (SCR)
retrofit.
Finally, one commenter (WPC) states
that the emissions reductions coming
from adding controls to pulp and paper
mills ‘‘would have a negligible effect on
21 See Air Stewardship Coalition’s June 21, 2022,
comment letter Docket Id No. EPA–HQ–OAR–2021–
0668–0518, at 27.
22 See Lower Colorado River Authority’s June 21,
2022, comment letter Docket Id No. EPA–HQ–OAR–
2021–0668–0395, at 21.
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air quality.’’ 23 The commenter states
that this, coupled with a continued
decreasing trend of Wisconsin-based
stationary source NOX emissions,
anticipated mobile source NOX
reductions, and additional reductions
that they assert were not accounted for
in the EPA’s analysis, indicates that
inclusion of Wisconsin pulp and paper
mills are not needed to achieve
downwind air quality improvement.
The relevant text of the various
commenters is included immediately
below.
Indiana Municipal Power Agency
Not every unit can install or activate SNCR
in a way that is cost effective, relative to the
actual emissions reductions that the units
will experience. Inflated assumptions as to
achievable emissions reductions, and
underestimated implementation costs have
led EPA to presume that compelling the use
of SNCR with no regard for the individual
circumstances of the EGU in question will be
a cost effective means of reducing NOX
emissions. This is not always the case. In
IMPA’s experience, the effectiveness of SNCR
system is highly variable depending on the
operational characteristics of the unit, and
the level and consistency of its load. Units
deployed during peak timeframes, such as
IMPA’s WWVS units, will not see the same
emissions reductions as base load generation.
The cost effectiveness of the requirement to
employ SNCR will be highly variable, and is
unlikely to meet EPA expectations in even
the most optimistic case.24
Wisconsin Paper Council
Furthermore, pulp and paper mill boilers
contribute a small amount of the overall NOX
emissions from sources in the 23 states
identified by EPA for emission reductions.
Based upon the 2017 National Emissions
Inventory, point sources in those states
emitted approximately 1.5 million tons of
NOX, while pulp and paper mill boilers
emitted only about 35,000 tons in those states
(2% of point source emissions). In addition,
those states also have mobile source
emissions of approximately 3.3 million tons
per year of NOX, and another 1 million tons
of NOX emissions from biogenic sources,
wildfires and prescribed burns.
It is also important to note that the
reduction in emissions from pulp and paper
mills would have a negligible effect on air
quality. For example, the maximum
estimated improvement at any receptor for
emission controls on 25 pulp and paper mills
is 0.0117 ppb, which is significantly below
the detection limit of ambient air quality
monitors. Thus, the benefit in air quality is
too small to even measure.26
It is clear that Congress believed existing
source standards would never exceed new
source standards: ‘‘[m]ore stringent
requirements are imposed on new sources
because engineering considerations allow for
cheaper and more effective pollution control
when the effort is incorporated in the design
and construction of the facility.’’ In fact, EPA
has previously recognized that less (not
more) stringent standards are appropriate for
existing units because ‘‘controls cannot be
included in the design of an existing facility
and because physical limitations may make
installation of particular control systems
impossible or unreasonably expensive in
some cases.’’ Controls identified as part of a
transport plan should take into account the
difficulties of installing controls at existing
facilities, but EPA does not do so in this
Proposal.
While installing selective catalytic
reduction may be the common practice for a
new fossil-fueled EGU, that does not mean
that it is per se reasonable or cost-effective
for existing plants, especially those that have
already invested in other controls to lower
their NOX emissions. Due to the lower
Citations to previous responses: The
EPA explained that, as it had in all prior
good neighbor rulemakings for ozone, it
was establishing uniform emissions
control levels for all covered states,
using a comparative analysis of the costeffectiveness of different emissions
control technologies as a key metric to
establish the appropriate degree of
stringency to define ‘‘significant
contribution.’’ 88 FR 36675–77, 36678–
79, 36683, 36718–19, 36741. The EPA
explained that it determined in the final
Good Neighbor Plan it would require
controls up to the $11,000/ton
representative cost threshold identified
for EGUs associated with retrofit of SCR
post-combustion control technology and
that non-EGU costs on a per ton basis
were generally commensurate with this
level of control stringency. 88 FR
36746–47. The EPA explained there
could be variation in costs for particular
units depending on their configurations
or level of operation but that this
variation did not impact its selection of
the overall appropriate level of
stringency. Id.; id. at 36740–41. The
EPA explained it was not relying on the
$7,500/ton preliminary threshold
identified in the Non-EGU Screening
23 See Wisconsin Paper Council’s June 21, 2022,
comment letter Docket Id No. EPA–HQ–OAR–2021–
0668–0338, at 2.
24 See Indiana Municipal Power Agency’s June
20, 2022, comment letter Docket Id No. EPA–HQ–
OAR–2021–0668–0361, at 9.
25 See Lower Colorado River Authority’s June 21,
2022, comment letter Docket Id No. EPA–HQ–OAR–
2021–0668–0395, at 2 (footnotes omitted).
26 See Wisconsin Paper Council’s June 21, 2022,
comment letter Docket Id No. EPA–HQ–OAR–2021–
0668–0338, at 2.
Lower Colorado River Authority
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emission rate starting point, plants that have
already invested in state-of-the-art
combustion controls, such as low-NOX
burners and overfire air, have already
undertaken significant costs to achieve NOX
reductions and have less to gain from
additional control installation, such as SCR
and SNCR.25
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Assessment, recognizing costs were
more heterogeneous than that single
figure, and that nonetheless, the
Screening Assessment adequately
served its function of helping the EPA
target the most impactful non-EGU
emissions control strategies in defining
‘‘significant contribution.’’ Id.; Good
Neighbor Plan RTC at 113–15. The EPA
explained that for EGUs, the trading
program would allow for cost-efficient
compliance planning for all sources and
adjusted its proposed trading program
‘‘enhancements’’ to preserve greater
flexibility for EGUs through the 2020s,
id. at 36729–30, 36684, while for nonEGUs, the EPA made available
flexibilities such as alternative
emissions limits for any units facing
excessively high costs or technical
infeasibility, id. at 36818–19. The EPA
explained that it believed its selected
level of stringency as compared to prior
transport rules was appropriate in light
of the more protective 2015 ozone
NAAQS and its projections of persistent
elevated ozone levels. Id. at 36660. It
explained how its analysis compared
and was consistent with the
determinations in the Revised CSAPR
Update and other previous rulemakings
taken pursuant to CAA section
110(a)(2)(D)(i)(I). 88 FR 36660; Good
Neighbor Plan RTC at 37–39, 92–93. The
EPA explained how it had derived its
estimates of representative costs for both
EGUs and non-EGUs, which accounted
for a range of costs associated with
retrofit of controls on existing sources.
88 FR at 36720–31, 36738–40. The EPA
explained how its selected level of
control was also roughly commensurate
with the level of control required of
existing sources in downwind states.
Good Neighbor Plan RTC at 62–63.
The EPA explained how it evaluated
the air quality factor in its Step 3
analysis, viewing it as serving a
confirmatory role that an appropriate
level of emissions control stringency
would be achieved overall, that (based
on available information) no costeffective strategies had been overlooked,
and that if the identified cost-effective
level of control stringency were applied
uniformly across the linked upwind
states, there would be, on average and
in the aggregate, widespread reductions
in ozone levels at downwind receptors.
Id. at 36683, 36741, 36748–50.
The EPA explained that it generally
focused on large stationary sources of
NOX emissions in upwind states,
consistent with the science of regionalscale ozone transport and all of its prior
good neighbor rulemakings for ozone.
Id. at 36660, 36671, 36719. The EPA
explained it recognized that air quality
improvement from any particular source
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or group of sources may appear
relatively small, but this is simply an
expression of the ‘‘collective
contribution’’ problem that ozone
presents. Good Neighbor Plan RTC at
98, 103–04. The EPA explained why,
given this problem and the need to
control many sources over a wide area,
it makes sense to define obligations for
each state subject to a FIP through the
application of a uniform level of
emissions control across the linked
states and to regulate on an industry-byindustry basis across those states, as a
matter of both efficiency and equity. 88
FR 36673, 36675–76, 36677, 36680,
36683, 36691, 36719, 36741; Good
Neighbor Plan RTC at 8, 48, 56–58, 83,
92–93, 118.
The EPA explained that it considered
boilers in several industries to be
impactful and controllable non-EGU
types and that boilers in the pulp and
paper industry were among those
sources with well-demonstrated, costeffective NOX-emissions control
options. 88 FR 36681–82, 36736, 36739–
40; Good Neighbor Plan RTC at 93, 97,
99–100, 107, 119–21. The EPA
explained that it was nevertheless not
including non-EGU requirements for
Wisconsin in the final rule because
based on the updated modeling used for
the final rule, Wisconsin was no longer
projected to be linked to downwind
receptors in the 2026 analytic year. Id.
at 118.
The EPA addressed SNCR operating
characteristics and effectiveness for
existing EGUs, both in terms of
optimizing SNCR controls that had
already been installed, and in terms of
installing new SNCRs on existing EGUs.
88 FR 36725–26. The EPA evaluated
comments concerning SNCR
performance where specifically raised,
see, e.g., Good Neighbor Plan RTC at
229. The EPA also gave consideration to
certain EGUs that have widely varying
operating levels because they serve a
‘‘peaking’’ function rather than
supplying baseload power to the grid
and did not include them in setting the
stringency of the rule for EGUs at Step
3. 88 FR 36732.
III. Analysis of Severability in
Response to Comments
In this section, the EPA provides a
fuller explanation why the Good
Neighbor Plan can and should apply on
a state-by-state basis for any state for
which the EPA has a responsibility to
promulgate a FIP, regardless of the
number of states covered at any given
time. Drawing together the Agency’s
legal and technical reasoning, based on
the information and data available at the
time, provided in the record when the
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Good Neighbor Plan was signed and
promulgated, the EPA provides a more
thorough response to the relevant
comments that together can be read to
have raised that issue.
A. Summary of Response
As the EPA stated in the final rule, the
Good Neighbor Plan by design is
severable by state. 88 FR 36693. The
rule implements the statute’s
prohibition on ‘‘significant
contribution’’ under CAA section
110(a)(2)(D)(i)(I) for the 2015 ozone
NAAQS by promulgating state-level
FIPs that require the industries in each
contributing upwind state to achieve at
least minimum levels of emissions
performance deemed to be costeffective. Id. at 36741. So long as they
meet that level of performance, the
industries in any state regulated under
the Good Neighbor Plan are understood
to have lawfully addressed good
neighbor obligations and eliminated that
portion of a state’s significant
contribution to downwind air pollution.
While the EPA must necessarily account
for the multi-state nature of the
interstate-ozone problem, consistent
with the statute and case law, the Good
Neighbor Plan imposes obligations on
sources in each individual state that are
appropriate for those sources and are
achievable.
Those requirements result from the
application of a longstanding analytical
framework that the EPA has applied
when evaluating interstate transport
obligations for multiple prior ozone
NAAQS. 88 FR 36660, 36668–69.
Shaped through the years by input from
state air agencies 27 and other
stakeholders on the EPA’s prior
interstate transport rulemakings and SIP
submission actions,28 as well as court
decisions, the EPA has developed and
used a ‘‘4-step interstate transport
framework’’ to evaluate states’
obligations to eliminate interstate
transport emissions under the interstate
transport provision for each prior ozone
NAAQS: (Step 1) identify monitoring
sites that are projected to have problems
attaining and/or maintaining the
NAAQS (i.e., nonattainment and/or
maintenance receptors); (Step 2)
identify states that impact those air
quality problems in other (i.e.,
downwind) states sufficiently such that
the states are considered to ‘‘contribute’’
(i.e., are considered ‘‘linked’’) to those
receptors and whose emissions therefore
27 See
63 FR 57356, 57361 (October 27, 1998).
addition to CSAPR rulemakings, other
regional rulemakings addressing ozone transport
include the ‘‘NOX SIP Call,’’ 63 FR 57356 (October
27, 1998), and the ‘‘Clean Air Interstate Rule’’
(CAIR), 70 FR 25162 (May 12, 2005).
28 In
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warrant further review and analysis;
(Step 3) identify the emissions
reductions necessary (if any), applying a
multifactor analysis, to eliminate each
linked upwind State’s significant
contribution to nonattainment or
interference with maintenance of the
NAAQS at the locations identified in
Step 1; and (Step 4) adopt permanent
and enforceable measures needed to
achieve those emissions reductions. The
EPA does not require states to use the
4-step interstate transport framework in
good neighbor SIP submissions, nor has
the EPA ever maintained that this is the
only way states could satisfy their
obligations under CAA section
110(a)(2)(D)(i)(I). However, it is a useful
organizational tool and evaluation
framework that comports with the
statutory text and structure of the Act.
The application of uniform levels of
emissions control stringency at Step 3
across all linked states has been upheld
by the Supreme Court as ‘‘permissible,
workable, and equitable.’’ EPA v. EME
Homer City Generation, L.P., 572 U.S.
489, 524 (2014). The Supreme Court
there expressly rejected that the Act
mandates a definition of ‘‘significance’’
that is directly proportional to each
state’s contribution, finding that reading
‘‘appears to work neither
mathematically nor in practical
application.’’ Id. at 516. As the EPA
explained in the Good Neighbor Plan,
the 4-step interstate transport
framework, including the application of
uniform minimum control stringency,
remains a particularly fair and equitable
approach to apply in the case of a
multistate pollution problem like ozone,
characterized by ‘‘collective
contribution’’ and in which widespread
emissions reductions of a single
precursor pollutant (nitrogen oxides or
NOX) over a wide geographic area are
known to be effective in improving
ozone levels downwind. 88 FR 36719.
Because the methodology for defining
those obligations ultimately relies on a
determination regarding what level of
widely available emissions performance
each type of regulated source can costeffectively achieve, the obligations set
for sources in each state are
independent of the number of states
included in the Good Neighbor Plan.
Accordingly, the fact that obligations
may be suspended or not yet operative
with regard to some states does not
impact the Good Neighbor Plan’s
conclusions as they apply in other
states. Rather, as the EPA explained, the
framework yields an ‘‘amount’’ of
pollution for ‘‘each State’’ that the EPA
is authorized to ‘‘prohibit,’’ CAA section
110(a)(2)(D)(i), standing in the shoes of
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a state, CAA section 110(c)(1), based on
the amounts of pollution that would be
avoided in that state by applying the
control technologies the EPA
determined were cost-effective for the
covered industries. 88 FR 36675. The
amounts to be prohibited are thus
premised on reasonable levels of
pollution control upwind rather than on
a specific, aggregate quantum of ozone
reduction that must be achieved
downwind. Michigan v. EPA, 213 F.3d
663, 674–80 (D.C. Cir. 2000).
Under this framework, while the
emissions-control requirements are
uniform across the same types of
sources in each state, the size of each
state’s total incremental emissionsreductions obligation under the Good
Neighbor Plan, and the resulting
improvement in air quality downwind,
depends on the particular sources
present in that state and the level of
pollution reduction those sources are
already achieving. 88 FR 36683. If a
state’s sources are already wellcontrolled, they will have less to do to
meet the EPA’s defined level of control
stringency; if the state’s sources are not
already well-controlled, they will have
to do more. But these state-specific
obligations derive from the application
of common, uniform levels of emissions
control stringency calculated for each
type of source based on the
demonstrated performance of pollution
control technologies that can be
replicated in any linked upwind state.
EME Homer City, 572 U.S. at 519–20.
Calculating ‘‘significance’’ according to
source type and concluding that the
good neighbor provision can be
reasonably implemented by bringing all
covered sources up to a common level
of control ensures the EPA can fairly
administer the program in any state that
becomes subject to a need for federal
regulation, while avoiding inequities
that could arise if state plans (and
relevant sources) were addressed
seriatim. See 88 FR 36749 (explaining
the need to avoid a ‘‘which state goes
first’’ problem). The achievement of that
level of performance for any particular
state is not dependent on the number of
states in the Good Neighbor Plan, nor on
the order in which the states are
addressed. In this way, the Good
Neighbor Plan prohibits each covered
state’s ‘‘significant contribution’’ to
downwind ozone problems in a
‘‘permissible, workable, and equitable’’
manner. 572 U.S. at 524.
Given this statutory structure and
regulatory framework, the Good
Neighbor Plan is ‘‘modular’’ by nature,
defining and implementing the
obligations for each state.
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First, in line with the statutory text,
structure, and case law, the EPA
determines the ‘‘significant
contribution’’ that must be prohibited at
the individual state level. See 88 FR
36687 (citing North Carolina v. EPA,
531 F.3d 896, 906–08, 921 (D.C. Cir.
2008)). None of the steps in the 4-step
interstate transport framework differ
based on the number of states included
in the Good Neighbor Plan. For
example, the control technologies and
cost-effectiveness figures the EPA
considers at Step 3 do not depend on
the number of states included. Instead,
the Good Neighbor Plan regulates
certain relatively large emitting sources
in each included state (including both
new and existing sources meeting the
relevant criteria), up to a uniform level
of pollution control that is common
across sources of that type in all
potentially contributing states. Once the
‘‘amount’’ of pollution for each state is
determined, whether the 4-step
interstate transport framework is
applied to one state or fifty, it would
yield the same emissions control
obligations for the included states. That
means that when the number of states
whose sources are included in the Good
Neighbor Plan’s regulatory programs for
EGUs or non-EGUs changes from the
number included at promulgation,
which is historically common in
interstate transport rules and consistent
with states’ authority under the Act to
replace federal plans with state plans,
the emissions reduction obligations of
the states remaining in the Good
Neighbor Plan’s programs stay the same,
and the obligations of states joining the
Good Neighbor Plan’s programs are the
same as those that were applied to the
states already included.
Second, given the state-specific
statutory mandate, for those
components of the Good Neighbor Plan
that necessitate consideration of multistate effects, the EPA is careful to avoid
creating any interdependency among
the particular states included, both in
the Agency’s analytical methodology
and in the Good Neighbor Plan’s
regulatory requirements. As the EPA
explained in the rule, interstate ozone
pollution continues to present a
‘‘collective contribution’’ challenge
wherein many sources of emissions over
a wide geographic area comprise a
substantial portion of the ozone
problems downwind. 88 FR 36678,
36712. Where the EPA is called upon to
fill a gap in state planning efforts, it
must therefore develop solutions for the
relevant state(s) that reasonably account
for the efforts other states may
undertake, even in the face of
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uncertainty concerning what those
states may do. Id. at 36695–96. For
example, when evaluating the Good
Neighbor Plan to ensure it did not
‘‘overcontrol’’ (i.e., yield more
reductions than necessary), the EPA did
not just look at the states included in
the original Good Neighbor Plan, but
also looked at all of the other states the
modeling showed were potentially
affecting downwind air quality above
the ‘‘contribution’’ threshold (as well as
each receptor’s ‘‘home’’ state), even if
those states were not included in the
Good Neighbor Plan.29 See infra note 47
supra and accompanying text (providing
record citations). Taking this broad
view, the EPA found that even making
all cost-effective reductions available in
all linked upwind states, and assuming
equivalent emissions reductions from
the two downwind states not included
in the Good Neighbor Plan, the rule
would not constitute overcontrol. 88 FR
36749–50. Accordingly, because the
overcontrol analysis already assumes
the emissions reductions that can
reasonably be anticipated from the
implementation of the good neighbor
provision for a given NAAQS, requiring
available emissions reductions in any
subset of those states does not constitute
overcontrol of those upwind states. See
section III.B.2.c. of this document
(providing record citations). Finally, the
Good Neighbor Plan’s regulatory
requirements, including the emissions
trading program for power plants, are
designed to be fully implementable in
each individual state and do not depend
on participation from a minimum
number of states. See section III.B.3. of
this document (providing record
citations). In these ways, the EPA’s
methodological approach to devising
good neighbor FIPs for ozone ensures
against inter-dependency among states,
through accounting for the effects of
emissions reductions within a web of
‘‘overlapping and interwoven’’ linkages
among many states, EME Homer City,
572 U.S. at 496–97, while at the same
time setting technology-based emissions
limits and other control measures that
the sources in each state can meet. 88
FR 36741, 36749.
Third, while equity and consistency
in obligations among states are at the
core of the statute and the EPA’s 4-step
interstate transport framework, the
suspension or removal of the Good
Neighbor Plan’s requirements in some
states does not provide a lawful basis to
suspend them in others. Just as each
state has an individual obligation to
29 These states are now included in a
supplemental rulemaking to address their
obligations. See supra note 19.
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satisfy the good neighbor requirements
of CAA section 110(a)(2)(D), regardless
of whether other states have done so,
the EPA has a statutory obligation to
address the good neighbor obligations of
‘‘each State’’ where it has a federal
responsibility to act. CAA section
110(c)(1). Indeed, the goals of equity
and consistency extend to the
downwind states for whom the good
neighbor provision was enacted. The
good neighbor provision’s requirement
of consistency with the rest of the CAA,
see CAA section 110(a)(2)(D)(i),
including the air quality attainment
schedules that are the ‘‘heart’’ of the
Act, Train v. NRDC, 421 U.S. 60, 66
(1975), means that each downwind state
with identified air quality problems has
a statutory right to timely relief from the
public health and regulatory burdens of
upwind pollution. See 88 FR 36694
(discussing case law). It would be
contrary to this statutory purpose to
revise or suspend the Good Neighbor
Plan as to upwind states for which the
EPA is under a statutory requirement to
act because the Good Neighbor Plan’s
requirements were suspended for other
states.
These principles are applicable in a
variety of circumstances where the EPA
may approve a state’s SIP as sufficiently
meeting its good neighbor obligations
even if the state’s approach is different
than the EPA’s approach, for that state
or for other states. The EPA’s interstate
ozone transport actions are typically
taken on a national basis and with the
goal of ensuring consistency, including
in terms of alignment of the timing of
obligations, because doing so ensures
equitable treatment of all states and is
administratively efficient given the
commonality in analysis and obligations
across many states, particularly in the
case of interstate ozone transport. In
addition, the establishment of interstate
emissions trading programs has allowed
for more cost-efficient compliance
activities, and it is far more efficient to
establish these programs through a
consolidated, multistate rulemaking
action. Historically, this has also been
coupled with the EPA’s practice of
seeking consolidated judicial review of
such actions in the D.C. Circuit to
ensure that a consistent caselaw regime
applies across the entire country on
matters of interstate ozone pollution and
is not varied by which federal judicial
circuit a state happens to be located in.
88 FR 36859–60.30
30 See also, e.g., 86 FR 23054, 23163–64 (April 30,
2021); 84 FR 56058, 56093 (October 18, 2019); 83
FR 65878, 65923–24 (December 21, 2018); 83 FR
50444, 50472 (October 5, 2018); 81 FR 74504,
74585–86 (October 26, 2016); 76 FR 80760, 80773–
74 (December 27, 2011); 76 FR 48208, 48352
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Nonetheless, the EPA acknowledged
states’ ability to develop alternative,
potentially approvable approaches to
meeting their good neighbor obligations.
See 88 FR 36838–43. In evaluating
alternative approaches, the EPA must
consider interstate consistency, 88 FR
36839–40; id. n.405; 87 FR 9338, 9380–
81, but it has never been the Agency’s
view that its methodology for defining
one state’s obligations would have to be
redone simply because it found an
approach in another state also
approvable.
Thus, as explained in more detail in
section III.B., the comments asserting
that the EPA should stay, revise, or
withdraw the Good Neighbor Plan for
any particular state depending on the
status of implementation of good
neighbor obligations of other upwind
states cannot be squared with the statespecific mandate of the Act, nor would
this be compelled as a result of any
element of the EPA’s 4-step interstate
transport framework. For those states
where the Good Neighbor Plan may be
currently suspended, good neighbor
obligations will ultimately be met,
either through an approved state plan or
a federal plan as necessary. Meanwhile,
sources in upwind states regulated by
the Good Neighbor Plan would be under
the same legal obligation to control their
pollution even if the EPA developed a
federal plan containing just those states
or some subset of them or separate
federal plans for each state.
B. Step-by-Step Review of the 4-Step
Interstate Transport Framework
A review of the EPA’s methodology
demonstrates why each upwind state
would bear the same emissions
reduction obligations, regardless of how
many states were included in a
particular rulemaking. The EPA’s
method for defining good neighbor
obligations, while applied consistently
across the nation and respectful of the
multistate ‘‘collective contribution’’
nature of the interstate ozone problem,
produces a definition of ‘‘significant
contribution’’ 31 for the sources in each
individual state, and provides for the
prohibition of such emissions in a
manner that is not dependent on the
inclusion of any particular number or
grouping of states. As tested and refined
(August 8, 2011); 71 FR 25328, 25329 (April 28,
2006); 70 FR 25162, 25316 (May 12, 2005); 65 FR
2674, 2725 (January 18, 2000); 63 FR 57356, 57480
(October 27, 1998).
31 ‘‘Significant contribution’’ is often used as a
shorthand to refer to the identification of those
amounts of emissions that significantly contribute
to nonattainment or interfere with maintenance of
the NAAQS in other states and therefore must be
prohibited under the good neighbor provision. See
CAA section 110(a)(2)(D)(i)(I).
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99113
through case law over the past quartercentury, the EPA’s methodology is
consistent with the state-specific
structure of the Act and the
fundamental statutory obligation to
define and prohibit each state’s own
significant contribution. See CAA
section 110(a)(1) and 110(a)(2)(D);
Wisconsin v. EPA, 938 F.3d 303, 324–
25 (D.C. Cir. 2019); North Carolina, 531
F.3d at 906–08, 920–21.
Consistent with the statutory text and
structure and judicial precedent, the
EPA’s 4-step interstate transport
framework was designed to be
independent of the number or scope of
included states. Because the statute
allows states to replace a FIP with a
SIP—and because as a practical matter
the EPA does not necessarily receive or
act on each state’s SIP submission at the
same time—the Good Neighbor Plan is
expressly designed to allow states to be
added to or removed from the federal
emissions control program over time, as
circumstances require (including where
a state submits an approvable SIP to
replace their FIP, see 88 FR 36838–39).
The Good Neighbor Plan does so
primarily by setting good neighbor
obligations based on the available, costeffective technologies that can be
applied to each type of high-emitting
source—a technology-focused definition
of ‘‘significant contribution’’ that the
Supreme Court upheld in EME Homer
City and that can be evenhandedly
applied to existing sources and those
that may be newly located in any
contributing State in the future. 88 FR
36675–77, 36678–79, 36683, 36718–19,
36741. This ensures fairness and
consistency across all states when the
EPA must act pursuant to its FIP
authority to implement CAA section
110(a)(2)(D)(i)(I), regardless of when any
particular state is addressed—it avoids
the problem of ‘‘which state goes first’’;
that is, it avoids producing unfairly
varying levels of emissions-control
stringency depending on the order in
which states’ obligations are addressed.
88 FR 36749. As the Supreme Court
aptly illustrated in EME Homer City,
where multiple states contribute to
multiple other states (as remains the
case across the contiguous U.S. for the
2015 ozone NAAQS), addressing each
state’s obligations in proportion to its
contribution to each receptor in seriatim
fashion becomes mathematically
unworkable and economically
inefficient. 572 U.S. at 516. The EPA’s
approach to developing ozone good
neighbor FIPs avoids these pitfalls,
avoids interdependence, and avoids
unfairness—it works for each state that
may need federal regulation of its
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sources. Accordingly, under each step of
the 4-step interstate transport
framework discussed further later, a
change in the number of states covered
does not impact the obligations of the
states or sources that remain covered.
1. Steps 1 and 2
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The EPA identifies receptors based on
nationwide modeling and monitoring
data and evaluates each state’s
contribution to receptors in downwind
states on an individual-state basis to
identify upwind-state-to-downwindstate linkages. The air quality modeling
and the monitoring data the EPA
considered for Steps 1 and 2 cover the
contiguous United States. See 88 FR
36696.
At Step 1, the EPA identified
downwind receptors that are expected
to have problems attaining or
maintaining the NAAQS. For a detailed
explanation of what receptors are and
how the EPA identified them, see 88 FR
36703–08. At Step 2, the EPA identified
which upwind states contribute to the
identified receptors in amounts that
would be sufficient in the EPA’s
interpretation of ‘‘contribution’’ to
‘‘link’’ the individual upwind states to
downwind air quality problems. For a
detailed explanation of how the EPA
identified these linkages, see 88 FR
36708–12.
The nationwide identification of
receptors expected to have problems
attaining or maintaining the NAAQS
and of states ‘‘contributing’’ to those
receptors does not rely upon nor
necessarily dictate the number of states
included in a particular rulemaking.
The EPA historically has applied a
common numerical threshold for
determining which states ‘‘contribute’’
to downwind air quality problems, and
the contributions from each state are
evaluated independently with respect to
this threshold. 88 FR 36677–78. The
modeling of baseline conditions did not
contain or rely on the emissions
reductions in the Good Neighbor Plan,
and the monitoring data were based on
measurements during years prior to
when the Good Neighbor Plan was final
and thus these data do not reflect the
impacts of emissions reductions from
the Good Neighbor Plan.32 This
approach creates a level playing field
32 Both the EPA and States can use air quality
modeling and monitoring information on ozone
concentrations and contribution levels to make
individual determinations for each state concerning
whether it is contributing to any out-of-state
receptors. See, e.g., 88 FR 9365 n.286 (identifying
individualized approvals of SIPs using modeling at
Steps 1 and 2).
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from which to assess each state’s level
of contribution. 88 FR 36713.
In addition to promoting national
consistency, the EPA has explained that
using a single contribution threshold
avoids creating potential interdependencies among states. When the
EPA had previously considered whether
to approve individual states’ use of a
higher contribution threshold, it had
proposed (for the State of Iowa) to
consider the effects of other states’
efforts to reduce their pollution at
shared receptors. See 88 FR 36715. On
further consideration, however, the EPA
found this would have introduced an
interdependency. Id. When the EPA
gave consideration to this approach in
its SIP Disapproval action disapproving
21 state implementation plans (88 FR
9336; February 13, 2023), in response to
comments, it explained that this factor
would inappropriately introduce an
inequity in which some states could
evade obligations through reliance on
the incidental effects of other states’
efforts.33 See also 88 FR at 36713
(explaining that ‘‘use of alternative
thresholds would allow certain states to
avoid further evaluation of potential
emissions controls while other states
must proceed to a Step 3 analysis. This
could create significant equity and
consistency problems among states.’’).
The EPA’s analytical methodology at
Steps 1 and 2 ensures the EPA can
impose FIP obligations, where they may
be needed, according to a common
rubric that maintains equity and
consistency between the potentially
subject states. Thus, the analytic
methods in both Step 1 and Step 2 to
determine ‘‘contributing’’ states rely on
emissions and air quality data that are
independent of which or how many
states are covered by the Good Neighbor
Plan.
We note that comments from ASC and
PCA in Comment Category 2
summarized in section II.B. of this
document contained several statements
the meaning of which the EPA could not
clearly ascertain. Those comments said
the EPA’s Step 2 screening analysis
included states that ‘‘already had Good
Neighbor SIPs for the 2015 ozone
NAAQS.’’ See ASC Comment Letter at
13. The meaning of this statement is
unclear. States may have made SIP
submissions for these obligations, but at
the time of this comment, the EPA had
not approved all of those submissions
and was in the process of disapproving
many of them, and so the statement read
33 See 2015 Ozone NAAQS Interstate Transport
SIP Disapprovals—Response to Comments (RTC)
Document at 296, available at https://
www.regulations.gov/document/EPA-HQ-OAR2021-0663-0083.
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that way (i.e., to suggest that the States
already had approved SIPs) is factually
incorrect.34 The sentence in the ASC
comment letter goes on to state that the
EPA ‘‘prematurely disapproved’’ these
SIPs, but the disapprovals had only
been proposed at the time the comment
was submitted. The commenter did not
explain what made the EPA’s proposed
disapprovals ‘‘premature.’’
This comment might be read as in
relation to the previous approvals of
SIPs for certain states, and thus an
argument that these states’ emissions
should be excluded from modeling
analyses. Or the comment might be read
in relation to a subsequent statement in
the comment, that states should not be
included in the Good Neighbor Plan’s
‘‘screening’’ at Step 2 if final action on
the SIP submission had not yet been
taken. In either of these cases, the
comment would be misplaced, in that
our analysis of the Steps 1 and 2
modeling looks at the transport of
pollution as a factual matter and does
not remove from consideration the
emissions of states based on the
procedural status of their SIP
submissions. In addition, as explained
in section III.B.1., the EPA’s baseline air
quality and contribution modeling for
Steps 1 and 2 is conducted for a
modeling domain that includes the
entire contiguous United States and
accounts for all emissions sources. 88
FR 36696. Removing emissions from
certain states from this modeling would
produce erroneous, unrealistic, and
counterfactual results.
These comments also stated that the
EPA may need to conduct a new
analysis at Step 2 in the event the EPA
takes a different action on those SIPs
than contemplated in the proposed
Good Neighbor Plan. In that case,
according to commenter, the EPA
‘‘would need to conduct a new
assessment and modeling of
contribution and subject those findings
to public comment.’’ ASC Comment
Letter at 14. On the one hand, the EPA
agrees with the commenter to the extent
they are suggesting that if updated
modeling the EPA conducted (e.g., the
2016v3 modeling used in the final Good
Neighbor Plan) showed a state was no
longer contributing at Step 2, and the
34 The commenter also asserted that the EPA had
‘‘proposed’’ findings of failure to submit for four
states, New Mexico, Pennsylvania, Utah, and
Virginia. That statement was incorrect insofar as the
EPA issued a final finding of failure to submit for
these states in December of 2019, effective January
6, 2020, had an obligation to promulgate FIPs for
these states pursuant to CAA section 110(c)(1) by
January 6, 2022, and was subject to a consent decree
deadline to promulgate FIPs for these states
(excluding New Mexico) by March 15, 2023. See 88
FR 36689 n.106.
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EPA approved that state’s SIP
submission or had deferred taking
action, then the EPA would not
promulgate a FIP for that state given that
disapproval (or a finding of failure to
submit) is a necessary predicate to FIP
authority. This is precisely how the EPA
proceeded in the final SIP Disapproval
and Good Neighbor Plan and in taking
subsequent rulemaking actions for states
where its final analysis at Steps 1 and
2 had materially changed from its
proposed SIP and FIP actions. See 88 FR
36656, 36658, 36689; see also SIP
Disapproval, 88 FR 9354.35 On the other
hand, the comment might be read to
suggest that if the EPA’s analysis
changed for any particular state at Steps
1 or 2, then it would have to conduct
a whole new analysis of every other
state at Steps 1 or 2. If so, that comment
is in error because the EPA’s baseline air
quality and contribution analysis at
Steps 1 and 2 already accounts for
emissions across all states regardless of
their inclusion in the rule, and the
results of that analysis would not
change for one state simply because the
results indicated that another state had
fallen below the Step 2 contribution
threshold.
Taken as a whole, this set of
comments appears to be primarily about
the need for the EPA to ensure
consistency in how it analyzed each
state’s obligations between the separate
SIP and FIP rulemakings (a consistency
that the EPA agrees is important and
abided by). The commenter did not state
that the EPA’s analysis must be redone
if for reasons beyond the Agency’s
control the Good Neighbor Plan were
stayed or not in effect for any particular
state; rather, the commenter emphasized
the need for consistency in the EPA’s
own, substantive analytical
determinations. If the commenter
intended to argue that a change in
analysis at Steps 1 or 2 for one state
would necessarily alter the EPA’s
substantive assessment for other states
and would need to be subjected to
additional notice and comment, the
commenter did not state that, nor
provide a theory or reasoning as to why
that would be the case, and for the
reasons explained in this section
(III.B.1.), such an assertion would reflect
a misunderstanding of how baseline air
quality and contribution analysis is
conducted at Steps 1 and 2.
2. Step 3
The Act requires each state to
eliminate its ‘‘significant contribution’’
to downwind nonattainment or
interference with maintenance of air
35 See
also supra note 19.
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quality standards. To determine which
emissions from contributing states are
‘‘significant’’ at Step 3, the EPA
analyzes available emissions control
strategies and their costs. Based on that
analysis, the EPA then identifies a
uniform degree of emissions control
stringency that is reasonable to require
from upwind sources, calculated based
on the emissions performance those
sources would achieve through the
application of the technologies the EPA
found were most cost-effective. Step 3 is
a multi-factor analysis, with its primary
focus on technology availability and
associated cost, the level of emissions
reductions that are thereby achieved,
and the associated air quality benefits
delivered to downwind receptors. The
approach applies uniform levels of
emissions control stringency across all
upwind states, with the objective of
bringing the covered sources in each
state up to a minimum level of
emissions performance to reduce ozoneprecursor emissions. See 88 FR 36675–
77, 36678–79, 36683, 36718–19, 36741.
This approach is tailored to a pollution
problem characterized by collective
contribution from many similar sources
all emitting a similar precursor
pollutant (NOX) over a wide geographic
area; it ensures an efficient and
equitable solution that avoids
interdependency. Id. at 36719, 36741,
36749.
Thus, when the EPA uses the term
‘‘uniform’’ in the context of Step 3, it is
not referring to the division of a specific
‘‘pie’’ of air pollution, total emissions,
or total cost divided proportionally
among the upwind states; rather it is
referring to application of a pollution
technology applied equally across all
applicable units of a common size and
type. 88 FR at 36746–47. One example
of a uniform control stringency level is
the assumption that all EGU units with
already-installed selective catalytic
reduction (SCR) technology operate and
optimize the performance of these
controls. Id. at 36720–21. The EPA
estimated that this would be realized
through emissions rates (on average
across the fleet) of 0.08 pounds per
million British thermal units at costs of
about $1,600 per ton of NOx removed.
Id. The translation of this technology
stringency into the definition of
significant contribution is specific to
each state’s unique group of sources and
the operating characteristics of the
affected units at those sources. Id. at
36683. In no way is the amount of
emissions mitigation required of sources
in each state interdependent on another
state’s mitigation responsibility. The
‘‘amount’’ of pollution that is identified
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for elimination at Step 3 of the 4-step
interstate transport framework is
therefore that amount of emissions that
is above the level of emissions
remaining after the cost-effective
emissions control strategies are
implemented. Id. at 36676. Because it is
possible that a uniform level of
stringency may produce more emissions
reductions than is necessary to fully
resolve a particular upwind state’s
linkages to all downwind receptors, the
EPA tests its identified level of
stringency for ‘‘overcontrol.’’ For a
detailed explanation of how the EPA
applies Step 3, see 88 FR 36718–54.
Acknowledging that some of the
factors considered in the Step 3 analysis
are considered at a national scale while
certain components of that analysis
account for state-level or linkagespecific data, the EPA here explains in
more detail why the selected levels of
control stringency for particular
industries, and therefore the particular
obligations of individual states, do not
vary depending on the number of states
subject to FIPs under the Good Neighbor
Plan.
The EPA identified potential levels of
emissions control stringency that could
be applied for each industry, and thus
for the set of sources found in each
state, regardless of the number of States
covered by an approved SIP or a FIP or
not yet covered by either. In evaluating
those potential levels of stringency, the
EPA conducted a wide-ranging survey
of emissions control technologies (and
associated cost data) used throughout
the United States and even
internationally. Then, the EPA
conducted the air-quality-improvement
and overcontrol analyses considering
the effects of the potential uniform
stringency levels at each identified
receptor. The primary way in which the
EPA conducts that assessment is to
apply the potential stringency levels
across all of the states linked to each
particular receptor as well as the
downwind, ‘‘home’’ state for that
receptor. The EPA then assesses the
average resulting improvements across
all receptors as well as tabulates the
aggregate effects. This allowed the EPA
to ascertain whether a selected level of
stringency was effective at achieving
improvements in the air quality
downwind that were reasonable in
relation to the identified costs, while
also ensuring a selected stringency level
is not more stringent than necessary to
bring any given receptor into
attainment. 88 FR 36741, 36749–50. But
given the overlapping linkages among
multiple upwind and downwind states,
as well as varying levels of baseline
emissions control in each state, further
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complicated by the year-to-year
variability in ozone levels due to
meteorology, id. at 36750, the EPA’s
methodology, going back to the original
NOX SIP Call in 1998, has never
attempted to pinpoint a precise level of
emissions control for each state that
maximizes cost-effectiveness in relation
to each specific linkage. See 88 FR
36748 (finding the aggregate and average
air quality effects of the combined EGU
and non-EGU strategies across all
receptors would achieve ‘‘meaningful
downwind air quality improvements’’).
Expressed in simpler terms, the EPA’s
long-standing interpretation of CAA
section 110(a)(2)(D)(i)(I)—an approach
that the Supreme Court expressly
upheld in EME Homer City—is that a
state may satisfy its good neighbor
obligations by ensuring that its
emissions do not exceed what would
result from the application of costeffective emissions controls. The
purpose of Step 3 is to identify a set of
widely available and well-established,
cost-effective emissions controls that
can be applied in any upwind state,
while checking to ensure that those
emissions controls will achieve
downwind improvements in air quality
without overcontrol.
As described in more detail in
sections III.B.2.a.–III.B.2.c., none of the
determinations that underlie Step 3 are
contingent on a particular state or set of
states being covered by the Good
Neighbor Plan. Accordingly, the EPA’s
Step 3 analysis can be extended to states
not covered by the Good Neighbor Plan
either because the state is covered by an
approved SIP or prior FIP or because the
EPA has not yet taken action to review
a SIP or impose a FIP. By identifying
cost-effective approaches to reducing
multi-state ozone pollution in a manner
that does not depend on the
participation of any particular state or
set of states, the EPA’s approach
reasonably fulfills Congress’s direction
in CAA section 110(a)(2)(D)(i)(I) to
address the multi-state ozone problem
in a way that defines each state’s
obligations on an individualized basis.36
36 Just as the EPA’s analytical approach allows for
it to develop a good neighbor FIP for any state that
may require one that reasonably establishes
emissions control obligations in the face of
uncertainty regarding what other states will do, it
also allows states themselves to conduct a similar
analysis of their own obligations in the context of
developing a SIP without definitive knowledge of
what other states will do to fulfill their own
obligations. At Step 3 of the EPA’s 4-step interstate
transport framework, each state found to be
contributing to one or more receptors can conduct
an analysis of emissions control technologies or
measures that would be cost-effective within the
state. If each state linked to a given receptor (and
the downwind state where that receptor is located,
to account for that state’s own fair share), made
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Specifically, the EPA took the
following steps in conducting its Step 3
analysis in the Good Neighbor Plan:
a. Technology, Cost, and Emissions
Reduction Analyses
The EPA’s analysis started by
examining emissions control
technologies (sometimes also referred to
as ‘‘strategies’’) and their associated
costs and emissions reductions. The
Good Neighbor Plan identified
conventional, at-the-source, NOX
emissions control technologies that have
been available in the covered industries
for many years. See, e.g., 88 FR 36738
(identifying control technologies for
EGUs); id. at 36739 (identifying control
technologies for non-EGUs). These
analyses were not specific to the
particular group of upwind states whose
inclusion the EPA had proposed or
finalized in the Good Neighbor Plan but
looked instead at demonstrated
technologies and associated estimated
costs across each industry and
technology type as a whole, without any
geographic limitation. The EPA
reasonably considered a wide range of
technology and cost information
(including information from examples
and technical literature throughout the
U.S. or even internationally) rather than
just the data available in any particular
state or regional grouping, since this
allows for a more comprehensive
assessment of the technologies available
and associated costs for each source
type.37
For EGUs, the EPA conducted an
inquiry nearly identical to prior good
neighbor rules, looking at several widely
available and well-understood NOX
control strategies that can be and have
been applied to EGUs for decades
throughout the United States. See 88 FR
36720. For non-EGUs, the EPA similarly
consulted a wide range of sources of
information, starting with national
pollution-control efforts at these levels, a state
could demonstrate that ozone levels at the
downwind receptors would be measurably
improved (without undertaking more emissions
reductions than necessary). In the context of a FIP,
this approach to evaluating air quality
improvements at downwind receptors is necessary,
because to avoid overcontrol, the EPA must
consider whether applying a given control
stringency level to other states would achieve more
emissions reductions than necessary to bring a
receptor into attainment.
37 In response to comments, the EPA conducted
a sensitivity analysis for EGUs to see if looking at
control costs on a regional basis would change the
results and found that it would not. EGU NOX
Mitigation Strategies Final Rule TSD at 49–50. The
fact that the EPA conducted this as a sensitivity
analysis to address a comment further illustrates
that the primary technology and cost analysis the
EPA conducted, as described earlier, was not
limited to a 23-state geography and would not be
altered if that geography were different.
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databases like the National Emissions
Inventory and the Control Measures
Database (CMDB), and proceeding from
there to additional national and
international technical literature, as
well as a variety of existing state and
federal NOX control requirements. See
id. at 36732–33; see generally Non-EGU
Sectors Final Rule Technical Support
Document (TSD); 38 EGU NOX
Mitigation Strategies Final Rule TSD.39
These included trade association
literature; academic studies; multi-state
regional organization publications; state
rules and publications; contractor
studies; EPA rules, publications, and
databases like the RACT/BACT/LAER
Clearinghouse; European Commission
publications; operating permits; and
data on what emissions limits specific
facilities or companies were achieving.
See, e.g., Non-EGU Sectors Final Rule
TSD at 9–11 (reciprocating internal
combustion engines (RICE)), 27–29
(cement kilns), 35–39 (reheat furnaces),
42–43, 45–47 (glass furnaces), 62–65,
68–84 (boilers), 92–94 (Municipal Waste
Combustors (MWCs)).
The EPA derived estimated
‘‘representative’’ costs for particular
control strategies for EGUs through a
wide-ranging analysis of the likely costs
associated with capital, material,
equipment, and labor. See generally
EGU NOX Mitigation Strategies Final
Rule TSD. The EPA derived its cost
estimates for non-EGUs primarily from
the CMDB, which contains a
compilation of a variety of sources of
technical literature and examples.40 The
‘‘representative’’ costs that the EPA
identified for different levels of control
stringency and for different industries
were derived from this nationwide
analysis and were not specific to the
particular states included in the
proposed or final Good Neighbor Plan.
See 88 FR 36727 (explaining derivation
of $11,000/ton estimate). The EPA
reasonably considered a wider range of
cost information than the data that
might be available in any particular
state since it allows for a more
comprehensive assessment of the costs
each source type might be expected to
38 Available in the docket at https://
www.regulations.gov/document/EPA-HQ-OAR2021-0668-1110.
39 Available in the docket at https://
www.regulations.gov/document/EPA-HQ-OAR2021-0668-1092.
40 See Summary of Final Rule Applicability
Criteria and Emissions Limits for Non-EGU
Emissions Units, Assumed Control Technologies for
Meeting the Final Emissions Limits, and Estimated
Emissions Units, Emissions Reductions, and Costs
at 5–7 (Non-EGU Memorandum), available in the
docket at https://www.regulations.gov/document/
EPA-HQ-OAR-2021-0668-0956.
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face.41 While the EPA provided for more
individualized consideration of the
costs particular facilities might bear and
made available alternative emissions
limits through its implementing
regulations that could be justified on the
basis of excessive cost, see 88 FR
36818–19, the EPA explained that cost
in the Step 3 analysis ‘‘is not intended
to represent the maximum cost any
facility may need to expend but is rather
intended to be a representative figure for
evaluating technologies to allow for a
relative comparison between different
levels of control stringency.’’ 88 FR
36740.
The EPA also used its technology
analysis to calculate the anticipated
emissions reductions that could be
achieved if those strategies were applied
to the population of sources in each
state potentially contributing to at least
one downwind receptor. 88 FR 36737–
40. At this stage of the analysis, the
EPA’s assessment of the emissions
reductions expected from particular
control strategies under consideration
again did not depend on the number or
identity of the states included in the
Good Neighbor Plan rulemaking itself.
Rather, these estimates provided the
inputs by which air quality benefits and
overcontrol could then be assessed in
the next stages of the Step 3 analysis
(discussed next).
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b. Air Quality Benefits
After compiling the data on available
technologies, their relative cost-per-ton,
and the expected emissions reductions
that would result from each state, the
EPA’s Step 3 methodology then
proceeded to evaluate the effect those
emissions control strategies would have
on downwind ozone levels. 88 FR
36741–42. This component of the EPA’s
analysis looked at the incremental
ozone improvement that would be
accomplished at each receptor from the
reductions accruing from the upwind
states linked to that particular receptor
(whether included in a particular rule or
not) at each of the assessed stringency
levels. The analysis of air quality
improvement as the EPA has conducted
it (in the Good Neighbor Plan and in the
prior CSAPR rulemakings) displays the
improvements that are incremental to an
uneven baseline in which states have
41 In response to comments, the EPA conducted
a sensitivity analysis for EGUs to see if looking at
control costs on a regional basis would change the
results and found that it would not. EGU NOX
Mitigation Strategies Final Rule TSD at 49–50. The
fact that the EPA conducted this as a sensitivity
analysis to address a comment further illustrates
that the primary technology and cost analysis the
EPA conducted, as described in section III.B.2.a.,
was not limited to a 23-state geography and would
not be altered if that geography were different.
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imposed differing levels of control
stringency. Another way to think about
the level of air quality benefit achieved
would be to assume an uncontrolled
baseline across all states and then apply
the different levels of control stringency
that were evaluated. This would
illustrate far higher levels of air quality
benefit as the uniform stringency levels
are increased but would not credit the
achievements in emissions control that
some states have already adopted
compared to others.
To calculate air quality change for any
given upwind state-receptor linkage, the
relevant group of states assumed to
make comparable emissions reductions
will vary, and in the EPA’s primary
method of analysis, it does not matter
whether the other upwind states or the
downwind state are in fact subject to the
same emissions control requirements.
Rather the purpose of the analytical
exercise is to isolate, for comparative
purposes, the effects of the potential
stringency levels just to the states that
are linked to a receptor while also
assuming that the ‘‘home’’ state
undertakes an equivalent level of
stringency with respect to its own
sources. See 88 FR 36742, 36748–50.
Thus, the total number of states where
the EPA has assumed emissions control
stringencies as part of its Step 3 air
quality assessment for purposes of the
Good Neighbor Plan is 30 states. That is,
the total of the 23 states included in the
Good Neighbor Plan, the five other
states that the EPA’s analysis identified
as potentially or likely to be linked at
Step 2, plus, for their own receptors,
Colorado and Connecticut as home
states, even though they are not linked
to other states’ receptors.
The EPA’s conclusions in the Good
Neighbor Plan did not depend on a
particular improvement at each
individual receptor, but rather on an
assessment that there would be
widespread improvement in ozone
levels across receptors in the aggregate
and on average when the selected level
of control stringency is applied
uniformly across upwind states. See 88
FR 36742–43, 36747–48. In the Good
Neighbor Plan, as relevant metrics, the
EPA displayed how ozone levels would
be expected to change at each receptor,
what the average effect of the potential
stringency levels would be across all
receptors, and what the aggregated effect
of the potential stringency levels would
be across all receptors. Id. at 36742–43,
36747–48. This analytical exercise
allowed the EPA to evaluate what level
of stringency was appropriate in terms
of delivering an acceptable level of air
quality benefit to downwind receptors
considering associated costs.
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The role of the air-quality factor in the
Good Neighbor Plan is essentially no
different than in CSAPR. 88 FR 36678.
The CSAPR analysis was conducted on
a nationwide scale and focused on costbreakpoints of different technologies,
while also accounting for multiple
factors other than a singular ‘‘knee-inthe-curve;’’ CSAPR looked holistically
at both the ‘‘pattern’’ of linkages and the
‘‘average’’ air quality benefits that could
be realized at representative cost/ton
thresholds if those technologies were
applied uniformly; CSAPR selected
stringency levels that appeared to
deliver the greatest air quality
improvement on average, not state- or
linkage-specific. See id.; 76 FR 48255–
59. Likewise, in the Good Neighbor
Plan, the Agency focused on mandating
those NOX reduction strategies across
contributing states that were found to be
relatively widely-adopted and costeffective on a per-ton basis, with the
understanding that if these strategies
were implemented uniformly across the
upwind-state region, widespread air
quality improvement would be
achieved—without tethering that
conclusion to some precise knee-in-thecurve specific to each linkage or
receptor. See 88 FR 36741.
Commenters allege that this analysis
necessarily depends on the specific
group of states for which it is
conducted, since different groups of
states would have different sets of
sources, with varying levels of
emissions control already installed, and
the application of emissions control
strategies will have varying effects on
downwind air quality. Effectively, these
commenters seem to assert, for its
methodology to function on an
individual basis for each state, the EPA
must determine for each state what level
of emissions control applied only to its
own sources would maximize costeffectiveness relative to reducing ozone
levels at a given downwind receptor.
Under this theory, if the EPA conducted
such an analysis, the appropriate level
of stringency would vary for any
particular state from what the EPA
determined was appropriate in the Good
Neighbor Plan on a uniform basis across
states—and perhaps a lesser degree of
stringency would be warranted for
particular states.
Fundamentally, these comments
misapprehend the role of air quality
improvement in the EPA’s Step 3
analysis and are, in effect, at odds with
the EPA’s historical approach that the
Supreme Court’s opinion in EME Homer
City upheld, i.e., the use of uniform
control stringency (using cost as a proxy
for technology type and compliance
burden) to allocate responsibility across
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multiple upwind states despite varying
effects of that stringency to downwind
receptors. 572 U.S. at 518–19.
Consistent with the same statutory
interpretation and methodology the EPA
has applied throughout each of its prior
good neighbor rulemakings for ozone,
the Good Neighbor Plan is not premised
on accomplishing a precise, aggregate
air quality result at each receptor, such
that the omission of some states (even
if they were legally exempted from
obligations rather than simply under a
temporary stay order or did not yet have
their obligations addressed through a
SIP or FIP) would increase the ‘‘share’’
of the problem that must be addressed
by the remaining states. Rather, the
Good Neighbor Plan holds the
industries in each contributing upwind
state subject to a federal plan to a
uniform, minimum level of emissions
performance deemed to be costeffective. So long as they meet that level
of performance, the industries in any
state regulated under the Good Neighbor
Plan are understood to have lawfully
addressed good neighbor obligations
and eliminated that portion of a state’s
significant contribution to downwind
air pollution.
Even though this methodology does
not purport to achieve attainment at all
downwind receptors, it is consistent
with the EPA’s and the courts’
understanding of the good neighbor
provision. Under that provision, it is not
upwind states’ responsibility to ensure
that downwind receptors are brought
into attainment; each state must only
eliminate its own significant
contribution to nonattainment or
interference with maintenance of the
NAAQS in other states. CAA section
110(a)(2)(D)(i)(I). In reviewing the
division of responsibility under this
contribution standard, courts have
upheld the EPA’s approach as a
reasonable way to allocate good
neighbor obligations among multiple
states for regional-scale pollutants like
ozone, even though the air quality
benefits resulting from a particular
degree of control stringency will
necessarily vary by state and receptor.
This variation in effect is the
consequence of an approach that
respects several well-understood
characteristics of the interstate ozone
problem: the ‘‘overlapping and
interwoven linkages between upwind
and downwind States,’’ ‘‘the vagaries of
the wind’’ (i.e., the variability in
meteorological conditions that makes
precise ozone projections impossible),
and the wide variation in the degree of
baseline levels of emissions control that
different states have already achieved.
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EME Homer City, 572 U.S. at 496–97,
519–20; see also Wisconsin, 938 F.3d at
322; Michigan, 213 F.3d at 679–80.
Commenters may believe that the EPA
could at least establish different levels
of cost-effective control stringency for
each group of states linked to a
particular receptor, rather than
considering air quality improvement in
the aggregate across all receptors—i.e.,
to pick a knee in the curve that is
specific to each particular receptor.
Setting aside the problem of
meteorological variability, this still
presents the same problem the EPA
faced in CSAPR, as recognized in EME
Homer City: each set of states for one
receptor has overlap with a different set
of states for a different receptor.42 Thus,
for any given state, there cannot
mathematically be a single, ‘‘correct’’
‘‘knee-in-the-curve’’ that defines a
maximally cost-effective stringency.
EME Homer City, 572 U.S. at 514–18.
Thus, as was the case in CSAPR, an
approach that requires high-emitting
sources in each state to come up to a
uniform level of cost-effective emissions
control, so long as it does not
overcontrol, functions as a reasonable
definition of each covered state’s
‘‘significant contribution,’’ and fulfills
those covered upwind states’ legal
obligations under the good neighbor
provision. 88 FR 36675–76, 36741.
Both the Supreme Court and the D.C.
Circuit have recognized that variation in
what a good neighbor rule will achieve
at any particular receptor is a logical
consequence of defining ‘‘significance’’
through identifying a uniform level of
emissions control based on costeffectiveness. As the Supreme Court
explained in EME Homer City, ‘‘by
imposing uniform cost thresholds on
regulated States, EPA’s rule subjects to
stricter regulation those States that have
done relatively less in the past to
control their pollution’’ and ensures that
‘‘[u]pwind States that have not yet
implemented pollution controls of the
same stringency as their neighbors will
be stopped from free riding on their
neighbors’ efforts to reduce pollution.’’
EME Homer City, 572 U.S. at 519. The
fact that a particular state may have a
very small emissions reduction
obligation, and so improve downwind
air quality by a very small amount, does
not call the approach into question. The
fact that a state may have less to do to
meet the EPA’s selected levels of
emissions control may reflect that its
42 See Air Quality Modeling Final Rule TSD, 2015
ozone NAAQS Good Neighbor Plan, appendix E,
available in the docket at https://
www.regulations.gov/document/EPA-HQ-OAR2021-0668-1157.
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sources are already well controlled. But
whether a state’s required reductions
under a FIP applying this methodology
are large or small, the approach allows
for a fair alignment of investments in
pollution control across all of the
contributing states, which is at the heart
of the methodological construct the
Court approved in EME Homer City. See
Wisconsin, 938 F.3d at 322 (concluding
that the EPA reasonably regulated
sources in Wisconsin, a contributing
upwind state whose available costeffective reductions would only benefit
downwind air quality ‘‘by just two tenthousandths of a part per billion’’).
This is not to say that delivering air
quality improvement to the downwind
receptors is not important—indeed, it is,
as the EPA described in the Good
Neighbor Plan, a ‘‘central component’’
of the EPA’s analysis. 88 FR 36741. If
the identified control strategies that
were cost-effective on a cost-per-ton
basis did not have any effect on
downwind air quality at any receptors,
this may call into question whether
requiring those strategies was worth it.43
Thus, the Good Neighbor Plan explains
that the purpose of the EPA’s air quality
analysis at Step 3 is to check on whether
a level of emissions reduction that
appeared cost-effective on a cost-per-ton
basis would in fact deliver measurable
progress toward attainment of the 2015
ozone NAAQS at the downwind
receptors. ‘‘These analytical findings
cement EPA’s identification of the
selected EGU and non-EGU mitigation
measures as the appropriate control
stringency . . . .’’ 88 FR 36741.
The EPA’s analysis in the Good
Neighbor Plan demonstrates that with
each incremental increase in the
stringency of the assessed control
strategies, there is also incremental
improvement in air quality at the
receptors. See, e.g., 88 FR 36743, 36747–
43 Even here, however, caution is in order. A
highly cost-effective strategy may not deliver
incremental air quality improvement from a given
baseline because that strategy has already been
adopted by sources in a particular state or states.
In that case, a rule imposing that strategy would not
create new emissions reduction obligations but
would be appropriate to prevent backsliding. Cf.
EME Homer, 572 U.S. at 519–20 (noting the uniform
approach appropriately treats states where sources
have already invested in pollution control).
Likewise, the EPA’s good neighbor rules have
always applied to both new and existing sources.
See 88 FR 36685. If a particular industry is not
currently present in a particular state but could
have high uncontrolled emissions if it located there,
good neighbor rules serve as a backstop to ensure
a minimum level of emissions performance will be
maintained from those sources, in those states that
have been deemed to contribute to another state’s
nonattainment or maintenance issues. Nonetheless,
the basic emissions-performance requirements of a
good neighbor rule in those cases should not be
onerous for a new source.
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48 (tables showing air quality
improvement at each receptor); Ozone
Transport Policy Analysis Final Rule
TSD at 70 (table C–12) (Ozone Policy
TSD) (showing reductions in the
maximum contribution of each upwind
State to receptors in 2026).44 Further,
the Agency explained that it could not
identify a point of diminishing returns
within the suite of emissions control
strategies that it ultimately selected. 88
FR 36741. The Agency also cautioned
that the purpose of this exercise was not
to pinpoint a precise ‘‘knee-in-thecurve’’ but to serve as ‘‘a useful
indicator for informing potential
stopping points.’’ Id. Thus, the EPA’s
review of the effects of different
emissions-reduction strategies on air
quality primarily helps the Agency
ensure that no impactful emissions
reduction strategies have been
overlooked and that those selected can
be anticipated to deliver reductions in
ozone at the identified receptors if
applied consistently across all of the
upwind states linked to each receptor
(including each receptor’s home state).
Commenters have not put forward an
alternative, more cost-effective
methodology or set of emissions-control
strategies for reducing ozone at the
downwind receptors; rather, they seek
to avoid emissions control obligations in
one state on the basis that the Good
Neighbor Plan may not be operative in
another. However, the EPA has an
ongoing statutory obligation to issue
FIPs for those states where it has issued
a SIP disapproval or made a finding of
failure to submit. In the absence of
information detailing that cost-effective
emissions reduction opportunities have
been overlooked that would have an
even greater benefit on ozone levels at
downwind receptors, the EPA
reasonably concluded that its
identification of emissions limitations
consistent with the cost-effective
emissions control technologies that it
has identified to be widely available at
the new and existing EGU and non-EGU
sources in the states covered by the
Good Neighbor Plan passed its Step 3
air quality check, and these measures
would constitute a sufficient and
appropriate definition of ‘‘significant
contribution’’ for these states.45
44 Available in the docket at https://
www.regulations.gov/document/EPA-HQ-OAR2021-0668-1080.
45 As always, states remain free to identify
different emissions control measures through a SIP
than the EPA has included in a FIP, and it may be
possible for a state to demonstrate that it can
control other sources to obtain equivalent or greater
air quality results at its receptors. A SIP submission
to the EPA obtaining those emissions reductions
through permanent and enforceable measures
applied to its in-state emissions sources
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Although the air quality benefits to
downwind receptors anticipated in the
Good Neighbor Plan would not be fully
realized so long as certain states have
not yet fulfilled their obligations, this
does not serve as a justification for
allowing these obligations for those
states where the EPA has a
responsibility to act to go unaddressed
or to be altered. Simply put, the CAA
requires each state to address its own
contributions to downwind air quality
problems, regardless of whether other
states have taken action to do so under
a SIP or a FIP. That other states
contributing to downwind receptors
may have their good neighbor
obligations stayed or not yet addressed
does not relieve other states covered by
the Good Neighbor Plan of their own
good neighbor obligations under CAA
section 110. Given the state-by-state
procedural framework of the Act and
the need for the EPA to develop
equitable and consistent FIPs, it cannot
be the case that the EPA must
successfully simultaneously resolve all
states’ good neighbor obligations at once
or lose the authority to act. Though the
EPA has done its best to achieve
consistent, timely, and concordant
implementation of these obligations,
like the construction of a jigsaw puzzle,
each individual piece (i.e., each
individual state’s obligations) is
necessary to complete the whole
picture, and not every piece may be
connected at once.
Commenters attempt to fault the EPA
for developing a methodology that they
claim necessarily depends on the
inclusion of other states. Setting aside
that for the reasons explained here the
methodology does not depend on
simultaneous inclusion (or even full
inclusion, if states address their good
neighbor obligations in some other
adequate way through a SIP), the
problem commenters identify is not in
the particular methodology that the EPA
uses but in the science of ozone
transport as a multistate problem
characterized by meteorological
variability and overlapping linkages,
coupled with the state-by-state
implementation structure of the Act.
Under these constraints, any
methodology would need to take into
account the relative contributions of and
the effects of air pollution control
technologies in other states.
To perform the air quality check for
any particular receptor, it makes sense
to consider the effect of emissions
reductions from all of the states linked
accompanied by the appropriate analytical and
technical justifications would likely be approvable
to replace a good neighbor FIP.
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to that receptor, not just those covered
by a particular FIP rulemaking, because
all states must ultimately discharge their
good neighbor obligations whether
through an approved SIP or a FIP. Thus,
the Step 3 air quality analysis is a ‘‘test’’
that serves to confirm that an
appropriate degree of emissions-control
stringency has been reached for any
given state without overcontrolling. It
does not depend on the actual,
simultaneous inclusion of a certain
number of states in a given rulemaking;
however, it appropriately accounts for
the reality that multiple states are linked
to multiple other states and that the
amount of emissions reduction
necessary to achieve attainment varies
among receptors. This complexity,
recognized for years by the EPA and by
the Supreme Court in EME Homer City,
572 U.S. at 514–17, makes it analytically
inappropriate if not impossible to assign
an obligation to each state that is simply
proportional to its contribution to a
particular receptor. See 88 FR 36683.46
Nonetheless, that does not prevent the
EPA (or for that matter an individual
upwind State) from being able to
conduct a Step 3 test looking at the
effects of uniform control stringencies
using a publicly available tool such as
the Air Quality Assessment Tool
(AQAT). Given the multistate nature of
the interstate ozone pollution problem,
analysis of the air quality benefit
produced by regulating sources in any
particular upwind state assumes that
other states linked to a common
receptor and the home state of that
receptor make emissions reductions at a
comparable level of emissions control
46 The EPA has previously evaluated Step 3
alternatives to the ‘‘uniform approach’’ taken in the
Good Neighbor Plan and prior ozone transport
rules, including an evaluation of methods such as
a receptor-specific proportionality approach. The
alternative methods, as well as potential issues that
the Agency identified can be found in the
‘‘Alternative Significant Contribution Approaches
Evaluated TSD’’ included in the CSAPR rulemaking
docket (Docket ID No. EPA–HQ–OAR–2009–0491–
0077). In responding to comments in that
rulemaking about ‘‘proportionality’’ approaches, the
Agency identified concerns that included, but were
not limited to, requirements of an ‘‘extremely high
level of accuracy in both the emissions modeling
. . . and the air quality modeling’’ and that ‘‘finerscale emissions data from all sectors . . . . and
fine-scale air quality modeling could be needed to
resolve differences in cost per air quality impact.’’
The EPA explained that ‘‘these data and modeling
techniques do not exist and/or are too
computationally demanding to be operationally
implemented.’’ The EPA continued, ‘‘A second
challenge for this approach was to identify a single
reduction requirement for a particular upwind
State, since the reduction requirements relevant to
different downwind receptors would vary
significantly.’’ See CSAPR ‘‘Transport Rule Primary
RTC’’ document 743 (Docket ID No. EPA–HQ–
OAR–2009–0491–0077).
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regardless of whether they are covered
by the Good Neighbor Plan.
It is true that the EPA’s analysis of air
quality change at Step 3 uses statespecific data and calibration factors. See
Ozone Transport Policy Analysis Final
Rule TSD at 43. Commenters may have
had uncertainty concerning the
respective roles of state-level versus
national-level analytical determinations
within the air quality analysis at Step 3,
with a potential concern being that if
the EPA was relying on state-level
determinations, then the stringency of
the Good Neighbor Plan would be
dependent on particular state groupings.
But this would over-interpret the role of
these particular datapoints in the larger
analysis. State-level emissions data and
calibration factors ensure an accurate
representation of the effects of
emissions reductions across the
different States. However, this does not
imply the Good Neighbor Plan fails to
define obligations on a reasonable basis
for each state. To the contrary, it
confirms that the EPA’s analysis already
accounts for the emissions reductions
and air quality change that can be
anticipated from each state individually,
rather than merely treating them as an
undifferentiated regional mass specific
to the group of states included in a
particular rulemaking. More
importantly, as described above, the
regulatory conclusions the EPA drew
from the AQAT analysis focused not on
the individualized outcomes of each
linkage but rather on the averaged and
aggregated data drawn from that
analysis for the entire country, which
‘‘cemented’’ the EPA’s finding that an
overall appropriate level of stringency
was obtained, without overcontrolling.
88 FR 36741, 36747–48.47
Illustrating that the Good Neighbor
Plan’s regulatory conclusions were
drawn from this nationwide assessment
of air quality effects of different control
stringencies, rather than from the
particulars of the 23-state grouping
included in the Good Neighbor Plan, the
EPA’s primary Step 3 air quality and
overcontrol analysis in the Good
Neighbor Plan included any other
47 Notably, the EPA highlighted that its forwardlooking air quality projections are subject to
inherent uncertainty given the many factors that
influence ozone formation. 88 FR 36750. And the
EPA acknowledged that states in the future may
conduct updated air quality analysis that may differ
from its own analytics in the rule. Id. at 36839–40;
id. n. 405. Still, in the absence of particularized
evidence of overcontrol and faced with a
concomitant duty to avoid under-control, id. at
36684 (citing 572 U.S. at 523), the EPA’s approach
yields a set of emissions reduction obligations that
would be reasonable in a robust way across all
covered large-emitting sources in any contributing
state that may eventually become subject to a good
neighbor FIP for the ozone NAAQS.
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linked upwind states found at Steps 1
and 2 of the EPA’s framework,
regardless of whether or not they were
included in the Good Neighbor Plan, on
the view that this was the most
appropriate way to analyze the
collective effects of identified stringency
levels at Step 3. See Ozone Policy TSD
at 46, 55 (explaining that the EPA
included all upwind states modeled to
be contributing in this assessment, i.e.,
including states that were not presently
included in the Good Neighbor Plan but
might be through a future rule, such as
Iowa, New Mexico, and Arizona 48).
Accordingly, the EPA’s Step 3 air
quality analysis did not rely on a 23state scope of coverage, and nowhere in
the record for the Good Neighbor Plan
did the EPA state or imply that its
methodology relied on a 23-state scope
of coverage.49 For any particular
receptor, the EPA’s analysis looked at
the group of upwind states linked to
that receptor in the modeling (the
numbers of which vary), and also
assigned the home state for that receptor
a ‘‘fair share’’ (i.e., the same stringency
that would be imposed in the upwind
states for that receptor). 88 FR 36742
n.238. The analysis did not depend on
the actual inclusion of those particular
states in the Good Neighbor Plan; it
simply looked at what the effect would
be if, for any given upwind state and
48 Due to data limitations at the time of finalizing
the Good Neighbor Plan, the analysis did not
include an assessment of the effects from non-EGUs
in Arizona, even though Arizona is linked through
the 2026 analytic year. Otherwise, in the AQAT
analysis of the Good Neighbor Plan, data informing
the EPA’s Step 3 air quality evaluation included
every monitor in the contiguous United States, with
contributions adjusted for each state that was either
linked above 1 percent of the NAAQS in the
relevant analytic year or was a home state for the
receptor.
49 The EPA acknowledges that certain language in
the Ozone Policy TSD for the Final Good Neighbor
Plan may have been inartful or unclear on this
point. For example, that document stated at page 3
that it was focused on the ‘‘23 upwind States that
were linked’’ and included in that rule. This was
true in a sense, because the TSD was done in
support of that rule, which covered 23 states.
However, the underlying data and evaluation of the
effects of emissions change on air quality
encompassed the entire contiguous U.S., and the
TSD displayed anticipated air quality improvement
at identified receptors by reference to all upwind
states (and ‘‘home’’ states) and was not limited only
to the 23 states included in that rule. Results for
Kansas and Tennessee were not displayed in the
TSD because a final determination had not been
made to consider these states linked based solely
on violating-monitor receptors. See 88 FR 36707.
However, the underlying AQAT spreadsheets used
for the Ozone Policy TSD analysis included the
reductions from these states in the data made
available to understand the effects of the evaluated
emissions control strategies. See, e.g., Ozone AQAT
Results, tab: ‘‘2023_step3_newSCR_wIRA’’, cols. I–
BF, available in the docket at https://
www.regulations.gov/document/EPA-HQ-OAR2021-0668-1116.
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any given receptor, the other upwind
linked states and the downwind state
were held to the same stringency level.
Stated differently, the EPA’s analysis
identified a total of 28 states as
contributing at Step 2. 88 FR 36709–12.
As such, subject to the caveats in notes
48 and 49 supra concerning certain
limitations in the data, the EPA
appropriately assessed the effect of
applying the uniform levels of
emissions control stringency across all
contributing States to any given receptor
(i.e., varying combinations of the 28
states plus home state for each
receptor)—regardless of their inclusion
in the Good Neighbor Plan—in
evaluating whether the Good Neighbor
Plan reasonably addresses the
‘‘significant contribution’’ of any
particular state.
The emissions control measures
identified at Step 3 do not depend on
which particular states adopt costeffective controls as part of the EPA’s
analysis of air quality benefits. The role
of the air quality analysis is simply to
verify that the cost-effective controls
identified by the EPA for any particular
state would, in fact, have an impact on
downwind receptors if they were
uniformly adopted in all states
contributing to that receptor (and the
home state), without overcontrolling.
Whether all of those states ultimately
adopt those emissions controls, or do so
simultaneously, or adopt equivalent
controls but on different sources, or may
otherwise develop an alternative
approach that is approvable for that
particular state, does not affect the
EPA’s determination at Step 3 that those
controls, as to the state(s) where the
EPA applies them through FIP(s), are
cost-effective—and that the sets of
sources within any individual state
must achieve performance consistent
with those controls to satisfy the state’s
good neighbor obligations.
Thus, the EPA’s analysis of air quality
benefits at Step 3 was not limited to the
specific set of states expected to be
covered by a FIP, but appropriately
considered the cost-effective emissions
reductions available from all upwind
states linked to each downwind receptor
(as well as the receptor’s home state).
Consistent with the Act, that
methodology functions as an
appropriate analytical method to define
any particular state’s good neighbor
obligations for ozone and does so
without requiring, or possessing
definitive knowledge, that the same
methodology would be applied in other
states.
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c. Overcontrol Assessment
Finally, at Step 3, the EPA ‘‘tests’’
whether its selected uniform emissionscontrol stringency levels result in any
‘‘overcontrol.’’ 88 FR 36749–50. In EME
Homer City, the Supreme Court held
that the EPA cannot ‘‘require[] an
upwind State to reduce emissions by
more than the amount necessary to
achieve attainment in every downwind
State to which it is linked.’’ 572 U.S. at
521. To find overcontrol, the EPA must
conclude that the uniform control
stringencies the EPA selected produced
more emissions reductions and resulting
air quality improvements than necessary
to resolve all of any state’s linkages to
downwind receptors, or more than
necessary to bring receptors into
attainment. In that case, under the
overcontrol holding in EME Homer City,
the EPA would need to adjust the
requirements of the rule to avoid
overcontrol. This overcontrol
assessment is conducted using the same
air quality effects analysis derived from
AQAT, described in section III.B.2.b.
If the Good Neighbor Plan were to be
suspended from operation in some
number of upwind states, this could not
result in overcontrol, because the
analysis (presented in the Ozone Policy
TSD) demonstrates no overcontrol even
when all upwind states found to be
contributing are included—much less
the 23 states included in the originally
promulgated Good Neighbor Plan
itself.50 As long as fewer states are
making fewer emissions reductions, the
downwind receptors cannot be cleaner
than they were under the Good
Neighbor Plan’s original scope. See 88
FR 36749–50.
d. Other Elements of the Non-EGU Step
3 Analysis
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To ensure a complete response to the
commenters, the EPA has reviewed in
greater detail all elements of the Step 3
methodology of the Good Neighbor Plan
to evaluate whether any components of
its analysis pose a concern that the
EPA’s analytical findings are not
severable among the various states. Two
elements of the EPA’s technology and
cost analysis for non-EGUs in the Good
Neighbor Plan incorporate analytical
methodologies related to some extent to
50 As explained in section III.B.2.b., the primary
air quality assessment at Step 3, including for
purposes of evaluating overcontrol, looks at the
effects on ozone levels of different levels of
emissions control across all upwind states found to
be contributing to a particular receptor (plus the
home state), not just the states included in a
particular rulemaking. In the Good Neighbor Plan,
the EPA ran the AQAT analysis for a total of 28
linked upwind states, not just the 23 states included
in the rule. See note 49 supra.
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the upwind region covered by the rule
and warrant further discussion here.
These are: (1) the identification of
potentially impactful industries in the
‘‘Screening Assessment’’ used in the
Good Neighbor Plan to assist the EPA in
narrowing the scope of industries to be
included in its non-EGU regulations;
and (2) the ‘‘weighting’’ of average costs
for two non-EGU industries and a
specific emissions unit type (boilers)
where multiple control technologies
were identified at Step 3. The EPA has
reviewed, based on the record for the
Good Neighbor Plan, whether either of
those elements materially influenced
the determination of each state’s
‘‘significant contribution.’’ As explained
in the ‘‘Use of Screening Assessment to
Identify Potentially Impactful
Industries’’ and ‘‘Weighted Averaging
Costs’’ below, they did not. Neither of
these aspects of the analysis suggest that
the EPA should reach different
conclusions as to each covered state’s
‘‘significant contribution’’ while the
Good Neighbor Plan applies in a
different group of States.
Use of Screening Assessment To
Identify Potentially Impactful Industries
For non-EGUs, the EPA elected to
screen for industries and emissions-unit
types appropriate for analysis of costeffective NOX reductions. While power
plants have consistently been
understood to have high levels of
controllable NOX emissions and have
been included in each good neighbor
rulemaking, non-EGUs have not been
consistently addressed. See 88 FR
36720. Certain non-EGU industries and
emissions units/sources were included
in the 1998 NOX SIP Call, but not in
subsequent rules, although the EPA had
acknowledged that such sources may
necessitate regulation to prohibit
significant contribution and had in the
past analyzed such sources on a
‘‘parallel track’’ to its EGU analysis at
Step 3. See 88 FR 36719. For the 2015
ozone NAAQS, the EPA concluded that
it could not determine it could
eliminate the entirety of the covered
states’ ‘‘significant contributions’’ to
downwind nonattainment by addressing
power plants alone. 88 FR 36680–82. To
that end, the EPA was required to look
beyond the power sector, and when it
did so, the EPA determined that certain
large industrial sources have substantial
amounts of ozone-precursor emissions
that could be cost-effectively controlled
and therefore, consistent with its
longstanding methodology, should be
obligated to reduce those emissions, so
long as such measures would not result
in ‘‘overcontrol.’’ Id. at 36660–61.
Because the potential number of
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industries and source types is large, the
EPA used a screening methodology to
assist in narrowing the scope of
industries to be potentially regulated to
those with potential cost-effective NOX
reductions.
To screen for industries and
emissions-unit types to further assess
for cost-effective NOX emissions
reductions, the EPA prepared a
‘‘Screening Assessment.’’ 51 In the
Screening Assessment, the EPA used
emissions and control technology
information to screen for industries and
emissions unit types where emissions
reductions were more likely to be costeffective and to screen out industries
where emissions reductions were less
likely to be cost-effective. As part of this
analysis, the EPA used air quality
criteria to identify how emissions
reductions from industries and
emissions units would likely benefit
downwind areas. See Screening
Assessment at 1–3. This analysis used
modeled nonattainment and
maintenance receptors in 2023 and an
inventory of sources in those upwind
states that were identified using the air
quality modeling that was available at
the time the EPA was developing the
assessment.52 See Screening Assessment,
appendix A (table A–3). This modeling
had identified 27 states as upwind
contributors to at least one downwind
receptor. In conducting its screening
analysis, the EPA took these states to be
broadly representative and appropriate
for the purpose of screening non-EGU
NOX sources by industry across a large
set of upwind states, as identified by the
then-available modeling.53
The EPA concluded in finalizing the
Good Neighbor Plan that this portion of
the non-EGU analysis did not need to be
redone on the basis of changes in the
scope of coverage of the rule. See Good
51 Screening Assessment of Potential Emissions
Reductions, Air Quality Impacts, and Costs from
Non-EGU Emissions Units for 2026, available in the
docket at https://www.regulations.gov/document/
EPA-HQ-OAR-2021-0668-0150.
52 We developed the Screening Assessment using
inputs from the air quality modeling for the Revised
CSAPR Update for 2023 (2016v1), as well as the
projected 2023 annual emissions inventory from the
2016v2 emissions platform that was used for the air
quality modeling for the proposed Good Neighbor
Plan. Screening Assessment at 1–2.
53 The differences in states identified in the
2016v1 modeling compared to the states the EPA
identified as linked for the 2023 analytic year using
2016v3 modeling and the violating-monitor
receptor identification methodology are as follows:
Delaware and Wyoming were linked in 2016v1 and
Arizona, Kansas, and New Mexico were not. The
linkages used in the Screening Assessment (for
2023) also reflected a slightly different set of states
than the EPA expected, at the time of proposal, to
be linked in 2026. Compare Screening Assessment
at 2 with 87 FR 20036, 20041 (proposing to apply
non-EGU measures in 23 states, not including
Alabama, Delaware, Iowa, or Tennessee).
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Neighbor Plan RTC at 104 (‘‘The
purpose [of the Screening Assessment]
is not a precise replication of exactly
which sources contributed exactly how
much to any particular receptor during
a particular high-ozone event. The
purpose is to identify those industries
with relatively large emissions sufficient
to have interstate effects on ozone
levels, and to analyze emissions units
within those industries further for costeffective emissions reduction
opportunities.’’). Thus, the EPA was
clear in the record of the Good Neighbor
Plan that the Screening Assessment
served an important but limited
purpose: to screen for industries and
emissions-unit types where further
analysis was likely to identify more
impactful and less costly emissions
reduction opportunities. See also 88 FR
36740; Good Neighbor Plan RTC at 90–
92.
Consistent with the statutory language
of the good neighbor provision, the EPA
could have chosen to forgo this analysis,
which assisted the Agency in narrowing
the set of non-EGU industries and
emissions source types it considered for
inclusion in the Good Neighbor Plan,
and include more stationary industrial
sources of NOX. See CAA section
110(a)(2)(D) (authorizing regulation of
‘‘any source or other type of emissions
activity’’ for significant contribution);
see also 88 FR 36680–81.54 However the
EPA might have proceeded, in the rule
the Agency was appropriately informed
by a longstanding understanding of
regional-scale ozone transport, which is
that the control of any large sources of
NOX emissions in linked upwind states
will generally beneficially affect
downwind ozone levels. 88 FR 36719.
While states are afforded discretion
under the Act to select the control
measures they would prefer to use to
meet the Act’s requirements, such
discretion devolves to the EPA when it
steps into the shoes of a state under
CAA section 110(c). Id. at 36675
(collecting case law). Within the
exercise of that discretion, the EPA’s
method of proceeding made sense. The
EPA’s approach provided a technically
rigorous method for narrowing the
industries in a manner that treated each
industry similarly. As the EPA
explained in rejecting comments that its
modeling projections in the Screening
Assessment were too imprecise, the
Assessment was done not for the
purpose of ‘‘project[ing] changes in air
54 Had the EPA approached the identification of
‘‘significant contribution’’ from non-EGU emissions
sources differently, it still would have needed to
assess overcontrol and would have excluded
emissions reduction measures falling outside the
range of technologies deemed cost-effective.
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quality in an absolute sense,’’ but rather
to ‘‘conduct a comparative analysis
among different industries,’’ where the
EPA’s modeling techniques ‘‘would
apply consistently and equally to each
industry the EPA evaluated.’’ Good
Neighbor Plan RTC at 105.55
This approach of identifying uniform
emissions control opportunities at the
industry-level rather than based on a
state-by-state or unit-by-unit impact
analysis accords with the way the EPA
has analyzed emissions control
opportunities from both EGUs and nonEGUs throughout the history of
implementation of the good neighbor
provision. See id. at 92 (quoting 63 FR
57399 (uniformity at industry level
‘‘assure[s] equity among the various
source categories and the industries
they represent’’)); 88 FR 36683
(explaining that the EPA’s analysis of
non-EGUs sources ‘‘parallels the
analysis previously conducted only for
EGUs’’ and ‘‘relies on evaluation of
uniform levels of control stringency
across all upwind states’’). When
commenters argued that the EPA had
not adequately established that their
particular facilities were sufficiently
impactful to be worth regulating, the
EPA rejected this mode of analysis:
[I]t was entirely reasonable, and consistent
with prior transport rulemakings to focus the
analysis at the industry-level rather than
attempt to identify air quality impact
thresholds at the unit- or source-specific
level. To build on the response above, it is
important to keep in mind that regional
interstate ozone transport is a ‘‘collective
contribution’’ problem, in which the ozoneprecursor emissions of many sources
combine to create ozone nonattainment and
maintenance problems at potentially great
distances from individual source emissions
points. Attribution of responsibility for this
problem is complicated by varying
meteorological conditions from year to year
and even from day to day. The EPA’s Step
1 and Step 2 analysis within the 4-step
interstate transport framework is designed to
robustly identify where ozone problems are
located and which states’ anthropogenic
emissions contribute to those problems. At
Step 3, the analysis shifts to an evaluation of
which emissions reductions from those
contributing states would be most cost55 Again, illustrating the EPA’s consistent
understanding of this comparative purpose, the
Agency rejected other comments calling for the
Screening Assessment to be redone on the basis of
updated information concerning specific non-EGU
facilities, which various commenters attempted to
use to argue the EPA’s data were out-of-date. ‘‘Even
if some amount of the emissions identified as
potentially controllable in the Screening
Assessment are already being achieved, or such
potentially controllable emissions cannot be
feasibly controlled and are not being required in
this final rule, that does not undermine the
Agency’s conclusions in the Screening Assessment
regarding the potential impact of a given industry.’’
Good Neighbor Plan RTC at 120 (emphasis added).
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effective to achieve to eliminate that portion
of the states’ emissions that are deemed
‘‘significant’’ and thus must be eliminated.
Focusing on entire industries (as the EPA has
done in prior rules with its focus on EGUs
(e.g., CAIR and CSAPR)) and other industry
categories in addition to EGUs (as we did in
the NOX SIP Call) presents an efficient and
equitable methodology for identifying where
the most cost-effective emissions reductions
can be identified at the regional scale.
Good Neighbor Plan RTC at 98 (citing
63 FR 57386); see also 88 FR 36685
(similar reasoning supports including
new sources of the same type as existing
sources in good neighbor
implementation plans); id. at 36746–47
(explaining that uniform control by unit
type avoids risk of production and
emissions shifting). In short, when the
EPA must devise a federal solution to
interstate ozone transport for one or
more states, its objective is to
implement measures that are
comprehensive, durable, and robust, not
to engage in a never-ending game of
whack-a-mole at each emissions point.
The Screening Assessment was one
step along the way of focusing the
Agency’s limited resources and
narrowing the scope of the regulation of
NOX emissions ‘‘sources’’ and
‘‘activities’’; it was not intended to
dictate final determinations regarding
‘‘significant contribution.’’ See, e.g.,
Good Neighbor Plan RTC at 97–99, 101.
The EPA concluded when finalizing the
Good Neighbor Plan that its initial
Screening Assessment—although based
on a slightly different group of states
than at final (and the use of other data
regarding baseline emissions levels and
air quality conditions that was subject to
change)—had served its purpose in
helping to identify a reasonable starting
point for further analysis of non-EGU
emissions-control opportunities and did
not need to be redone. See 88 FR 36685,
36719.
The Screening Assessment served that
purpose for each state where it had a
responsibility to regulate non-EGU
emissions, and the Good Neighbor
Plan’s ultimate identification of nonEGU emissions control strategies to
eliminate ‘‘significant contribution’’ is
likewise sound for any state or grouping
of states that may necessitate such
federal regulation. Nonetheless, as is
always the case with regard to meeting
the CAA’s requirements, states remain
free to address a different set of sources
than the EPA identified in the Good
Neighbor Plan if they prefer to regulate
through a SIP in a manner different than
the EPA proceeded in the FIP. Id. at
36842.
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‘‘Weighted’’ Averaging of Costs
In the EPA’s final analysis of nonEGU representative costs in the Good
Neighbor Plan, for two industries
(Pipeline Transportation of Natural Gas
and Solid Waste Combustors and
Incinerators) and a specific emissions
unit type (boilers), the Agency
identified a weighted average of costs to
address multiple control technologies
identified in the Step 3 analysis, rather
than a single control technology. 88 FR
36739–40 (table V.C.2–3). For those
industries and for boilers, the analysis
weighted the average cost according to
the control technologies that certain
sources, anticipated to be subject to the
Good Neighbor Plan across the 20 states
with non-EGU requirements, might
select as their method of compliance.
Representative costs for these sources
were calculated by weighting the
average costs derived from national data
sources by estimated emissions
reductions for the applicable control
technologies. Non-EGU Memorandum at
5–7. For these industries and for boilers,
looking at different groupings of states
could result in a different
‘‘representative’’ cost (as displayed in
the Non-EGU Memorandum at 10 (table
6)).
However, any differences in the
identified ‘‘representative’’ costs for
these sources would not affect the
outcome of the analysis. For each of
these types of sources, the record shows
that the costs associated with each of
the different control technologies falls
within the range of costs that the EPA
had concluded were reasonable to
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impose. See 88 FR 36746–47. In other
words, even if a different group of states
produces a higher representative cost
when weighted by those states’
population of sources, the results still
fall within the upper bound of the costper-ton that the EPA found appropriate.
The EPA’s conclusion—that the
representative cost was reasonable—
would be the same.
For example, for RICE, the following
table shows the data sources and costper-ton estimates the EPA adapted from
the CMDB to inform its determination of
representative cost for these sources.
These were the figures, adjusted to 2016
dollars, that informed the EPA’s average
cost derived from national data sources
used in the weighting to generate a
representative cost figure of $4,981/ton
for RICE.
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TABLE I—DATA SOURCES AND COST ESTIMATES FOR RICE CONTROLS
Control technology/engine type
Original reference
SCR, 4 Stroke Natural Gas Engines, Lean Burn 17% (of engines in
analysis population).
Non-Selective Catalytic Reduction or Layered Combustion, for SCCs
where the firing technology is not specified as to Rich Burn or Lean
Burn 36%.
Layered Combustion, 2 Stroke Natural Gas, Lean Burn 44% ...............
Non-Selective Catalytic Reduction, 4 Cycle Natural Gas, Rich Burn
3%.
2003, cost information from CARB
2001 report.
2009/2000 (from 2009 ERLE study
and 2000 Pechan Phase II NOX
SIP call report).
2009 (ERLE study) ........................
2000 (Pechan, Phase II NOX SIP
call report).
Likewise, for MWCs in the Solid
Waste Combustors and Incinerators
industry, the EPA provided the cost
assumptions used for the different
control types in appendix B of the NonEGU Memorandum.
For boilers, the EPA explained that its
cost estimates were derived from the
CMDB, and the EPA identified a number
of assumptions used in developing
representative cost figures, which the
EPA was clear may not be reflective of
all sources’ circumstances. Non-EGU
Memorandum at 7. Noting that boilers
have the highest representative costs
among the non-EGU source types, the
EPA explained in the Good Neighbor
Plan that for individual sources, costs
on a per-ton basis could well be higher
than the estimated $14,595/ton
representative cost, but still be
commensurate with the range of costs
that informed the identification of the
most stringent control strategy selected
in the Good Neighbor Plan for EGUs (for
which costs at the 90th percentile ran as
high as $20,900/ton). 88 FR 36746.
The EPA also emphasized that costper-ton figures are only one factor in the
Step 3 multi-factor analysis, can vary
widely depending on the assumptions
used, and the conclusions in the Good
Neighbor Plan regarding appropriate
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stringency levels were informed by a
broader review of how widely adopted
and proven various control strategies
had become. Id. at 36746–47. Because of
this, the determinations in the Good
Neighbor Plan regarding the appropriate
level of emissions control that could be
expected of a particular type of source
considered not just cost-per-ton
estimates, but analysis of which
technologies were already in wide use
or on which existing standards had been
based. Good Neighbor Plan RTC at 62–
63. Still, recognizing that individual
sources may face circumstances of
extreme economic hardship or
infeasibility, the EPA also provided a
mechanism for sources to obtain
alternative emissions limits, among
other mechanisms for flexibility in the
Good Neighbor Plan, to address outlier
cases. See 40 CFR 52.40(e). These
provisions are adequate to cover any
potential gap in the Good Neighbor
Plan’s estimate of representative costs.
Accordingly, recalculating the
weighted average representative cost for
these particular non-EGU sources for
any particular state or state grouping
would not produce a representative cost
falling outside the acceptable range.
Thus, any change in the weighted
average used to derive ‘‘representative’’
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$/Ton value
$2,900 (2001 dollars).
4,538 (2013 dollars).
4,900 (2010 dollars).
422 (1999 dollars).
costs for these industries and emissions
unit types resulting from looking at
some subset of states would not
materially affect the analysis.
3. Step 4
At Step 4, the EPA establishes
regulatory requirements to achieve the
‘‘prohibition’’ of significant contribution
identified at Step 3. CAA section
110(a)(2)(D)(i). Under the Good
Neighbor Plan, implementation of these
requirements occurs through
compliance activities at the source level,
for both EGUs and for non-EGUs.
Contrary to commenters’ allegations,
and as explained in more detail here, in
section III.B.3., the trading program for
EGUs, which is a compliance flexibility,
does not depend on an interstate trading
region for viability. Because all of the
obligations of the Good Neighbor Plan
can be met by the sources in each state
regardless of the application of the Good
Neighbor Plan in any other state, the
implementation framework at Step 4 is
severable on a state-by-state basis.
This can be seen in the structure of
the regulations themselves. The Good
Neighbor Plan determines on a state-bystate basis which of the EGU and the
non-EGU emissions-control programs
(or both) should be applied through
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state-specific FIPs. See 40 CFR
52.38(b)(2) (as amended by 88 FR
36862–63) (identifying states subject to
the Good Neighbor Plan’s ‘‘Group 3’’
EGU emissions trading program
promulgated at 40 CFR part 97, subpart
GGGGG); 40 CFR 52.40(c)(2) (as
promulgated at 88 FR 36869)
(identifying states subject to non-EGU
emissions control requirements
promulgated at id. 52.41–46). The
regulations at 40 CFR part 97, subpart
GGGGG and 40 CFR 52.41–46 are
uniform in nature. But states are
‘‘enrolled’’ via FIPs into these
requirements based on state-specific
findings regarding the level of their
contribution to other states’ ozone
problems and how long that
contribution is projected to continue
into the future.56
It is through the application of those
uniform programs, as appropriate, in
each state, via FIPs, that the Good
Neighbor Plan eliminates each covered
state’s significant contribution, as
required by CAA section
110(a)(2)(D)(i)(I). The state-specific
coverage of the Good Neighbor Plan (for
the 23 states for which originally
promulgated), by regulatory program, is
as follows:
• EGUs in all covered states except
California (22 States total) are required
to participate in the Group 3 EGU
emissions trading program at the level
of stringency associated with near term
emissions-control strategies that the
EPA found can be implemented in 2023
and 2024.
• EGUs in Alabama, Minnesota, and
Wisconsin are only subject to this ‘‘nearterm’’ stringency level within the Group
3 Trading Program, and no more,
because the EPA found these states are
no longer linked to downwind ozone
problems in the 2026 analytic year.
• EGUs in 19 States (excluding the
three states listed in the preceding
bullet) that are covered by the Group 3
trading program, are subject to the
enhanced stringency in the budgets that
takes effect over 2026 and 2027 because
these states are linked through the 2026
analytic year.
• The EPA found California has no
cost-effective fossil-fuel fired EGU
emissions reductions available at the
stringency levels determined in the
Good Neighbor Plan and so is not
subject to the Group 3 Trading Program
at all.
• Non-EGUs in 20 states are subject to
the uniform emissions control
regulations. Because the EPA found
these requirements may take up to three
years to be implemented (i.e., until
2026), this number excludes Alabama,
Minnesota, and Wisconsin, for the same
reason as above: these states are not
‘‘linked’’ in 2026.
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TABLE II—COVERAGE OF THE GOOD NEIGHBOR PLAN REGULATORY PROGRAMS
State
EGU program—
near term
stringency
EGU program—
long term
stringency
Non-EGU
Alabama ...............................................................................................................................
Arkansas ..............................................................................................................................
California ..............................................................................................................................
Illinois ...................................................................................................................................
Indiana .................................................................................................................................
Kentucky ..............................................................................................................................
Louisiana ..............................................................................................................................
Maryland ..............................................................................................................................
Michigan ...............................................................................................................................
Minnesota ............................................................................................................................
Mississippi ............................................................................................................................
Missouri ................................................................................................................................
Nevada .................................................................................................................................
New Jersey ..........................................................................................................................
New York .............................................................................................................................
Ohio .....................................................................................................................................
Oklahoma .............................................................................................................................
Pennsylvania ........................................................................................................................
Texas ...................................................................................................................................
Utah .....................................................................................................................................
Virginia .................................................................................................................................
West Virginia ........................................................................................................................
Wisconsin .............................................................................................................................
X
X
............................
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
............................
X
............................
X
X
X
X
X
X
............................
X
X
X
X
X
X
X
X
X
X
X
X
............................
........................
X
X
X
X
X
X
X
X
........................
X
X
X
X
X
X
X
X
X
X
X
X
........................
These state groupings illustrate how
the application of each set of regulatory
requirements promulgated in the Good
Neighbor Plan depends on the
circumstances of each state, as
determined through the analytical
application of the 4-step interstate
transport framework on a nationwide
basis. No particular requirement is
applicable in all 23 states, and the
workability of the Good Neighbor Plan
is not premised on an assumption that
it must be applicable in specifically 23
states or any particular number of states.
As a practical matter, compliance is
achievable through the at-the-source
control technologies on which the EPA’s
determination of ‘‘significant
contribution’’ at Step 3 rested (or their
equivalents, because the Good Neighbor
Plan does not mandate the use of
particular control technologies). For
non-EGUs, all requirements are
established at the source-specific level.
See 88 FR 36675. The same is true of
EGUs: the stringency of the Good
Neighbor Plan is premised on at-thesource, conventional control
technologies. See 88 FR 36737–39
(tables identifying technology types).
The EPA also designed a market-based,
interstate emissions trading program to
allow EGU sources to achieve their
56 This is identical in structure to how the EPA
has promulgated federal good neighbor
requirements through multiple prior rulemakings.
See 40 CFR 52.38–39 (identifying the enrollment of
states into emissions trading programs for ozone
season NOX, annual NOX, and annual sulfur
dioxide promulgated as subparts to 40 CFR part 97,
as necessary to address good neighbor obligations
for other ozone and particulate matter NAAQS).
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required emissions reductions as
efficiently and cost-effectively as
possible, but that trading program is
merely a more flexible means of
implementing the source-specific
requirements that otherwise apply
under the Good Neighbor Plan. Indeed,
the enhancements the EPA established
for the Good Neighbor Plan’s trading
program (as compared to prior good
neighbor trading programs) were meant
to ensure the flexibility of the trading
program did not undermine the benefits
of defining source-specific emissions
controls in the first place, which helps
assure that EGU sources in each state
have eliminated their own significant
contribution and thus provided
improvements in air quality to the
downwind receptors to which their
home states are linked. See 88 FR at
36657, 36684, 36752.57
Commenters may be concerned that
without the participation of all states
originally included in the Good
Neighbor Plan, market liquidity will be
affected, allowance prices will increase,
and/or there will not be sufficient
allowances available for compliance.
But the record of the Good Neighbor
Plan shows that these concerns are
unjustified.
While interstate trading—especially
among sources in a large group of
states—would generally increase the
size of the allowance trading market and
thus may increase market liquidity in
ways that can improve market
efficiency, the use of a trading program
does not render implementation of a
good neighbor rule in a smaller group of
states, or even a single state,
unreasonable. That is because, in the
first instance, the good neighbor
provision regulates EGU sources, not
states. Even within a single state, there
would be multiple participating sources
to populate and benefit from an
emissions trading program. Moreover,
the history of the EPA’s good neighbor
rulemakings shows that these trading
programs have continued to provide
valuable, effective compliance
flexibility even where they cover a
smaller group of states.58 Indeed, each
57 Even before the Good Neighbor Plan, following
North Carolina, the EPA took measures to ensure
that interstate trading does not undermine the
obligation to eliminate each state’s significant
contribution. See North Carolina, 531 F.3d at 921,
modified on reh’g, 550 F.3d 1176. See, e.g., CrossState Air Pollution Rule (CSAPR), 76 FR 48208,
48268–71 (August 8, 2011); 88 FR 36752–53.
58 The size of the trading region is not the only
determinant of liquidity; the relative magnitude of
demand for allowances compared to supply is an
important factor. For example, inclusion in the
program of states with sources that are not wellcontrolled for NOX would tend to put upward
pressure on allowance prices (and potentially
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state’s budget is set in the Good
Neighbor Plan at levels that provide
sufficient allowances for each state,
assuming EGUs achieve a level of
reduction equivalent to what can be
achieved by the at-the-source
technologies identified to eliminate
significant contribution. 88 FR 36680.
And as explained further in section
III.C., all of the EPA’s good neighbor
rules, including the Good Neighbor
Plan, are designed with the
understanding that states have the
option to develop SIPs that remove their
sources from a trading program, which
necessarily changes the number of states
subject to the FIP, and that the number
of states covered by FIPs may otherwise
change.
As a consequence, the size of the
trading regions used to implement the
good neighbor provision has both varied
between rules and regularly changed
within trading programs over time. This
has never posed a challenge to
compliance feasibility, nor does the EPA
have any evidence of allowance
shortages occurring in any of these
programs. See 88 FR 36687 (noting
opposite problem of banked-allowance
surpluses). For example:
• Currently, Georgia is the only state
whose EGUs remain in the original
CSAPR ‘‘Group 1’’ ozone season NOX
trading program, which originally
included 25 states.
• In 2021, the Revised CSAPR Update
created a 12-state trading region to
complete the remedy to significant
contribution for the 2008 ozone NAAQS
(i.e., the original ‘‘Group 3’’ program).
• With the Revised CSAPR Update in
place, the 2016 CSAPR Update ‘‘Group
2’’ program trading region was reduced
from 22 states to 10 states.
See 88 FR 36668–69 (reviewing
regulatory history).
In light of these successful
implementation experiences and given
the at-the-source technologies on which
the Good Neighbor Plan’s EGU budgets
are premised, coupled with other
flexibilities, even individual-state
trading programs would not be expected
to unduly affect market liquidity or
make allowances either scarce or
unaffordable. To the extent the
comments may be read as asserting that
smaller trading regions would
undermine grid reliability, the EPA
disagrees for the same reasons. These
comments did not present any data or
analysis in support of that contention.
The EPA thoroughly explained how the
reduce liquidity). If states with such sources are
removed from that program (e.g., due to stays), this
may put downward pressure on allowance prices
(and potentially increase liquidity).
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99125
Good Neighbor Plan’s regulatory
program for EGUs is designed to avoid
interfering with resource adequacy and
grid reliability, see 88 FR 36771–75.
In short, under the Good Neighbor
Plan, the sources in each individual
state are fully able to comply without
regard to what sources in other states
are doing—and even where cooperative
market-based mechanisms are available
to aid in that compliance, those
mechanisms remain sound for smaller
state groupings or even at the
individual-state level despite a smaller
marketplace. 88 FR 36760–61, 36817.
Commenters may also be concerned
that the application of the Good
Neighbor Plan in some upwind states if
not operative in others may create a
dynamic of competitive disadvantage.
However, even if this were the case (and
commenters supplied no evidence that
it would be), this would not be
sufficient justification to suspend the
operation of the rule in states where it
lawfully could be in effect. As an initial
matter, because the good neighbor
provision imposes legal obligations on
each state individually, it does not
allow individual states to defer
compliance with their legal obligations
based on circumstances in other upwind
states. That is consistent with the
provision’s purpose, which is intended
to ensure equity and fairness among
states by prohibiting harmful upwind
state emissions that impose regulatory,
economic, and health burdens on
downwind states. See 88 FR 36658,
36687, 36741; see also 64 FR 28250,
28258–62 (May 25, 1999) (reviewing
legislative history of the good neighbor
provision and related statutory
provisions, which reflects an intent to
‘‘equalize the positions of the States
with respect to interstate pollution by
making a source at least as responsible
for polluting another State as it would
be for polluting its own State’’). The
inaction of some upwind states is not an
appropriate justification for further
relaxing all upwind states’ obligations,
when it is downwind states who will
suffer. That burden will fall not just on
downwind communities, but on
industries in downwind states with
ozone nonattainment problems, who
will likely bear greater competitive
disadvantages vis-à-vis their
competitors in upwind states whose
pollution is contributing to the
enhanced regulatory burdens they
already face under the Act. See EME
Homer City, 489 U.S. at 519; Maryland,
958 F.3d at 1200–01, 1203–04. This
consideration is particularly acute given
the August 3, 2024, attainment date for
compliance with the 2015 ozone
NAAQS for Moderate nonattainment
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areas located throughout the country,
and the Good Neighbor Plan’s objective
of further assisting downwind states in
time for the 2027 Serious area
attainment date. 88 FR 36690, 36695.59
In any case, in light of the unique ability
of the power sector to shift generation
among sources in supplying electricity
to the power grid, the EPA conducted an
analysis in the Good Neighbor Plan of
the potential for power generators to
shift production and emissions from
EGUs in states covered by the Good
Neighbor Plan to states not covered by
the Good Neighbor Plan and found that
the risk, while not zero, was relatively
small. Good Neighbor Plan RTC at 604–
05. Further, that risk is attendant and
unavoidable at the boundaries of any
multistate or regional program,
regardless of its size and regardless of
whether that program uses emissions
trading or is based on source-specific
emissions limitations, and so not
particular to the circumstances here.
In short, the implementation of the
regulatory requirements of the Good
Neighbor Plan, at Step 4, is achievable
by the sources in each state and is
therefore severable by state.
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C. Other Features of the Statute and
Good Neighbor Plan Supporting
Severability
In light of the statutory text and
context, the Good Neighbor Plan, like
prior interstate transport rules, is
designed to be modular—i.e., to apply
on a state-by-state basis and to
whichever states are presently subject to
the EPA’s responsibility to issue a FIP.
That the Good Neighbor Plan functions
to appropriately define and prohibit
significant contribution on a state-bystate basis, regardless of the number of
states covered, can be seen in a number
of other features and elements of the
Good Neighbor Plan and by reviewing
the history of implementation of the
good neighbor provision for ozone
across prior rulemakings and case law.
First, as directed by the statute and
relevant precedent, the EPA must define
59 This is also consistent with the EPA’s
determination that it is necessary and appropriate
to extend the Good Neighbor Plan’s requirements to
CAA section 301(d) FIP areas located within the
borders of states whose sources were found to be
significantly contributing. The EPA explained in
the Good Neighbor Plan that not doing so would
pose a risk that such areas would then be targeted
for the siting of polluting facilities to avoid the
Good Neighbor Plan’s requirements, frustrating the
purpose of the Good Neighbor Plan and the statute.
88 FR 36691. This concern exists at the ‘‘intraState’’ level. Second, while it is generally
appropriate that equity and consistency should be
maintained across all similarly situated
jurisdictions, that does not extend to excusing one
upwind state of its statutory obligations simply on
the basis that the obligations of another upwind
state are still pending or unresolved.
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significant contribution in such a way
that sources in ‘‘each State’’ are held
responsible for the elimination of their
own significant contribution. CAA
section 110(a)(2)(D); see 88 FR 36687–
88, 36762. The D.C. Circuit’s review of
a good neighbor rule invalidated in
North Carolina v. EPA, and the EPA’s
subsequent action to address a specific
holding in North Carolina concerning
regional- versus state-level compliance,
helpfully illustrates why, and how, the
EPA’s current approach avoids any
inter-dependency among states’
obligations.
In an earlier good neighbor rule, the
Clean Air Interstate Rule (CAIR), the
EPA quantified emissions reduction
requirements at the regional level based
on a regional analysis, and then
apportioned the responsibility for
reducing each pollutant among the
contributing states based on either the
total allowance allocations for the states’
EGUs under the Acid Rain Program
(ARP) (in the case of required sulfur
dioxide reductions) or the total
historical heat input amounts for the
states’ EGUs, adjusted for the types of
fuels used (in the case of required NOX
reductions). See 70 FR 25162, 25176
(May 12, 2005); see also 88 FR 36668.
In North Carolina, the D.C. Circuit
found that CAIR had unlawfully defined
‘‘significant contribution’’ at a regional
level rather than on a state-specific
basis. 531 F.3d at 906–08, 919–21. After
this ruling, the EPA took care to ensure
the successor rule to CAIR, CSAPR,
defined and prohibited significant
contribution for each State. See 76 FR
48271. It did this by evaluating and
selecting appropriate uniform levels of
control stringency for the set of upwind
states linked to identified downwind
receptors and then quantifying and
implementing the required emissions
reductions resulting from the selected
control stringencies independently for
each upwind state. See id. In other
words, at this point in the analysis, the
EPA removed from CSAPR (and all
subsequent good neighbor rules) the
interdependency of a regional solution
that North Carolina had found in CAIR,
as this interdependency resulted in a
failure to identify each state’s own
obligations. In CSAPR, each receptor
and the states linked to that receptor
were evaluated independently, which
led the EPA to establish different
regional groupings of states with
different levels of emissions control
stringency (e.g., in that case, the Group
1 and Group 2 SO2 control programs).
See 76 FR 48252. The courts reviewing
CSAPR in EME Homer City further
required that the EPA evaluate each
state to ensure an otherwise permissible
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uniform emissions control stringency
does not overcontrol the emissions of
any particular upwind state. 572 U.S.
489, 521. Taken together, these
refinements from CAIR opened up the
potential that individual states could be
assigned different cost/stringency levels
based on whether their receptors (or
their linkages to those receptors) would
fully resolve at different cost/stringency
levels or would fully resolve before
additional emissions control measures
could be implemented. This statespecific treatment can be seen in the
Good Neighbor Plan’s recognition that
control strategies only available by the
2026 analytic year are not required in
Alabama, Minnesota, or Wisconsin,
given that their specific linkages were
projected to resolve by that year. For the
remaining 20 states in the Good
Neighbor Plan, no overcontrol was
observed in the 2026 analytic year and
so no adjustments in the program’s
stringency were needed. 88 FR 36749.60
At Step 4, CSAPR maintained an
interstate EGU trading program, but the
EPA took steps to ensure that this too
complied with North Carolina and the
statutory obligation to define and
prohibit each state’s significant
contribution. To ensure that each state
would eliminate its own significant
contribution within the flexible
compliance mechanism of an interstate
trading program for EGUs, the EPA
imposed a constraint on interstate
trading within the trading program,
through ‘‘assurance provisions’’ that
imposed a 3-to-1 allowance-surrender
ratio for emissions in excess of a certain
percentage of each state’s budget. As
explained in the Good Neighbor Plan,
‘‘The establishment [in CSAPR] of
assurance levels with associated extra
allowance surrender requirements was
intended to respond to the D.C. Circuit’s
holding in North Carolina requiring the
EPA to ensure within the context of an
interstate trading program that sources
in each State are required to address
their good neighbor obligations within
the State and may not simply shift those
obligations to other States by failing to
reduce their own emissions and instead
surrendering surplus allowances
60 Likewise, in the Good Neighbor Plan, we
observed a receptor projected to resolve using an
emissions control stringency level not requiring
non-EGU emissions controls. The Larimer County,
Colorado, receptor’s maximum design value drops
below 71 ppb when the highest EGU stringency is
applied (but before non-EGU controls are applied).
Thus, if any state were linked only to this receptor,
the EGU-only level of stringency would have been
the stopping point. However, all states linked to
this receptor were also linked to other receptors for
which application of both the EGU and non-EGU
emissions control stringency did not produce
overcontrol. See Ozone Policy TSD, appendix H, at
115.
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purchased from sources in other States.’’
88 FR 36786.
The features of CSAPR included to
address the North Carolina decision
have been retained in the Good
Neighbor Plan and enhanced to further
ensure that each state remains
responsible for elimination of its own
significant contribution.61 See id. at
36687–88, 36762 (citing North Carolina,
at 906–08, 921; see also Good Neighbor
Plan RTC at 42 (‘‘[T]he D.C. Circuit has
held that the EPA may not implement
an emissions reduction program under
the good neighbor provision that fails to
ensure that each State has eliminated its
own significant contribution. North
Carolina, 531 F.3d at 921.’’); id. at 48
(same).
Second, also consistent with the stateby-state structure of CAA section 110, as
recognized in North Carolina, the EPA
made specific findings regarding its
authority to promulgate a FIP for each
individual state covered by the Good
Neighbor Plan. 88 FR 36689 n.109.
Notably, the EPA had originally
proposed that the Good Neighbor Plan
rulemaking would promulgate FIPs for
26 states, not 23. See 87 FR 20036,
20038 (April 6, 2022). The modeling
that informed the final rule indicated
that Delaware and Wyoming were not
linked to any out-of-state receptors, and
that Tennessee would only be linked to
a new class of ‘‘violating monitor’’
receptors. Thus, these three states were
excluded from the final Good Neighbor
Plan. Including fewer states in the final
rule than were included in the proposal
did not alter the approach to defining
each remaining states’ significant
contribution, nor cause any change in
each covered state’s obligations or the
requirements imposed on emitting
sources in those covered states. The
final modeling also indicated that
several additional states were
potentially linked and may ‘‘contribute
significantly,’’ and thus the EPA
acknowledged in the final Good
Neighbor Plan that these states’
obligations still needed to be addressed.
See 88 FR 36658 (identifying Arizona,
Iowa, Kansas, New Mexico, Tennessee,
and Wyoming as needing to be further
addressed in a subsequent action).62
Critically, under the EPA’s analytical
approach to the Good Neighbor Plan,
the absence of these states from the final
61 For example, by strengthening incentives for
individual units to optimize operation of their
emissions controls, the backstop daily NOX
emissions rate provisions and the secondary
emissions limitation provisions also both increase
assurance that each State’s significant contribution
will be eliminated within that State. See, e.g., 88 FR
36767–68 and 36799–800.
62 See supra note 19.
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Good Neighbor Plan did not, in the
Agency’s view at the time, pose any
challenge to finalizing and moving
forward with implementing the Good
Neighbor Plan for the states included.
Third, the Good Neighbor Plan,
consistent with the statute and like all
prior good neighbor federal
rulemakings, recognizes that states may
choose to replace their FIP with a SIP.
See, e.g., 88 FR 36838–42 (discussing in
detail various options states have for
developing SIPs). When the EPA
approves a replacement SIP, that state is
withdrawn from the FIP, thus changing
the number of states subject to Good
Neighbor Plan FIPs. In developing SIPs,
states may opt to leave the interstate
trading program for EGUs in favor of an
adequate, alternative approach to
addressing their good neighbor
obligations. Id. at 36841–42. This echoes
nearly identical discussions included in
prior good neighbor rules, see, e.g.,
CSAPR, 76 FR 48328. Both the proposed
and final Good Neighbor Plan contained
an extended discussion of how states
could exit the Good Neighbor Plan
through several options for submitting
approvable SIPs. 87 FR 20149–51; see
also id. at 20040 (‘‘[T]his proposal will
provide States with as much
information as the EPA can supply at
this time to support their ability to
submit SIP revisions to achieve the
emissions reductions the EPA believes
necessary to eliminate significant
contribution.’’). In the final Good
Neighbor Plan, the EPA explained that
it encouraged states to replace their FIP
with an approvable SIP, specifically
identifying that states could choose to
exit the trading program, regulate
different sources, or devise adequate
alternative methodologies to defining
‘‘significant contribution.’’ See 88 FR
36839.
Fourth, the EPA’s experience with
prior good neighbor rules informs its
determinations concerning the ability of
the Good Neighbor Plan to function
sensibly regardless of the number of
states included. The EPA has removed
states from coverage of prior good
neighbor rules (including from interstate
trading programs) in the past without
any loss of program viability. See 88 FR
36669. In addition, at times the EPA has
been required to remove specific states
from a good neighbor program as a
result of adverse court decisions. For
example, CSAPR was remanded as to
multiple states based on overcontrol
concerns in the aftermath of the
Supreme Court’s decision in EME
Homer City, but the D.C. Circuit
expressly declined to vacate CSAPR,
even as to those states. See EME Homer
City Generation, LP v. EPA, 795 F.3d
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118, 132 (D.C. Cir. 2015). Subsequent
rulemakings moved several states out of
the original CSAPR programs, without
any issues concerning the feasibility or
propriety of the remaining states’
obligations. See, e.g., 81 FR 74504,
74506–07 (October 26, 2016); see also
86 FR 23056–57. Similarly, in Michigan,
213 F.3d at 695, the D.C. Circuit vacated
the NOX SIP Call as to Wisconsin,
Missouri, and Georgia, but left the rule
in place and remanded without vacatur
as to certain issues as to other states.63
The modular nature of past good
neighbor rules has functioned well and
ensured that when the scope of a rule
might change based on issues specific to
particular states, the rule can continue
to function properly for the states that
remain covered by the rule.
Finally, there are no statements in the
record of the Good Neighbor Plan that
suggest the EPA considered the Good
Neighbor Plan interdependent among
states or dependent on exactly 23 states
or any other minimum number of states’
participation.64 To the contrary, the
severability section in the Good
Neighbor Plan preamble indicated the
Agency’s expectation that the Good
Neighbor Plan could be implemented in
individual states as necessary. 88 FR
36693. While in one instance, the Good
Neighbor Plan did refer to the
‘‘interdependent nature of interstate
63 The D.C. Circuit has in fact emphasized that the
important public health benefits of the EPA’s
interstate transport rules, as well as the potential
disruption to emissions trading markets, counsel
against vacatur even when some aspect of the rules
may be found unlawful or necessitate re-analysis.
See North Carolina, 550 F.3d 1176, 1178 (D.C. Cir.
2008); Wisconsin, 938 F.3d at 336–37; EME Homer
City, 795 F.3d at 132.
64 To the extent any discussions in the Good
Neighbor Plan’s preamble or its technical support
documents suggested that some particular
substantive component of the methodology was
dependent on a specific 23-state coverage, the
Agency clarifies here that such statements were
inartful or incorrect. For example, the Agency has
reviewed the methodology underlying the graphs
displayed in appendix I of the Ozone Policy TSD.
We have confirmed that despite headings
describing the graphs as being for 22 or for 19
states, respectively, in fact Figures 1 and 2 were
compiled using the ‘‘Step 3 Configuration’’ in
AQAT that compiled the reductions of all linked
states and the home state for each receptor. Figure
3 likewise reflected a compilation of data that was
not limited to the states subject to the original Good
Neighbor Plan. The references to 22 and 19 states
(for 2023 and 2026 EGU stringency, respectively)
were simply intended to indicate the number of
states in the Good Neighbor Plan for which the data
informed obligations being finalized in that rule.
See 88 FR 36744–45 (explaining that Figures 1 and
2 reflected the AQAT data used to inform the Step
3 determinations concerning EGUs, while Figure 3
was intended to illustrate why further EGU
emissions-reduction strategies not included in that
analysis appeared to be well beyond a notable
breakpoint in cost-effectiveness and thus not worth
pursuing in the context of defining good neighbor
obligations for the 2015 ozone NAAQS).
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pollution transport,’’ see 88 FR 36860,
this was in reference to the nature of the
pollution problem, not the nature of the
EPA’s solution. While the variable,
interstate nature of ozone transport
certainly presents a ‘‘thorny causation
problem,’’ EME Homer City, 489 U.S. at
514, the EPA’s solution to that problem
when promulgating FIPs, through a
consistent application of the 4-step
interstate transport framework to each
state, is expressly designed to avoid the
creation of unworkable
interdependencies.
By contrast, commenters’ apparent
view that the analysis underlying the
Good Neighbor Plan would change
depending on its scope of coverage at
any given moment misapprehends how
the Good Neighbor Plan is designed and
operates. If commenters were correct
that the EPA had designed a good
neighbor rule that was contingent for
any particular state on whether the rule
covered other states, this would
seemingly introduce an
interdependency problem and render
the rule invalid under North Carolina. It
could also require that the EPA revise a
good neighbor rule every time a state
opted to impose a SIP to exit its FIP or
was moved into a new FIP for a revised
NAAQS or to fully address its
obligations. The practical problems of
such an approach reinforce why this
would be an unreasonable way to define
states’ obligations. It would render good
neighbor obligations an ever-shifting
target, undermining regulatory certainty
for sources and states. The Good
Neighbor Plan is designed to avoid such
complications.
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D. Whether Judicial Stays Would Justify
Re-Analysis of the Good Neighbor Plan
The comments discussed in section
II.B. may be interpreted to argue that the
Good Neighbor Plan must be reanalyzed where a court stays, as to a
particular state or states, either the rule
itself or an antecedent action such as the
SIP Disapproval that is a predicate to
the exercise of FIP authority under CAA
section 110(c)(1). Courts may enter
temporary stays of agency actions
pending judicial review to preserve the
status quo. A stay order is not a final
judgment and in itself does not alter or
force a change in the substantive
analysis an agency has applied in taking
the action under review. Thus, stay
orders would not alter the analysis of
good neighbor obligations for the 2015
ozone NAAQS for any particular state,
and the EPA would come to the same
result as was already reached, because
the analytical underpinnings and the
implementation of the Good Neighbor
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Plan do not depend on the specific
number of states that it covers.
The comments may also be
interpreted as an assertion that the Good
Neighbor Plan would not function or
would be unreasonable because stays
may be put in place, or because a large
amount of the emissions reductions that
the Good Neighbor Plan calls for would
become unenforceable pending judicial
review. However, this does not serve to
identify what technical and analytical
conclusions the Agency reached
through its notice-and-comment
rulemaking were flawed or must be
changed. The obligations as defined for
each state remain promulgated even if
they are stayed pending judicial review.
Similarly, the effects of merits
holdings in the SIP Disapproval
litigation or a vacatur of the SIP
Disapproval as to a particular state
would not necessarily require a change
in the way the EPA may lawfully define
that state’s good neighbor obligations in
a FIP, much less those of other states. To
be sure, in general a vacatur of a SIP
disapproval would at a minimum
require that the FIP remain stayed as to
that state, pending action on remand (if
that disapproval had been the only basis
for the exercise of FIP authority). And
the EPA will always comply with the
final judgments of the courts. However,
the degree to which a change in analysis
for a particular state, with respect to the
EPA’s action on its SIP submission,
would be required following any merits
holdings in the various cases
challenging the SIP Disapproval would
depend on the nature of those holdings,
as to that state, which is speculative at
this time. Whether such holdings would
in turn require a change in the EPA’s
analysis or outcomes concerning other
states’ SIP submissions is still more
speculative, and whether any such
changes could then separately impact
the EPA’s approach to defining the
obligations of the state in question
through a FIP, much less the obligations
of other states via FIPs, is more
speculative still.
Several commenters urge that the EPA
must simply accept their view, or the
view of commenters on the SIP
Disapproval, that either or both of the
rules are legally or procedurally flawed
and will not survive judicial review.
The EPA has addressed the substantive
arguments raised in such comments
elsewhere in the record of the Good
Neighbor Plan, or it has indicated that
it had addressed those issues in the SIP
Disapproval and those matters are not
within scope of the rule. See Good
Neighbor Plan RTC at 6–8, 149–51, 155;
see also section II.B. supra
(summarizing responses to comments in
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the original Good Neighbor Plan record).
Where the Agency has reviewed such
comments and is satisfied that it is
acting lawfully, mere speculation that a
reviewing court may disagree cannot
supply a reasoned basis for the Agency
to stay, modify, or withdraw its rule.
Thus, the methodology and regulatory
programs of the Good Neighbor Plan are
reasonably designed and operate to
define the obligations of each state, in
a manner that is severable on a state-bystate basis. While the analytical
methods, technical analyses, and policy
judgments that informed the Good
Neighbor Plan were developed and
conducted consistently across the
nation, they ultimately produced a
determination of significant
contribution at the state level. The
implementation of the measures
necessary to eliminate significant
contribution is achievable by the
sources within each state, irrespective of
other states’ participation. It would not
matter if there were one state or 50
states in the Good Neighbor Plan—the
methodology and the result for any
particular state—i.e., the definition of
‘‘significant contribution to
nonattainment and interference with
maintenance’’ under CAA section
110(a)(2)(D)(i)(I) for the 2015 ozone
NAAQS—would remain the same.
The EPA acknowledges that although
the substantive circumstances of the
states remain constant, the
circumstances of the rulemaking and
litigation are likely to remain in flux in
the short-to-near term. Courts that may
grant stays pending judicial review may
later affirm the SIP Disapproval or may
remand the SIP Disapproval as to
particular states, with or without
vacatur. Indeed, both the NOX SIP Call
and CSAPR were ultimately
implemented despite initial stay orders,
and notwithstanding that some elements
of each rule were remanded without
vacatur. See, e.g., EME Homer City, 795
F.3d at 138; Michigan, 213 F.3d at 695.
Should there be any remand of the SIP
Disapproval, the EPA will have to act on
that state’s SIP submission again, in
accordance with the court’s holdings.
See Calcutt v. Federal Deposit Ins.
Corp., 598 U.S. 623, 629 (2023). And, at
any point, any state may submit a new
SIP to the EPA, and the EPA will review
that SIP. Ultimately, under the statute,
every state will need to be covered by
either an approved SIP or a FIP that
meets the requirements of the good
neighbor provision—with the number
subject to each potentially changing at
any point.
Finally, the EPA’s conclusion that the
Good Neighbor Plan is severable also
reflected the important public health
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Federal Register / Vol. 89, No. 237 / Tuesday, December 10, 2024 / Rules and Regulations
and environmental benefits of the rule
in eliminating significant contribution
and to ensure to the greatest extent
possible the ability of both upwind
states and downwind states and other
relevant stakeholders to be able to rely
on the rule in their planning. 88 FR
36693. Cf. Wisconsin, 938 F.3d at 336–
37 (‘‘As a general rule, we do not vacate
regulations when doing so would risk
significant harm to the public health or
the environment.’’); North Carolina v.
EPA, 550 F.3d 1176, 1178 (D.C. Cir.
2008) (noting the need to preserve
public health benefits).
IV. Statutory and Executive Orders
Reviews
A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 14094: Modernizing Regulatory
Review
The Office of Management and Budget
(OMB) has determined that this
document is significant for purposes of
review under Executive Order 12866, as
amended by Executive Order 14094.
Accordingly, the EPA submitted this
document to the OMB for Executive
Order 12866 review. Documentation of
any changes made in response to the
Executive Order 12866 review is
available in the docket.
khammond on DSK9W7S144PROD with RULES
B. Judicial Review
Judicial review of the Good Neighbor
Plan is in the United States Court of
Appeals for the District of Columbia
Circuit for the reasons stated in the final
rulemaking document. See 88 FR
36859–60. Petitions for review of the
Good Neighbor Plan are currently
pending in that court, and this
document completes proceedings on
remand of the record as ordered by that
court. State of Utah et al. v. EPA, No.
23–1157 (D.C. Cir. September 12, 2024).
The D.C. Circuit retains jurisdiction
over the case.
[FR Doc. 2024–28739 Filed 12–9–24; 8:45 am]
BILLING CODE 6560–50–P
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Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–HQ–ES–2023–0067;
FXES1111090FEDR–256–FF09E21000]
RIN 1018–BG69
Endangered and Threatened Wildlife
and Plants; Endangered Species
Status for the Fluminense Swallowtail
Butterfly, Harris’ Mimic Swallowtail
Butterfly, and Hahnel’s Amazonian
Swallowtail Butterfly
Fish and Wildlife Service,
Interior.
ACTION: Final rule.
AGENCY:
The EPA’s determinations under the
relevant statutory and Executive Order
reviews for the Good Neighbor Plan can
be found at 88 FR 36856–60. This
document provides further explanation
in response to comments concerning a
particular aspect of the Good Neighbor
Plan and does not alter or amend any of
the requirements of the rule. Additional
information about the relevant statutes
and Executive Orders can be found at
https://www.epa.gov/laws-regulations/
laws-and-executive-orders.
Michael S. Regan,
Administrator.
DEPARTMENT OF THE INTERIOR
We, the U.S. Fish and
Wildlife Service (Service), determine
endangered species status under the
Endangered Species Act of 1973 (Act),
as amended, for three butterflies
endemic to Brazil: the Fluminense
swallowtail (Parides ascanius), Harris’
mimic swallowtail (Eurytides
(=Mimoides) lysithous harrisianus), and
Hahnel’s Amazonian swallowtail
(Parides hahneli). This rule extends the
Act’s protections to these species.
DATES: This rule is effective January 9,
2025.
ADDRESSES: This final rule, comments
and materials we received on the
proposed rule, and supporting materials
that we used in preparing this rule, such
as the species status assessment report,
are available at https://
www.regulations.gov at Docket No.
FWS–HQ–ES–2023–0067.
FOR FURTHER INFORMATION CONTACT:
Rachel London, Manager, Branch of
Delisting and Foreign Species,
Ecological Services Program, U.S. Fish
and Wildlife Service, MS: ES, 5275
Leesburg Pike, Falls Church, VA 22041–
3803; telephone 703–358–2171.
Individuals in the United States who are
deaf, deafblind, hard of hearing, or have
a speech disability may dial 711 (TTY,
TDD, or TeleBraille) to access
telecommunications relay services.
Individuals outside the United States
should use the relay services offered
within their country to make
international calls to the point-ofcontact in the United States.
SUPPLEMENTARY INFORMATION:
SUMMARY:
Previous Federal Actions
Please refer to the proposed listing
rule (88 FR 48414, July 27, 2023) for the
Fluminense swallowtail butterfly,
Harris’ mimic swallowtail butterfly, and
Hahnel’s Amazonian swallowtail
butterfly for a detailed description of
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99129
previous Federal actions concerning
these species. Hereafter in this
document, we will abbreviate their
common names by removing the word
‘‘butterfly’’ and referring to these
species as ‘‘swallowtails.’’
Peer Review
A species status assessment (SSA)
team prepared an SSA report for the
Fluminense swallowtail, Harris’ mimic
swallowtail, and Hahnel’s Amazonian
swallowtail. The SSA team was
composed of Service biologists, in
consultation with other species experts.
The SSA report represents a
compilation of the best scientific and
commercial data available concerning
the status of the species, including the
impacts of past, present, and future
factors (both negative and beneficial)
affecting the species.
In accordance with our joint policy on
peer review published in the Federal
Register on July 1, 1994 (59 FR 34270),
and our August 22, 2016, memorandum
updating and clarifying the role of peer
review in listing actions under the Act,
we solicited independent scientific
review of the information contained in
the Fluminense swallowtail, Harris’
mimic swallowtail, and Hahnel’s
Amazonian swallowtail SSA report. As
discussed in the proposed rule, we sent
the SSA report to seven independent
peer reviewers and received four
responses. The peer reviews can be
found at https://www.regulations.gov. In
preparing the proposed rule, we
incorporated the results of these
reviews, as appropriate, into the SSA
report, which was the foundation for the
proposed rule and this final rule. A
summary of the peer review comments
and our responses can be found in the
proposed rule (88 FR 48414).
Summary of Changes From the
Proposed Rule
In preparing this final rule, we
reviewed and fully considered all public
comments received during the comment
period, and we make no substantive
changes from the July 27, 2023,
proposed rule (88 FR 48414). We
considered all relevant references
provided by commenters in our final
determination and incorporated them
into this final rule (see Habitat Loss and
Degradation and Capture, below).
Summary of Comments and
Recommendations
In the proposed rule published on
July 27, 2023 (88 FR 48414), we
requested that all interested parties
submit written comments on the
proposal by September 25, 2023. We
also contacted appropriate Federal
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Agencies
[Federal Register Volume 89, Number 237 (Tuesday, December 10, 2024)]
[Rules and Regulations]
[Pages 99105-99129]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-28739]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52, 75, 78, and 97
[EPA-HQ-OAR-2021-0668; FRL-8670.5-02-OAR]
RIN 2060-AW47
Federal ``Good Neighbor Plan'' for the 2015 Ozone National
Ambient Air Quality Standards; Notice on Remand of the Record of the
Good Neighbor Plan To Respond to Certain Comments
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice; supplemental response to comments.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is addressing
certain comments that were submitted on the proposed Good Neighbor Plan
that the Supreme Court of the United States concluded the EPA had
likely not sufficiently addressed in the final Good Neighbor Plan. The
EPA is providing a fuller explanation of its reasoning at the time of
its action in response to these comments. The Good Neighbor Plan
addressed 23 states' obligations to eliminate significant contribution
to nonattainment or interference with maintenance of the 2015 ozone
national ambient air quality standards (NAAQS), pursuant to the ``good
neighbor'' provision of the Clean Air Act (CAA or Act). On September
12, 2024, the D.C. Circuit Court of Appeals remanded the record of the
Good Neighbor Plan to the EPA to permit the Agency to further respond
to comments related to the Good Neighbor Plan's operation if one or
more upwind States were no longer participating. In this document, the
EPA responds to the comments by more fully explaining why the Good
Neighbor Plan appropriately defines each state's obligations,
regardless of the status of the rule in other states, and can be
implemented without modification in any individual state or combination
of states covered by the rule.
DATES: December 10, 2024.
ADDRESSES: The EPA has established a docket for this document under
Docket ID No. EPA-HQ-OAR-2021-0668. All documents in the docket are
listed on the https://www.regulations.gov website. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available electronically through https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Gwyndolyn Sofka, OAQPS-AQPD (C541-04),
Environmental Protection Agency, 109 TW Alexander Dr, Research Triangle
Park, NC 27711; telephone number: (919)-541-5121; email address:
[email protected].
SUPPLEMENTARY INFORMATION:
Throughout this document ``we,'' ``us,'' and ``our'' refer to the
EPA.
I. General Information
The EPA is responding to a set of comments that together raise a
question regarding the method by which the Agency developed the Good
Neighbor Plan (88 FR 36654; June 5, 2023). Namely: would the
conclusions the EPA reached regarding states' obligations under CAA
section 110(a)(2)(D)(i)(I) for the 2015 ozone NAAQS have been
different, had the rule been promulgated for, or if it covered, a
smaller or different group of states than the 23 states that were
included in that the rule? In short, for reasons that are provided in
the record of the Good Neighbor Plan itself and elaborated upon in this
document, the answer to that question is no. The EPA applied its 4-step
interstate transport analytical framework in the Good Neighbor Plan to
determine each included state's obligations. That framework, which
accounts for the multistate ``collective contribution'' nature of ozone
problems throughout the United States, nonetheless defines the amount
of emissions from each state that constitutes ``significant
contribution to nonattainment or interference with maintenance'' of the
NAAQS in other states and implements programs to prohibit those
emissions through federal implementation plans (FIPs) promulgated for
each state accordingly. As the Good Neighbor Plan itself indicated, the
EPA's methodology is designed to be applicable in any state that may
become subject to a federal plan to address its ``significant
contribution'' to other states' ozone problems for the 2015 ozone
NAAQS; it provides an equitable and efficient solution to a ``thorny
causation problem,'' EME Homer City, 572 U.S. 489, 514 (2014), by
holding any linked state's largest industrial NOX-emitting
sources to widely achievable emissions levels, and ensures fairness
among states by not being dependent on the order in which they are
addressed.
By issuing this document, the Agency is addressing a particular
issue that the
[[Page 99106]]
U.S. Supreme Court preliminarily found had been raised by commenters
with reasonable specificity, but which the Court considered the Agency
had likely failed to adequately address when it originally promulgated
the rule. See Ohio v. EPA, 144 S. Ct. 2040 (2024) (granting
applications to stay enforcement of the Good Neighbor Plan pending
judicial review). This document summarizes the relevant comments
identified by the Supreme Court and, after summarizing our initial
responses to these comments in section II.B., provides a fuller
response in section III. of this document concerning how these comments
relate or could be read as relating to the question of the Good
Neighbor Plan's application and severability on a state-by-state basis,
consolidating material and discussions from the existing administrative
record at the time the EPA issued the action. To provide the most
complete possible response to the issues identified by the Supreme
Court, the Agency has considered these comments from all angles, even
considering arguments that are not evident on the face of the comments
themselves. For this reason, we do not concede that each of the topics
discussed in this document was in fact raised with ``reasonable
specificity'' by the commenters themselves, as required by CAA section
307(d)(7)(B), but the Agency views it to be appropriate in light of the
Court's preliminary findings in Ohio to address all of the issues
commenters potentially could be seen to have raised, to ensure a
thorough and complete response to the commenters' concerns.
In responding to these comments, the Agency is relying solely on
the information and data available in the record at the time the Good
Neighbor Plan was signed by the EPA Administrator and promulgated on
March 15, 2023 (88 FR 36654; June 5, 2023). See CAA section
307(d)(6)(C) (limiting the basis for CAA rules issued under section
307(d) to ``information [and] data . . . placed in the docket as of the
date of [ ] promulgation''). The purpose of this document is not to
supplement the record of the Good Neighbor Plan with new findings,
information, data, or new record support, but rather only to
consolidate the existing material in the record to more fully respond
to the relevant comments received during the public comment period
following proposal of the Good Neighbor Plan. In this document, we
provide an ``amplified articulation'' of the methodology underlying the
design of the Good Neighbor Plan to more fully explain why, at the time
the EPA issued the Good Neighbor Plan, it understood the Good Neighbor
Plan's requirements to reasonably function on a state-by-state basis
and therefore to be severable by state. See Dep't of Homeland Sec. v.
Regents of the Univ. of Cal., 591 U.S. 1, 20-21 (2020) (quoting
Alpharma, Inc. v. Leavitt, 460 F. 3d 1, 5-6 (D.C. Cir. 2006)).
Thus, in this document, we compile and present together discussions
and components of the analysis that are already in the record and
explain how they relate to one another and together demonstrate that
the Good Neighbor Plan fulfills the statutory mandate for each state
regardless of the number of states included in the rule at any given
time.
As described in more detail in section II.A. of this document,
following the Supreme Court's opinion in Ohio, the EPA sought a
voluntary partial remand of the Good Neighbor Plan from the D.C.
Circuit to provide the explanation that the Supreme Court concluded was
likely lacking in the Good Neighbor Plan. The D.C. Circuit ordered
``that the record be remanded to permit the Environmental Protection
Agency to further respond to comments in the record.'' State of Utah et
al. v. EPA, No. 23-1157 (D.C. Cir. September 12, 2024).
The statutory authority for the Good Neighbor Plan is provided by
the CAA as amended (42 U.S.C. 7401 et seq.). The most relevant portions
of CAA section 110 are subsections 110(a)(1), 110(a)(2) (including
110(a)(2)(D)(i)(I)), and 110(c)(1). For further information, see
section II.C. of the preamble for the Good Neighbor Plan, 88 FR 36667-
68.
II. Background
A. Procedural History
On March 15, 2023, in accordance with CAA sections
110(a)(2)(D)(i)(I) and 110(c)(1), the EPA promulgated the Good Neighbor
Plan, a rule determining the good neighbor obligations of 23 states
with respect to the 2015 ozone NAAQS and establishing for these states
federal implementation plans (FIPs) for emissions sources in these
states to address each state's obligations by reducing emissions of
nitrogen oxides (NOX), an ozone precursor.\1\ Prior to
promulgating the Good Neighbor Plan, the EPA had disapproved state
implementation plans for 21 of those states and had found that several
states had failed to submit complete plans--predicates to EPA's
authority to promulgate FIPs for those states.\2\ Following the Good
Neighbor Plan's promulgation, in response to judicial orders partially
staying the SIP Disapproval as to several states, the EPA issued two
sets of interim amendments (referred to here as the First and Second
Interim Final Rules) staying the Good Neighbor Plan's effectiveness for
emissions sources in those states pending the resolution of judicial
review of that action and further EPA rulemaking.\3\ As modified by the
First and Second Interim Final Rules, the Good Neighbor Plan's FIPs
applied to electric generating units (EGUs) within the borders of
Illinois, Indiana, Maryland, Michigan, New Jersey, New York, Ohio,
Pennsylvania, Virginia, and Wisconsin and to non-EGU sources within the
borders of nine of the same ten states (all except Wisconsin) as well
as California.\4\
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\1\ Federal ``Good Neighbor Plan'' for the 2015 Ozone National
Ambient Air Quality Standards, 88 FR 36654 (June 5, 2023).
\2\ Air Plan Disapprovals; Interstate Transport of Air Pollution
for the 2015 8-Hour Ozone National Ambient Air Quality Standards, 88
FR 9336 (February 13, 2023) (``SIP Disapproval''); Findings of
Failure to Submit a Clean Air Act Section 110 State Implementation
Plan for Interstate Transport for the 2015 Ozone National Ambient
Air Quality Standards (NAAQS), 84 FR 66612 (December 5, 2019)
(including Pennsylvania, Utah, and Virginia).
\3\ Federal ``Good Neighbor Plan'' for the 2015 Ozone National
Ambient Air Quality Standards; Response to Judicial Stays of SIP
Disapproval Action for Certain States, 88 FR 49295 (July 31, 2023);
Federal ``Good Neighbor Plan'' for the 2015 Ozone National Ambient
Air Quality Standards; Response to Additional Judicial Stays of SIP
Disapproval Action for Certain States, 88 FR 67102 (September 29,
2023).
\4\ The Good Neighbor Plan's emissions reduction requirements
apply to all emissions sources meeting the Good Neighbor Plan's
applicability criteria within the borders of each covered state,
including sources in Indian country within the borders of the state.
See 88 FR 36690.
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In October 2023, after the United States Court of Appeals for the
District of Columbia Circuit (D.C. Circuit) denied motions to stay the
Good Neighbor Plan pending judicial review,\5\ four sets of parties
submitted emergency applications to the United States Supreme Court
seeking a stay of some or all of the Good Neighbor Plan's
requirements.\6\ In an opinion issued on
[[Page 99107]]
June 27, 2024 (referred to here as the Stay Order), the Supreme Court
granted the emergency applications and ordered that ``[e]nforcement of
EPA's rule against the applicants shall be stayed'' while judicial
review of the Good Neighbor Plan on the merits proceeds, first in the
D.C. Circuit and then potentially in the Supreme Court.\7\
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\5\ Orders, Utah v. EPA, No. 23-1157 (D.C. Cir. September 25,
2023, and October 11, 2023); see also Order, Utah v. EPA, No. 23-
1157 (D.C. Cir. December 4, 2023) (denying additional stay motions).
\6\ Ohio v. EPA, No. 23A349 (U.S. docketed October 18, 2023)
(other named applicants are Indiana and West Virginia); Kinder
Morgan, Inc. v. EPA, No. 23A350 (U.S. docketed October 18, 2023)
(other named applicants are Enbridge (U.S.) Inc., TransCanada
PipeLine USA Ltd., Interstate Natural Gas Association of America,
and American Petroleum Institute); American Forest & Paper
Association v. EPA, No. 23A351 (U.S. docketed October 18, 2023)
(other named applicants are America's Power, Associated Electric
Cooperative, Inc., Deseret Power Electric Cooperative, Midwest Ozone
Group, National Mining Association, National Rural Electric
Cooperative Association, Ohio Valley Electric Corporation, Portland
Cement Association, and Wabash Valley Power Alliance); United States
Steel Corporation v. EPA, No. 23A384 (U.S. docketed October 31,
2023).
\7\ Ohio v. EPA, 144 S. Ct. 2040, 2058 (2024).
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The Court found that, with respect to the ``explanation why the
number and identity of participating States does not affect what
measures maximize cost-effective downwind air-quality improvements,''
the stay applicants ``are likely to prevail on their argument that
EPA's final rule was not `reasonably explained,' that the agency failed
to supply `a satisfactory explanation for its action[,]' and that it
instead ignored `an important aspect of the problem' before it''. Ohio
v. EPA, 144 S. Ct. 2040, 2054 (2024) (citations omitted). The Court
focused in particular on the fact that the Good Neighbor Plan's FIPs
had been stayed in several states pending judicial review of the EPA's
disapproval of those states' state implementation plan (SIP)
submissions. 144 S. Ct. at 2051-52. Stay applicants had argued that the
``EPA's plan rested on an assumption that all 23 upwind States would
adopt emissions-reduction tools up to a `uniform' level of `costs' to
the point of diminishing returns'' and the EPA had not explained how
the rule was substantiated for a smaller number of states. Id. at 2053
(citations omitted). The Court preliminarily interpreted several
comments filed on the proposed Good Neighbor Plan as raising this
concern, i.e., that if a different number or grouping of states were
subject to the EPA's FIPs promulgated in the Good Neighbor Plan
rulemaking, then the EPA's cost-effectiveness analysis would have
changed, and therefore the obligations would or could be different for
the remaining states. Id. at 2050-51. The Court did not conclude that
the EPA's methodology was unlawful, or that petitioners were correct in
their assessment that the Good Neighbor Plan's obligations could change
depending on the number or group of states subject to it. Rather, the
Court preliminarily found that the EPA had failed to adequately respond
to the relevant comments and thus the rule was likely not ``reasonably
explained.'' Id. at 2054. The Court noted that the rule's
``severability'' discussion did not adequately address the issue, since
that discussion, in itself, contained no supporting analysis. Id. at
2054-55.
On March 27, 2024, several months before the Supreme Court issued
this ruling, the EPA partially denied several petitions for
reconsideration of the Good Neighbor Plan objecting to the rule on the
basis that it had been stayed in certain states and was no longer
lawful or workable in the remaining states, as well as objecting that
the rule should not have been published at all following judicial stays
of the SIP Disapproval as to certain states. The EPA's ``basis for
denial'' addressed both issues and determined that these objections
were not ``centrally relevant'' because, after examining the objections
in detail, the EPA concluded they failed to establish that the rule
should be revised. See 89 FR 23526 (April 4, 2024) (providing notice of
issuance of the partial denial).\8\ The Supreme Court declined to
consider the EPA's Denial in evaluating the applications for stay. See
144 S. Ct. at 2068 n.11.
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\8\ See also ``Letter Enclosure: The EPA's Basis for Partially
Denying Petitions for Reconsideration of the Good Neighbor Plan on
Ground Related to Judicial Stays of the SIP Disapproval Act as to 12
States,'' available at https://www.epa.gov/Cross-State-Air-Pollution/response-four-petitions-reconsideration and at https://www.regulations.gov/document/EPA-HQ-OAR-2021-0668-1255.
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Following the Supreme Court's decision granting the applications to
stay enforcement of the Good Neighbor Plan, the EPA implemented the
Court's stay of the effectiveness of the Good Neighbor Plan's
requirements for the sources that would have been subject to the rule
pursuant to the 23 states' FIPs originally promulgated, pending
judicial review. See 89 FR 87960 (November 6, 2024). In addition, the
EPA sought a voluntary partial remand of the Good Neighbor Plan. The
D.C. Circuit granted a remand of the record of the rule so that the EPA
might respond to the comments related to the rule's appropriateness for
each state and operation. State of Utah et al. v. EPA, No. 23-1157
(D.C. Cir. September 12, 2024). The D.C. Circuit retains jurisdiction
of the case, has placed the case in abeyance pending further order of
the court, and has directed the parties to file motions to govern
future proceedings in the case within 30 days after completion of this
remand or December 30, 2024, whichever is earlier. Id.
The following section, II.B. of this document, summarizes the
comments identified by the Supreme Court as relevant to the issue of
the Good Neighbor Plan's operation if one or more upwind States were no
longer participating and provides a summary of the EPA's responses to
these comments in the Good Neighbor Plan with citations to the
record.\9\ The EPA does not intend to reopen its prior response to
those comments through this document by summarizing those prior
responses. Section III. of this document provides a fuller explanation
in response to a specific issue identified by the Supreme Court derived
from these comments: whether the Good Neighbor Plan would lawfully
define and implement good neighbor obligations for any particular state
if it were not in effect for some other state or states. As the EPA
originally concluded based on the information in the record at the time
of promulgation, the Good Neighbor Plan appropriately defines each
state's obligations on an individual basis and is severable on a state-
by-state basis. See 88 FR 36693.
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\9\ We have focused specifically on the comments that the
Supreme Court identified in Ohio v. EPA. While other commenters
raised issues similar to these comments, these comments present a
representative set of perspectives on those issues that the Supreme
Court viewed as most closely related to the question of the Good
Neighbor Plan's severability by state.
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B. Summary of Comments Identified by the Supreme Court and Citation to
Prior Responses to Comments
Comment category 1 (SIP/FIP sequencing): Multiple commenters (the
Missouri Department of Natural Resources (MO DNR), the Louisiana
Department of Environmental Quality (LA DEQ), and the Texas Commission
on Environmental Quality (TX CEQ)) expressed concern that the EPA had
proposed FIPs prior to finalization of the SIP disapprovals for states
included in the FIP rulemaking, without knowing which states would
ultimately be covered by a FIP. Commenters state that this kept the EPA
from being able to receive and consider the technical, procedural, and
legal issues that they identified in their comments. Commenters state
that the proposed FIPs presume the result of the proposed disapproval
of SIPs even though the comment period for the SIP Disapproval action
was ongoing at the time of the proposed FIPs.
Commenters (LA DEQ and TX CEQ) requested that the EPA withdraw both
the proposed FIPs for their states and the proposed SIP disapproval so
that both states could have a further opportunity to show that their
respective SIPs address their supposed significant contribution to
nonattainment or interference with maintenance in downwind states. One
commenter (MO DNR) requested that the EPA withdraw the proposed FIP for
[[Page 99108]]
Missouri and other states so that the EPA can consider and respond to
all comments received on the SIP Disapproval action. The commenter goes
on to request that the EPA respond to all comments on the proposed
disapproval of the Missouri SIP in the final action for the Good
Neighbor Plan if it does not withdraw the proposed FIP, as the SIP
Disapproval action and the proposed FIP are ``inextricably linked.''
\10\ Relevant portions of the comment are included immediately below.
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\10\ See the Missouri Department of Natural Resources June 17,
2022, comment letter Docket Id No. EPA-HQ-OAR-2021-0668-0289, at 4.
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Missouri Department of Natural Resources
EPA is now proposing good neighbor FIPs, which are the subject
of this comment letter, before even finalizing the SIP disapprovals
for Missouri and numerous other states. The Air Program and several
other entities submitted adverse comments on EPA's proposed SIP
disapproval for Missouri's 2019 Good Neighbor SIP. Those comments
were all submitted after the publication of EPA's proposed good
neighbor FIP in the Federal Register. Therefore, EPA did not even
give itself a chance to receive, and much less, consider all the
technical, legal, and procedural issues for the proposed disapproval
that were identified in those comments before it moved forward with
the proposed FIP. It follows then, that EPA's proposed FIP is
extremely premature, and EPA should withdraw the proposal and be
obligated to consider and respond to all of the comments it received
on the proposed disapprovals before it can propose FIPs for these
states.\11\
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\11\ See id. at 3.
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Louisiana Department of Environmental Quality
The EPA's proposed FIP presumed the result of its proposed
disapproval of Louisiana's SIP submission, even though public notice
and comment were ongoing. EPA must consider comments received on its
proposed actions. The EPA cannot consider LDEQ's comment on the
proposed disapproval of the SIP in good faith, when it has already
proposed a FIP prior to the close of the comment period . . .
Louisiana requests that this proposed FIP be withdrawn, allowing
the state to either prove its original SIP submittal through
modeling or to provide specific enforceable measures to adequately
prohibit the contribution of pollution to downwind states.\12\
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\12\ See the Louisiana Department of Environmental Quality June
21, 2022, comment letter Docket Id No. EPA-HQ-OAR-2021-0668-0365, at
2.
Texas Commission on Environmental Quality
Based on the numerous technical and legal errors discussed in
our comments, the TCEQ respectfully requests that the EPA withdraw
its proposed FIP, either in whole, or in part as it pertains to
Texas. In the alternative, the TCEQ respectfully requests that the
EPA address and remedy the numerous technical and legal errors
identified by the TCEQ . . .\13\ The inclusion of Texas in the
proposed FIP is dependent on the EPA finalizing its proposed
disapproval of the transport SIP that Texas timely submitted for the
2015 ozone NAAQS.\14\
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\13\ See the Texas Commission on Environmental Quality June 21,
2022, comment letter Docket Id No. EPA-HQ-OAR-2021-0668-0505, at 1.
\14\ Id. at 2.
Citations to previous responses: The EPA explained that FIPs can be
proposed before final action is taken on SIP disapprovals, because the
statute provides that the EPA is required to promulgate a FIP ``at any
time within 2 years'' of a SIP disapproval or a finding of failure to
submit. This statutory sequence necessarily permits the proposal of a
FIP before the finalization of a SIP disapproval. See 88 FR 36689
(citing CAA section 110(c)(1); EME Homer City, 572 U.S. 489, 509). The
EPA was clear in both the proposed and final rulemaking documents that
it was issuing FIPs on a state-by-state basis, with adjustments in the
scope of states covered by the Good Neighbor Plan's uniform regulatory
programs occurring from proposal to final based on changes in the
underlying analytics, similar to changes in state coverage that had
occurred under prior good neighbor rulemakings.\15\ The EPA explained
that it had predicate FIP authority for each of the 23 covered states
at the time of signature and promulgation of the Good Neighbor Plan.
See 88 FR 36688-89 and the Good Neighbor Plan Response to Comments
(RTC) Document at 6-8.\16\ The EPA explained the timing of its action
to promulgate FIPs in relation to the need to address good neighbor
obligations as expeditiously as practicable, and to the extent possible
by the 2023 ozone season, 88 FR 36690, and explained why we would not
delay our action to afford states additional opportunities to develop
new submissions or instead issue a call for SIP revisions, though we
noted that states remain free to develop and submit SIP revisions at
any time. See Good Neighbor Plan RTC at 12-15. The EPA further
explained its reasoning concerning the sequencing of its actions and
that this sequencing did not prejudice the Agency's evaluation of
states' SIP submissions in the separate SIP Disapproval action. See
Good Neighbor Plan RTC at 149-51. The EPA noted that it was not
finalizing its proposed FIPs for several states, and the EPA
acknowledged that several states remained to be addressed for which it
either lacked predicate authority to issue a FIP or because further
rulemaking proceedings were appropriate. 88 FR 36658. The EPA explained
that specific technical or legal objections to the SIP Disapproval were
addressed in that action and were out of scope of the Good Neighbor
Plan. Id. at 144-45, 155.
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\15\ See, e.g., 87 FR 20036, 20038, 20039, 20040 n.8, 20041,
20044, 20045, 20051 n.39, 20051-2-52, 20058, 20067 n.115, 20073, and
20140 (April 6, 2022); 88 FR 36654, 36656, 36657, 36658, 36659 n.9,
36659, 36662, 36664, 36668 n.41 & 44, 36668/3, 36669, 36673/2, 36688
n.99, and 36689 (June 5, 2023).
\16\ Available in the docket at https://www.regulations.gov/document/EPA-HQ-OAR-2021-0668-1127.
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Comment category 2 (potential for new modeling at Steps 1 and 2):
Comments from the Air Stewardship Coalition (ASC) and the Portland
Cement Association (PCA) asserted that if the EPA took different action
on SIPs than contemplated in the FIP rulemaking proposal, the EPA would
be required to conduct a new assessment and modeling of contribution
and subject those findings to public comment. In a section titled ``EPA
Step Two Screening is Premised on the Premature Disapproval of 19
Upwind States Good Neighbor SIPs'' (sections III.C. and II.C. of their
respective comments) the ASC and the PCA stated that the EPA's
screening at Step 2 of the 4-step interstate transport framework for
the Proposed Good Neighbor Plan included states that already had good
neighbor SIPs for the 2015 ozone NAAQS. Commenters state the EPA should
not have included these states in this proposed rule's screening as the
final disapproval of said SIPs was not issued prior to the proposed
FIP. The commenters claim that the EPA rushed to take final action on
its good neighbor SIPs when the EPA proposed to disapprove 19 good
neighbor SIP submissions and four findings of failure to issue a
complete SIP on February 22, 2022. Commenters state that in doing so
the EPA prejudged the outcome of the pending SIP actions in their
separate FIP action and did not account for the possibility that the
EPA may take a different course of action at final than what was
proposed in the SIP Disapproval action.
Commenters indicate that as a consequence of this prejudgment the
EPA may need to conduct a new assessment and modeling of contribution
at Step 2 of the 4-step interstate transport framework if the EPA
chooses to take a different action on any of the SIPs they have
proposed to disapprove or found as having failed to issue a complete
SIP. As such,
[[Page 99109]]
commenters urged the EPA to stay action on the proposals and coordinate
with states to ensure the appropriate sequence of actions is taken. The
relevant text of the ASC's comment is included immediately below.\17\
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\17\ See Portland Cement Association's June 21, 2022, comment
letter Docket Id No. EPA-HQ-OAR-2021-0668-0516, at 7, for section
II.C. of the PCA comment as referenced.
Yet, it appears EPA is rushing to take final action as EPA on
February 22, 2022, proposed to disapprove 19 Good Neighbor SIP
submissions. EPA also issued proposed findings of failure to issue a
complete SIP for NM, PA, UT, and VA. The proposed FIP essentially
prejudges the outcome of those pending SIP actions and, in the event
EPA takes a different action on those SIPs than contemplated in this
proposal, it would be required to conduct a new assessment and
modeling of contribution and subject those findings to public
comment.\18\
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\18\ See Air Stewardship Coalition's June 21, 2022, comment
letter Docket Id No. EPA-HQ-OAR- 2021-0668-0518, at 13-14.
Citations to previous responses: The EPA explained that, partially
in response to comments concerning technical issues with the modeling
used at proposal for Steps 1 and 2, it conducted a new round of
modeling and air quality analysis at Steps 1 and 2 in taking final
action on the SIP Disapproval and the Good Neighbor Plan. 88 FR 36673-
74; 88 FR 9339. The EPA explained that it also reviewed recent ozone
monitoring data indicating persistent elevated ozone levels at many
locations throughout the country. Id. at 36704-05. The EPA explained
that for most states its updated air quality analysis for the final
rule was confirmatory of its proposed findings concerning which states
contribute to downwind receptors at Step 2, and even its older 2011-
based modeling. Id. at 36674, 36707. The EPA explained that where its
updated analysis at Steps 1 and 2 indicated that a state was not
contributing or that the basis for finding contribution had changed, it
was not finalizing a FIP for that state in the Good Neighbor Plan; the
EPA indicated its intent to address these and other states in
subsequent actions. Id. at 36656, 36658, 36689; see also SIP
Disapproval, 88 FR 9354.\19\
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\19\ The EPA has conducted or is in the process of conducting
additional notice-and-comment rulemaking to address the obligations
of those states. See 88 FR 87720 (December 19, 2023) (Wyoming); 89
FR 12666 (February 16, 2024) Supplemental Air Plan Actions:
Interstate Transport of Air Pollution for the 2015 8-Hour Ozone
National Ambient Air Quality Standards and Supplemental Federal
``Good Neighbor Plan'' Requirements for the 2015 8- Hour Ozone
National Ambient Air Quality Standards (``Supplemental Rulemaking'')
(proposing action for Arizona, Iowa, Kansas, New Mexico, and
Tennessee).
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Comment category 3 (cost-effectiveness at Step 3): Comments from
ASC, PCA, the Indiana Municipal Power Agency (IMPA), the Lower Colorado
River Authority (LCRA), and the Wisconsin Paper Council (WPC) question
the methodology by which the EPA identified a cost-threshold used to
establish the cost-effectiveness of the proposed controls.
Commenters (ASC and PCA) both ask the EPA to reconsider the $7,500/
ton average marginal cost-effectiveness threshold used for non-EGUs
stating that it is too high and a departure from past practices. Both
commenters state the EPA has failed to explain why the EPA relied on a
``knee in the curve'' approach instead of the past ``clear breakpoint''
approach to determine the $7,500/ton number. Commenters state that
there is no noticeable break at that point for Tier 1 industries but
there is a break at $1,600/ton mark; however, commenters concede there
is a difference at $7,500/ton in Tier 2 industries and the combined
Tier 1 and 2 industries line. In addition, commenters question why the
EPA departed from the cost-effectiveness threshold used in the 2021
Revised CSAPR Update Rule ($2,000/ton in $2016) as it appears to
commenters that the EPA had not collected any new information on costs
or technologies or used different implementation timelines since the
Revised CSAPR Update Rule. The relevant text of the Air Stewardship
Coalition's comment is included immediately below.\20\
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\20\ The Portland Cement Association's comment on this topic is
nearly identical and can be found at Docket Id No. EPA-HQ-OAR-2021-
0668-0516, at 22.
The Agency's sole analysis is that there was a ``knee in the
curve'' that identified $7,500 per ton, but that is not obvious to a
reviewer. There is no noticeable difference around $7,500 in the
plotted line for Tier 1 industries, instead the Tier 1 line reflects
a break around the $1,600 mark. While the Tier 2 and combined Tier 1
and 2 lines show some difference around $7,500 mark, there is no
explanation for EPA's reliance on a ``knee in the curve'' as opposed
to past transport rules that have relied upon a ``clear break
point'' at this step. Further, EPA has provided no explanation for
why the Tier 1 and 2 industries were subject to different
contribution thresholds, as described above, yet they were combined
when developing the cost-effective control threshold.
In addition, EPA fails to explain why the threshold departs from
prior transport rule cost-effectiveness thresholds for non-EGUs. In
particular, less than one year before EPA released the Proposed
Rule, in the 2021 Revised CSAPR Update Rule, EPA said the non-EGU
data demonstrated ``a clear break point'' (versus a ``knee in the
curve'') at approximately $2,000 (in $2016) per ton. According to
EPA, EPA adopted ``that analysis using the best available current
data,'' including the ``identified available control technologies,''
their ``costs and potential emissions reductions,'' and ``the
information it has regarding control technology implementation
timeframes, including information on such timeframes provided by
commenters on the proposed rule.'' Further, to identify levels of
control for non-EGUs, EPA used the Control Strategy Tool (CoST) and
the projected 2023 inventory from the 2016v1 modeling platform, just
as EPA has done in this Proposed Rule. Indeed, there is no
indication in the Proposed Rule that EPA collected any new
information on costs or technologies or implementation timelines
that differed in any material way from the information it analyzed
in the Revised CSAPR Update Rule.\21\
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\21\ See Air Stewardship Coalition's June 21, 2022, comment
letter Docket Id No. EPA-HQ-OAR-2021-0668-0518, at 27.
Other commenters (IMPA, LCRA, and the WPC) state that cost-
effectiveness varies based on operational characteristics of the unit
in question, that installing controls on existing EGUs may not be cost-
effective, and that emissions from certain industries (specifically
pulp and paper mills) would have a negligible effect on air quality.
One commenter (IMPA) objected that requiring a specific type of
emissions control will result in a lack of flexibility. They state that
the cost-effectiveness of employing selective non-catalytic reduction
(SNCR) will be highly variable, and that units employed at peak
timeframes will not see similar emissions reductions to those that are
used as base load generation. The commenter then states that technology
specific dictates are not the best means of emissions control but would
prefer controls that maintain flexibility.
To support their claim that the EPA's EGU controls are unlawful
because they are not cost-effective, another commenter (LCRA) states
that the installation of controls on existing sources (as compared to
new sources) is not ``per se reasonable or cost-effective.'' \22\ The
commenter goes on to state that EGUs that have already invested in
state-of-the-art combustion controls have already undertaken
significant costs and will have less to gain from additional controls
such as an selective catalytic reduction (SCR) retrofit.
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\22\ See Lower Colorado River Authority's June 21, 2022, comment
letter Docket Id No. EPA-HQ-OAR-2021-0668-0395, at 21.
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Finally, one commenter (WPC) states that the emissions reductions
coming from adding controls to pulp and paper mills ``would have a
negligible effect on
[[Page 99110]]
air quality.'' \23\ The commenter states that this, coupled with a
continued decreasing trend of Wisconsin-based stationary source
NOX emissions, anticipated mobile source NOX
reductions, and additional reductions that they assert were not
accounted for in the EPA's analysis, indicates that inclusion of
Wisconsin pulp and paper mills are not needed to achieve downwind air
quality improvement.
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\23\ See Wisconsin Paper Council's June 21, 2022, comment letter
Docket Id No. EPA-HQ-OAR-2021-0668-0338, at 2.
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The relevant text of the various commenters is included immediately
below.
Indiana Municipal Power Agency
Not every unit can install or activate SNCR in a way that is
cost effective, relative to the actual emissions reductions that the
units will experience. Inflated assumptions as to achievable
emissions reductions, and underestimated implementation costs have
led EPA to presume that compelling the use of SNCR with no regard
for the individual circumstances of the EGU in question will be a
cost effective means of reducing NOX emissions. This is
not always the case. In IMPA's experience, the effectiveness of SNCR
system is highly variable depending on the operational
characteristics of the unit, and the level and consistency of its
load. Units deployed during peak timeframes, such as IMPA's WWVS
units, will not see the same emissions reductions as base load
generation. The cost effectiveness of the requirement to employ SNCR
will be highly variable, and is unlikely to meet EPA expectations in
even the most optimistic case.\24\
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\24\ See Indiana Municipal Power Agency's June 20, 2022, comment
letter Docket Id No. EPA-HQ-OAR-2021-0668-0361, at 9.
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Lower Colorado River Authority
It is clear that Congress believed existing source standards
would never exceed new source standards: ``[m]ore stringent
requirements are imposed on new sources because engineering
considerations allow for cheaper and more effective pollution
control when the effort is incorporated in the design and
construction of the facility.'' In fact, EPA has previously
recognized that less (not more) stringent standards are appropriate
for existing units because ``controls cannot be included in the
design of an existing facility and because physical limitations may
make installation of particular control systems impossible or
unreasonably expensive in some cases.'' Controls identified as part
of a transport plan should take into account the difficulties of
installing controls at existing facilities, but EPA does not do so
in this Proposal.
While installing selective catalytic reduction may be the common
practice for a new fossil-fueled EGU, that does not mean that it is
per se reasonable or cost-effective for existing plants, especially
those that have already invested in other controls to lower their
NOX emissions. Due to the lower emission rate starting
point, plants that have already invested in state-of-the-art
combustion controls, such as low-NOX burners and overfire
air, have already undertaken significant costs to achieve
NOX reductions and have less to gain from additional
control installation, such as SCR and SNCR.\25\
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\25\ See Lower Colorado River Authority's June 21, 2022, comment
letter Docket Id No. EPA-HQ-OAR-2021-0668-0395, at 2 (footnotes
omitted).
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Wisconsin Paper Council
Furthermore, pulp and paper mill boilers contribute a small
amount of the overall NOX
emissions from sources in the 23 states identified by EPA for
emission reductions. Based upon the 2017 National Emissions
Inventory, point sources in those states emitted approximately 1.5
million tons of NOX, while pulp and paper mill boilers
emitted only about 35,000 tons in those states (2% of point source
emissions). In addition, those states also have mobile source
emissions of approximately 3.3 million tons per year of
NOX, and another 1 million tons of NOX
emissions from biogenic sources, wildfires and prescribed burns.
It is also important to note that the reduction in emissions
from pulp and paper mills would have a negligible effect on air
quality. For example, the maximum estimated improvement at any
receptor for emission controls on 25 pulp and paper mills is 0.0117
ppb, which is significantly below the detection limit of ambient air
quality monitors. Thus, the benefit in air quality is too small to
even measure.\26\
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\26\ See Wisconsin Paper Council's June 21, 2022, comment letter
Docket Id No. EPA-HQ-OAR-2021-0668-0338, at 2.
Citations to previous responses: The EPA explained that, as it had
in all prior good neighbor rulemakings for ozone, it was establishing
uniform emissions control levels for all covered states, using a
comparative analysis of the cost-effectiveness of different emissions
control technologies as a key metric to establish the appropriate
degree of stringency to define ``significant contribution.'' 88 FR
36675-77, 36678-79, 36683, 36718-19, 36741. The EPA explained that it
determined in the final Good Neighbor Plan it would require controls up
to the $11,000/ton representative cost threshold identified for EGUs
associated with retrofit of SCR post-combustion control technology and
that non-EGU costs on a per ton basis were generally commensurate with
this level of control stringency. 88 FR 36746-47. The EPA explained
there could be variation in costs for particular units depending on
their configurations or level of operation but that this variation did
not impact its selection of the overall appropriate level of
stringency. Id.; id. at 36740-41. The EPA explained it was not relying
on the $7,500/ton preliminary threshold identified in the Non-EGU
Screening Assessment, recognizing costs were more heterogeneous than
that single figure, and that nonetheless, the Screening Assessment
adequately served its function of helping the EPA target the most
impactful non-EGU emissions control strategies in defining
``significant contribution.'' Id.; Good Neighbor Plan RTC at 113-15.
The EPA explained that for EGUs, the trading program would allow for
cost-efficient compliance planning for all sources and adjusted its
proposed trading program ``enhancements'' to preserve greater
flexibility for EGUs through the 2020s, id. at 36729-30, 36684, while
for non-EGUs, the EPA made available flexibilities such as alternative
emissions limits for any units facing excessively high costs or
technical infeasibility, id. at 36818-19. The EPA explained that it
believed its selected level of stringency as compared to prior
transport rules was appropriate in light of the more protective 2015
ozone NAAQS and its projections of persistent elevated ozone levels.
Id. at 36660. It explained how its analysis compared and was consistent
with the determinations in the Revised CSAPR Update and other previous
rulemakings taken pursuant to CAA section 110(a)(2)(D)(i)(I). 88 FR
36660; Good Neighbor Plan RTC at 37-39, 92-93. The EPA explained how it
had derived its estimates of representative costs for both EGUs and
non-EGUs, which accounted for a range of costs associated with retrofit
of controls on existing sources. 88 FR at 36720-31, 36738-40. The EPA
explained how its selected level of control was also roughly
commensurate with the level of control required of existing sources in
downwind states. Good Neighbor Plan RTC at 62-63.
The EPA explained how it evaluated the air quality factor in its
Step 3 analysis, viewing it as serving a confirmatory role that an
appropriate level of emissions control stringency would be achieved
overall, that (based on available information) no cost-effective
strategies had been overlooked, and that if the identified cost-
effective level of control stringency were applied uniformly across the
linked upwind states, there would be, on average and in the aggregate,
widespread reductions in ozone levels at downwind receptors. Id. at
36683, 36741, 36748-50.
The EPA explained that it generally focused on large stationary
sources of NOX emissions in upwind states, consistent with
the science of regional-scale ozone transport and all of its prior good
neighbor rulemakings for ozone. Id. at 36660, 36671, 36719. The EPA
explained it recognized that air quality improvement from any
particular source
[[Page 99111]]
or group of sources may appear relatively small, but this is simply an
expression of the ``collective contribution'' problem that ozone
presents. Good Neighbor Plan RTC at 98, 103-04. The EPA explained why,
given this problem and the need to control many sources over a wide
area, it makes sense to define obligations for each state subject to a
FIP through the application of a uniform level of emissions control
across the linked states and to regulate on an industry-by-industry
basis across those states, as a matter of both efficiency and equity.
88 FR 36673, 36675-76, 36677, 36680, 36683, 36691, 36719, 36741; Good
Neighbor Plan RTC at 8, 48, 56-58, 83, 92-93, 118.
The EPA explained that it considered boilers in several industries
to be impactful and controllable non-EGU types and that boilers in the
pulp and paper industry were among those sources with well-
demonstrated, cost-effective NOX-emissions control options.
88 FR 36681-82, 36736, 36739-40; Good Neighbor Plan RTC at 93, 97, 99-
100, 107, 119-21. The EPA explained that it was nevertheless not
including non-EGU requirements for Wisconsin in the final rule because
based on the updated modeling used for the final rule, Wisconsin was no
longer projected to be linked to downwind receptors in the 2026
analytic year. Id. at 118.
The EPA addressed SNCR operating characteristics and effectiveness
for existing EGUs, both in terms of optimizing SNCR controls that had
already been installed, and in terms of installing new SNCRs on
existing EGUs. 88 FR 36725-26. The EPA evaluated comments concerning
SNCR performance where specifically raised, see, e.g., Good Neighbor
Plan RTC at 229. The EPA also gave consideration to certain EGUs that
have widely varying operating levels because they serve a ``peaking''
function rather than supplying baseload power to the grid and did not
include them in setting the stringency of the rule for EGUs at Step 3.
88 FR 36732.
III. Analysis of Severability in Response to Comments
In this section, the EPA provides a fuller explanation why the Good
Neighbor Plan can and should apply on a state-by-state basis for any
state for which the EPA has a responsibility to promulgate a FIP,
regardless of the number of states covered at any given time. Drawing
together the Agency's legal and technical reasoning, based on the
information and data available at the time, provided in the record when
the Good Neighbor Plan was signed and promulgated, the EPA provides a
more thorough response to the relevant comments that together can be
read to have raised that issue.
A. Summary of Response
As the EPA stated in the final rule, the Good Neighbor Plan by
design is severable by state. 88 FR 36693. The rule implements the
statute's prohibition on ``significant contribution'' under CAA section
110(a)(2)(D)(i)(I) for the 2015 ozone NAAQS by promulgating state-level
FIPs that require the industries in each contributing upwind state to
achieve at least minimum levels of emissions performance deemed to be
cost-effective. Id. at 36741. So long as they meet that level of
performance, the industries in any state regulated under the Good
Neighbor Plan are understood to have lawfully addressed good neighbor
obligations and eliminated that portion of a state's significant
contribution to downwind air pollution. While the EPA must necessarily
account for the multi-state nature of the interstate-ozone problem,
consistent with the statute and case law, the Good Neighbor Plan
imposes obligations on sources in each individual state that are
appropriate for those sources and are achievable.
Those requirements result from the application of a longstanding
analytical framework that the EPA has applied when evaluating
interstate transport obligations for multiple prior ozone NAAQS. 88 FR
36660, 36668-69. Shaped through the years by input from state air
agencies \27\ and other stakeholders on the EPA's prior interstate
transport rulemakings and SIP submission actions,\28\ as well as court
decisions, the EPA has developed and used a ``4-step interstate
transport framework'' to evaluate states' obligations to eliminate
interstate transport emissions under the interstate transport provision
for each prior ozone NAAQS: (Step 1) identify monitoring sites that are
projected to have problems attaining and/or maintaining the NAAQS
(i.e., nonattainment and/or maintenance receptors); (Step 2) identify
states that impact those air quality problems in other (i.e., downwind)
states sufficiently such that the states are considered to
``contribute'' (i.e., are considered ``linked'') to those receptors and
whose emissions therefore warrant further review and analysis; (Step 3)
identify the emissions reductions necessary (if any), applying a
multifactor analysis, to eliminate each linked upwind State's
significant contribution to nonattainment or interference with
maintenance of the NAAQS at the locations identified in Step 1; and
(Step 4) adopt permanent and enforceable measures needed to achieve
those emissions reductions. The EPA does not require states to use the
4-step interstate transport framework in good neighbor SIP submissions,
nor has the EPA ever maintained that this is the only way states could
satisfy their obligations under CAA section 110(a)(2)(D)(i)(I).
However, it is a useful organizational tool and evaluation framework
that comports with the statutory text and structure of the Act. The
application of uniform levels of emissions control stringency at Step 3
across all linked states has been upheld by the Supreme Court as
``permissible, workable, and equitable.'' EPA v. EME Homer City
Generation, L.P., 572 U.S. 489, 524 (2014). The Supreme Court there
expressly rejected that the Act mandates a definition of
``significance'' that is directly proportional to each state's
contribution, finding that reading ``appears to work neither
mathematically nor in practical application.'' Id. at 516. As the EPA
explained in the Good Neighbor Plan, the 4-step interstate transport
framework, including the application of uniform minimum control
stringency, remains a particularly fair and equitable approach to apply
in the case of a multistate pollution problem like ozone, characterized
by ``collective contribution'' and in which widespread emissions
reductions of a single precursor pollutant (nitrogen oxides or
NOX) over a wide geographic area are known to be effective
in improving ozone levels downwind. 88 FR 36719.
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\27\ See 63 FR 57356, 57361 (October 27, 1998).
\28\ In addition to CSAPR rulemakings, other regional
rulemakings addressing ozone transport include the ``NOX
SIP Call,'' 63 FR 57356 (October 27, 1998), and the ``Clean Air
Interstate Rule'' (CAIR), 70 FR 25162 (May 12, 2005).
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Because the methodology for defining those obligations ultimately
relies on a determination regarding what level of widely available
emissions performance each type of regulated source can cost-
effectively achieve, the obligations set for sources in each state are
independent of the number of states included in the Good Neighbor Plan.
Accordingly, the fact that obligations may be suspended or not yet
operative with regard to some states does not impact the Good Neighbor
Plan's conclusions as they apply in other states. Rather, as the EPA
explained, the framework yields an ``amount'' of pollution for ``each
State'' that the EPA is authorized to ``prohibit,'' CAA section
110(a)(2)(D)(i), standing in the shoes of
[[Page 99112]]
a state, CAA section 110(c)(1), based on the amounts of pollution that
would be avoided in that state by applying the control technologies the
EPA determined were cost-effective for the covered industries. 88 FR
36675. The amounts to be prohibited are thus premised on reasonable
levels of pollution control upwind rather than on a specific, aggregate
quantum of ozone reduction that must be achieved downwind. Michigan v.
EPA, 213 F.3d 663, 674-80 (D.C. Cir. 2000).
Under this framework, while the emissions-control requirements are
uniform across the same types of sources in each state, the size of
each state's total incremental emissions-reductions obligation under
the Good Neighbor Plan, and the resulting improvement in air quality
downwind, depends on the particular sources present in that state and
the level of pollution reduction those sources are already achieving.
88 FR 36683. If a state's sources are already well-controlled, they
will have less to do to meet the EPA's defined level of control
stringency; if the state's sources are not already well-controlled,
they will have to do more. But these state-specific obligations derive
from the application of common, uniform levels of emissions control
stringency calculated for each type of source based on the demonstrated
performance of pollution control technologies that can be replicated in
any linked upwind state. EME Homer City, 572 U.S. at 519-20.
Calculating ``significance'' according to source type and concluding
that the good neighbor provision can be reasonably implemented by
bringing all covered sources up to a common level of control ensures
the EPA can fairly administer the program in any state that becomes
subject to a need for federal regulation, while avoiding inequities
that could arise if state plans (and relevant sources) were addressed
seriatim. See 88 FR 36749 (explaining the need to avoid a ``which state
goes first'' problem). The achievement of that level of performance for
any particular state is not dependent on the number of states in the
Good Neighbor Plan, nor on the order in which the states are addressed.
In this way, the Good Neighbor Plan prohibits each covered state's
``significant contribution'' to downwind ozone problems in a
``permissible, workable, and equitable'' manner. 572 U.S. at 524.
Given this statutory structure and regulatory framework, the Good
Neighbor Plan is ``modular'' by nature, defining and implementing the
obligations for each state.
First, in line with the statutory text, structure, and case law,
the EPA determines the ``significant contribution'' that must be
prohibited at the individual state level. See 88 FR 36687 (citing North
Carolina v. EPA, 531 F.3d 896, 906-08, 921 (D.C. Cir. 2008)). None of
the steps in the 4-step interstate transport framework differ based on
the number of states included in the Good Neighbor Plan. For example,
the control technologies and cost-effectiveness figures the EPA
considers at Step 3 do not depend on the number of states included.
Instead, the Good Neighbor Plan regulates certain relatively large
emitting sources in each included state (including both new and
existing sources meeting the relevant criteria), up to a uniform level
of pollution control that is common across sources of that type in all
potentially contributing states. Once the ``amount'' of pollution for
each state is determined, whether the 4-step interstate transport
framework is applied to one state or fifty, it would yield the same
emissions control obligations for the included states. That means that
when the number of states whose sources are included in the Good
Neighbor Plan's regulatory programs for EGUs or non-EGUs changes from
the number included at promulgation, which is historically common in
interstate transport rules and consistent with states' authority under
the Act to replace federal plans with state plans, the emissions
reduction obligations of the states remaining in the Good Neighbor
Plan's programs stay the same, and the obligations of states joining
the Good Neighbor Plan's programs are the same as those that were
applied to the states already included.
Second, given the state-specific statutory mandate, for those
components of the Good Neighbor Plan that necessitate consideration of
multi-state effects, the EPA is careful to avoid creating any
interdependency among the particular states included, both in the
Agency's analytical methodology and in the Good Neighbor Plan's
regulatory requirements. As the EPA explained in the rule, interstate
ozone pollution continues to present a ``collective contribution''
challenge wherein many sources of emissions over a wide geographic area
comprise a substantial portion of the ozone problems downwind. 88 FR
36678, 36712. Where the EPA is called upon to fill a gap in state
planning efforts, it must therefore develop solutions for the relevant
state(s) that reasonably account for the efforts other states may
undertake, even in the face of uncertainty concerning what those states
may do. Id. at 36695-96. For example, when evaluating the Good Neighbor
Plan to ensure it did not ``overcontrol'' (i.e., yield more reductions
than necessary), the EPA did not just look at the states included in
the original Good Neighbor Plan, but also looked at all of the other
states the modeling showed were potentially affecting downwind air
quality above the ``contribution'' threshold (as well as each
receptor's ``home'' state), even if those states were not included in
the Good Neighbor Plan.\29\ See infra note 47 supra and accompanying
text (providing record citations). Taking this broad view, the EPA
found that even making all cost-effective reductions available in all
linked upwind states, and assuming equivalent emissions reductions from
the two downwind states not included in the Good Neighbor Plan, the
rule would not constitute overcontrol. 88 FR 36749-50. Accordingly,
because the overcontrol analysis already assumes the emissions
reductions that can reasonably be anticipated from the implementation
of the good neighbor provision for a given NAAQS, requiring available
emissions reductions in any subset of those states does not constitute
overcontrol of those upwind states. See section III.B.2.c. of this
document (providing record citations). Finally, the Good Neighbor
Plan's regulatory requirements, including the emissions trading program
for power plants, are designed to be fully implementable in each
individual state and do not depend on participation from a minimum
number of states. See section III.B.3. of this document (providing
record citations). In these ways, the EPA's methodological approach to
devising good neighbor FIPs for ozone ensures against inter-dependency
among states, through accounting for the effects of emissions
reductions within a web of ``overlapping and interwoven'' linkages
among many states, EME Homer City, 572 U.S. at 496-97, while at the
same time setting technology-based emissions limits and other control
measures that the sources in each state can meet. 88 FR 36741, 36749.
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\29\ These states are now included in a supplemental rulemaking
to address their obligations. See supra note 19.
---------------------------------------------------------------------------
Third, while equity and consistency in obligations among states are
at the core of the statute and the EPA's 4-step interstate transport
framework, the suspension or removal of the Good Neighbor Plan's
requirements in some states does not provide a lawful basis to suspend
them in others. Just as each state has an individual obligation to
[[Page 99113]]
satisfy the good neighbor requirements of CAA section 110(a)(2)(D),
regardless of whether other states have done so, the EPA has a
statutory obligation to address the good neighbor obligations of ``each
State'' where it has a federal responsibility to act. CAA section
110(c)(1). Indeed, the goals of equity and consistency extend to the
downwind states for whom the good neighbor provision was enacted. The
good neighbor provision's requirement of consistency with the rest of
the CAA, see CAA section 110(a)(2)(D)(i), including the air quality
attainment schedules that are the ``heart'' of the Act, Train v. NRDC,
421 U.S. 60, 66 (1975), means that each downwind state with identified
air quality problems has a statutory right to timely relief from the
public health and regulatory burdens of upwind pollution. See 88 FR
36694 (discussing case law). It would be contrary to this statutory
purpose to revise or suspend the Good Neighbor Plan as to upwind states
for which the EPA is under a statutory requirement to act because the
Good Neighbor Plan's requirements were suspended for other states.
These principles are applicable in a variety of circumstances where
the EPA may approve a state's SIP as sufficiently meeting its good
neighbor obligations even if the state's approach is different than the
EPA's approach, for that state or for other states. The EPA's
interstate ozone transport actions are typically taken on a national
basis and with the goal of ensuring consistency, including in terms of
alignment of the timing of obligations, because doing so ensures
equitable treatment of all states and is administratively efficient
given the commonality in analysis and obligations across many states,
particularly in the case of interstate ozone transport. In addition,
the establishment of interstate emissions trading programs has allowed
for more cost-efficient compliance activities, and it is far more
efficient to establish these programs through a consolidated,
multistate rulemaking action. Historically, this has also been coupled
with the EPA's practice of seeking consolidated judicial review of such
actions in the D.C. Circuit to ensure that a consistent caselaw regime
applies across the entire country on matters of interstate ozone
pollution and is not varied by which federal judicial circuit a state
happens to be located in. 88 FR 36859-60.\30\
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\30\ See also, e.g., 86 FR 23054, 23163-64 (April 30, 2021); 84
FR 56058, 56093 (October 18, 2019); 83 FR 65878, 65923-24 (December
21, 2018); 83 FR 50444, 50472 (October 5, 2018); 81 FR 74504, 74585-
86 (October 26, 2016); 76 FR 80760, 80773-74 (December 27, 2011); 76
FR 48208, 48352 (August 8, 2011); 71 FR 25328, 25329 (April 28,
2006); 70 FR 25162, 25316 (May 12, 2005); 65 FR 2674, 2725 (January
18, 2000); 63 FR 57356, 57480 (October 27, 1998).
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Nonetheless, the EPA acknowledged states' ability to develop
alternative, potentially approvable approaches to meeting their good
neighbor obligations. See 88 FR 36838-43. In evaluating alternative
approaches, the EPA must consider interstate consistency, 88 FR 36839-
40; id. n.405; 87 FR 9338, 9380-81, but it has never been the Agency's
view that its methodology for defining one state's obligations would
have to be redone simply because it found an approach in another state
also approvable.
Thus, as explained in more detail in section III.B., the comments
asserting that the EPA should stay, revise, or withdraw the Good
Neighbor Plan for any particular state depending on the status of
implementation of good neighbor obligations of other upwind states
cannot be squared with the state-specific mandate of the Act, nor would
this be compelled as a result of any element of the EPA's 4-step
interstate transport framework. For those states where the Good
Neighbor Plan may be currently suspended, good neighbor obligations
will ultimately be met, either through an approved state plan or a
federal plan as necessary. Meanwhile, sources in upwind states
regulated by the Good Neighbor Plan would be under the same legal
obligation to control their pollution even if the EPA developed a
federal plan containing just those states or some subset of them or
separate federal plans for each state.
B. Step-by-Step Review of the 4-Step Interstate Transport Framework
A review of the EPA's methodology demonstrates why each upwind
state would bear the same emissions reduction obligations, regardless
of how many states were included in a particular rulemaking. The EPA's
method for defining good neighbor obligations, while applied
consistently across the nation and respectful of the multistate
``collective contribution'' nature of the interstate ozone problem,
produces a definition of ``significant contribution'' \31\ for the
sources in each individual state, and provides for the prohibition of
such emissions in a manner that is not dependent on the inclusion of
any particular number or grouping of states. As tested and refined
through case law over the past quarter-century, the EPA's methodology
is consistent with the state-specific structure of the Act and the
fundamental statutory obligation to define and prohibit each state's
own significant contribution. See CAA section 110(a)(1) and
110(a)(2)(D); Wisconsin v. EPA, 938 F.3d 303, 324-25 (D.C. Cir. 2019);
North Carolina, 531 F.3d at 906-08, 920-21.
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\31\ ``Significant contribution'' is often used as a shorthand
to refer to the identification of those amounts of emissions that
significantly contribute to nonattainment or interfere with
maintenance of the NAAQS in other states and therefore must be
prohibited under the good neighbor provision. See CAA section
110(a)(2)(D)(i)(I).
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Consistent with the statutory text and structure and judicial
precedent, the EPA's 4-step interstate transport framework was designed
to be independent of the number or scope of included states. Because
the statute allows states to replace a FIP with a SIP--and because as a
practical matter the EPA does not necessarily receive or act on each
state's SIP submission at the same time--the Good Neighbor Plan is
expressly designed to allow states to be added to or removed from the
federal emissions control program over time, as circumstances require
(including where a state submits an approvable SIP to replace their
FIP, see 88 FR 36838-39). The Good Neighbor Plan does so primarily by
setting good neighbor obligations based on the available, cost-
effective technologies that can be applied to each type of high-
emitting source--a technology-focused definition of ``significant
contribution'' that the Supreme Court upheld in EME Homer City and that
can be evenhandedly applied to existing sources and those that may be
newly located in any contributing State in the future. 88 FR 36675-77,
36678-79, 36683, 36718-19, 36741. This ensures fairness and consistency
across all states when the EPA must act pursuant to its FIP authority
to implement CAA section 110(a)(2)(D)(i)(I), regardless of when any
particular state is addressed--it avoids the problem of ``which state
goes first''; that is, it avoids producing unfairly varying levels of
emissions-control stringency depending on the order in which states'
obligations are addressed. 88 FR 36749. As the Supreme Court aptly
illustrated in EME Homer City, where multiple states contribute to
multiple other states (as remains the case across the contiguous U.S.
for the 2015 ozone NAAQS), addressing each state's obligations in
proportion to its contribution to each receptor in seriatim fashion
becomes mathematically unworkable and economically inefficient. 572
U.S. at 516. The EPA's approach to developing ozone good neighbor FIPs
avoids these pitfalls, avoids interdependence, and avoids unfairness--
it works for each state that may need federal regulation of its
[[Page 99114]]
sources. Accordingly, under each step of the 4-step interstate
transport framework discussed further later, a change in the number of
states covered does not impact the obligations of the states or sources
that remain covered.
1. Steps 1 and 2
The EPA identifies receptors based on nationwide modeling and
monitoring data and evaluates each state's contribution to receptors in
downwind states on an individual-state basis to identify upwind-state-
to-downwind-state linkages. The air quality modeling and the monitoring
data the EPA considered for Steps 1 and 2 cover the contiguous United
States. See 88 FR 36696.
At Step 1, the EPA identified downwind receptors that are expected
to have problems attaining or maintaining the NAAQS. For a detailed
explanation of what receptors are and how the EPA identified them, see
88 FR 36703-08. At Step 2, the EPA identified which upwind states
contribute to the identified receptors in amounts that would be
sufficient in the EPA's interpretation of ``contribution'' to ``link''
the individual upwind states to downwind air quality problems. For a
detailed explanation of how the EPA identified these linkages, see 88
FR 36708-12.
The nationwide identification of receptors expected to have
problems attaining or maintaining the NAAQS and of states
``contributing'' to those receptors does not rely upon nor necessarily
dictate the number of states included in a particular rulemaking. The
EPA historically has applied a common numerical threshold for
determining which states ``contribute'' to downwind air quality
problems, and the contributions from each state are evaluated
independently with respect to this threshold. 88 FR 36677-78. The
modeling of baseline conditions did not contain or rely on the
emissions reductions in the Good Neighbor Plan, and the monitoring data
were based on measurements during years prior to when the Good Neighbor
Plan was final and thus these data do not reflect the impacts of
emissions reductions from the Good Neighbor Plan.\32\ This approach
creates a level playing field from which to assess each state's level
of contribution. 88 FR 36713.
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\32\ Both the EPA and States can use air quality modeling and
monitoring information on ozone concentrations and contribution
levels to make individual determinations for each state concerning
whether it is contributing to any out-of-state receptors. See, e.g.,
88 FR 9365 n.286 (identifying individualized approvals of SIPs using
modeling at Steps 1 and 2).
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In addition to promoting national consistency, the EPA has
explained that using a single contribution threshold avoids creating
potential inter-dependencies among states. When the EPA had previously
considered whether to approve individual states' use of a higher
contribution threshold, it had proposed (for the State of Iowa) to
consider the effects of other states' efforts to reduce their pollution
at shared receptors. See 88 FR 36715. On further consideration,
however, the EPA found this would have introduced an interdependency.
Id. When the EPA gave consideration to this approach in its SIP
Disapproval action disapproving 21 state implementation plans (88 FR
9336; February 13, 2023), in response to comments, it explained that
this factor would inappropriately introduce an inequity in which some
states could evade obligations through reliance on the incidental
effects of other states' efforts.\33\ See also 88 FR at 36713
(explaining that ``use of alternative thresholds would allow certain
states to avoid further evaluation of potential emissions controls
while other states must proceed to a Step 3 analysis. This could create
significant equity and consistency problems among states.'').
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\33\ See 2015 Ozone NAAQS Interstate Transport SIP
Disapprovals--Response to Comments (RTC) Document at 296, available
at https://www.regulations.gov/document/EPA-HQ-OAR-2021-0663-0083.
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The EPA's analytical methodology at Steps 1 and 2 ensures the EPA
can impose FIP obligations, where they may be needed, according to a
common rubric that maintains equity and consistency between the
potentially subject states. Thus, the analytic methods in both Step 1
and Step 2 to determine ``contributing'' states rely on emissions and
air quality data that are independent of which or how many states are
covered by the Good Neighbor Plan.
We note that comments from ASC and PCA in Comment Category 2
summarized in section II.B. of this document contained several
statements the meaning of which the EPA could not clearly ascertain.
Those comments said the EPA's Step 2 screening analysis included states
that ``already had Good Neighbor SIPs for the 2015 ozone NAAQS.'' See
ASC Comment Letter at 13. The meaning of this statement is unclear.
States may have made SIP submissions for these obligations, but at the
time of this comment, the EPA had not approved all of those submissions
and was in the process of disapproving many of them, and so the
statement read that way (i.e., to suggest that the States already had
approved SIPs) is factually incorrect.\34\ The sentence in the ASC
comment letter goes on to state that the EPA ``prematurely
disapproved'' these SIPs, but the disapprovals had only been proposed
at the time the comment was submitted. The commenter did not explain
what made the EPA's proposed disapprovals ``premature.''
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\34\ The commenter also asserted that the EPA had ``proposed''
findings of failure to submit for four states, New Mexico,
Pennsylvania, Utah, and Virginia. That statement was incorrect
insofar as the EPA issued a final finding of failure to submit for
these states in December of 2019, effective January 6, 2020, had an
obligation to promulgate FIPs for these states pursuant to CAA
section 110(c)(1) by January 6, 2022, and was subject to a consent
decree deadline to promulgate FIPs for these states (excluding New
Mexico) by March 15, 2023. See 88 FR 36689 n.106.
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This comment might be read as in relation to the previous approvals
of SIPs for certain states, and thus an argument that these states'
emissions should be excluded from modeling analyses. Or the comment
might be read in relation to a subsequent statement in the comment,
that states should not be included in the Good Neighbor Plan's
``screening'' at Step 2 if final action on the SIP submission had not
yet been taken. In either of these cases, the comment would be
misplaced, in that our analysis of the Steps 1 and 2 modeling looks at
the transport of pollution as a factual matter and does not remove from
consideration the emissions of states based on the procedural status of
their SIP submissions. In addition, as explained in section III.B.1.,
the EPA's baseline air quality and contribution modeling for Steps 1
and 2 is conducted for a modeling domain that includes the entire
contiguous United States and accounts for all emissions sources. 88 FR
36696. Removing emissions from certain states from this modeling would
produce erroneous, unrealistic, and counterfactual results.
These comments also stated that the EPA may need to conduct a new
analysis at Step 2 in the event the EPA takes a different action on
those SIPs than contemplated in the proposed Good Neighbor Plan. In
that case, according to commenter, the EPA ``would need to conduct a
new assessment and modeling of contribution and subject those findings
to public comment.'' ASC Comment Letter at 14. On the one hand, the EPA
agrees with the commenter to the extent they are suggesting that if
updated modeling the EPA conducted (e.g., the 2016v3 modeling used in
the final Good Neighbor Plan) showed a state was no longer contributing
at Step 2, and the
[[Page 99115]]
EPA approved that state's SIP submission or had deferred taking action,
then the EPA would not promulgate a FIP for that state given that
disapproval (or a finding of failure to submit) is a necessary
predicate to FIP authority. This is precisely how the EPA proceeded in
the final SIP Disapproval and Good Neighbor Plan and in taking
subsequent rulemaking actions for states where its final analysis at
Steps 1 and 2 had materially changed from its proposed SIP and FIP
actions. See 88 FR 36656, 36658, 36689; see also SIP Disapproval, 88 FR
9354.\35\ On the other hand, the comment might be read to suggest that
if the EPA's analysis changed for any particular state at Steps 1 or 2,
then it would have to conduct a whole new analysis of every other state
at Steps 1 or 2. If so, that comment is in error because the EPA's
baseline air quality and contribution analysis at Steps 1 and 2 already
accounts for emissions across all states regardless of their inclusion
in the rule, and the results of that analysis would not change for one
state simply because the results indicated that another state had
fallen below the Step 2 contribution threshold.
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\35\ See also supra note 19.
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Taken as a whole, this set of comments appears to be primarily
about the need for the EPA to ensure consistency in how it analyzed
each state's obligations between the separate SIP and FIP rulemakings
(a consistency that the EPA agrees is important and abided by). The
commenter did not state that the EPA's analysis must be redone if for
reasons beyond the Agency's control the Good Neighbor Plan were stayed
or not in effect for any particular state; rather, the commenter
emphasized the need for consistency in the EPA's own, substantive
analytical determinations. If the commenter intended to argue that a
change in analysis at Steps 1 or 2 for one state would necessarily
alter the EPA's substantive assessment for other states and would need
to be subjected to additional notice and comment, the commenter did not
state that, nor provide a theory or reasoning as to why that would be
the case, and for the reasons explained in this section (III.B.1.),
such an assertion would reflect a misunderstanding of how baseline air
quality and contribution analysis is conducted at Steps 1 and 2.
2. Step 3
The Act requires each state to eliminate its ``significant
contribution'' to downwind nonattainment or interference with
maintenance of air quality standards. To determine which emissions from
contributing states are ``significant'' at Step 3, the EPA analyzes
available emissions control strategies and their costs. Based on that
analysis, the EPA then identifies a uniform degree of emissions control
stringency that is reasonable to require from upwind sources,
calculated based on the emissions performance those sources would
achieve through the application of the technologies the EPA found were
most cost-effective. Step 3 is a multi-factor analysis, with its
primary focus on technology availability and associated cost, the level
of emissions reductions that are thereby achieved, and the associated
air quality benefits delivered to downwind receptors. The approach
applies uniform levels of emissions control stringency across all
upwind states, with the objective of bringing the covered sources in
each state up to a minimum level of emissions performance to reduce
ozone-precursor emissions. See 88 FR 36675-77, 36678-79, 36683, 36718-
19, 36741. This approach is tailored to a pollution problem
characterized by collective contribution from many similar sources all
emitting a similar precursor pollutant (NOX) over a wide
geographic area; it ensures an efficient and equitable solution that
avoids interdependency. Id. at 36719, 36741, 36749.
Thus, when the EPA uses the term ``uniform'' in the context of Step
3, it is not referring to the division of a specific ``pie'' of air
pollution, total emissions, or total cost divided proportionally among
the upwind states; rather it is referring to application of a pollution
technology applied equally across all applicable units of a common size
and type. 88 FR at 36746-47. One example of a uniform control
stringency level is the assumption that all EGU units with already-
installed selective catalytic reduction (SCR) technology operate and
optimize the performance of these controls. Id. at 36720-21. The EPA
estimated that this would be realized through emissions rates (on
average across the fleet) of 0.08 pounds per million British thermal
units at costs of about $1,600 per ton of NOx removed. Id. The
translation of this technology stringency into the definition of
significant contribution is specific to each state's unique group of
sources and the operating characteristics of the affected units at
those sources. Id. at 36683. In no way is the amount of emissions
mitigation required of sources in each state interdependent on another
state's mitigation responsibility. The ``amount'' of pollution that is
identified for elimination at Step 3 of the 4-step interstate transport
framework is therefore that amount of emissions that is above the level
of emissions remaining after the cost-effective emissions control
strategies are implemented. Id. at 36676. Because it is possible that a
uniform level of stringency may produce more emissions reductions than
is necessary to fully resolve a particular upwind state's linkages to
all downwind receptors, the EPA tests its identified level of
stringency for ``overcontrol.'' For a detailed explanation of how the
EPA applies Step 3, see 88 FR 36718-54.
Acknowledging that some of the factors considered in the Step 3
analysis are considered at a national scale while certain components of
that analysis account for state-level or linkage-specific data, the EPA
here explains in more detail why the selected levels of control
stringency for particular industries, and therefore the particular
obligations of individual states, do not vary depending on the number
of states subject to FIPs under the Good Neighbor Plan.
The EPA identified potential levels of emissions control stringency
that could be applied for each industry, and thus for the set of
sources found in each state, regardless of the number of States covered
by an approved SIP or a FIP or not yet covered by either. In evaluating
those potential levels of stringency, the EPA conducted a wide-ranging
survey of emissions control technologies (and associated cost data)
used throughout the United States and even internationally. Then, the
EPA conducted the air-quality-improvement and overcontrol analyses
considering the effects of the potential uniform stringency levels at
each identified receptor. The primary way in which the EPA conducts
that assessment is to apply the potential stringency levels across all
of the states linked to each particular receptor as well as the
downwind, ``home'' state for that receptor. The EPA then assesses the
average resulting improvements across all receptors as well as
tabulates the aggregate effects. This allowed the EPA to ascertain
whether a selected level of stringency was effective at achieving
improvements in the air quality downwind that were reasonable in
relation to the identified costs, while also ensuring a selected
stringency level is not more stringent than necessary to bring any
given receptor into attainment. 88 FR 36741, 36749-50. But given the
overlapping linkages among multiple upwind and downwind states, as well
as varying levels of baseline emissions control in each state, further
[[Page 99116]]
complicated by the year-to-year variability in ozone levels due to
meteorology, id. at 36750, the EPA's methodology, going back to the
original NOX SIP Call in 1998, has never attempted to
pinpoint a precise level of emissions control for each state that
maximizes cost-effectiveness in relation to each specific linkage. See
88 FR 36748 (finding the aggregate and average air quality effects of
the combined EGU and non-EGU strategies across all receptors would
achieve ``meaningful downwind air quality improvements'').
Expressed in simpler terms, the EPA's long-standing interpretation
of CAA section 110(a)(2)(D)(i)(I)--an approach that the Supreme Court
expressly upheld in EME Homer City--is that a state may satisfy its
good neighbor obligations by ensuring that its emissions do not exceed
what would result from the application of cost-effective emissions
controls. The purpose of Step 3 is to identify a set of widely
available and well-established, cost-effective emissions controls that
can be applied in any upwind state, while checking to ensure that those
emissions controls will achieve downwind improvements in air quality
without overcontrol.
As described in more detail in sections III.B.2.a.-III.B.2.c., none
of the determinations that underlie Step 3 are contingent on a
particular state or set of states being covered by the Good Neighbor
Plan. Accordingly, the EPA's Step 3 analysis can be extended to states
not covered by the Good Neighbor Plan either because the state is
covered by an approved SIP or prior FIP or because the EPA has not yet
taken action to review a SIP or impose a FIP. By identifying cost-
effective approaches to reducing multi-state ozone pollution in a
manner that does not depend on the participation of any particular
state or set of states, the EPA's approach reasonably fulfills
Congress's direction in CAA section 110(a)(2)(D)(i)(I) to address the
multi-state ozone problem in a way that defines each state's
obligations on an individualized basis.\36\
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\36\ Just as the EPA's analytical approach allows for it to
develop a good neighbor FIP for any state that may require one that
reasonably establishes emissions control obligations in the face of
uncertainty regarding what other states will do, it also allows
states themselves to conduct a similar analysis of their own
obligations in the context of developing a SIP without definitive
knowledge of what other states will do to fulfill their own
obligations. At Step 3 of the EPA's 4-step interstate transport
framework, each state found to be contributing to one or more
receptors can conduct an analysis of emissions control technologies
or measures that would be cost-effective within the state. If each
state linked to a given receptor (and the downwind state where that
receptor is located, to account for that state's own fair share),
made pollution-control efforts at these levels, a state could
demonstrate that ozone levels at the downwind receptors would be
measurably improved (without undertaking more emissions reductions
than necessary). In the context of a FIP, this approach to
evaluating air quality improvements at downwind receptors is
necessary, because to avoid overcontrol, the EPA must consider
whether applying a given control stringency level to other states
would achieve more emissions reductions than necessary to bring a
receptor into attainment.
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Specifically, the EPA took the following steps in conducting its
Step 3 analysis in the Good Neighbor Plan:
a. Technology, Cost, and Emissions Reduction Analyses
The EPA's analysis started by examining emissions control
technologies (sometimes also referred to as ``strategies'') and their
associated costs and emissions reductions. The Good Neighbor Plan
identified conventional, at-the-source, NOX emissions
control technologies that have been available in the covered industries
for many years. See, e.g., 88 FR 36738 (identifying control
technologies for EGUs); id. at 36739 (identifying control technologies
for non-EGUs). These analyses were not specific to the particular group
of upwind states whose inclusion the EPA had proposed or finalized in
the Good Neighbor Plan but looked instead at demonstrated technologies
and associated estimated costs across each industry and technology type
as a whole, without any geographic limitation. The EPA reasonably
considered a wide range of technology and cost information (including
information from examples and technical literature throughout the U.S.
or even internationally) rather than just the data available in any
particular state or regional grouping, since this allows for a more
comprehensive assessment of the technologies available and associated
costs for each source type.\37\
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\37\ In response to comments, the EPA conducted a sensitivity
analysis for EGUs to see if looking at control costs on a regional
basis would change the results and found that it would not. EGU
NOX Mitigation Strategies Final Rule TSD at 49-50. The
fact that the EPA conducted this as a sensitivity analysis to
address a comment further illustrates that the primary technology
and cost analysis the EPA conducted, as described earlier, was not
limited to a 23-state geography and would not be altered if that
geography were different.
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For EGUs, the EPA conducted an inquiry nearly identical to prior
good neighbor rules, looking at several widely available and well-
understood NOX control strategies that can be and have been
applied to EGUs for decades throughout the United States. See 88 FR
36720. For non-EGUs, the EPA similarly consulted a wide range of
sources of information, starting with national databases like the
National Emissions Inventory and the Control Measures Database (CMDB),
and proceeding from there to additional national and international
technical literature, as well as a variety of existing state and
federal NOX control requirements. See id. at 36732-33; see
generally Non-EGU Sectors Final Rule Technical Support Document (TSD);
\38\ EGU NOX Mitigation Strategies Final Rule TSD.\39\ These
included trade association literature; academic studies; multi-state
regional organization publications; state rules and publications;
contractor studies; EPA rules, publications, and databases like the
RACT/BACT/LAER Clearinghouse; European Commission publications;
operating permits; and data on what emissions limits specific
facilities or companies were achieving. See, e.g., Non-EGU Sectors
Final Rule TSD at 9-11 (reciprocating internal combustion engines
(RICE)), 27-29 (cement kilns), 35-39 (reheat furnaces), 42-43, 45-47
(glass furnaces), 62-65, 68-84 (boilers), 92-94 (Municipal Waste
Combustors (MWCs)).
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\38\ Available in the docket at https://www.regulations.gov/document/EPA-HQ-OAR-2021-0668-1110.
\39\ Available in the docket at https://www.regulations.gov/document/EPA-HQ-OAR-2021-0668-1092.
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The EPA derived estimated ``representative'' costs for particular
control strategies for EGUs through a wide-ranging analysis of the
likely costs associated with capital, material, equipment, and labor.
See generally EGU NOX Mitigation Strategies Final Rule TSD.
The EPA derived its cost estimates for non-EGUs primarily from the
CMDB, which contains a compilation of a variety of sources of technical
literature and examples.\40\ The ``representative'' costs that the EPA
identified for different levels of control stringency and for different
industries were derived from this nationwide analysis and were not
specific to the particular states included in the proposed or final
Good Neighbor Plan. See 88 FR 36727 (explaining derivation of $11,000/
ton estimate). The EPA reasonably considered a wider range of cost
information than the data that might be available in any particular
state since it allows for a more comprehensive assessment of the costs
each source type might be expected to
[[Page 99117]]
face.\41\ While the EPA provided for more individualized consideration
of the costs particular facilities might bear and made available
alternative emissions limits through its implementing regulations that
could be justified on the basis of excessive cost, see 88 FR 36818-19,
the EPA explained that cost in the Step 3 analysis ``is not intended to
represent the maximum cost any facility may need to expend but is
rather intended to be a representative figure for evaluating
technologies to allow for a relative comparison between different
levels of control stringency.'' 88 FR 36740.
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\40\ See Summary of Final Rule Applicability Criteria and
Emissions Limits for Non-EGU Emissions Units, Assumed Control
Technologies for Meeting the Final Emissions Limits, and Estimated
Emissions Units, Emissions Reductions, and Costs at 5-7 (Non-EGU
Memorandum), available in the docket at https://www.regulations.gov/document/EPA-HQ-OAR-2021-0668-0956.
\41\ In response to comments, the EPA conducted a sensitivity
analysis for EGUs to see if looking at control costs on a regional
basis would change the results and found that it would not. EGU
NOX Mitigation Strategies Final Rule TSD at 49-50. The
fact that the EPA conducted this as a sensitivity analysis to
address a comment further illustrates that the primary technology
and cost analysis the EPA conducted, as described in section
III.B.2.a., was not limited to a 23-state geography and would not be
altered if that geography were different.
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The EPA also used its technology analysis to calculate the
anticipated emissions reductions that could be achieved if those
strategies were applied to the population of sources in each state
potentially contributing to at least one downwind receptor. 88 FR
36737-40. At this stage of the analysis, the EPA's assessment of the
emissions reductions expected from particular control strategies under
consideration again did not depend on the number or identity of the
states included in the Good Neighbor Plan rulemaking itself. Rather,
these estimates provided the inputs by which air quality benefits and
overcontrol could then be assessed in the next stages of the Step 3
analysis (discussed next).
b. Air Quality Benefits
After compiling the data on available technologies, their relative
cost-per-ton, and the expected emissions reductions that would result
from each state, the EPA's Step 3 methodology then proceeded to
evaluate the effect those emissions control strategies would have on
downwind ozone levels. 88 FR 36741-42. This component of the EPA's
analysis looked at the incremental ozone improvement that would be
accomplished at each receptor from the reductions accruing from the
upwind states linked to that particular receptor (whether included in a
particular rule or not) at each of the assessed stringency levels. The
analysis of air quality improvement as the EPA has conducted it (in the
Good Neighbor Plan and in the prior CSAPR rulemakings) displays the
improvements that are incremental to an uneven baseline in which states
have imposed differing levels of control stringency. Another way to
think about the level of air quality benefit achieved would be to
assume an uncontrolled baseline across all states and then apply the
different levels of control stringency that were evaluated. This would
illustrate far higher levels of air quality benefit as the uniform
stringency levels are increased but would not credit the achievements
in emissions control that some states have already adopted compared to
others.
To calculate air quality change for any given upwind state-receptor
linkage, the relevant group of states assumed to make comparable
emissions reductions will vary, and in the EPA's primary method of
analysis, it does not matter whether the other upwind states or the
downwind state are in fact subject to the same emissions control
requirements. Rather the purpose of the analytical exercise is to
isolate, for comparative purposes, the effects of the potential
stringency levels just to the states that are linked to a receptor
while also assuming that the ``home'' state undertakes an equivalent
level of stringency with respect to its own sources. See 88 FR 36742,
36748-50. Thus, the total number of states where the EPA has assumed
emissions control stringencies as part of its Step 3 air quality
assessment for purposes of the Good Neighbor Plan is 30 states. That
is, the total of the 23 states included in the Good Neighbor Plan, the
five other states that the EPA's analysis identified as potentially or
likely to be linked at Step 2, plus, for their own receptors, Colorado
and Connecticut as home states, even though they are not linked to
other states' receptors.
The EPA's conclusions in the Good Neighbor Plan did not depend on a
particular improvement at each individual receptor, but rather on an
assessment that there would be widespread improvement in ozone levels
across receptors in the aggregate and on average when the selected
level of control stringency is applied uniformly across upwind states.
See 88 FR 36742-43, 36747-48. In the Good Neighbor Plan, as relevant
metrics, the EPA displayed how ozone levels would be expected to change
at each receptor, what the average effect of the potential stringency
levels would be across all receptors, and what the aggregated effect of
the potential stringency levels would be across all receptors. Id. at
36742-43, 36747-48. This analytical exercise allowed the EPA to
evaluate what level of stringency was appropriate in terms of
delivering an acceptable level of air quality benefit to downwind
receptors considering associated costs.
The role of the air-quality factor in the Good Neighbor Plan is
essentially no different than in CSAPR. 88 FR 36678. The CSAPR analysis
was conducted on a nationwide scale and focused on cost-breakpoints of
different technologies, while also accounting for multiple factors
other than a singular ``knee-in-the-curve;'' CSAPR looked holistically
at both the ``pattern'' of linkages and the ``average'' air quality
benefits that could be realized at representative cost/ton thresholds
if those technologies were applied uniformly; CSAPR selected stringency
levels that appeared to deliver the greatest air quality improvement on
average, not state- or linkage-specific. See id.; 76 FR 48255-59.
Likewise, in the Good Neighbor Plan, the Agency focused on mandating
those NOX reduction strategies across contributing states
that were found to be relatively widely-adopted and cost-effective on a
per-ton basis, with the understanding that if these strategies were
implemented uniformly across the upwind-state region, widespread air
quality improvement would be achieved--without tethering that
conclusion to some precise knee-in-the-curve specific to each linkage
or receptor. See 88 FR 36741.
Commenters allege that this analysis necessarily depends on the
specific group of states for which it is conducted, since different
groups of states would have different sets of sources, with varying
levels of emissions control already installed, and the application of
emissions control strategies will have varying effects on downwind air
quality. Effectively, these commenters seem to assert, for its
methodology to function on an individual basis for each state, the EPA
must determine for each state what level of emissions control applied
only to its own sources would maximize cost-effectiveness relative to
reducing ozone levels at a given downwind receptor. Under this theory,
if the EPA conducted such an analysis, the appropriate level of
stringency would vary for any particular state from what the EPA
determined was appropriate in the Good Neighbor Plan on a uniform basis
across states--and perhaps a lesser degree of stringency would be
warranted for particular states.
Fundamentally, these comments misapprehend the role of air quality
improvement in the EPA's Step 3 analysis and are, in effect, at odds
with the EPA's historical approach that the Supreme Court's opinion in
EME Homer City upheld, i.e., the use of uniform control stringency
(using cost as a proxy for technology type and compliance burden) to
allocate responsibility across
[[Page 99118]]
multiple upwind states despite varying effects of that stringency to
downwind receptors. 572 U.S. at 518-19. Consistent with the same
statutory interpretation and methodology the EPA has applied throughout
each of its prior good neighbor rulemakings for ozone, the Good
Neighbor Plan is not premised on accomplishing a precise, aggregate air
quality result at each receptor, such that the omission of some states
(even if they were legally exempted from obligations rather than simply
under a temporary stay order or did not yet have their obligations
addressed through a SIP or FIP) would increase the ``share'' of the
problem that must be addressed by the remaining states. Rather, the
Good Neighbor Plan holds the industries in each contributing upwind
state subject to a federal plan to a uniform, minimum level of
emissions performance deemed to be cost-effective. So long as they meet
that level of performance, the industries in any state regulated under
the Good Neighbor Plan are understood to have lawfully addressed good
neighbor obligations and eliminated that portion of a state's
significant contribution to downwind air pollution.
Even though this methodology does not purport to achieve attainment
at all downwind receptors, it is consistent with the EPA's and the
courts' understanding of the good neighbor provision. Under that
provision, it is not upwind states' responsibility to ensure that
downwind receptors are brought into attainment; each state must only
eliminate its own significant contribution to nonattainment or
interference with maintenance of the NAAQS in other states. CAA section
110(a)(2)(D)(i)(I). In reviewing the division of responsibility under
this contribution standard, courts have upheld the EPA's approach as a
reasonable way to allocate good neighbor obligations among multiple
states for regional-scale pollutants like ozone, even though the air
quality benefits resulting from a particular degree of control
stringency will necessarily vary by state and receptor. This variation
in effect is the consequence of an approach that respects several well-
understood characteristics of the interstate ozone problem: the
``overlapping and interwoven linkages between upwind and downwind
States,'' ``the vagaries of the wind'' (i.e., the variability in
meteorological conditions that makes precise ozone projections
impossible), and the wide variation in the degree of baseline levels of
emissions control that different states have already achieved. EME
Homer City, 572 U.S. at 496-97, 519-20; see also Wisconsin, 938 F.3d at
322; Michigan, 213 F.3d at 679-80. Commenters may believe that the EPA
could at least establish different levels of cost-effective control
stringency for each group of states linked to a particular receptor,
rather than considering air quality improvement in the aggregate across
all receptors--i.e., to pick a knee in the curve that is specific to
each particular receptor. Setting aside the problem of meteorological
variability, this still presents the same problem the EPA faced in
CSAPR, as recognized in EME Homer City: each set of states for one
receptor has overlap with a different set of states for a different
receptor.\42\ Thus, for any given state, there cannot mathematically be
a single, ``correct'' ``knee-in-the-curve'' that defines a maximally
cost-effective stringency. EME Homer City, 572 U.S. at 514-18. Thus, as
was the case in CSAPR, an approach that requires high-emitting sources
in each state to come up to a uniform level of cost-effective emissions
control, so long as it does not overcontrol, functions as a reasonable
definition of each covered state's ``significant contribution,'' and
fulfills those covered upwind states' legal obligations under the good
neighbor provision. 88 FR 36675-76, 36741.
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\42\ See Air Quality Modeling Final Rule TSD, 2015 ozone NAAQS
Good Neighbor Plan, appendix E, available in the docket at https://www.regulations.gov/document/EPA-HQ-OAR-2021-0668-1157.
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Both the Supreme Court and the D.C. Circuit have recognized that
variation in what a good neighbor rule will achieve at any particular
receptor is a logical consequence of defining ``significance'' through
identifying a uniform level of emissions control based on cost-
effectiveness. As the Supreme Court explained in EME Homer City, ``by
imposing uniform cost thresholds on regulated States, EPA's rule
subjects to stricter regulation those States that have done relatively
less in the past to control their pollution'' and ensures that
``[u]pwind States that have not yet implemented pollution controls of
the same stringency as their neighbors will be stopped from free riding
on their neighbors' efforts to reduce pollution.'' EME Homer City, 572
U.S. at 519. The fact that a particular state may have a very small
emissions reduction obligation, and so improve downwind air quality by
a very small amount, does not call the approach into question. The fact
that a state may have less to do to meet the EPA's selected levels of
emissions control may reflect that its sources are already well
controlled. But whether a state's required reductions under a FIP
applying this methodology are large or small, the approach allows for a
fair alignment of investments in pollution control across all of the
contributing states, which is at the heart of the methodological
construct the Court approved in EME Homer City. See Wisconsin, 938 F.3d
at 322 (concluding that the EPA reasonably regulated sources in
Wisconsin, a contributing upwind state whose available cost-effective
reductions would only benefit downwind air quality ``by just two ten-
thousandths of a part per billion'').
This is not to say that delivering air quality improvement to the
downwind receptors is not important--indeed, it is, as the EPA
described in the Good Neighbor Plan, a ``central component'' of the
EPA's analysis. 88 FR 36741. If the identified control strategies that
were cost-effective on a cost-per-ton basis did not have any effect on
downwind air quality at any receptors, this may call into question
whether requiring those strategies was worth it.\43\ Thus, the Good
Neighbor Plan explains that the purpose of the EPA's air quality
analysis at Step 3 is to check on whether a level of emissions
reduction that appeared cost-effective on a cost-per-ton basis would in
fact deliver measurable progress toward attainment of the 2015 ozone
NAAQS at the downwind receptors. ``These analytical findings cement
EPA's identification of the selected EGU and non-EGU mitigation
measures as the appropriate control stringency . . . .'' 88 FR 36741.
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\43\ Even here, however, caution is in order. A highly cost-
effective strategy may not deliver incremental air quality
improvement from a given baseline because that strategy has already
been adopted by sources in a particular state or states. In that
case, a rule imposing that strategy would not create new emissions
reduction obligations but would be appropriate to prevent
backsliding. Cf. EME Homer, 572 U.S. at 519-20 (noting the uniform
approach appropriately treats states where sources have already
invested in pollution control). Likewise, the EPA's good neighbor
rules have always applied to both new and existing sources. See 88
FR 36685. If a particular industry is not currently present in a
particular state but could have high uncontrolled emissions if it
located there, good neighbor rules serve as a backstop to ensure a
minimum level of emissions performance will be maintained from those
sources, in those states that have been deemed to contribute to
another state's nonattainment or maintenance issues. Nonetheless,
the basic emissions-performance requirements of a good neighbor rule
in those cases should not be onerous for a new source.
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The EPA's analysis in the Good Neighbor Plan demonstrates that with
each incremental increase in the stringency of the assessed control
strategies, there is also incremental improvement in air quality at the
receptors. See, e.g., 88 FR 36743, 36747-
[[Page 99119]]
48 (tables showing air quality improvement at each receptor); Ozone
Transport Policy Analysis Final Rule TSD at 70 (table C-12) (Ozone
Policy TSD) (showing reductions in the maximum contribution of each
upwind State to receptors in 2026).\44\ Further, the Agency explained
that it could not identify a point of diminishing returns within the
suite of emissions control strategies that it ultimately selected. 88
FR 36741. The Agency also cautioned that the purpose of this exercise
was not to pinpoint a precise ``knee-in-the-curve'' but to serve as ``a
useful indicator for informing potential stopping points.'' Id. Thus,
the EPA's review of the effects of different emissions-reduction
strategies on air quality primarily helps the Agency ensure that no
impactful emissions reduction strategies have been overlooked and that
those selected can be anticipated to deliver reductions in ozone at the
identified receptors if applied consistently across all of the upwind
states linked to each receptor (including each receptor's home state).
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\44\ Available in the docket at https://www.regulations.gov/document/EPA-HQ-OAR-2021-0668-1080.
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Commenters have not put forward an alternative, more cost-effective
methodology or set of emissions-control strategies for reducing ozone
at the downwind receptors; rather, they seek to avoid emissions control
obligations in one state on the basis that the Good Neighbor Plan may
not be operative in another. However, the EPA has an ongoing statutory
obligation to issue FIPs for those states where it has issued a SIP
disapproval or made a finding of failure to submit. In the absence of
information detailing that cost-effective emissions reduction
opportunities have been overlooked that would have an even greater
benefit on ozone levels at downwind receptors, the EPA reasonably
concluded that its identification of emissions limitations consistent
with the cost-effective emissions control technologies that it has
identified to be widely available at the new and existing EGU and non-
EGU sources in the states covered by the Good Neighbor Plan passed its
Step 3 air quality check, and these measures would constitute a
sufficient and appropriate definition of ``significant contribution''
for these states.\45\
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\45\ As always, states remain free to identify different
emissions control measures through a SIP than the EPA has included
in a FIP, and it may be possible for a state to demonstrate that it
can control other sources to obtain equivalent or greater air
quality results at its receptors. A SIP submission to the EPA
obtaining those emissions reductions through permanent and
enforceable measures applied to its in-state emissions sources
accompanied by the appropriate analytical and technical
justifications would likely be approvable to replace a good neighbor
FIP.
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Although the air quality benefits to downwind receptors anticipated
in the Good Neighbor Plan would not be fully realized so long as
certain states have not yet fulfilled their obligations, this does not
serve as a justification for allowing these obligations for those
states where the EPA has a responsibility to act to go unaddressed or
to be altered. Simply put, the CAA requires each state to address its
own contributions to downwind air quality problems, regardless of
whether other states have taken action to do so under a SIP or a FIP.
That other states contributing to downwind receptors may have their
good neighbor obligations stayed or not yet addressed does not relieve
other states covered by the Good Neighbor Plan of their own good
neighbor obligations under CAA section 110. Given the state-by-state
procedural framework of the Act and the need for the EPA to develop
equitable and consistent FIPs, it cannot be the case that the EPA must
successfully simultaneously resolve all states' good neighbor
obligations at once or lose the authority to act. Though the EPA has
done its best to achieve consistent, timely, and concordant
implementation of these obligations, like the construction of a jigsaw
puzzle, each individual piece (i.e., each individual state's
obligations) is necessary to complete the whole picture, and not every
piece may be connected at once.
Commenters attempt to fault the EPA for developing a methodology
that they claim necessarily depends on the inclusion of other states.
Setting aside that for the reasons explained here the methodology does
not depend on simultaneous inclusion (or even full inclusion, if states
address their good neighbor obligations in some other adequate way
through a SIP), the problem commenters identify is not in the
particular methodology that the EPA uses but in the science of ozone
transport as a multistate problem characterized by meteorological
variability and overlapping linkages, coupled with the state-by-state
implementation structure of the Act. Under these constraints, any
methodology would need to take into account the relative contributions
of and the effects of air pollution control technologies in other
states.
To perform the air quality check for any particular receptor, it
makes sense to consider the effect of emissions reductions from all of
the states linked to that receptor, not just those covered by a
particular FIP rulemaking, because all states must ultimately discharge
their good neighbor obligations whether through an approved SIP or a
FIP. Thus, the Step 3 air quality analysis is a ``test'' that serves to
confirm that an appropriate degree of emissions-control stringency has
been reached for any given state without overcontrolling. It does not
depend on the actual, simultaneous inclusion of a certain number of
states in a given rulemaking; however, it appropriately accounts for
the reality that multiple states are linked to multiple other states
and that the amount of emissions reduction necessary to achieve
attainment varies among receptors. This complexity, recognized for
years by the EPA and by the Supreme Court in EME Homer City, 572 U.S.
at 514-17, makes it analytically inappropriate if not impossible to
assign an obligation to each state that is simply proportional to its
contribution to a particular receptor. See 88 FR 36683.\46\
Nonetheless, that does not prevent the EPA (or for that matter an
individual upwind State) from being able to conduct a Step 3 test
looking at the effects of uniform control stringencies using a publicly
available tool such as the Air Quality Assessment Tool (AQAT). Given
the multistate nature of the interstate ozone pollution problem,
analysis of the air quality benefit produced by regulating sources in
any particular upwind state assumes that other states linked to a
common receptor and the home state of that receptor make emissions
reductions at a comparable level of emissions control
[[Page 99120]]
regardless of whether they are covered by the Good Neighbor Plan.
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\46\ The EPA has previously evaluated Step 3 alternatives to the
``uniform approach'' taken in the Good Neighbor Plan and prior ozone
transport rules, including an evaluation of methods such as a
receptor-specific proportionality approach. The alternative methods,
as well as potential issues that the Agency identified can be found
in the ``Alternative Significant Contribution Approaches Evaluated
TSD'' included in the CSAPR rulemaking docket (Docket ID No. EPA-HQ-
OAR-2009-0491-0077). In responding to comments in that rulemaking
about ``proportionality'' approaches, the Agency identified concerns
that included, but were not limited to, requirements of an
``extremely high level of accuracy in both the emissions modeling .
. . and the air quality modeling'' and that ``finer-scale emissions
data from all sectors . . . . and fine-scale air quality modeling
could be needed to resolve differences in cost per air quality
impact.'' The EPA explained that ``these data and modeling
techniques do not exist and/or are too computationally demanding to
be operationally implemented.'' The EPA continued, ``A second
challenge for this approach was to identify a single reduction
requirement for a particular upwind State, since the reduction
requirements relevant to different downwind receptors would vary
significantly.'' See CSAPR ``Transport Rule Primary RTC'' document
743 (Docket ID No. EPA-HQ-OAR-2009-0491-0077).
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It is true that the EPA's analysis of air quality change at Step 3
uses state-specific data and calibration factors. See Ozone Transport
Policy Analysis Final Rule TSD at 43. Commenters may have had
uncertainty concerning the respective roles of state-level versus
national-level analytical determinations within the air quality
analysis at Step 3, with a potential concern being that if the EPA was
relying on state-level determinations, then the stringency of the Good
Neighbor Plan would be dependent on particular state groupings. But
this would over-interpret the role of these particular datapoints in
the larger analysis. State-level emissions data and calibration factors
ensure an accurate representation of the effects of emissions
reductions across the different States. However, this does not imply
the Good Neighbor Plan fails to define obligations on a reasonable
basis for each state. To the contrary, it confirms that the EPA's
analysis already accounts for the emissions reductions and air quality
change that can be anticipated from each state individually, rather
than merely treating them as an undifferentiated regional mass specific
to the group of states included in a particular rulemaking. More
importantly, as described above, the regulatory conclusions the EPA
drew from the AQAT analysis focused not on the individualized outcomes
of each linkage but rather on the averaged and aggregated data drawn
from that analysis for the entire country, which ``cemented'' the EPA's
finding that an overall appropriate level of stringency was obtained,
without overcontrolling. 88 FR 36741, 36747-48.\47\
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\47\ Notably, the EPA highlighted that its forward-looking air
quality projections are subject to inherent uncertainty given the
many factors that influence ozone formation. 88 FR 36750. And the
EPA acknowledged that states in the future may conduct updated air
quality analysis that may differ from its own analytics in the rule.
Id. at 36839-40; id. n. 405. Still, in the absence of particularized
evidence of overcontrol and faced with a concomitant duty to avoid
under-control, id. at 36684 (citing 572 U.S. at 523), the EPA's
approach yields a set of emissions reduction obligations that would
be reasonable in a robust way across all covered large-emitting
sources in any contributing state that may eventually become subject
to a good neighbor FIP for the ozone NAAQS.
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Illustrating that the Good Neighbor Plan's regulatory conclusions
were drawn from this nationwide assessment of air quality effects of
different control stringencies, rather than from the particulars of the
23-state grouping included in the Good Neighbor Plan, the EPA's primary
Step 3 air quality and overcontrol analysis in the Good Neighbor Plan
included any other linked upwind states found at Steps 1 and 2 of the
EPA's framework, regardless of whether or not they were included in the
Good Neighbor Plan, on the view that this was the most appropriate way
to analyze the collective effects of identified stringency levels at
Step 3. See Ozone Policy TSD at 46, 55 (explaining that the EPA
included all upwind states modeled to be contributing in this
assessment, i.e., including states that were not presently included in
the Good Neighbor Plan but might be through a future rule, such as
Iowa, New Mexico, and Arizona \48\). Accordingly, the EPA's Step 3 air
quality analysis did not rely on a 23-state scope of coverage, and
nowhere in the record for the Good Neighbor Plan did the EPA state or
imply that its methodology relied on a 23-state scope of coverage.\49\
For any particular receptor, the EPA's analysis looked at the group of
upwind states linked to that receptor in the modeling (the numbers of
which vary), and also assigned the home state for that receptor a
``fair share'' (i.e., the same stringency that would be imposed in the
upwind states for that receptor). 88 FR 36742 n.238. The analysis did
not depend on the actual inclusion of those particular states in the
Good Neighbor Plan; it simply looked at what the effect would be if,
for any given upwind state and any given receptor, the other upwind
linked states and the downwind state were held to the same stringency
level.
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\48\ Due to data limitations at the time of finalizing the Good
Neighbor Plan, the analysis did not include an assessment of the
effects from non-EGUs in Arizona, even though Arizona is linked
through the 2026 analytic year. Otherwise, in the AQAT analysis of
the Good Neighbor Plan, data informing the EPA's Step 3 air quality
evaluation included every monitor in the contiguous United States,
with contributions adjusted for each state that was either linked
above 1 percent of the NAAQS in the relevant analytic year or was a
home state for the receptor.
\49\ The EPA acknowledges that certain language in the Ozone
Policy TSD for the Final Good Neighbor Plan may have been inartful
or unclear on this point. For example, that document stated at page
3 that it was focused on the ``23 upwind States that were linked''
and included in that rule. This was true in a sense, because the TSD
was done in support of that rule, which covered 23 states. However,
the underlying data and evaluation of the effects of emissions
change on air quality encompassed the entire contiguous U.S., and
the TSD displayed anticipated air quality improvement at identified
receptors by reference to all upwind states (and ``home'' states)
and was not limited only to the 23 states included in that rule.
Results for Kansas and Tennessee were not displayed in the TSD
because a final determination had not been made to consider these
states linked based solely on violating-monitor receptors. See 88 FR
36707. However, the underlying AQAT spreadsheets used for the Ozone
Policy TSD analysis included the reductions from these states in the
data made available to understand the effects of the evaluated
emissions control strategies. See, e.g., Ozone AQAT Results, tab:
``2023_step3_newSCR_wIRA'', cols. I-BF, available in the docket at
https://www.regulations.gov/document/EPA-HQ-OAR-2021-0668-1116.
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Stated differently, the EPA's analysis identified a total of 28
states as contributing at Step 2. 88 FR 36709-12. As such, subject to
the caveats in notes 48 and 49 supra concerning certain limitations in
the data, the EPA appropriately assessed the effect of applying the
uniform levels of emissions control stringency across all contributing
States to any given receptor (i.e., varying combinations of the 28
states plus home state for each receptor)--regardless of their
inclusion in the Good Neighbor Plan--in evaluating whether the Good
Neighbor Plan reasonably addresses the ``significant contribution'' of
any particular state.
The emissions control measures identified at Step 3 do not depend
on which particular states adopt cost-effective controls as part of the
EPA's analysis of air quality benefits. The role of the air quality
analysis is simply to verify that the cost-effective controls
identified by the EPA for any particular state would, in fact, have an
impact on downwind receptors if they were uniformly adopted in all
states contributing to that receptor (and the home state), without
overcontrolling. Whether all of those states ultimately adopt those
emissions controls, or do so simultaneously, or adopt equivalent
controls but on different sources, or may otherwise develop an
alternative approach that is approvable for that particular state, does
not affect the EPA's determination at Step 3 that those controls, as to
the state(s) where the EPA applies them through FIP(s), are cost-
effective--and that the sets of sources within any individual state
must achieve performance consistent with those controls to satisfy the
state's good neighbor obligations.
Thus, the EPA's analysis of air quality benefits at Step 3 was not
limited to the specific set of states expected to be covered by a FIP,
but appropriately considered the cost-effective emissions reductions
available from all upwind states linked to each downwind receptor (as
well as the receptor's home state). Consistent with the Act, that
methodology functions as an appropriate analytical method to define any
particular state's good neighbor obligations for ozone and does so
without requiring, or possessing definitive knowledge, that the same
methodology would be applied in other states.
[[Page 99121]]
c. Overcontrol Assessment
Finally, at Step 3, the EPA ``tests'' whether its selected uniform
emissions-control stringency levels result in any ``overcontrol.'' 88
FR 36749-50. In EME Homer City, the Supreme Court held that the EPA
cannot ``require[] an upwind State to reduce emissions by more than the
amount necessary to achieve attainment in every downwind State to which
it is linked.'' 572 U.S. at 521. To find overcontrol, the EPA must
conclude that the uniform control stringencies the EPA selected
produced more emissions reductions and resulting air quality
improvements than necessary to resolve all of any state's linkages to
downwind receptors, or more than necessary to bring receptors into
attainment. In that case, under the overcontrol holding in EME Homer
City, the EPA would need to adjust the requirements of the rule to
avoid overcontrol. This overcontrol assessment is conducted using the
same air quality effects analysis derived from AQAT, described in
section III.B.2.b.
If the Good Neighbor Plan were to be suspended from operation in
some number of upwind states, this could not result in overcontrol,
because the analysis (presented in the Ozone Policy TSD) demonstrates
no overcontrol even when all upwind states found to be contributing are
included--much less the 23 states included in the originally
promulgated Good Neighbor Plan itself.\50\ As long as fewer states are
making fewer emissions reductions, the downwind receptors cannot be
cleaner than they were under the Good Neighbor Plan's original scope.
See 88 FR 36749-50.
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\50\ As explained in section III.B.2.b., the primary air quality
assessment at Step 3, including for purposes of evaluating
overcontrol, looks at the effects on ozone levels of different
levels of emissions control across all upwind states found to be
contributing to a particular receptor (plus the home state), not
just the states included in a particular rulemaking. In the Good
Neighbor Plan, the EPA ran the AQAT analysis for a total of 28
linked upwind states, not just the 23 states included in the rule.
See note 49 supra.
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d. Other Elements of the Non-EGU Step 3 Analysis
To ensure a complete response to the commenters, the EPA has
reviewed in greater detail all elements of the Step 3 methodology of
the Good Neighbor Plan to evaluate whether any components of its
analysis pose a concern that the EPA's analytical findings are not
severable among the various states. Two elements of the EPA's
technology and cost analysis for non-EGUs in the Good Neighbor Plan
incorporate analytical methodologies related to some extent to the
upwind region covered by the rule and warrant further discussion here.
These are: (1) the identification of potentially impactful industries
in the ``Screening Assessment'' used in the Good Neighbor Plan to
assist the EPA in narrowing the scope of industries to be included in
its non-EGU regulations; and (2) the ``weighting'' of average costs for
two non-EGU industries and a specific emissions unit type (boilers)
where multiple control technologies were identified at Step 3. The EPA
has reviewed, based on the record for the Good Neighbor Plan, whether
either of those elements materially influenced the determination of
each state's ``significant contribution.'' As explained in the ``Use of
Screening Assessment to Identify Potentially Impactful Industries'' and
``Weighted Averaging Costs'' below, they did not. Neither of these
aspects of the analysis suggest that the EPA should reach different
conclusions as to each covered state's ``significant contribution''
while the Good Neighbor Plan applies in a different group of States.
Use of Screening Assessment To Identify Potentially Impactful
Industries
For non-EGUs, the EPA elected to screen for industries and
emissions-unit types appropriate for analysis of cost-effective
NOX reductions. While power plants have consistently been
understood to have high levels of controllable NOX emissions
and have been included in each good neighbor rulemaking, non-EGUs have
not been consistently addressed. See 88 FR 36720. Certain non-EGU
industries and emissions units/sources were included in the 1998
NOX SIP Call, but not in subsequent rules, although the EPA
had acknowledged that such sources may necessitate regulation to
prohibit significant contribution and had in the past analyzed such
sources on a ``parallel track'' to its EGU analysis at Step 3. See 88
FR 36719. For the 2015 ozone NAAQS, the EPA concluded that it could not
determine it could eliminate the entirety of the covered states'
``significant contributions'' to downwind nonattainment by addressing
power plants alone. 88 FR 36680-82. To that end, the EPA was required
to look beyond the power sector, and when it did so, the EPA determined
that certain large industrial sources have substantial amounts of
ozone-precursor emissions that could be cost-effectively controlled and
therefore, consistent with its longstanding methodology, should be
obligated to reduce those emissions, so long as such measures would not
result in ``overcontrol.'' Id. at 36660-61. Because the potential
number of industries and source types is large, the EPA used a
screening methodology to assist in narrowing the scope of industries to
be potentially regulated to those with potential cost-effective
NOX reductions.
To screen for industries and emissions-unit types to further assess
for cost-effective NOX emissions reductions, the EPA
prepared a ``Screening Assessment.'' \51\ In the Screening Assessment,
the EPA used emissions and control technology information to screen for
industries and emissions unit types where emissions reductions were
more likely to be cost-effective and to screen out industries where
emissions reductions were less likely to be cost-effective. As part of
this analysis, the EPA used air quality criteria to identify how
emissions reductions from industries and emissions units would likely
benefit downwind areas. See Screening Assessment at 1-3. This analysis
used modeled nonattainment and maintenance receptors in 2023 and an
inventory of sources in those upwind states that were identified using
the air quality modeling that was available at the time the EPA was
developing the assessment.\52\ See Screening Assessment, appendix A
(table A-3). This modeling had identified 27 states as upwind
contributors to at least one downwind receptor. In conducting its
screening analysis, the EPA took these states to be broadly
representative and appropriate for the purpose of screening non-EGU
NOX sources by industry across a large set of upwind states,
as identified by the then-available modeling.\53\
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\51\ Screening Assessment of Potential Emissions Reductions, Air
Quality Impacts, and Costs from Non-EGU Emissions Units for 2026,
available in the docket at https://www.regulations.gov/document/EPA-HQ-OAR-2021-0668-0150.
\52\ We developed the Screening Assessment using inputs from the
air quality modeling for the Revised CSAPR Update for 2023 (2016v1),
as well as the projected 2023 annual emissions inventory from the
2016v2 emissions platform that was used for the air quality modeling
for the proposed Good Neighbor Plan. Screening Assessment at 1-2.
\53\ The differences in states identified in the 2016v1 modeling
compared to the states the EPA identified as linked for the 2023
analytic year using 2016v3 modeling and the violating-monitor
receptor identification methodology are as follows: Delaware and
Wyoming were linked in 2016v1 and Arizona, Kansas, and New Mexico
were not. The linkages used in the Screening Assessment (for 2023)
also reflected a slightly different set of states than the EPA
expected, at the time of proposal, to be linked in 2026. Compare
Screening Assessment at 2 with 87 FR 20036, 20041 (proposing to
apply non-EGU measures in 23 states, not including Alabama,
Delaware, Iowa, or Tennessee).
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The EPA concluded in finalizing the Good Neighbor Plan that this
portion of the non-EGU analysis did not need to be redone on the basis
of changes in the scope of coverage of the rule. See Good
[[Page 99122]]
Neighbor Plan RTC at 104 (``The purpose [of the Screening Assessment]
is not a precise replication of exactly which sources contributed
exactly how much to any particular receptor during a particular high-
ozone event. The purpose is to identify those industries with
relatively large emissions sufficient to have interstate effects on
ozone levels, and to analyze emissions units within those industries
further for cost-effective emissions reduction opportunities.''). Thus,
the EPA was clear in the record of the Good Neighbor Plan that the
Screening Assessment served an important but limited purpose: to screen
for industries and emissions-unit types where further analysis was
likely to identify more impactful and less costly emissions reduction
opportunities. See also 88 FR 36740; Good Neighbor Plan RTC at 90-92.
Consistent with the statutory language of the good neighbor
provision, the EPA could have chosen to forgo this analysis, which
assisted the Agency in narrowing the set of non-EGU industries and
emissions source types it considered for inclusion in the Good Neighbor
Plan, and include more stationary industrial sources of NOX.
See CAA section 110(a)(2)(D) (authorizing regulation of ``any source or
other type of emissions activity'' for significant contribution); see
also 88 FR 36680-81.\54\ However the EPA might have proceeded, in the
rule the Agency was appropriately informed by a longstanding
understanding of regional-scale ozone transport, which is that the
control of any large sources of NOX emissions in linked
upwind states will generally beneficially affect downwind ozone levels.
88 FR 36719. While states are afforded discretion under the Act to
select the control measures they would prefer to use to meet the Act's
requirements, such discretion devolves to the EPA when it steps into
the shoes of a state under CAA section 110(c). Id. at 36675 (collecting
case law). Within the exercise of that discretion, the EPA's method of
proceeding made sense. The EPA's approach provided a technically
rigorous method for narrowing the industries in a manner that treated
each industry similarly. As the EPA explained in rejecting comments
that its modeling projections in the Screening Assessment were too
imprecise, the Assessment was done not for the purpose of
``project[ing] changes in air quality in an absolute sense,'' but
rather to ``conduct a comparative analysis among different
industries,'' where the EPA's modeling techniques ``would apply
consistently and equally to each industry the EPA evaluated.'' Good
Neighbor Plan RTC at 105.\55\
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\54\ Had the EPA approached the identification of ``significant
contribution'' from non-EGU emissions sources differently, it still
would have needed to assess overcontrol and would have excluded
emissions reduction measures falling outside the range of
technologies deemed cost-effective.
\55\ Again, illustrating the EPA's consistent understanding of
this comparative purpose, the Agency rejected other comments calling
for the Screening Assessment to be redone on the basis of updated
information concerning specific non-EGU facilities, which various
commenters attempted to use to argue the EPA's data were out-of-
date. ``Even if some amount of the emissions identified as
potentially controllable in the Screening Assessment are already
being achieved, or such potentially controllable emissions cannot be
feasibly controlled and are not being required in this final rule,
that does not undermine the Agency's conclusions in the Screening
Assessment regarding the potential impact of a given industry.''
Good Neighbor Plan RTC at 120 (emphasis added).
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This approach of identifying uniform emissions control
opportunities at the industry-level rather than based on a state-by-
state or unit-by-unit impact analysis accords with the way the EPA has
analyzed emissions control opportunities from both EGUs and non-EGUs
throughout the history of implementation of the good neighbor
provision. See id. at 92 (quoting 63 FR 57399 (uniformity at industry
level ``assure[s] equity among the various source categories and the
industries they represent'')); 88 FR 36683 (explaining that the EPA's
analysis of non-EGUs sources ``parallels the analysis previously
conducted only for EGUs'' and ``relies on evaluation of uniform levels
of control stringency across all upwind states''). When commenters
argued that the EPA had not adequately established that their
particular facilities were sufficiently impactful to be worth
regulating, the EPA rejected this mode of analysis:
[I]t was entirely reasonable, and consistent with prior
transport rulemakings to focus the analysis at the industry-level
rather than attempt to identify air quality impact thresholds at the
unit- or source-specific level. To build on the response above, it
is important to keep in mind that regional interstate ozone
transport is a ``collective contribution'' problem, in which the
ozone-precursor emissions of many sources combine to create ozone
nonattainment and maintenance problems at potentially great
distances from individual source emissions points. Attribution of
responsibility for this problem is complicated by varying
meteorological conditions from year to year and even from day to
day. The EPA's Step 1 and Step 2 analysis within the 4-step
interstate transport framework is designed to robustly identify
where ozone problems are located and which states' anthropogenic
emissions contribute to those problems. At Step 3, the analysis
shifts to an evaluation of which emissions reductions from those
contributing states would be most cost-effective to achieve to
eliminate that portion of the states' emissions that are deemed
``significant'' and thus must be eliminated. Focusing on entire
industries (as the EPA has done in prior rules with its focus on
EGUs (e.g., CAIR and CSAPR)) and other industry categories in
addition to EGUs (as we did in the NOX SIP Call) presents
an efficient and equitable methodology for identifying where the
most cost-effective emissions reductions can be identified at the
regional scale.
Good Neighbor Plan RTC at 98 (citing 63 FR 57386); see also 88 FR
36685 (similar reasoning supports including new sources of the same
type as existing sources in good neighbor implementation plans); id. at
36746-47 (explaining that uniform control by unit type avoids risk of
production and emissions shifting). In short, when the EPA must devise
a federal solution to interstate ozone transport for one or more
states, its objective is to implement measures that are comprehensive,
durable, and robust, not to engage in a never-ending game of whack-a-
mole at each emissions point.
The Screening Assessment was one step along the way of focusing the
Agency's limited resources and narrowing the scope of the regulation of
NOX emissions ``sources'' and ``activities''; it was not
intended to dictate final determinations regarding ``significant
contribution.'' See, e.g., Good Neighbor Plan RTC at 97-99, 101. The
EPA concluded when finalizing the Good Neighbor Plan that its initial
Screening Assessment--although based on a slightly different group of
states than at final (and the use of other data regarding baseline
emissions levels and air quality conditions that was subject to
change)--had served its purpose in helping to identify a reasonable
starting point for further analysis of non-EGU emissions-control
opportunities and did not need to be redone. See 88 FR 36685, 36719.
The Screening Assessment served that purpose for each state where
it had a responsibility to regulate non-EGU emissions, and the Good
Neighbor Plan's ultimate identification of non-EGU emissions control
strategies to eliminate ``significant contribution'' is likewise sound
for any state or grouping of states that may necessitate such federal
regulation. Nonetheless, as is always the case with regard to meeting
the CAA's requirements, states remain free to address a different set
of sources than the EPA identified in the Good Neighbor Plan if they
prefer to regulate through a SIP in a manner different than the EPA
proceeded in the FIP. Id. at 36842.
[[Page 99123]]
``Weighted'' Averaging of Costs
In the EPA's final analysis of non-EGU representative costs in the
Good Neighbor Plan, for two industries (Pipeline Transportation of
Natural Gas and Solid Waste Combustors and Incinerators) and a specific
emissions unit type (boilers), the Agency identified a weighted average
of costs to address multiple control technologies identified in the
Step 3 analysis, rather than a single control technology. 88 FR 36739-
40 (table V.C.2-3). For those industries and for boilers, the analysis
weighted the average cost according to the control technologies that
certain sources, anticipated to be subject to the Good Neighbor Plan
across the 20 states with non-EGU requirements, might select as their
method of compliance. Representative costs for these sources were
calculated by weighting the average costs derived from national data
sources by estimated emissions reductions for the applicable control
technologies. Non-EGU Memorandum at 5-7. For these industries and for
boilers, looking at different groupings of states could result in a
different ``representative'' cost (as displayed in the Non-EGU
Memorandum at 10 (table 6)).
However, any differences in the identified ``representative'' costs
for these sources would not affect the outcome of the analysis. For
each of these types of sources, the record shows that the costs
associated with each of the different control technologies falls within
the range of costs that the EPA had concluded were reasonable to
impose. See 88 FR 36746-47. In other words, even if a different group
of states produces a higher representative cost when weighted by those
states' population of sources, the results still fall within the upper
bound of the cost-per-ton that the EPA found appropriate. The EPA's
conclusion--that the representative cost was reasonable--would be the
same.
For example, for RICE, the following table shows the data sources
and cost-per-ton estimates the EPA adapted from the CMDB to inform its
determination of representative cost for these sources. These were the
figures, adjusted to 2016 dollars, that informed the EPA's average cost
derived from national data sources used in the weighting to generate a
representative cost figure of $4,981/ton for RICE.
Table I--Data Sources and Cost Estimates for RICE Controls
------------------------------------------------------------------------
Control technology/engine type Original reference $/Ton value
------------------------------------------------------------------------
SCR, 4 Stroke Natural Gas 2003, cost $2,900 (2001
Engines, Lean Burn 17% (of information from dollars).
engines in analysis population). CARB 2001 report.
Non-Selective Catalytic 2009/2000 (from 4,538 (2013
Reduction or Layered 2009 ERLE study dollars).
Combustion, for SCCs where the and 2000 Pechan
firing technology is not Phase II NOX SIP
specified as to Rich Burn or call report).
Lean Burn 36%.
Layered Combustion, 2 Stroke 2009 (ERLE study). 4,900 (2010
Natural Gas, Lean Burn 44%. dollars).
Non-Selective Catalytic 2000 (Pechan, 422 (1999
Reduction, 4 Cycle Natural Gas, Phase II NOX SIP dollars).
Rich Burn 3%. call report).
------------------------------------------------------------------------
Likewise, for MWCs in the Solid Waste Combustors and Incinerators
industry, the EPA provided the cost assumptions used for the different
control types in appendix B of the Non-EGU Memorandum.
For boilers, the EPA explained that its cost estimates were derived
from the CMDB, and the EPA identified a number of assumptions used in
developing representative cost figures, which the EPA was clear may not
be reflective of all sources' circumstances. Non-EGU Memorandum at 7.
Noting that boilers have the highest representative costs among the
non-EGU source types, the EPA explained in the Good Neighbor Plan that
for individual sources, costs on a per-ton basis could well be higher
than the estimated $14,595/ton representative cost, but still be
commensurate with the range of costs that informed the identification
of the most stringent control strategy selected in the Good Neighbor
Plan for EGUs (for which costs at the 90th percentile ran as high as
$20,900/ton). 88 FR 36746.
The EPA also emphasized that cost-per-ton figures are only one
factor in the Step 3 multi-factor analysis, can vary widely depending
on the assumptions used, and the conclusions in the Good Neighbor Plan
regarding appropriate stringency levels were informed by a broader
review of how widely adopted and proven various control strategies had
become. Id. at 36746-47. Because of this, the determinations in the
Good Neighbor Plan regarding the appropriate level of emissions control
that could be expected of a particular type of source considered not
just cost-per-ton estimates, but analysis of which technologies were
already in wide use or on which existing standards had been based. Good
Neighbor Plan RTC at 62-63. Still, recognizing that individual sources
may face circumstances of extreme economic hardship or infeasibility,
the EPA also provided a mechanism for sources to obtain alternative
emissions limits, among other mechanisms for flexibility in the Good
Neighbor Plan, to address outlier cases. See 40 CFR 52.40(e). These
provisions are adequate to cover any potential gap in the Good Neighbor
Plan's estimate of representative costs.
Accordingly, recalculating the weighted average representative cost
for these particular non-EGU sources for any particular state or state
grouping would not produce a representative cost falling outside the
acceptable range. Thus, any change in the weighted average used to
derive ``representative'' costs for these industries and emissions unit
types resulting from looking at some subset of states would not
materially affect the analysis.
3. Step 4
At Step 4, the EPA establishes regulatory requirements to achieve
the ``prohibition'' of significant contribution identified at Step 3.
CAA section 110(a)(2)(D)(i). Under the Good Neighbor Plan,
implementation of these requirements occurs through compliance
activities at the source level, for both EGUs and for non-EGUs.
Contrary to commenters' allegations, and as explained in more detail
here, in section III.B.3., the trading program for EGUs, which is a
compliance flexibility, does not depend on an interstate trading region
for viability. Because all of the obligations of the Good Neighbor Plan
can be met by the sources in each state regardless of the application
of the Good Neighbor Plan in any other state, the implementation
framework at Step 4 is severable on a state-by-state basis.
This can be seen in the structure of the regulations themselves.
The Good Neighbor Plan determines on a state-by-state basis which of
the EGU and the non-EGU emissions-control programs (or both) should be
applied through
[[Page 99124]]
state-specific FIPs. See 40 CFR 52.38(b)(2) (as amended by 88 FR 36862-
63) (identifying states subject to the Good Neighbor Plan's ``Group 3''
EGU emissions trading program promulgated at 40 CFR part 97, subpart
GGGGG); 40 CFR 52.40(c)(2) (as promulgated at 88 FR 36869) (identifying
states subject to non-EGU emissions control requirements promulgated at
id. 52.41-46). The regulations at 40 CFR part 97, subpart GGGGG and 40
CFR 52.41-46 are uniform in nature. But states are ``enrolled'' via
FIPs into these requirements based on state-specific findings regarding
the level of their contribution to other states' ozone problems and how
long that contribution is projected to continue into the future.\56\
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\56\ This is identical in structure to how the EPA has
promulgated federal good neighbor requirements through multiple
prior rulemakings. See 40 CFR 52.38-39 (identifying the enrollment
of states into emissions trading programs for ozone season
NOX, annual NOX, and annual sulfur dioxide
promulgated as subparts to 40 CFR part 97, as necessary to address
good neighbor obligations for other ozone and particulate matter
NAAQS).
---------------------------------------------------------------------------
It is through the application of those uniform programs, as
appropriate, in each state, via FIPs, that the Good Neighbor Plan
eliminates each covered state's significant contribution, as required
by CAA section 110(a)(2)(D)(i)(I). The state-specific coverage of the
Good Neighbor Plan (for the 23 states for which originally
promulgated), by regulatory program, is as follows:
EGUs in all covered states except California (22 States
total) are required to participate in the Group 3 EGU emissions trading
program at the level of stringency associated with near term emissions-
control strategies that the EPA found can be implemented in 2023 and
2024.
EGUs in Alabama, Minnesota, and Wisconsin are only subject
to this ``near-term'' stringency level within the Group 3 Trading
Program, and no more, because the EPA found these states are no longer
linked to downwind ozone problems in the 2026 analytic year.
EGUs in 19 States (excluding the three states listed in
the preceding bullet) that are covered by the Group 3 trading program,
are subject to the enhanced stringency in the budgets that takes effect
over 2026 and 2027 because these states are linked through the 2026
analytic year.
The EPA found California has no cost-effective fossil-fuel
fired EGU emissions reductions available at the stringency levels
determined in the Good Neighbor Plan and so is not subject to the Group
3 Trading Program at all.
Non-EGUs in 20 states are subject to the uniform emissions
control regulations. Because the EPA found these requirements may take
up to three years to be implemented (i.e., until 2026), this number
excludes Alabama, Minnesota, and Wisconsin, for the same reason as
above: these states are not ``linked'' in 2026.
Table II--Coverage of the Good Neighbor Plan Regulatory Programs
----------------------------------------------------------------------------------------------------------------
EGU program-- EGU program--
State near term long term Non-EGU
stringency stringency
----------------------------------------------------------------------------------------------------------------
Alabama.................................................. X ................. ...............
Arkansas................................................. X X X
California............................................... ................. ................. X
Illinois................................................. X X X
Indiana.................................................. X X X
Kentucky................................................. X X X
Louisiana................................................ X X X
Maryland................................................. X X X
Michigan................................................. X X X
Minnesota................................................ X ................. ...............
Mississippi.............................................. X X X
Missouri................................................. X X X
Nevada................................................... X X X
New Jersey............................................... X X X
New York................................................. X X X
Ohio..................................................... X X X
Oklahoma................................................. X X X
Pennsylvania............................................. X X X
Texas.................................................... X X X
Utah..................................................... X X X
Virginia................................................. X X X
West Virginia............................................ X X X
Wisconsin................................................ X ................. ...............
----------------------------------------------------------------------------------------------------------------
These state groupings illustrate how the application of each set of
regulatory requirements promulgated in the Good Neighbor Plan depends
on the circumstances of each state, as determined through the
analytical application of the 4-step interstate transport framework on
a nationwide basis. No particular requirement is applicable in all 23
states, and the workability of the Good Neighbor Plan is not premised
on an assumption that it must be applicable in specifically 23 states
or any particular number of states.
As a practical matter, compliance is achievable through the at-the-
source control technologies on which the EPA's determination of
``significant contribution'' at Step 3 rested (or their equivalents,
because the Good Neighbor Plan does not mandate the use of particular
control technologies). For non-EGUs, all requirements are established
at the source-specific level. See 88 FR 36675. The same is true of
EGUs: the stringency of the Good Neighbor Plan is premised on at-the-
source, conventional control technologies. See 88 FR 36737-39 (tables
identifying technology types). The EPA also designed a market-based,
interstate emissions trading program to allow EGU sources to achieve
their
[[Page 99125]]
required emissions reductions as efficiently and cost-effectively as
possible, but that trading program is merely a more flexible means of
implementing the source-specific requirements that otherwise apply
under the Good Neighbor Plan. Indeed, the enhancements the EPA
established for the Good Neighbor Plan's trading program (as compared
to prior good neighbor trading programs) were meant to ensure the
flexibility of the trading program did not undermine the benefits of
defining source-specific emissions controls in the first place, which
helps assure that EGU sources in each state have eliminated their own
significant contribution and thus provided improvements in air quality
to the downwind receptors to which their home states are linked. See 88
FR at 36657, 36684, 36752.\57\
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\57\ Even before the Good Neighbor Plan, following North
Carolina, the EPA took measures to ensure that interstate trading
does not undermine the obligation to eliminate each state's
significant contribution. See North Carolina, 531 F.3d at 921,
modified on reh'g, 550 F.3d 1176. See, e.g., Cross-State Air
Pollution Rule (CSAPR), 76 FR 48208, 48268-71 (August 8, 2011); 88
FR 36752-53.
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Commenters may be concerned that without the participation of all
states originally included in the Good Neighbor Plan, market liquidity
will be affected, allowance prices will increase, and/or there will not
be sufficient allowances available for compliance. But the record of
the Good Neighbor Plan shows that these concerns are unjustified.
While interstate trading--especially among sources in a large group
of states--would generally increase the size of the allowance trading
market and thus may increase market liquidity in ways that can improve
market efficiency, the use of a trading program does not render
implementation of a good neighbor rule in a smaller group of states, or
even a single state, unreasonable. That is because, in the first
instance, the good neighbor provision regulates EGU sources, not
states. Even within a single state, there would be multiple
participating sources to populate and benefit from an emissions trading
program. Moreover, the history of the EPA's good neighbor rulemakings
shows that these trading programs have continued to provide valuable,
effective compliance flexibility even where they cover a smaller group
of states.\58\ Indeed, each state's budget is set in the Good Neighbor
Plan at levels that provide sufficient allowances for each state,
assuming EGUs achieve a level of reduction equivalent to what can be
achieved by the at-the-source technologies identified to eliminate
significant contribution. 88 FR 36680. And as explained further in
section III.C., all of the EPA's good neighbor rules, including the
Good Neighbor Plan, are designed with the understanding that states
have the option to develop SIPs that remove their sources from a
trading program, which necessarily changes the number of states subject
to the FIP, and that the number of states covered by FIPs may otherwise
change.
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\58\ The size of the trading region is not the only determinant
of liquidity; the relative magnitude of demand for allowances
compared to supply is an important factor. For example, inclusion in
the program of states with sources that are not well-controlled for
NOX would tend to put upward pressure on allowance prices
(and potentially reduce liquidity). If states with such sources are
removed from that program (e.g., due to stays), this may put
downward pressure on allowance prices (and potentially increase
liquidity).
---------------------------------------------------------------------------
As a consequence, the size of the trading regions used to implement
the good neighbor provision has both varied between rules and regularly
changed within trading programs over time. This has never posed a
challenge to compliance feasibility, nor does the EPA have any evidence
of allowance shortages occurring in any of these programs. See 88 FR
36687 (noting opposite problem of banked-allowance surpluses). For
example:
Currently, Georgia is the only state whose EGUs remain in
the original CSAPR ``Group 1'' ozone season NOX trading
program, which originally included 25 states.
In 2021, the Revised CSAPR Update created a 12-state
trading region to complete the remedy to significant contribution for
the 2008 ozone NAAQS (i.e., the original ``Group 3'' program).
With the Revised CSAPR Update in place, the 2016 CSAPR
Update ``Group 2'' program trading region was reduced from 22 states to
10 states.
See 88 FR 36668-69 (reviewing regulatory history).
In light of these successful implementation experiences and given
the at-the-source technologies on which the Good Neighbor Plan's EGU
budgets are premised, coupled with other flexibilities, even
individual-state trading programs would not be expected to unduly
affect market liquidity or make allowances either scarce or
unaffordable. To the extent the comments may be read as asserting that
smaller trading regions would undermine grid reliability, the EPA
disagrees for the same reasons. These comments did not present any data
or analysis in support of that contention. The EPA thoroughly explained
how the Good Neighbor Plan's regulatory program for EGUs is designed to
avoid interfering with resource adequacy and grid reliability, see 88
FR 36771-75.
In short, under the Good Neighbor Plan, the sources in each
individual state are fully able to comply without regard to what
sources in other states are doing--and even where cooperative market-
based mechanisms are available to aid in that compliance, those
mechanisms remain sound for smaller state groupings or even at the
individual-state level despite a smaller marketplace. 88 FR 36760-61,
36817.
Commenters may also be concerned that the application of the Good
Neighbor Plan in some upwind states if not operative in others may
create a dynamic of competitive disadvantage. However, even if this
were the case (and commenters supplied no evidence that it would be),
this would not be sufficient justification to suspend the operation of
the rule in states where it lawfully could be in effect. As an initial
matter, because the good neighbor provision imposes legal obligations
on each state individually, it does not allow individual states to
defer compliance with their legal obligations based on circumstances in
other upwind states. That is consistent with the provision's purpose,
which is intended to ensure equity and fairness among states by
prohibiting harmful upwind state emissions that impose regulatory,
economic, and health burdens on downwind states. See 88 FR 36658,
36687, 36741; see also 64 FR 28250, 28258-62 (May 25, 1999) (reviewing
legislative history of the good neighbor provision and related
statutory provisions, which reflects an intent to ``equalize the
positions of the States with respect to interstate pollution by making
a source at least as responsible for polluting another State as it
would be for polluting its own State''). The inaction of some upwind
states is not an appropriate justification for further relaxing all
upwind states' obligations, when it is downwind states who will suffer.
That burden will fall not just on downwind communities, but on
industries in downwind states with ozone nonattainment problems, who
will likely bear greater competitive disadvantages vis-[agrave]-vis
their competitors in upwind states whose pollution is contributing to
the enhanced regulatory burdens they already face under the Act. See
EME Homer City, 489 U.S. at 519; Maryland, 958 F.3d at 1200-01, 1203-
04. This consideration is particularly acute given the August 3, 2024,
attainment date for compliance with the 2015 ozone NAAQS for Moderate
nonattainment
[[Page 99126]]
areas located throughout the country, and the Good Neighbor Plan's
objective of further assisting downwind states in time for the 2027
Serious area attainment date. 88 FR 36690, 36695.\59\ In any case, in
light of the unique ability of the power sector to shift generation
among sources in supplying electricity to the power grid, the EPA
conducted an analysis in the Good Neighbor Plan of the potential for
power generators to shift production and emissions from EGUs in states
covered by the Good Neighbor Plan to states not covered by the Good
Neighbor Plan and found that the risk, while not zero, was relatively
small. Good Neighbor Plan RTC at 604-05. Further, that risk is
attendant and unavoidable at the boundaries of any multistate or
regional program, regardless of its size and regardless of whether that
program uses emissions trading or is based on source-specific emissions
limitations, and so not particular to the circumstances here.
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\59\ This is also consistent with the EPA's determination that
it is necessary and appropriate to extend the Good Neighbor Plan's
requirements to CAA section 301(d) FIP areas located within the
borders of states whose sources were found to be significantly
contributing. The EPA explained in the Good Neighbor Plan that not
doing so would pose a risk that such areas would then be targeted
for the siting of polluting facilities to avoid the Good Neighbor
Plan's requirements, frustrating the purpose of the Good Neighbor
Plan and the statute. 88 FR 36691. This concern exists at the
``intra-State'' level. Second, while it is generally appropriate
that equity and consistency should be maintained across all
similarly situated jurisdictions, that does not extend to excusing
one upwind state of its statutory obligations simply on the basis
that the obligations of another upwind state are still pending or
unresolved.
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In short, the implementation of the regulatory requirements of the
Good Neighbor Plan, at Step 4, is achievable by the sources in each
state and is therefore severable by state.
C. Other Features of the Statute and Good Neighbor Plan Supporting
Severability
In light of the statutory text and context, the Good Neighbor Plan,
like prior interstate transport rules, is designed to be modular--i.e.,
to apply on a state-by-state basis and to whichever states are
presently subject to the EPA's responsibility to issue a FIP. That the
Good Neighbor Plan functions to appropriately define and prohibit
significant contribution on a state-by-state basis, regardless of the
number of states covered, can be seen in a number of other features and
elements of the Good Neighbor Plan and by reviewing the history of
implementation of the good neighbor provision for ozone across prior
rulemakings and case law.
First, as directed by the statute and relevant precedent, the EPA
must define significant contribution in such a way that sources in
``each State'' are held responsible for the elimination of their own
significant contribution. CAA section 110(a)(2)(D); see 88 FR 36687-88,
36762. The D.C. Circuit's review of a good neighbor rule invalidated in
North Carolina v. EPA, and the EPA's subsequent action to address a
specific holding in North Carolina concerning regional- versus state-
level compliance, helpfully illustrates why, and how, the EPA's current
approach avoids any inter-dependency among states' obligations.
In an earlier good neighbor rule, the Clean Air Interstate Rule
(CAIR), the EPA quantified emissions reduction requirements at the
regional level based on a regional analysis, and then apportioned the
responsibility for reducing each pollutant among the contributing
states based on either the total allowance allocations for the states'
EGUs under the Acid Rain Program (ARP) (in the case of required sulfur
dioxide reductions) or the total historical heat input amounts for the
states' EGUs, adjusted for the types of fuels used (in the case of
required NOX reductions). See 70 FR 25162, 25176 (May 12,
2005); see also 88 FR 36668.
In North Carolina, the D.C. Circuit found that CAIR had unlawfully
defined ``significant contribution'' at a regional level rather than on
a state-specific basis. 531 F.3d at 906-08, 919-21. After this ruling,
the EPA took care to ensure the successor rule to CAIR, CSAPR, defined
and prohibited significant contribution for each State. See 76 FR
48271. It did this by evaluating and selecting appropriate uniform
levels of control stringency for the set of upwind states linked to
identified downwind receptors and then quantifying and implementing the
required emissions reductions resulting from the selected control
stringencies independently for each upwind state. See id. In other
words, at this point in the analysis, the EPA removed from CSAPR (and
all subsequent good neighbor rules) the interdependency of a regional
solution that North Carolina had found in CAIR, as this interdependency
resulted in a failure to identify each state's own obligations. In
CSAPR, each receptor and the states linked to that receptor were
evaluated independently, which led the EPA to establish different
regional groupings of states with different levels of emissions control
stringency (e.g., in that case, the Group 1 and Group 2 SO2
control programs). See 76 FR 48252. The courts reviewing CSAPR in EME
Homer City further required that the EPA evaluate each state to ensure
an otherwise permissible uniform emissions control stringency does not
overcontrol the emissions of any particular upwind state. 572 U.S. 489,
521. Taken together, these refinements from CAIR opened up the
potential that individual states could be assigned different cost/
stringency levels based on whether their receptors (or their linkages
to those receptors) would fully resolve at different cost/stringency
levels or would fully resolve before additional emissions control
measures could be implemented. This state-specific treatment can be
seen in the Good Neighbor Plan's recognition that control strategies
only available by the 2026 analytic year are not required in Alabama,
Minnesota, or Wisconsin, given that their specific linkages were
projected to resolve by that year. For the remaining 20 states in the
Good Neighbor Plan, no overcontrol was observed in the 2026 analytic
year and so no adjustments in the program's stringency were needed. 88
FR 36749.\60\
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\60\ Likewise, in the Good Neighbor Plan, we observed a receptor
projected to resolve using an emissions control stringency level not
requiring non-EGU emissions controls. The Larimer County, Colorado,
receptor's maximum design value drops below 71 ppb when the highest
EGU stringency is applied (but before non-EGU controls are applied).
Thus, if any state were linked only to this receptor, the EGU-only
level of stringency would have been the stopping point. However, all
states linked to this receptor were also linked to other receptors
for which application of both the EGU and non-EGU emissions control
stringency did not produce overcontrol. See Ozone Policy TSD,
appendix H, at 115.
---------------------------------------------------------------------------
At Step 4, CSAPR maintained an interstate EGU trading program, but
the EPA took steps to ensure that this too complied with North Carolina
and the statutory obligation to define and prohibit each state's
significant contribution. To ensure that each state would eliminate its
own significant contribution within the flexible compliance mechanism
of an interstate trading program for EGUs, the EPA imposed a constraint
on interstate trading within the trading program, through ``assurance
provisions'' that imposed a 3-to-1 allowance-surrender ratio for
emissions in excess of a certain percentage of each state's budget. As
explained in the Good Neighbor Plan, ``The establishment [in CSAPR] of
assurance levels with associated extra allowance surrender requirements
was intended to respond to the D.C. Circuit's holding in North Carolina
requiring the EPA to ensure within the context of an interstate trading
program that sources in each State are required to address their good
neighbor obligations within the State and may not simply shift those
obligations to other States by failing to reduce their own emissions
and instead surrendering surplus allowances
[[Page 99127]]
purchased from sources in other States.'' 88 FR 36786.
The features of CSAPR included to address the North Carolina
decision have been retained in the Good Neighbor Plan and enhanced to
further ensure that each state remains responsible for elimination of
its own significant contribution.\61\ See id. at 36687-88, 36762
(citing North Carolina, at 906-08, 921; see also Good Neighbor Plan RTC
at 42 (``[T]he D.C. Circuit has held that the EPA may not implement an
emissions reduction program under the good neighbor provision that
fails to ensure that each State has eliminated its own significant
contribution. North Carolina, 531 F.3d at 921.''); id. at 48 (same).
---------------------------------------------------------------------------
\61\ For example, by strengthening incentives for individual
units to optimize operation of their emissions controls, the
backstop daily NOX emissions rate provisions and the
secondary emissions limitation provisions also both increase
assurance that each State's significant contribution will be
eliminated within that State. See, e.g., 88 FR 36767-68 and 36799-
800.
---------------------------------------------------------------------------
Second, also consistent with the state-by-state structure of CAA
section 110, as recognized in North Carolina, the EPA made specific
findings regarding its authority to promulgate a FIP for each
individual state covered by the Good Neighbor Plan. 88 FR 36689 n.109.
Notably, the EPA had originally proposed that the Good Neighbor Plan
rulemaking would promulgate FIPs for 26 states, not 23. See 87 FR
20036, 20038 (April 6, 2022). The modeling that informed the final rule
indicated that Delaware and Wyoming were not linked to any out-of-state
receptors, and that Tennessee would only be linked to a new class of
``violating monitor'' receptors. Thus, these three states were excluded
from the final Good Neighbor Plan. Including fewer states in the final
rule than were included in the proposal did not alter the approach to
defining each remaining states' significant contribution, nor cause any
change in each covered state's obligations or the requirements imposed
on emitting sources in those covered states. The final modeling also
indicated that several additional states were potentially linked and
may ``contribute significantly,'' and thus the EPA acknowledged in the
final Good Neighbor Plan that these states' obligations still needed to
be addressed. See 88 FR 36658 (identifying Arizona, Iowa, Kansas, New
Mexico, Tennessee, and Wyoming as needing to be further addressed in a
subsequent action).\62\ Critically, under the EPA's analytical approach
to the Good Neighbor Plan, the absence of these states from the final
Good Neighbor Plan did not, in the Agency's view at the time, pose any
challenge to finalizing and moving forward with implementing the Good
Neighbor Plan for the states included.
---------------------------------------------------------------------------
\62\ See supra note 19.
---------------------------------------------------------------------------
Third, the Good Neighbor Plan, consistent with the statute and like
all prior good neighbor federal rulemakings, recognizes that states may
choose to replace their FIP with a SIP. See, e.g., 88 FR 36838-42
(discussing in detail various options states have for developing SIPs).
When the EPA approves a replacement SIP, that state is withdrawn from
the FIP, thus changing the number of states subject to Good Neighbor
Plan FIPs. In developing SIPs, states may opt to leave the interstate
trading program for EGUs in favor of an adequate, alternative approach
to addressing their good neighbor obligations. Id. at 36841-42. This
echoes nearly identical discussions included in prior good neighbor
rules, see, e.g., CSAPR, 76 FR 48328. Both the proposed and final Good
Neighbor Plan contained an extended discussion of how states could exit
the Good Neighbor Plan through several options for submitting
approvable SIPs. 87 FR 20149-51; see also id. at 20040 (``[T]his
proposal will provide States with as much information as the EPA can
supply at this time to support their ability to submit SIP revisions to
achieve the emissions reductions the EPA believes necessary to
eliminate significant contribution.''). In the final Good Neighbor
Plan, the EPA explained that it encouraged states to replace their FIP
with an approvable SIP, specifically identifying that states could
choose to exit the trading program, regulate different sources, or
devise adequate alternative methodologies to defining ``significant
contribution.'' See 88 FR 36839.
Fourth, the EPA's experience with prior good neighbor rules informs
its determinations concerning the ability of the Good Neighbor Plan to
function sensibly regardless of the number of states included. The EPA
has removed states from coverage of prior good neighbor rules
(including from interstate trading programs) in the past without any
loss of program viability. See 88 FR 36669. In addition, at times the
EPA has been required to remove specific states from a good neighbor
program as a result of adverse court decisions. For example, CSAPR was
remanded as to multiple states based on overcontrol concerns in the
aftermath of the Supreme Court's decision in EME Homer City, but the
D.C. Circuit expressly declined to vacate CSAPR, even as to those
states. See EME Homer City Generation, LP v. EPA, 795 F.3d 118, 132
(D.C. Cir. 2015). Subsequent rulemakings moved several states out of
the original CSAPR programs, without any issues concerning the
feasibility or propriety of the remaining states' obligations. See,
e.g., 81 FR 74504, 74506-07 (October 26, 2016); see also 86 FR 23056-
57. Similarly, in Michigan, 213 F.3d at 695, the D.C. Circuit vacated
the NOX SIP Call as to Wisconsin, Missouri, and Georgia, but
left the rule in place and remanded without vacatur as to certain
issues as to other states.\63\ The modular nature of past good neighbor
rules has functioned well and ensured that when the scope of a rule
might change based on issues specific to particular states, the rule
can continue to function properly for the states that remain covered by
the rule.
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\63\ The D.C. Circuit has in fact emphasized that the important
public health benefits of the EPA's interstate transport rules, as
well as the potential disruption to emissions trading markets,
counsel against vacatur even when some aspect of the rules may be
found unlawful or necessitate re-analysis. See North Carolina, 550
F.3d 1176, 1178 (D.C. Cir. 2008); Wisconsin, 938 F.3d at 336-37; EME
Homer City, 795 F.3d at 132.
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Finally, there are no statements in the record of the Good Neighbor
Plan that suggest the EPA considered the Good Neighbor Plan
interdependent among states or dependent on exactly 23 states or any
other minimum number of states' participation.\64\ To the contrary, the
severability section in the Good Neighbor Plan preamble indicated the
Agency's expectation that the Good Neighbor Plan could be implemented
in individual states as necessary. 88 FR 36693. While in one instance,
the Good Neighbor Plan did refer to the ``interdependent nature of
interstate
[[Page 99128]]
pollution transport,'' see 88 FR 36860, this was in reference to the
nature of the pollution problem, not the nature of the EPA's solution.
While the variable, interstate nature of ozone transport certainly
presents a ``thorny causation problem,'' EME Homer City, 489 U.S. at
514, the EPA's solution to that problem when promulgating FIPs, through
a consistent application of the 4-step interstate transport framework
to each state, is expressly designed to avoid the creation of
unworkable interdependencies.
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\64\ To the extent any discussions in the Good Neighbor Plan's
preamble or its technical support documents suggested that some
particular substantive component of the methodology was dependent on
a specific 23-state coverage, the Agency clarifies here that such
statements were inartful or incorrect. For example, the Agency has
reviewed the methodology underlying the graphs displayed in appendix
I of the Ozone Policy TSD. We have confirmed that despite headings
describing the graphs as being for 22 or for 19 states,
respectively, in fact Figures 1 and 2 were compiled using the ``Step
3 Configuration'' in AQAT that compiled the reductions of all linked
states and the home state for each receptor. Figure 3 likewise
reflected a compilation of data that was not limited to the states
subject to the original Good Neighbor Plan. The references to 22 and
19 states (for 2023 and 2026 EGU stringency, respectively) were
simply intended to indicate the number of states in the Good
Neighbor Plan for which the data informed obligations being
finalized in that rule. See 88 FR 36744-45 (explaining that Figures
1 and 2 reflected the AQAT data used to inform the Step 3
determinations concerning EGUs, while Figure 3 was intended to
illustrate why further EGU emissions-reduction strategies not
included in that analysis appeared to be well beyond a notable
breakpoint in cost-effectiveness and thus not worth pursuing in the
context of defining good neighbor obligations for the 2015 ozone
NAAQS).
---------------------------------------------------------------------------
By contrast, commenters' apparent view that the analysis underlying
the Good Neighbor Plan would change depending on its scope of coverage
at any given moment misapprehends how the Good Neighbor Plan is
designed and operates. If commenters were correct that the EPA had
designed a good neighbor rule that was contingent for any particular
state on whether the rule covered other states, this would seemingly
introduce an interdependency problem and render the rule invalid under
North Carolina. It could also require that the EPA revise a good
neighbor rule every time a state opted to impose a SIP to exit its FIP
or was moved into a new FIP for a revised NAAQS or to fully address its
obligations. The practical problems of such an approach reinforce why
this would be an unreasonable way to define states' obligations. It
would render good neighbor obligations an ever-shifting target,
undermining regulatory certainty for sources and states. The Good
Neighbor Plan is designed to avoid such complications.
D. Whether Judicial Stays Would Justify Re-Analysis of the Good
Neighbor Plan
The comments discussed in section II.B. may be interpreted to argue
that the Good Neighbor Plan must be re-analyzed where a court stays, as
to a particular state or states, either the rule itself or an
antecedent action such as the SIP Disapproval that is a predicate to
the exercise of FIP authority under CAA section 110(c)(1). Courts may
enter temporary stays of agency actions pending judicial review to
preserve the status quo. A stay order is not a final judgment and in
itself does not alter or force a change in the substantive analysis an
agency has applied in taking the action under review. Thus, stay orders
would not alter the analysis of good neighbor obligations for the 2015
ozone NAAQS for any particular state, and the EPA would come to the
same result as was already reached, because the analytical
underpinnings and the implementation of the Good Neighbor Plan do not
depend on the specific number of states that it covers.
The comments may also be interpreted as an assertion that the Good
Neighbor Plan would not function or would be unreasonable because stays
may be put in place, or because a large amount of the emissions
reductions that the Good Neighbor Plan calls for would become
unenforceable pending judicial review. However, this does not serve to
identify what technical and analytical conclusions the Agency reached
through its notice-and-comment rulemaking were flawed or must be
changed. The obligations as defined for each state remain promulgated
even if they are stayed pending judicial review.
Similarly, the effects of merits holdings in the SIP Disapproval
litigation or a vacatur of the SIP Disapproval as to a particular state
would not necessarily require a change in the way the EPA may lawfully
define that state's good neighbor obligations in a FIP, much less those
of other states. To be sure, in general a vacatur of a SIP disapproval
would at a minimum require that the FIP remain stayed as to that state,
pending action on remand (if that disapproval had been the only basis
for the exercise of FIP authority). And the EPA will always comply with
the final judgments of the courts. However, the degree to which a
change in analysis for a particular state, with respect to the EPA's
action on its SIP submission, would be required following any merits
holdings in the various cases challenging the SIP Disapproval would
depend on the nature of those holdings, as to that state, which is
speculative at this time. Whether such holdings would in turn require a
change in the EPA's analysis or outcomes concerning other states' SIP
submissions is still more speculative, and whether any such changes
could then separately impact the EPA's approach to defining the
obligations of the state in question through a FIP, much less the
obligations of other states via FIPs, is more speculative still.
Several commenters urge that the EPA must simply accept their view,
or the view of commenters on the SIP Disapproval, that either or both
of the rules are legally or procedurally flawed and will not survive
judicial review. The EPA has addressed the substantive arguments raised
in such comments elsewhere in the record of the Good Neighbor Plan, or
it has indicated that it had addressed those issues in the SIP
Disapproval and those matters are not within scope of the rule. See
Good Neighbor Plan RTC at 6-8, 149-51, 155; see also section II.B.
supra (summarizing responses to comments in the original Good Neighbor
Plan record). Where the Agency has reviewed such comments and is
satisfied that it is acting lawfully, mere speculation that a reviewing
court may disagree cannot supply a reasoned basis for the Agency to
stay, modify, or withdraw its rule.
Thus, the methodology and regulatory programs of the Good Neighbor
Plan are reasonably designed and operate to define the obligations of
each state, in a manner that is severable on a state-by-state basis.
While the analytical methods, technical analyses, and policy judgments
that informed the Good Neighbor Plan were developed and conducted
consistently across the nation, they ultimately produced a
determination of significant contribution at the state level. The
implementation of the measures necessary to eliminate significant
contribution is achievable by the sources within each state,
irrespective of other states' participation. It would not matter if
there were one state or 50 states in the Good Neighbor Plan--the
methodology and the result for any particular state--i.e., the
definition of ``significant contribution to nonattainment and
interference with maintenance'' under CAA section 110(a)(2)(D)(i)(I)
for the 2015 ozone NAAQS--would remain the same.
The EPA acknowledges that although the substantive circumstances of
the states remain constant, the circumstances of the rulemaking and
litigation are likely to remain in flux in the short-to-near term.
Courts that may grant stays pending judicial review may later affirm
the SIP Disapproval or may remand the SIP Disapproval as to particular
states, with or without vacatur. Indeed, both the NOX SIP
Call and CSAPR were ultimately implemented despite initial stay orders,
and notwithstanding that some elements of each rule were remanded
without vacatur. See, e.g., EME Homer City, 795 F.3d at 138; Michigan,
213 F.3d at 695. Should there be any remand of the SIP Disapproval, the
EPA will have to act on that state's SIP submission again, in
accordance with the court's holdings. See Calcutt v. Federal Deposit
Ins. Corp., 598 U.S. 623, 629 (2023). And, at any point, any state may
submit a new SIP to the EPA, and the EPA will review that SIP.
Ultimately, under the statute, every state will need to be covered by
either an approved SIP or a FIP that meets the requirements of the good
neighbor provision--with the number subject to each potentially
changing at any point.
Finally, the EPA's conclusion that the Good Neighbor Plan is
severable also reflected the important public health
[[Page 99129]]
and environmental benefits of the rule in eliminating significant
contribution and to ensure to the greatest extent possible the ability
of both upwind states and downwind states and other relevant
stakeholders to be able to rely on the rule in their planning. 88 FR
36693. Cf. Wisconsin, 938 F.3d at 336-37 (``As a general rule, we do
not vacate regulations when doing so would risk significant harm to the
public health or the environment.''); North Carolina v. EPA, 550 F.3d
1176, 1178 (D.C. Cir. 2008) (noting the need to preserve public health
benefits).
IV. Statutory and Executive Orders Reviews
The EPA's determinations under the relevant statutory and Executive
Order reviews for the Good Neighbor Plan can be found at 88 FR 36856-
60. This document provides further explanation in response to comments
concerning a particular aspect of the Good Neighbor Plan and does not
alter or amend any of the requirements of the rule. Additional
information about the relevant statutes and Executive Orders can be
found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 14094: Modernizing Regulatory Review
The Office of Management and Budget (OMB) has determined that this
document is significant for purposes of review under Executive Order
12866, as amended by Executive Order 14094. Accordingly, the EPA
submitted this document to the OMB for Executive Order 12866 review.
Documentation of any changes made in response to the Executive Order
12866 review is available in the docket.
B. Judicial Review
Judicial review of the Good Neighbor Plan is in the United States
Court of Appeals for the District of Columbia Circuit for the reasons
stated in the final rulemaking document. See 88 FR 36859-60. Petitions
for review of the Good Neighbor Plan are currently pending in that
court, and this document completes proceedings on remand of the record
as ordered by that court. State of Utah et al. v. EPA, No. 23-1157
(D.C. Cir. September 12, 2024). The D.C. Circuit retains jurisdiction
over the case.
Michael S. Regan,
Administrator.
[FR Doc. 2024-28739 Filed 12-9-24; 8:45 am]
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